Rucker v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 61
•31 March 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Rucker v Simon Blackwood (Workers' Compensation Regulator)[2014] QIRC 061 |
PARTIES: | Rucker, Laurence v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2012/314 |
PROCEEDING: | Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) |
DELIVERED ON: | 31 March 2014 |
HEARING DATES: | 20, 21, 22, 23 and 24 May 2013 20 June 2013 |
MEMBER: | Industrial Commissioner Black |
ORDERS : | 1. The appeal is dismissed 2. The decision of the Regulator stands 3. Costs are reserved |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Whether an injury was suffered - Whether injury arose out of, or in the course of, employment - Whether the worker's employment was a significant contributing factor to the injury - worker's predisposition to stress related injury |
| CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32(1), s 32(5)(1)(a), (b) and (c), s 549 Police Service Administration Act 1990 s6.1(1)(a)(ii), 6.1(1)(d) and 7.4(2) WorkCover Queensland v Kehl (2002) 170 QGIG 93 |
| APPEARANCES: | Mr L. Rucker, in person, for the Appellant. Dr M. Spry, Counsel directly instructed by Simon Blackwood (Workers' Compensation regulator), the Respondent |
Introduction
Mr Laurence Rucker ("the appellant") appeals against a decision of the Review Unit of the Workers' Compensation Regulator ("the regulator") to reject his application for workers' compensation. The appeal to the Commission is made pursuant to
s 549 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act").
The appellant is a serving senior sergeant of police in the Queensland Police Service (QPS). The appellant was stood down from active duty in accordance with a Stand Down Notice dated 4 October 2001 which was signed by the Deputy Commissioner of Police, Ian Stewart. A series of conditions were attached to the stand down notice. These conditions were included in a memorandum signed by Superintendent Fleming and dated 5 October 2011. Superintendent Fleming served the stand down notice and the accompanying conditions on the appellant on 5 October 2011.
On the same day that he received his stand down notice the appellant attended upon his General Practitioner, Dr Tran, who signed a workers' compensation medical certificate in which the cause of injury was shown as "stress/adjustment disorder". The appellant then lodged a claim for compensation with WorkCover Queensland. Both the medical certificate and the WorkCover claim were dated 5 October 2011.
Legislation
Section 32 of the Act relevantly provides as follows:
"32 Meaning of injury
(1)An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
…
(5)Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances -
(a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
(b) the worker's expectation or perception of reasonable management action being taken against the worker;
(c) action by the Authority or an insurer in connection with the workers' application for compensation."
Jurisdictional Documents
The jurisdictional documents [Exhibit 1] tendered by the Regulator were as follows:
·WorkCover Queensland Application for Compensation dated 5 October 2011;
·Decision of WorkCover Queensland dated 21 June 2012;
·Q-COMP Application for Claim Review dated 24 June 2012;
·Q-COMP Review Unit Decision dated 1 August 2012; and
·Notice of Appeal to QIRC dated 3 August 2012
Nature of the Appeal
The appeal to the Commission is by way of a hearing de novo. To succeed with his appeal, the appellant must establish on the balance of probabilities that his injury arose out of, or in the course of, his employment if the employment is a significant contributing factor to his injury. Further, it must be established that the injury was not excluded from s 32(1) by the operation of s 32(5).
Issue for Determination
The appellant claims that he sustained a psychological injury pursuant to s 32(1) of the Act and that the injury did not arise out reasonable management action taken in a reasonable way. The respondent conceded that the appellant was a worker and that the appellant suffered a personal injury in the form of "work related stress" as diagnosed by Dr Tran on 5 October 2011. The respondent argued however that the injury is excluded from s 32(1) by the operation of s 32(5) of the Act. In the circumstances the matter for determination in this appeal is whether the appellant's injury arose out of, or in the course of, reasonable management action taken in a reasonable way.
Evidence
During the course of the proceedings, evidence was provided by 10 witnesses. The witnesses for the Appellant were as follows:
· Senior Sergeant Laurence Rucker;
· Senior Constable Brett Sweeney;
· Senior Constable Keith Fanning;
· Sergeant Damian Honsig-Erlenburg;
· Dr Nam Tran, General Practitioner;
· Dr John Cadden, General Practitioner; and
· Ms Leanne Jackson, Clinical Neuropsychologist.
The witnesses for the Regulator were as follows:
· Superintendent Russell Miller;
· Superintendent Peter Fleming; and
· Commissioner Ian Stewart.
Stressors
The appellant filed a list of stressors in the Commission on 30 January 2013. The list is in the evidence as Exhibit 2. In the exhibit the appellant described his stressors in the following terms:
1. Issue and service of "Stand Down Notice" on 5 October 2011 for alleged breaches of discipline and misconduct.
2. Conditions imposed by Superintendent Fleming as a result of the stand down notice.
3. Not being able to be heard on the matters considered prior to the stand down notice being issued.
4. Previous stress issues which employer and employee's representatives were aware of which made myself more vulnerable to stress related illnesses.
I accept the submissions of the respondent to the effect that the fourth matter stated above is not to be construed as a stressor. However, as the respondent correctly conceded, the proposition advanced may be relevant in the assessment of whether the relevant management action was reasonable and taken in a reasonable way. The relevant authority under consideration in this regard is
WorkCover Queensland v Kehl.[1][1] WorkCover Queensland v Kehl (2002) 170 QGIG 93.
