SSX Services Pty Ltd v Workers' Compensation Regulator
[2016] QIRC 62
•30 May 2016
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | SSX Services Pty Ltd v Workers' Compensation Regulator [2016] QIRC 062 |
PARTIES: | SSX Services Pty Ltd v Workers' Compensation Regulator |
CASE NO: | WC/2015/119 |
PROCEEDING: | Appeal against decision of the Workers' Compensation Regulator |
DELIVERED ON: | 30 May 2016 |
HEARING DATES: | 19 - 21 August 2015 |
HEARD AT: | BRISBANE |
MEMBER: | Industrial Commissioner Neate |
ORDERS: | 1. The Appeal is dismissed. 2. The decision of the Respondent is confirmed. 3. The Appellant is to pay the Respondent's costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - psychiatric or psychological injury - claim for compensation accepted by Workers' Compensation Regulator - employer's appeal - Appellant bears onus of proof - whether worker's employment was the major significant contributing factor to her injury - whether her injury arose out of, or in the course of, reasonable management action taken in a reasonable way - whether her injury arose out of her perception of reasonable management action being taken against her. |
CASES: | Workers’ Compensation and Rehabilitation Act 2003, s 32 Adelaide Stevedoring Company Ltd v Forst (1940) 64 CLR 538 Calder v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 101 Chattin v WorkCover Queensland (1999) 161 QGIG 531 Cooper v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 38 Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100 |
| APPEARANCES: | Mr G.C. O’Driscoll, Counsel, instructed by HWL Ebsworth, for the Appellant. |
Decision
Deborah Ann Grainger claims to have suffered a psychological injury in the course of her employment by SSX Services Pty Ltd trading as Australian Reinforcing Company ("ARC", "the Appellant"). One Steel Queensland Workers' Compensation, the relevant insurer of the Appellant, rejected her claim for compensation. Mrs Grainger lodged an Application for Claim Review with the Workers' Compensation Regulator ("the Respondent"). By decision dated 14 April 2015 and sent to her on 17 April 2015, the Respondent set aside the decision of the insurer and substituted a new decision to accept her application for compensation in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act"). The Appellant has appealed to the Queensland Industrial Relations Commission ("the Commission") against the Respondent's decision. Although Mrs Grainger is not a party to the appeal, she gave evidence at the hearing.
Background
Mrs Grainger commenced employment with the EPS group in August 2000 and did estimating work. She started work with the Slab Systems business in 2001 when it bought EPS. She was the office or administration manager and did all the accounts, purchasing and data entry.
Relatively few people were employed at Slab Systems. Before November 2014, Mrs Grainger and Niklla Quiel were the two employees in the office. Two shift workers worked on machinery for each shift (initially two shifts, then three shifts), so that there were four to six other people working there. Some truck drivers came in and out of the premises.
Mr Quiel was the manager of Slab Systems, and had been in that position for about 14 years. He was responsible for sales and factory maintenance control. When he did estimating, Mrs Grainger would enter estimates into the software and prepare the quotes for him. Mrs Grainger did not have personal contact with customers, but had contact with suppliers by email and with concreters who rang to book jobs for delivery. On a day-to-day basis, her only face-to-face contact with people in the workplace was with Mr Quiel, or occasionally the regular drivers.
In September 2012, ARC acquired Slab Systems and it became part of the ARC structure. Mr Quiel became a branch manager for ARC. He and Mrs Grainger reported directly to Darren Carter, the Queensland and Northern Territory state manager for ARC. George Yamashita, the regional manager of ARC for South-east Queensland, also reported to Mr Carter.
Mrs Grainger stated that at the time of the takeover, Mr Carter told her and other employees that none of their jobs would change. She came across to the new structure as an administration supervisor on the same terms and conditions as she had previously.
After the computer systems were connected, Mrs Grainger ceased doing payroll and accounts, which were done through head office. As administration supervisor, she assisted Mr Quiel, the branch manager. Her duties included taking phone calls from concreters about orders for materials, entering orders and quotes, and printing documents for drivers to do deliveries. Mr Quiel never suggested to Mr Carter or Mr Yamashita that he was unhappy with her skill set or that her skills were not sufficient to assist him.