Stand Down Notice
The notice was signed by the Deputy Commissioner of Police, Ian Stewart, on
4 October 2011 and issued to the appellant on 5 October 2011. A memorandum to the appellant from Superintendant Fleming was attached to the notice. The memorandum outlined a number of conditions which were attached to the stand down notice. The stand down notice and the attached memorandum are in the evidence as Exhibit 3.
The stand down notice arose from or was related to four allegations:
(i) the appellant accessed QPRIME information relating to 54 current members and 1 former member of the QPS and also 10 members of the community without an official purpose relating to the performance of his duties as a police officer;
(ii) the appellant's conduct during a discipline interview on
15 September 2011 did not meet professional standards;
(iii) the appellant breached regional policy relating to special service duty concerning wide load escorts; and
(iv) the appellant breached a year 2000 direction in listing the Indooropilly Police Station address on his drivers licence in lieu of his residential address.
The notice also took into account two other matters viz:
(i) the appellant had previously been subject to managerial guidance in 2010 for breaching regional policy relating to special service duty on wide load escorts; and
(ii) the appellant had been given managerial guidance in 2010 for circulating an email containing insulting and disparaging remarks about senior officers.
The stand down notice also included the following reasoning:
"Having considered the advice from the Assistant Commissioner that included an Executive Briefing Note dated 4th October 2011, the serious nature of the alleged conduct and the apparent strength of the evidence, in the context of your senior rank, and your position as an officer in charge, it appears to me on reasonable grounds that you are liable for disciplinary action under section 7.4 of the Police Service Administration Act 1990.
After considering those matters in conjunction with the apparent limited affect [sic] of the managerial guidance administered in 2010…"
The Executive Briefing Note is in the evidence as Exhibit 49. The briefing note was prepared by Assistant Commissioner PJ Martin. In the briefing note the Assistant Commissioner recommended that the appellant be stood down from duty and outlined the reasons why the stand down was justified, appropriate or necessary. This reasoning concludes:
"It could be construed that Senior Sergeant Rucker has demonstrated that he is prepared to disobey Commissioner's directions and Regional policy circulars. He is liable to be dealt with potentially for misconduct and/or breaches of discipline in relation to at least three separate matters, all of which have arisen from his actions this year alone.
Senior Sergeant Rucker's conduct and attitude during the course of the disciplinary interview on 15 September 2011 reflects poorly on his professionalism and integrity.
Senior Sergeant Rucker's suitability to remain in the capacity as an officer in charge of a work unit and to have access to confidential Police Service information is in question."
The appellant said that the stand down notice was delivered to him in his office by Superintendent Fleming and Acting Inspector Peters (T1-21/2). He was handed the stand down notice and asked to read it. His evidence was to the effect that he was surprised or shocked by what was happening and that he could not accept what was being put to him in the stand down notice. He said that he felt sick in the stomach and could not concentrate. It took him some time to recover before he could finally get control of himself and inform his staff what had happened. Before leaving he made arrangements to see his doctor and after finding out that his regular doctor was not available, he made an appointment to see Dr Tran. The appellant's evidence in this regard is recorded at T1-22:
"I went to see Dr Tran; explained to him all the stuff. I said, look, I just can't cope. I've got to - I've got to - I can't go back to work in these conditions. I can't go to Indooroopilly. And he then issued a certificate for two weeks, a WorkCover certificate, and also a referral to see Dr Jackson at my request, because I - I was currently being treated by Dr Jackson. And the next day on the 6th I went and seen Dr Cadden, who's my normal GP, and I spoke to him as well."
Superintendent Fleming's evidence about the event was recorded at T4-135/6. He said that he attended the appellant's office with Acting Inspector Peters on
5 October 2011 for the purpose of serving the stand down notice. The office was located at the Brisbane West Traffic Branch in Station Road, Indooroopilly. He said that there was a discussion about the terms and conditions attaching to the stand down notice. The discussion was necessary in order to ensure that the terms and conditions included in the stand down notice were fully understood by the appellant. He said that the discussion took about 40 minutes.
The stand down notice contained a series of directions that were required to be observed by the appellant including that he must surrender specified service issued equipment, wear plain clothes, have no unsupervised contact with the public, and not supervise staff. Mr Rucker did not challenge the appropriateness of these directions but he did take issue with some of the additional conditions imposed by Superintendent Fleming. In particular he was aggrieved by the condition that required him to report for work and perform his duties at the Indooroopilly Police Station and the condition that had the effect of making him ineligible for special duties.
The Appellant's Case
In his submission the appellant identified the following matters as the issues in dispute (subject to paraphrasing and grammatical improvement of the expression):
(a)Whether on 5 October 2011 the appellant commenced to suffer from a stress related illness as a result of the appellant's employment, in particular, the actions of the employer arising from or related to the issue of a stand down notice including the conditions accompanying the notice?
(b)Were the management actions associated with the stand down reasonable and were they taken in a reasonable manner? To determine if the actions taken were reasonable and taken in a reasonable way the following questions needed to be answered:
(i)Was the decision to stand down taken in compliance with
s 6.1 and 7.4 of the Police Service Administration Act?
(ii) Was the decision to stand down taken in compliance with Queensland Police Service Policy as articulated in clause 18 of the Human Resources Management Manual?
(iii)Was the decision to stand down taken in a way which afforded procedural fairness and natural justice? Should the appellant have been given a right to be heard before the decision to stand-down was taken?
(c)Was the appellant more susceptible to work related stress than a normal worker due to previous work related stress issues, and should the employer have been aware of this susceptibility and taken it into account in setting the terms and conditions to be applied with the stand down notice?
(d)Did other management decisions leading up to the issue of the stand down notice have an effect on the appellant, and were these decisions reasonable management actions taken in a reasonable way? Was the appellant bullied and harassed by his manager or managers prior to the stand down?
It was the appellant's view that the employer was aware of his susceptibility to workplace stress and should have taken this into account when setting the conditions to be attached to his stand down notice. The failure to do so gave rise to unreasonable management action.
Supporting Evidence
Senior Constable Sweeney had worked with the appellant since 2005. The Senior Constable was not on duty on the day that the appellant received his stand down notice. He was however at work the following day when the appellant attended at his place of employment to collect his personal property. He said that during the collection process the appellant was supervised by an acting inspector and an officer in charge. Senior Constable Sweeny said he first became aware that the appellant had been stood down via a text message. He subsequently observed that a notice had been placed on the official police Facebook page. Senior Constable Sweeney disapproved of the practice of notifying that officers had been stood down via Facebook; however he acknowledged that this was general police practice and that the names of officers stood down were not published.
Senior Constable Sweeney said that occurrence sheets were required to be completed by all operational police officers except officers in charge. Despite this he was aware that the appellant had been given a direction to complete an occurrence sheet.
Senior Constable Fanning had worked with the appellant since 2005 in the Brisbane West Traffic Branch. The appellant was the officer in charge of this branch. Senior Constable Fanning was on duty the day that the appellant was served with his stand down notice. His evidence is recorded at T3-3. He said that sometime in the afternoon Superintendent Fleming and Acting Inspector Peters addressed on duty traffic staff about the stand down. He recalled Superintendent Fleming stating that he didn't know the reasons for the stand down but that it was obviously a serious matter. He also recalled Superintendent Fleming saying that the appellant's management of the traffic branch was not the issue.
Senior Constable Fanning said that mention of the stand down was included in the QPS Facebook page later in the day. He criticised this process and took the view that the appellant's subordinates should have been directly advised by the QPS before the publication on Facebook.
Sergeant Honsig-Erlenburg first met the appellant when he joined the Brisbane West Traffic Branch in 2007. The appellant was the officer in charge of the traffic branch. Sergeant Honsig-Erlenburg was on annual leave the day that the appellant was stood down. However he had become aware of the stand down and some of the reasons for it when he returned to work. He had not seen the official stand down order.
Sergeant Honsig-Erlenburg said that while normal practice was that officers in charge did not complete occurrence sheets, he was aware that the appellant had been requested to complete occurrence sheets. A similar direction applied to anyone relieving the appellant.
Injury
The appellant's initial workers compensation medical certificate is in the evidence as Exhibit 52. The certificate was issued by Dr Nam Tran on 5 October 2011. Dr Tran diagnosed the injury as stress/adjustment disorder. The medical management plan provided for a treatment of "counselling and time off work". The certificate also included a referral to a psychologist, Leanne Jackson.
Dr Tran read into transcript the entry in his consultation notes relating to the
5 October 2011 consultation. This evidence is recorded at T5-55:
"I'll read it out word for word. 'Asking for WorkCover certificate under WorkCover' - 'a work certificate under WorkCover. Was asked to go and stand down today. Longstanding issues with work over various claims of bullying and harassment. Most recently has been asked to stand down. This means' - correction, 'go to Indooroopilly station in civilian clothes, have to hand back weapon, et cetera. Feels humiliated and believes this is over small issues like leaving work address on own driver licence. Very upset and felt he had done little to deserve this. Wishes time off work. Is seeing a neuropsychologist at Kenmore for carbon monoxide poisoning and its effects on him. Wishes to see her also for counselling on this matter. Given two weeks off on WorkCover certificate. He's aware that claim may be contested by WorkCover and QPS and review in two weeks' time'."
The day after the appellant saw Dr Tran he visited his regular GP, Dr Cadden.
Dr Cadden said that his notes recorded that he had a long chat with the appellant regarding his work situation and how he should move forward and look after himself. Dr Cadden said that when the appellant arrived for his consultation he was in a "state of hypervigilance", overtired and agitated, and that he was in an anxiety depression.Dr Cadden also said that he had been seeing the appellant since 18 April 2006 but that the 6 October 2011 consultation was the first occasion that the appellant presented with, or complained of, anxiety issues.
The evidence supports a finding to the effect that the appellant sustained an injury on 5 October 2011 arising from the issue of the stand down notice on that day. The respondent conceded this finding.
Predisposition to Stress
The appellant submitted that given his history of interpersonal conflict with officers of the Indooroopilly Police Station, it was unreasonable for him to be relocated to that station to serve out his period of stand down. The unreasonableness of the decision was exacerbated when his vulnerability to workplace stress was taken into account. It was the appellant's evidence that the imposition of this condition contributed to the development of his injury.
The appellant's evidence is set out at T1-21:
"All right?---With the stand down, Mr Fleming has put that I go to Indooroopilly. Now with the Indooroopilly there was those two property issues that I had with Indooroopilly. I didn't get on with Indooroopilly. There was the two property issues. So they were fully aware of those matters. There was an issue in relation to defective vehicles that I - that we had an issue with Indooroopilly on that I didn't get on with. There was another issue in relation to Indooroopilly sending people over to the traffic branch and ringing the traffic branch to report traffic accidents which was not permitted, because the district office wasn't a police station. They had to go to Indooroopilly. So we had a lot of - I had a lot of issues with the OC and the Indooroopilly staff, and that was one of the things. There was no way I was going to go and work out of Indooroopilly Police Station because I just did not get on with the staff there or their officer in charge because of all these issues.