Mrs Grainger gave evidence that she negotiated the terms of the position description which she signed. A role description document for the position of Administration Supervisor dated 1 September 2013 is in evidence (Exhibit 19). The document was prepared by the Human Resources Manager and approved by Mr Yamashita on 1 September 2013. The role purpose and contribution of the position was described as follows:
"The Administration Supervisor role contributes to the success by ensuring that information, accounts and administrative functions are carried out in a timely, efficient and accurate manner. Emphasis is placed on professionalism and a team approach. This role must be able to act/make decisions within the scope of the role and within set procedural guidelines. The role requires a degree of working autonomously within procedural guidelines.
The role is primarily operational where the key outcomes are the efficient running of the office facilities, customer service standards, coordination of all incoming and outgoing invoices, adhering to pricing guidelines, ensuring accurate freight is charged, accuracy of data entry when processing orders, despatch requirements and delivery commitments, mail and coordination of the daily operations of an office.
The outlook of the role is primarily internal where it must work collaboratively with a number of other key stakeholders to provide administrative support." (Emphasis in original)
Although it bears Mrs Grainger's signature and the date 17 September 2013, she gave evidence that this was not document she signed. No other such document was in evidence. However, Exhibit 19 includes handwritten annotations. Mrs Grainger's evidence was that she signed a version of the document on which those changes had been made. Whether or not such other document exists, it is material to note the following annotations to Exhibit 19:
(a)under the heading "Customer Focus (internal & external) there is a "?" next to "Supply accurate quotes to customers and follow up on quotes to maximise sales opportunities" and "Within role responsibilities and procedural guidelines refers matters/issues raised by Supply accurate quotes to customers and follow up on quotes to maximise sales opportunities"
(b)under the heading "Sales" there is a "?" Next to "Monitor and report DIFOT results and any significant issues impacting on achieving results"
(c)under the heading "General Administration" there is a "?" Next to "Follow up wstoner [sic - customer?] accounts for timely pament [sic - payment] in line with ARC credit terms"
(d)under the heading "Dispatch Coordination" there is a "?" next to "Liaise with the sales team to determine delivery requirements and special requirements," "post goods issued (PGI) delivery dockets upon departure check" and "Coordinate and update booking schedule for inbound deliveries" as well as some related key performance indicators.
The Respondent submits that it is plain from the evidence (including Exhibit 19) that Mrs Grainger's role at Slab Systems did not involve any aspect of sales. When sales tasks were included in her role description following the ARC acquisition, she specifically challenged them and had them removed. Most of the "Sales" duties do not include tasks involving Mrs Grainger directly selling any product, but primarily relate to tasks to do with supply after a sale had been made. Although Exhibit 19 includes the paragraph "Provide efficient customer service to internal and external customers across the business via face-to-face interactions, phone, email and fax to meet customer service standards," the Respondent submits that the role actually performed by Mrs Grainger did not involve face-to-face interactions with customers.
The significance of those annotations and submissions will become apparent later in these reasons when considering and determining whether s 32(5)(a) of the Act applies in relation to this appeal.
Some implications of the ARC acquisition of Slab Systems
Events that followed the acquisition of Slab Systems by ARC and the restructuring of its operations preceded, and according to Mrs Grainger precipitated, Mrs Grainger's injury. Consequently, it is necessary to understand the nature of the organisational changes that ARC made in relation to Slab Systems, how they were made, and how their effect on Mrs Grainger's employment were communicated to her. Evidence in relation to those matters was given by Mr Carter, Mr Yamashita and Mr Quiel.
Organisational changes: There was a specific project plan to integrate the Slab Systems business into the ARC structure. Some roles and responsibilities were taken away from Slab Systems (e.g., payroll, accounts payable, and debt collection) and others (e.g., the ARC safety system) were added. Integration involved proficiency with the ARC computer systems, processes, management systems and safety systems.
Following the first of two high potential incidents ("HPIs") in 2014, ARC engaged some independent experts. In response to their advice, processes were put into place at all locations across the state. They included chain of responsibility training, and rigorous gate checks for every load that was to leave each location including the Slab Systems site.