Sergeant Honsig-Erlenburg gave evidence about what he considered to be conflict between the officer in charge of the Indooroopilly Police Station and the officer in charge of the Brisbane West Traffic Branch (the appellant). The disharmony arose out of the use of police vehicles, the use of speed cameras, and a dispute over lost property (a radar detector). He said at T4-6 that there was:
"… a whole range of things. The staff over there were - I don't know why they were doing it but there was just this - this conflict thing going on. I could understand why he would be stressed going - working in that station and the possibility of negative workplace behaviour becoming apparent if he was there, due to the conflict."
It was Sergeant Honsig-Erlenberg's evidence that while he may not have directly observed the conflict, it was evident to him in the content of email exchanges that he had read. Sergeant Honsig-Erlenburg agreed during cross examination that the issue with the lost radar detector had occurred a number of years ago which was consistent with the suggestion of the respondent that the property had been lost in 2007.
It was Superintendent Fleming's evidence that it was necessary for the effective running of the traffic branch that the appellant serve out his period of stand down at another location. He did not consider it desirable that the appellant remain in the same office as the acting officer in charge who was to take over the role to be vacated by the appellant. Such an outcome may not be conducive to a harmonious work unit. The Indooroopilly Police Station was chosen because it was the closest station to the offices of the Brisbane West Traffic Branch. The close location would facilitate compliance with the stand down term requiring that the appellant be adequately supervised, and it also meant that the appellant would not be inconvenienced by additional travel time. The Superintendent also pointed out that the appellant was to have his own office at the Indooroopilly station and that he would not be working in an open environment.
Superintendent Fleming said that he was not aware at the time of the stand down of any conflict between staff of the Indooroopilly Police Station and the appellant. He said that at the time of the stand down Senior Sergeant Rob Curtis was the acting officer in charge of Indooroopilly station and that the substantive OC was Senior Sergeant Richard Symes. He said that the appellant had made no prior complaint to him about either of those officers. Further it is relevant that the appellant did not put questions to the Superintendent about his knowledge of any conflict between the appellant and staff of the Indooroopilly station during cross-examination. Notwithstanding this, Inspector Miller conceded that he was aware that were "issues in a few areas" between the appellant and the officer in charge of the Indooroopilly Station. However the evidence did not detail the nature or extent of the issues, nor establish the points in time that the various issues arose.
The appellant argued that his employer had full knowledge of previous workplace stress issues. He further submitted that his claims in this regard were supported by the evidence of Ms Jackson, his treating psychologist. The previous stress matters related to events in early 2000 and subsequently in 2004. The appellant attended the practice of Ms Jackson on 14 October 2011. He subsequently attended for sessions on 21 and 28 October 2011 and on 4 December 2011. Three reports from
Ms Jackson are in the evidence as Exhibits 57, 58 and 59. Exhibit 57 is a letter from Ms Jackson to the Q-Comp Review Unit which was sent at the request of the appellant. In this letter Ms Jackson said that the appellant qualified for a DSM-IV diagnosis of an Adjustment Disorder with mixed anxiety and depressed mood.
The appellant had also attended on Ms Jackson on a number of occasions prior to
14 October 2011. Arising from the appellant's attendance on
4 and 11 February 2011, Ms Jackson had completed a medico legal assessment relating to claims made by the appellant that he had been exposed to carbon monoxide on 20 January 2000 and 3 March 2000. This report was dated
2 March 2011 and is in the evidence as Exhibit 58. An earlier report prepared by Ms Jackson on 13 February 2004 is in the evidence as Exhibit 59.
The February 2004 report arose from a referral from WorkCover Queensland who requested that Ms Jackson complete a clinical psychological assessment and report in relation to a recently lodged workers compensation claim. Ms Jackson diagnosed the appellant with an adjustment disorder with mixed anxiety and depressed mood. The report concluded that:
"It appears possible that Laurence's symptoms may have occurred in response to what he perceived as inappropriate, discriminatory and unreasonable workplace circumstances, specifically alleged harassment and abuse that he has experienced from his senior officers over a lengthy period of time."
However the report added that in order to obtain a link between the appellant's level of distress and workplace factors, collateral information was required to evaluate the appellant's allegations.
While the February 2004 report included a reference to an earlier WorkCover claim relating to alleged carbon monoxide poisoning, the report did not include any conclusion to the effect that carbon monoxide poisoning may have made the appellant more vulnerable to the development of a psychiatric disorder. To the contrary, at page 11 of the report Ms Jackson states that there was no indication to suggest "a pre-existing psychological vulnerability to the development of a psychiatric disorder". Consequently if the possibility had not surfaced in 2004, one is inclined to cast a jaundiced eye at a proposal indicating a problem of significance in 2011. However, notwithstanding the content of her 2004 report Ms Jackson suggested in her oral evidence that she had changed her mind on the issue
(T6-12 refers):
"You were aware – you were aware when you wrote that report of the carbon monoxide poisoning issue and yet you expressed the opinion that there were no significant indications that would suggest a pre-existing psychological vulnerability to the development of a psychiatric disorder?---That's true. That's what's written, and I can't argue with that, at the time that was written in 2004. But all I'm saying is subsequent to that, people get a chance to change their opinions or reflect on opinions that are given. I was just reporting to you what my reflection was. As I said, it's not documented anywhere."
It is also relevant that in the letter written by Ms Jackson on 2 December 2011 (Exhibit 57), no reference was made to the possible psychological or psychiatric impact of exposure to carbon monoxide.
In Ms Jackson's March 2011 report (page 17 at 6.2.8) it was concluded that "on a test used to assess mood at the time of testing – Depression, Anxiety and Stress Scale (DASS21) – Mr Rucker scored within the normal range for symptoms of depression, stress and anxiety". Further it was stated that on the Beck Depression Inventory the appellant scored "within the normal range for symptoms of depression". It follows that no stress or anxiety related diagnosis was made by
Ms Jackson in March 2011. This outcome is consistent with Dr Cadden's evidence which was to the effect that he had no record of the appellant presenting with anxiety issues prior to the 6 October 2011 consultation.
Two questions arise from the evidence of Ms Jackson relating to the carbon monoxide issue and the instance of previous work-related stress. The first is whether the evidence of Ms Jackson and her report (Exhibit 58) can support a balance of probabilities finding that the appellant was more vulnerable to the development of a psychiatric disorder in the context of on-going workplace events. The second question is whether the QPS were apprised in advance of such a vulnerability. Included in the second question is whether the appellant provided QPS with a copy of Ms Jackson's 2 March 2011 report.
I am not persuaded to enter a finding that the appellant suffered a vulnerability to the development of a psychological or psychiatric disorder because of his exposure to carbon monoxide in early 2000. While Ms Jackson's evidence supports a finding that such an outcome is a possibility, the evidence is not sufficient to support a balance of probabilities finding. Ms Jackson's evidence at T6-13 is relevant:
"Yes. Now, Doctor, you said that – you said in your evidence-in-chief that due to what you say is Mr Rucker's vulnerability, he would not be able to handle information coming in as fast as perhaps he otherwise would be able to. Do you recall saying that?---I said that that was a likely – it was a possible consequence of exposure to carbon monoxide poisoning.
Okay. So that's – as a likely consequence, are you saying that's something likely in Mr Rucker's case or just generally speaking?---Well, I'm talking in general, but I'm also – I was also saying that there was a carbon monoxide factor there. It was a long time ago, but it's a possibility."
Further, a close consideration of Ms Jackson's 2 March 2011 report shows that while her conclusions are supportive of a link between exposure to excessive levels of carbon monoxide and a vulnerability on the part of the appellant to a psychological disorder, the connection in many instances appears tenuous. Alternatively, the relevant conclusions in the report are not articulated with sufficient confidence to support a balance of probabilities finding that in October 2011 the appellant was affected by exposure to carbon monoxide a decade earlier and that the exposure made him more susceptible than the average worker to stress arising from the QPS decision to stand down.
By way of illustration, on page 28 of her report Ms Jackson is asked to respond to the question: "Is Mr Rucker suffering from anxiety and/or depression and if so, to what extent (if any) is that attributable to exposure to and inhalation of carbon monoxide"? In response the report states that: "Mr Rucker's current assessment did not reveal the presence of significant symptoms of anxiety and/or depression at this current time… but personality assessment suggested the presence of chronic affective personality features..." In addressing the link between the appellant's "chronic affective state" and the inhalation of carbon monoxide, the report said that whether mood and behavioural changes reported by the appellant were related to carbon monoxide exposure, was unclear. The report then recorded the following conclusion in relation to research which highlighted that neurobehavioural and personality change post carbon monoxide exposure could be enduring and long term:
"It is possible that this may be the case with Mr Rucker however given the passage of time and the multitude of factors that have occurred for him over the 11 year period, it is difficult to state this with reasonable certainty."
Further, the claim of susceptibility to workplace stress, is not established by
Ms Jackson's February 2004 report which does not provide a conclusive link between the appellant's adjustment disorder diagnosed at that time and workplace events. While the report says that appellant's symptoms may have arisen from unreasonable workplace circumstances, it nevertheless concluded that in order to obtain a link between the appellant's level of distress and workplace factors, collateral information was required to evaluate the appellant's allegations. In these circumstances the report stops short of a conclusion that the appellant's psychological disorder was caused by workplace events.
The second question is to be answered by reference to the respondent's evidence. In this regard evidence was given by Superintendant Miller, Superintendant Fleming and Commissioner Stewart. While it was the appellant's evidence that the QPS were aware of his history of work related stress episodes, he did not did not ask either Superintendant Miller, Superintendant Fleming or Commissioner Stewart if they were aware of his past episodes of workplace stress. Nor did he ask the witnesses if they had read Ms Jackson's March 2011 or February 2004 reports. The appellant's evidence is recorded at T2-10 and T2-11:
"So, when you want this Commission to accept that your employer should have been aware that you were suffering from some sort of stress, that's just nonsense, isn't it, absolute nonsense?---No. The employer was aware of the previous stress matter that occurred in - from 2001 to 2004. They were supplied and were aware of the reports by Dr Jackson, by Dr Coles, by my doctor, Dr Wong, who treated me, my psychiatrist, and they had all those reports, so they were fully aware of the stress issues. That issue was settled in the end of 2005 at mediation. The stress claim was settled. The QP - there was a senior sergeant from the QPS at that meeting who was in the meeting with us at the mediation, so the QPS was fully aware of all the issues in relation to that stress. They had a copy - copies and looked at copies of all the documents and were aware of it."