According to Mr Quiel, the main changes to his role after the ARC take over involved the safety commitments which affected his workload "very much." His workload had been substantial previously (it had always been "right up there, flat out"), but picked up towards the end of 2014. That was reflected in the increased number of hours he had to work. When he was unable to manage a workload, he would ask Mr Yamashita for specific assistance. That would occur fairly regularly, and included requests for assistance with estimating.
Mr Yamashita confirmed that Mr Quiel's workload was increasing. Mr Quiel was taking work home on weekends, could not cope and needed estimating resource support. Most of Mr Quiel's conversations were with Mr Carter, but Mr Yamashita was involved in relation to allocating estimating resources. Mr Yamashita said that sporadically he would place an estimator from another office in Slab Systems or would send the plans to someone else to do the estimating.
Mr Yamashita also gave evidence that (as had been done with other parts of the organisation) a decision was made to support the branch manager. That decision was made by reference to estimating, loading of products (to avoid items falling off trucks and causing accidents which might be fatal), safety reporting and safety requirements. He noted that there were "some challenges around load restraint" which is a "key issue" for ARC, particularly following two HPIs at ARC's Coopers Plains fencing branch.
Mr Carter stated that it became apparent from regular business reviews that Mr Quiel was struggling to integrate and meet some of the business requirements, especially around safety systems which were not in place in the old structure. Mr Carter was concerned about Mr Quiel's overall workload and his ability to adapt to the new requirements of being part of a corporate organisation. On an ad hoc but regular basis Mr Carter started to implement additional resources part-time into that business from the rest of the ARC Queensland business for which he was responsible.
The effect of organisational change on Mrs Grainger: According to Mr Carter, in 2014, Mr Quiel approached him for assistance in meeting the requirements of the safety system. Mr Quiel needed somebody who had completed the chain of responsibility training. Neither Mr Quiel nor Mrs Grainger had that training. It was decided that Mr Carter was to put a suitably qualified and trained person at Slab Systems to complete gate checks. There were other suitably qualified people within the organisation. Mr Quiel did not suggest that Mrs Grainger would be appropriate to carry out that task, nor did he suggest training her to fill the gap in the new role. The company was under pressure to deal with safety issues that could affect employees and the public. It did not have time (and possibly other resources) to send Mrs Grainger to an external organisation for that training (particularly in light of the provider's training schedule). Madison Jones, from the nearby Pinkenba operation, was chosen to take on that role. She was a proven performer who had the relevant skill set (although not some of Mrs Grainger's skills). Mr Carter gave Mr Yamashita a direction in relation to that appointment.
The company had a vacant customer service officer ("CSO") position at ARC Fences Coopers Plains ("ARC Fences"), an ARC business with an office near to the Slab Systems premises. Although he did not have much direct experience of Mrs Grainger, Mr Carter felt that she had the skills and knowledge to undertake that role, but that she would require some training around relevant products. According to Mr Carter, Mrs Grainger was considered to be a valued member of the ARC structure, her redeployment was legitimate, and there was no attempt to performance-manage her out.
Mr Yamashita said that he and Mr Carter discussed the proposal to bring Ms Jones to Slab Systems and transfer Mrs Grainger. They considered that Mrs Grainger did not have the appropriate skills (e.g. about load restraint requirements) and Ms Jones had the skill set. It appears that it was decided not to provide additional people to the Slab Systems office. Mr Yamashita did not discuss the proposal with Mr Quiel before 25 November 2014.
According to Mr Quiel, he was not told that he needed someone with specific training for the new safety protocol in 2014, or that a person needed to do a four day training course for that. The first he knew about the proposal to bring Ms Jones into the business and move Mrs Grainger was on 25 November 2014, the day before Mr Yamashita spoke to Mrs Grainger. Mr Yamashita advised him that the new person would have more to offer in her training and would relieve Mr Quiel's workload. Mr Quiel would have preferred to retain Mrs Grainger and have additional assistance with estimating.
Mr Quiel gave evidence that, although Ms Jones was keen and had a very good work ethic, she did not know about their product and lacked experience. Consequently, his workload increased while she became familiar with the work.