While the appellant's evidence suggests that the QPS was aware of the events associated with his workers compensation claims in 2000 and 2004, it does not follow that the appellant's supervisors in 2011 were aware of these events or the various reports alluded to by the appellant. Further the evidence of Dr Cadden,
Ms Jackson in her March 2011 report, and the appellant's own evidence was to the effect that he was not suffering from stress or anxiety in the period prior to his injury on 5 October 2011. Nor were there any tangible indications of a vulnerability to stress such as a medical restriction on the performance of particular duties or some other restriction attaching to his work environment. There was no evidence adduced in the proceedings that established or suggested that, for any period of time, the appellant was unable to perform the full range of duties expected of an officer of his rank.
In Kehl[2] the learned industrial magistrate in the decision on appeal had concluded that: "in light of the management's special knowledge of Kehl's personal disability, the taking of reasonable management action involving Kehl will only be taken reasonably if it takes Kehl's particular propensities into account." In deciding the appeal, President Hall endorsed the approach taken by the industrial magistrate but made it clear that the worker's circumstances need to be known by the employer. He said that it was "simply a matter of recognising that fixed with knowledge of a worker's makeup a reasonable person would take that knowledge into account in assessing what is a reasonable way in which to implement an otherwise reasonable decision."
[2] WorkCover Queensland v Kehl (2002) 170 QGIG 93.
President Hall confirmed the approach in Kehl[3] in deciding the matter of
[3] WorkCover Queensland v Kehl (2002) 170 QGIG 93.
[4] Q-COMP and QR Limited (2011) C/2011/26 WorkCover Queensland v Kehl (2002) 170 QGIG 93.
[6] Q-COMP and QR Limited (2011) C/2011/26 and QR Limited.[4] In distinguishing Kehl,[5] his Honour stated that "some of those managing Ms Kehl, as she slid again into a depressive disorder, had involvement in earlier transactions involving Ms Kehl". His Honour then contrasted these facts with the facts in QR Limited[6] where, while the worker's immediate managers were aware that the worker had completed a rehabilitation program arising from an earlier psychological injury, "neither gentlemen had managed her rehabilitation, neither gentleman had been briefed on her history and neither gentleman had enquired about her medical issues". In so concluding it is clear that the President was attaching importance to the requirement that current management must be very conversant with the relevant psychological condition.
In the all the circumstances I am unable to conclude that the evidence supports a balance of probabilities finding that the appellant was, immediately prior to
5 October 2011, vulnerable to psychological or psychiatric injury because of events occurring in the workplace between 2000 and 2005. Further, the evidence does not support a finding that either the appellant's supervisor, Inspector Miller, or Superintendent Fleming were aware of any such vulnerability at the time of, or prior to, the appellant's decompensation. Beyond this it was relevant that Inspector Miller’s supervision of the appellant ended in August 2011 and that the Inspector had no further contact with the appellant from the end of August to the date of issue of the stand down.Judicial Review
During the proceedings the appellant invited attention to judicial review proceedings that he had initiated in the Supreme Court of Queensland. In his judicial review application the appellant had applied for judicial review of three decisions of the QPS relating to the issue of the stand down notice. The first decision involved the standing down of the appellant from duty as a police officer in reliance upon the power under s 6.1(1)(a)(ii) and s 6.1(1)(d) of the Police Service Administration Act 1990 (PSAA). The second decision involved the decision of the Commissioner for Police Service Reviews on 27 August 2012 to recommend to the Police Commissioner that he affirm the stand down decision. The third decision involved the decision of the Police Commissioner taken on 27 September 2012 to affirm the stand down decision having regard to the review recommendation.
The decision of the Supreme Court on the appellant's application was given on
19 July 2013 (Rucker v Stewart).[7] An appeal subsequently taken to the Court of Appeal was dismissed on 28 February 2014 (Rucker v Stewart & Ors).[8] Subsequent to the conclusion of workers compensation proceedings I informed the parties that I had read both the decision of the Supreme Court and the decision of the Court of Appeal and invited both sides to make submissions dealing with relevance and weight. That is, were the judicial review proceedings relevant to the determination of the appeal before me and if so, what weight should be attached to the decisions. On 11 March 2014 the appellant informed that Commission that he would not be making any submissions in relation to the Queensland Court of Appeal decision; that the time for making submissions had past; and that no further submissions from any party should be allowed. The respondent also declined to provide a submission.[7] Rucker v Stewart [2013] QSC 182.
[8] Rucker v Stewart & Ors [2014] QCA 32.
Compliance with Police Service Administration Act
The appellant maintained that in issuing the stand down notice the decision maker failed to comply with s 6.1 and 7.4 of the PSAA. The submission was advanced that pursuant to these sections of the PSAA, the Deputy Commissioner could not decide to take disciplinary action until such time as an officer authorised to take disciplinary action had determined that the appellant was liable to disciplinary action (s 7.4(2) refers). In other words, according to the appellant, the deputy commissioner should not have issued his stand down notice until such time as a prior step had been completed wherein a prescribed officer had reached a consideration that misconduct or a breach of discipline had occurred which rendered the appellant liable to disciplinary action.
The same ground had been advanced by the appellant in his application for judicial review.[9] In that matter Jackson J concluded as follows:
[9] Rucker v Stewart & Ors [2014] QCA 32.
"Simplified, Sgt Rucker's contention is that the power to stand down under
s 6.1 is dependent upon there being a live process under s 7.4 or possibly that the liability to disciplinary action under s 7.4 has been considered and determined before the power to stand down is engaged. Expressed in terms of the Judicial Review Act 1991 (JR Act), the contention is that procedures that were required by law to be observed in relation to the making of the decision were not observed or that the decision was not authorised by the enactment under which it was purported to be made.