On 26 November 2014, Mr Yamashita advised Mrs Grainger that she was to be transferred to a CSO position located in the ARC Fences premises. Mrs Grainger discussed the proposed transfer with Mr Yamashita and Jennifer Jeffs (the HR advisor for Arrium for Queensland and the Northern Territory) at subsequent meetings on 28 November 2014 and 2 December 2014. Mrs Grainger explained why she could not do that job and expressed her resistance to the transfer, which she perceived to be a means of managing her out and ultimately dismissing her from employment.
Having sought medical attention from her general practitioner, Dr Gliceria Aznar, on 30 November 2014 and 2 December 2014, Mrs Grainger obtained medical certificates on 2 and 6 December 2014 stating that she was unfit for work for the period 3 to 12 December 2014 (inclusive). She did not return to work.
On 23 January 2015, Mrs Grainger lodged an application for compensation (Exhibit 1). She stated that she suffered an injury ("anxiety") in the afternoon of Wednesday 26 November 2014, and that she reported the injury to her employer's representative, Mr Quiel late in the shift that day. She attached a detailed handwritten record of what was said at the meeting on 26 November 2014, and at a meeting on 28 November 2014, her visit to her doctor on 30 November 2014, and meetings at work on 1 and 2 December 2014. She recorded subsequent events including visits to her doctor and communications relevant to her claim between 6 December 2014 and 22 January 2015.
Injury
The issues in this appeal must be resolved by reference to the applicable provisions in s 32 of the Act. At the relevant time, those provisions stated:
"32 Meaning of injury
(1) An injury is personal injury arising out of, or in the course of, employment if—
(a)for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury; or
(b)for a psychiatric or psychological disorder—the employment is the major significant contributing factor to the injury.
(2) However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies.
(3) Injury includes the following—
…
(ba)an aggravation of a psychiatric or psychological disorder, if the aggravation arises out of, or in the course of, employment and the employment is the major significant contributing factor to the aggravation;
…
(4) For subsection (3)(b) and (ba), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.
(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 Regulator or an insurer in connection with the worker’s application for compensation.
Examples of actions that may be reasonable management actions taken in a reasonable way—
·action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker
·a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker’s employment."
Nature of the hearing and onus of proof
The hearing of the appeal was conducted as a hearing de novo.
On the current state of the authorities it is clear that in cases such as this, where the employer is the appellant and the decision appealed against is a decision to accept the claim for compensation, the employer bears the onus of proving on the balance of probabilities that the claim is not one for acceptance.[1] If everything was in issue it would fall to the employer appellant to prove that:
[1] See State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447, and the more recent decisions in State of Queensland (Department of Communities Disability Services) AND Q-COMP and Saskia Germaine Bettels (WC/2011/247) - Decision < State of Queensland AND Q-COMP and Mrs B (C/2013/2) - Decision < Myer Holdings Ltd AND Q-COMP (WC/2013/118) - Decision < Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301.
(a) the person claiming compensation was not a "worker" within the meaning of the Act at the relevant time; or
(b) the person claiming compensation did not sustain an "injury" within the meaning of the Act at the relevant time; or
(c) if they did sustain an injury which is a psychiatric or psychological disorder, the injury either did not arise out of or in the course of the person's employment or the injury was one to which employment was not the major significant contributing factor; or
(d) their psychiatric or psychological disorder arose out of, or in the course of:
i.reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment; or
ii.the worker’s expectation or perception of reasonable management action being taken against the worker.
Issues
The Appellant concedes that Mrs Grainger was a "worker" for the purposes of the Act, and accepts that she suffered a psychiatric or psychological disorder, and that the injury might have arisen out of, or in the course of, her employment.
Consequently, the main issues to be determined in this case are whether:
(a) Mrs Grainger's employment is the major significant contributing factor to her injury; and
(b) if so, whether her injury arose out of, or in the course of, any of the following circumstances -
i.reasonable management action taken in a reasonable way by the employer in connection with Mrs Grainger’s employment; or
ii.Mrs Grainger’s expectation or perception of reasonable management action being taken against the worker.
The circumstances in which Mrs Grainger suffered her injury
The conduct of, and communications in relation to, three meetings involving Mrs Grainger and management staff of the company are central to deciding when the injury occurred, whether Mrs Grainger's employment was the major significant contributing factor to that injury, and whether the exception in s 32(5) of the Act applies to preclude her claim for compensation being accepted. Those meetings occurred on 26 November 2014, 28 November 2014 and 2 December 2014.
Meeting on 26 November 2014
Mrs Grainger's account: Mrs Grainger gave evidence that she first heard about the proposed change to her role on Tuesday 25 November 2014 when Mr Quiel told her there would be a role change, but did not elaborate.
The following day, Wednesday 26 November 2014, Mr Yamashita called her into Mr Quiel's office and advised her that she would be moving to a sales/reception position at other premises. In response, she advised him that "I can't do sales. I don't do that sort of thing. I can't - I have difficulty facing people." She asked for a job description so that she could see what was involved. At some stage, whether at that meeting or later, Mrs Grainger told Mr Yamashita that she had "difficulty describing somebody that I've just met or have met people several times, but I wouldn't know them out of their situation. I wouldn't recognise them on the street." According to Mrs Grainger, "I think I've always had it" but, to her knowledge, it was not a medical condition. She had not sought treatment for it.
Mrs Grainger said that she asked Mr Yamashita whether there was going to be any training and he advised her that there would not. He said that she did not need training and that she would be "fine, something like that." She responded that she "can't do sales," and he advised her that she would be replacing a casual position. When she asked for something in writing, Mr Yamashita "commented something along the lines, oh, I didn't think it'd be this difficult. I thought you would have jumped at the job." When Mrs Grainger asked why the new position in her current office (i.e. her existing position) had not been offered to her, Mr Yamashita said that the person who was coming over was already an expert in the area and had the relevant background and experience. Management was using their expertise and moving staff around to suit where their expertise was. She asked how her expertise was being used as a sales position. Mr Yamashita advised that she would not be staying where she was.
According to Mrs Grainger, nothing was mentioned at any stage about requirement for skills around transportation, in particular the chain of responsibility protocol for transportation. Before ARC safety precautions came in, she used to set up all the transport and advise drivers what they were delivering. She said that, had she been asked to do a four-day course in relation to the chain of responsibility protocol for transport for checks on tying down loads on trucks, in particular, she would have been able to do that.
Mrs Grainger said that, at the end of the meeting, she felt a "bit confused, a bit hurt." She was emotionally upset thinking that the company could just expect to move her to another position without any kind of documentation and no training being offered. She was "stressed" about the new role because "I knew I couldn't do it [i.e., sales], and I told him that." She was specifically concerned about "face-to-face people." Mrs Grainger said that she did not think she could get used to that new role in time, and that "I suppose within myself I know it's something I just can't do." By the end of the meeting, she was "a little upset that there was no formal procedure or formal notification" and she thought it was her right to ask for something in writing.
Mr Quiel's account: Mr Quiel confirmed that, on 25 November 2014, Mr Yamashita told him of the proposal to move Mrs Grainger. Mr Yamashita did not tell him not to say anything to Mrs Grainger, but said he would return on 26 November to inform her. Mr Quiel told Mrs Grainger that she was going to be moved out and that Mr Yamashita would see her the following day.
Mr Quiel recalled Mr Yamashita telling Mrs Grainger that she would be transferred up the road to fencing, she would have a sales or CSO job, and it was going to happen pretty quickly. Mrs Grainger appeared shocked. She asked why, and Mr Yamashita said that they were bringing someone in who would have a "wider scope" to do the work that she was doing. Mrs Grainger asked if she could be trained to do that job as well, and asked what her new position would be. She asked whether she could have that in writing. Mr Yamashita mentioned that he was disappointed in her reaction, and thought it would not go that way. He did not think that Mrs Grainger would be so upset about it.
At some point in the meeting, Mrs Grainger said that Mr Carter promised that she could stay in her current position.
In response to Mrs Grainger's request for clarification about her new role, Mr Yamashita described a more sales-oriented role. Mrs Grainger said that she was not comfortable with that. She said she did not like sales, and could not do it. She was not readily going to accept this transfer because of the sales. When she asked for training, Mr Yamashita said that she did not require training and that it was not an option for her to train for the job that Ms Jones would be doing.