This point may be dismissed out of hand. A power to stand down is a familiar interim process in the case of an unresolved complaint against a person who is employed in an organisation. The purpose of the power is to create a holding position during the period of the resolution of the complaint. It is completely counter-intuitive to suggest that such a power is engaged only after the determination of the matter. That would undermine the purpose of the power.
It is no different in the case of s 6.1 in respect of a disciplinary action. If the disciplinary action has been determined, any disciplinary sanction will have been imposed. There would be no purpose in exercising the power to stand down. That power, itself, is not a disciplinary sanction."
I can find no reason warranting a departure from the reasoning of his Honour. In my view the QPS has not breached the PSAA in the manner alleged by the appellant.
The appellant also alleged a breach of s 6.1 of the PSAA wherein it prescribed that the power to stand down is conditional on the commissioner forming a view that it appears on reasonable grounds that an officer is liable for disciplinary action. The appellant submitted no such reasonable grounds were available upon which the commissioner could have acted given that the allegations relied on to justify the stand down should be regarded as minor and unsupported.
In terms of the allegations cited in the stand down notice the appellant submitted that:
(a) the alleged breach of the regional wide load policy should be considered as a very minor breach of the policy. He said he was responding to a request at short notice on a Friday afternoon and that he was unable to get approval to undertake the special duty because his supervisors were not contactable. He said that he had asked one of his staff to inform his Inspector and to advise that he would be back in the office the following Tuesday.
(b) the alleged breach dealing with his licence address should also be regarded as minor. He said that he has had his work address on his license for over 35 years without issue.
(c) he did not conduct himself in an evasive and belligerent manner during the interview on 15 September 2011. Nor did he refuse to answer questions. A reading of the transcript of interview (Exhibit 51) does not support the allegation.
(d) he did not improperly access QPRIME data on 13 September 2011.
I do not consider that the appellant can sustain his argument that the grounds relied on to support the decision to stand down were so minor that they could not support a finding of misconduct or breach of discipline.
In terms of his drivers licence, that appellant had been advised or directed on a previous occasion to ensure that his residential address was shown on his licence. Given that the appellant had declined to heed the advice or direction, the QPS was entitled to take appropriate action. While this breach of itself may not have warranted the stand down, when considered in conjunction with other alleged breaches it helped to build the case against him.
The appellant's action in accessing QPRIME data was neither a productive nor legitimate use of his employer's time. The appellant knew that he should not have continued to list the Indooroopilly Police Station as his residential address on his drivers licence. Instead of acknowledging the error of his ways he proceeded to invest time in interrogating the data base for the purpose of establishing if other QPS staff including the commissioner, deputy commissioners, assistant commissioners and more than 40 other serving police officers had recorded a police station address on their licence in lieu of a residential address. This behaviour was inappropriate and there was nothing unreasonable in management calling him to account for his actions.
In terms of special service duty, notwithstanding that he had been the subject of previous managerial guidance for breaching policy concerning wide load escorts; the appellant committed a further breach in 2011. It is clear that the QPS was obligated to address the matter in a disciplinary setting.
Having reviewed the transcript of the appellant's disciplinary hearing on
15 September 2011, it was clearly open for the QPS to conclude that the behaviour exhibited by the appellant during the interview was unacceptable.
Finally the QPS was entitled to take into account the fact that as recently as
October 2010 the appellant had been subject to managerial guidance for circulating an email containing insulting and disparaging remarks about senior officers. It is reasonably clear that when this behaviour is considered in the context of the appellant's breaches of policy, challenges to legitimate management decisions, and disrespectful and belligerent behaviour in the 15 September interview, that substantive management action was needed to be taken to correct the unacceptable behaviours.
Finally in determining whether reasonable grounds were available, it must be taken into account that in exercising the power to stand down, the commissioner is neither determining that a breach of discipline has occurred nor foreshadowing the outcome of the disciplining process. All the commissioner is doing is acting on a belief that the conduct in question may render the appellant liable to disciplinary action. In these circumstances it is a matter for the investigation to follow to make findings about the severity of the events alleged to have occurred.
Compliance with Human Resources Manual
It was the appellant's contention that the QPS breached its own policies and procedures in issuing the stand down notice. In particular terms it was submitted that the QPS failed to comply with the terms of s 18.3 of the Human Resources Management Manual (HRMM) which is in the evidence as Exhibit 23. Clause 1.1 of s 18.3 provides that in the instance of misconduct, a disciplinary proceeding may only be convened with the authority of the Assistant Commissioner, Ethical Standards Command where grounds for disciplinary action have been established. In other instances the proceedings may be convened by the Assistant Commissioner of the relevant region.
In the circumstances of his case, the appellant submitted that the
Deputy Commissioner could not proceed to take disciplinary action unless a determination had been made by either the Assistant Commissioner, Ethical Standards Command, or the Assistant Commissioner for his region. The same argument was unsuccessfully pursued by the appellant in his application for judicial review. In deciding the matter Jackson J concluded:[10][10] Rucker v Stewart & Ors [2014] QCA 32.
"Sgt Rucker made submissions predicated on the contention that because the process for starting a process of disciplinary action under s 18.3 of the HRMM had not been followed at the time when the stand down decision was made, the Deputy Commissioner's power to make that decision had not yet arisen. Expressed in terms of the JR Act, this contention is also that procedures that were required by law to be observed in relation to the making of the decision were not observed or that the decision was not authorised by the enactment under which it was purported to be made.