Mr Quiel could not recall Mrs Grainger saying anything in that meeting about dealing with people face-to-face. However, he said that he backed Mrs Grainger by saying that she could not do sales. She likes being on her own, "in her own little … cubicle." She did not have a bad attitude, but was not comfortable in dealing with people. She is withdrawn and likes to be on her own. She does not greet people and ask such things as how they are, and whether she can help them. He thought that she would have difficulty with over the counter sales where she would have to present herself to customers.
Mr Quiel described Mrs Grainger's demeanour as being totally shocked when she heard about her new role. Having asked questions, she became really upset and was shaking, although she was not crying. The meeting concluded with Mr Yamashita saying he would return the following day. When he left, Mrs Grainger "really lost it." She was crying and went elsewhere to compose herself. Mr Quiel agreed that he was shocked by how bad Mrs Grainger became after her interactions with Mr Yamashita. He also agreed that Mrs Grainger did not provide him with any explanation about what her particular difficulties were in doing sales work.
Although Mr Quiel did not know the job description for the proposed CSO position, he suggested that it was a demotion from Mrs Grainger's previous position at Slab Systens rather than a lateral shift, in part at least because at Slab Systems she was second in charge and filled in for him if he was not present.
Mr Yamashita's account: On 25 November 2014, Mr Yamashita met with Mr Quiel and told him what they were planning to do about changing Mrs Grainger's role and moving her into a customer service role at ARC Fences, and the reason for that change. According to Mr Yamashita, he and Mr Carter thought that Mrs Grainger could do the CSO job as it was using the same business system that she was familiar with, it involves dealing with people that she had met previously, and the site was only 300 metres away from the Slab Systems office. There would be no change to Mrs Grainger's salary. The decision to choose Ms Jones to go to Slab Systems was jointly made by Mr Carter and Mr Yamashita, and was made by reference to skill sets and capacity to learn and develop in the organisation. The purpose of this meeting was to ensure that Mr Quiel, who had not been involved in any conversations in the lead up to this change, was "on board" and to obtain his "buy in". Mr Quiel did not know Ms Jones. Although he was surprised initially, he did not raise any concerns with Mr Yamashita and eventually supported the change. Mr Yamashita did not discuss with Mr Quiel whether he could mention the proposed change to Mrs Grainger before she met with Mr Yamashita the next day.
Immediately before the meeting between Mr Yamashita, Mr Quiel and Mrs Grainger on 26 November 2014, Mr Quiel informed Mr Yamashita that he had spoken with Mrs Grainger about the proposed change.
Mr Yamashita said that, before going into the meeting, he did not believe that the proposed relocation of Mrs Grainger would be a very major change for her. He agreed that he did not ask Mrs Grainger if she wanted a support person at the meeting. He noted that Mr Quiel attended and that Mrs Grainger and Mr Quiel had worked together for many years, but agreed that Mr Quiel was her manager and was not a person who she chose as a support person.
When the meeting commenced, Mr Yamashita advised Mrs Grainger about the new CSO role that they had planned for her. Her immediate response to each aspect that he described was that she wanted it in writing, and that she wanted to get a legal opinion about the proposal. Mr Yamashita also described the proposal for Ms Jones to take over Mrs Grainger's role and to take on additional functions, including estimating and safety systems. Ms Jones would commence the following week. He told Mrs Grainger that Ms Jones had different skills that are more appropriate for the revised position. He assured Mrs Grainger that Ms Jones was not taking her job, and that the company did not have any "last in first out policy." According to Mr Yamashita there was a real job for Mrs Grainger as a CSO, to keep that business sustainable. From his perspective, she was a valuable employee and there was no intention to terminate, or attempt to terminate, her services.
Mr Yamashita gave evidence that he had not expected the meeting to proceed in the way that it did. He was expecting it to be "a bit of an open and interactive meeting" where he would talk through what was being planned and what the company was trying to do. For that reason he did not have a position description to hand to her. The meeting was "cut quite short" (after about 10 to 15 minutes) because Mrs Grainger did not want to interact and talk through the details of what was proposed. Another meeting was arranged for Friday, 28 November 2014. A position description and letter of offer were prepared for that meeting.
Late that afternoon, Mr Yamashita sent Mr Carter and Ms Jeffs an email containing dot point summaries of what he told Mrs Grainger in the meeting with Mr Quiel (both as to her change of role and the role to be filled by Ms Jones) and "some of Deb's responses and concerns." He noted that Mrs Grainger "displayed a lot of apprehension today about the change of role, and this note is so we are all on the same page around Debbie Grainger's change of role." He listed the following of Mrs Grainger's responses and concerns:
· "the first thing Deb advised was "I would like that in writing so I can get legal advice"
· Deb advised that she hates change and she has been at Slab Systems for 16 years and she does not want to change
· Deb advised that she has concern that she won't be able to 'pick up' a different business and that if she couldn't learn the new business then she would not have a job
· Deb highlighted that she did not want to have face to face contact with customers - she reiterated this several times and seemed she had some anxiety over dealing with people face to face. She advised that she actually does not recognise people face-to-face, and that there would be problems because customers would expect her to recognise them
· Deb was concerned that we had a 'last in first out policy'
· Deb voiced that "Madison was taking her job" I advised it is not just her role, is that plus additional deliverables around transport, freight and other areas including estimating
· Deb asked why she wasn't considered for the role. I advised her that there are skills appropriate around transport that Madison has been working with which will allow Madison to deliver benefits to the business. Deb asked why she doesn't get an opportunity to learn those skills" (Exhibit 6 emphasis added).
In his oral evidence, Mr Yamashita expanded on some of those points. Of particular relevance is the following exchange between him and Mr O'Driscoll, counsel for ARC, in relation to Mrs Grainger's stated reason for not being willing to take on the sales role:
"You then indicate in your next dot point that she didn't want to have face-to-face contact with customers, that she had reiterated that several times?--- Yes.
Did that surprise you?--- It did. It was unusual.
Why?--- Yeah. When she went through the detail of that, she talked about not being able to recognise faces and that if there were people that would come in through the front office door, then she had a concern that she wouldn't be able to recognise them if they came in the second day. Which I found unusual.
Probably stating the obvious but why did you consider it unusual?--- Because I've never - I don't experience that myself and I don't know anyone else who has experienced that.
And did she expand upon what she meant, she wouldn't be able to recognise faces?--- No. But - yeah - it was only the same conversation in that it was can't ---
Did ---? --- - - - recognise them." (T2:38)
Mr Yamashita then gave evidence about the extent to which, in her role in the Slab Systems office, Mrs Grainger had face-to-face interaction with people. He referred to her interaction with on-site staff (Mr Quiel and the four to six people on the factory floor) and (he guessed) probably six interactions every day with truck drivers who come in to pick up paperwork. He observed that there was "fairly limited" face-to-face interaction with customers and that interaction with customer sales was "predominantly over the phone."
The following exchange then occurred:
"You'd told that the comment that her not being able to recognise people face-to-face caused you some disquiet. Did it start any alarm bells ringing for you at that stage?---Yeah. I could - I could tell she was anxious about that and had some apprehension about that aspect of it.
Did you do anything to attempt to address or alleviate that anxiousness when she related that to you?--- In that first meeting, I don't think there was much that I - I could really say. It was - it was surprising to me that that was - that was the case. But subsequent to that, I did talk to Jennifer Jeffs, our HR manager - HR adviser to say, look, there's - this part of it is - in terms to key takeaway is, I mean, that was the - that was a big concern that I had was that she had this significant apprehension around - around that one specific issue.
And when you meant a key takeaway, taking away from the meeting was you had identified this anxiety or apprehension on her behalf?--- Yes, yes." (T2: 39)
Mr Yamashita agreed that Mrs Grainger seemed to have a high level of anxiety about the face-to-face interactions.
In cross-examination Mr Yamashita agreed that, unlike Mrs Grainger's role at Slab Systems, the CSO role at ARC Fences involved face-to-face contact with customers and making sales to those customers. It is important for the person to be able to deal comfortably and effectively with people face-to-face. However, he stated that there was not a sales target and it was not a "pressure selling environment." Accordingly, he did not think Mrs Grainger's redeployment was a "massive change." Also, he had received no complaints or adverse feedback about Mrs Grainger's dealings with customers and, despite his limited direct personal dealings with her, he had no reason to think that in a CSO role in a fencing business that would be any different.