In my view, those submissions must be rejected. Subject to one point, they would have the effect of construing the scope of the power under s 6.1 of the Act as being limited by the provisions of a direction made under s 4.9. The operation of the section of an Act, according to its proper construction, cannot be limited in that way, because the meaning of the Act is not to be ascertained by the terms of a later subordinate instrument.
An alternative way in which Sgt Rucker put the point forward was that unless a process had been started in accordance with the HRRM, it could not appear to the Deputy Commissioner on reasonable grounds that an officer is liable to disciplinary action. In my view, while in some cases the process under the HRRM will have been engaged when the power to stand down is exercised, the meaning of - reasonable grounds in s 6.1(1)(a) is not that in the case of an officer who is liable to disciplinary action the process must be started first. In a case of this sort, the relevant reasonable grounds are those that make it appear to the commissioner for the police service (or his delegate) that an officer is liable to disciplinary action under s 7.4."
I am not prepared to deviate from the decision arrived at by his Honour. It follows that I am not prepared to enter a finding that the QPS has breached its own policies and procedures in taking the action that it did to stand down the appellant.
Breach of Natural Justice
The appellant claimed that he should have been given prior warning that the stand down notice may be issued and given the opportunity to address and respond to the underlying allegations before any final decision was taken to issue the stand down notice. The appellant unsuccessfully advocated the same cause in the judicial review proceedings where Jackson J concluded:[11]
[11] Rucker v Stewart & Ors [2014] QCA 32.
"Sgt Rucker contends that before a stand down order could be made in his case the Deputy Commissioner was obliged, as a matter of procedural fairness or to comply with the rules of natural justice, to give him an opportunity to be heard in answer to the contents of the briefing note and the transcript.
…
The nature of a stand down decision is not final - it is a procedure to temporarily hold the position, while the substance of a disciplinary action matter is determined. It does not amount to a final decision of any kind as to whether the police officer has been guilty of misconduct or breach of discipline. As a matter of course, the question of whether to stand an officer down most likely will be decided at the outset of a disciplinary action matter, where the material or evidence will not be finalised. It is counter-intuitive to conclude that at that stage the commissioner would be ready to weigh up both sides of the matter to form a concluded or near concluded view of the strength of the allegation of misconduct or breach of discipline.
…
These matters indicate to me that the Deputy Commissioner was not obliged to give Sgt Rucker an opportunity to be heard in answer to the contents of the briefing memorandum or the transcript before exercising the power to stand down under s 6.1.6."
I endorse and adopt the reasoning of Jackson J. It is clear that the Queensland Police Service has not erred, nor acted unreasonably, in not giving the appellant the opportunity to be heard prior to issuing the stand down notice.
Conclusion
I am unable to find that the management action associated with the standing down of the applicant was unreasonable or that the relevant management action was taken in an unreasonable way. The police service was justified in invoking its power of stand down having regard to the allegations made against the appellant. I reject the appellant's contentions that the QPS has breached the PSAA, the HRMM, and the principles of natural justice. I do not accept the appellant's characterisation of the allegations relied on to invoke the stand down as "minor and unsupported".
The appeal cannot be sustained on the basis that the appellant's alleged vulnerability to workplace stress had been ignored. For the appellant to have succeeded in this regard he would have had to establish that the alleged susceptibility to stress was a real and significant factor, that the relevant manager or supervisor were aware of his predisposition to stress, and that if the relevant manager or supervisor were aware of the susceptibility, it would have been reasonable to expect that they would have acted differently.
The report of Ms Jackson dated 2 March 2011, the evidence of Dr Caddon, and the appellant's own evidence does not support a finding that the appellant was experiencing stress or anxiety in the period leading up to his stand down on
5 October 2011. Nor did the evidence support a finding that the appellant's exposure to carbon monoxide in 2000 caused a significant vulnerability to workplace stress in October 2011. Neither did the evidence establish that the appellant's episode of stress or anxiety in 2004 caused him to be vulnerable to workplace stress in 2011. Finally there was no evidence to the effect that at any time since 2000 had the appellant been unable to resume full duties following an absence from work through illness or injury. Nor was there any evidence that he performed his work subject to medical restrictions.
There was nothing inherently unreasonable about Superintendent Fleming's reasons for relocating the appellant to the Indooroopilly Police Station following his stand down. Nor was the Superintendent or Inspector Miller aware of the appellant's episodes of stress and anxiety in 2000 and 2004. While Inspector Miller was aware that some issues existed between the appellant and staff at the Indooroopilly Police Station, there was no clear evidence of recent conflict which might have influenced Superintendent Fleming to arrive at a different decision in terms of which station the appellant should be relocated to.
The appellant tried to add to his case by suggesting that he had been subject to bullying and harassment over the years prior to the issue of the stand down notice. Complaints fitting this description included allegations that he had been harassed or bullied by Inspector Miller and that he had been singled out by Superintendent Fleming in being required to complete daily occurrence sheets. However this evidence is not relevant to the determination of the appeal because it was the appellant's case that his injury arose out of the issue of the stand down notice on
5 October 2011. The appellant did not run an "over time" case in which he might have argued that his psychological injury was sustained as a result of multiple events occurring over a defined period of time. Also his own submissions and evidence acknowledged that he was not suffering from stress in the lead up to 5 October 2011. Thus it followed that if the appellant had been subject to bullying and harassment it did not contribute to his decompensation on 5 October 2011.
The appeal is dismissed. The question of costs is reserved.
I order accordingly.
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