When asked whether he had considered the option of adapting Mrs Grainger's current role, given her statements that she was not comfortable with face-to-face interactions and doing sales, Mr Yamashita said:
"We considered the option of transitioning her in, because she had demonstrated that she could work with customers. The part about face-to-face, we didn't - we don't understand the detail behind why she had that issue around face-to-face. But we thought we could transition her in, give her more time to sort of step into that role, and would be able to, I guess, negotiate a transition that meant that that could happen." (T2: 88-89)
Consequently, they told her on multiple occasions that they could spread the time to delay her dealing face-to-face with customers.
Mr Yamashita did not recall Mr Quiel backing up Mrs Grainger at that meeting by saying that he did not think she would be suitable for sales.
Mr Carter's evidence: After the decision was made and the first meeting was conducted on 26 November 2014, Mr Yamashita told Mr Carter that the change was "stressing her out." Mr Carter recalled receiving an email from Mr Yamashita on 26 November 2014 which included Mrs Grainger's concerns including that:
(a)she would not be able to pick up a different business and that if she could not learn the new business then she would not have a job;
(b)she did not want to have face-to-face contact with customers and advised that she does not recognise people face-to-face and there would be problems because customers would expect her to recognise them (Exhibit 6).
Mr Carter said that at no stage before the decision to redeploy Mrs Grainger had Mr Quiel relayed to him that Mrs Grainger had any anxiety or concerns about interfacing with customers. He had seen her at Slab Systems and, although there were few customers and regular staff at that location, he had seen her go through the sign-in process with contractors, delivery people and corporate people before the acquisition. Mr Carter agreed, however, that Mrs Grainger had very little face-to-face contact with customers at Slab Systems.
Mr Carter said that he had not seen Mrs Grainger's anxiety about face-to-face contact demonstrated in her integration into the ARC business. However, in response to the report from Mr Yamashita, he ensured that Mr Yamashita went to the next meeting with Ms Jeffs to ensure that they were taking care of Mrs Grainger and trying to understand the issue about the relocation, and to look after both Mr Yamashita and Mrs Grainger in the process.
Meeting on 28 November 2014
Mrs Grainger's account: Mrs Grainger did not recall how the meeting on Friday 28 November 2014 was arranged, but presumed that the company's representatives would come to offer her something in writing. On that occasion, Mr Yamashita and a person from HR (Ms Jeffs), who Mrs Grainger had not met previously, attended. Mrs Grainger was not offered a support person. Before Ms Jeffs arrived, Mrs Grainger asked Mr Yamashita for a support person to be present. Mr Yamashita did not agree to a support person attending, and commented that he had to jump through hoops to get Mrs Grainger's documents.
Mrs Grainger recalled that at the meeting she was given a letter of offer but no job description. Ms Jeffs assured her that the company wanted to keep her on and that the position allocated to her was something that they thought was right for her. Mrs Grainger advised that she could not do sales, she knew nothing about the materials, and she thought it was wrong to be asked to do something without any training. Ms Jeffs said there would be training available. Mrs Grainger advised that Mr Yamashita had said there would be no training, and Mr Yamashita replied that he did not say there would be no training. Mrs Grainger offered to bring Mr Quiel into the meeting because he was a witness to the statement in relation to formal training.
Mrs Grainger recalled that, although Ms Jeffs suggested that the proposed role was a simple job that Mrs Grainger should be able to do, "it's [i.e., selling] not something that I can do."
According to Mrs Grainger, she felt "upset, distraught" and probably "a little bullied" in the sense that she was advised that that was what was going to happen and otherwise she would not have a position. Mrs Grainger took a break for about five minutes because she was crying and needed to get a tissue and try to control herself.
At the end of the meeting, no arrangements were made for any further meetings. Mrs Grainger would not sign the letter of offer. She was given a job description, and said that she wanted to look at job description and get legal advice about it. The meeting ended. Mrs Grainger said that she thought the company was putting her in a position to "performance me out" because that would save the company "a fortune on redundancy." She asked about redundancy (which she thought would be acceptable if the company could not give her a suitable position) and was told that redundancy "wasn't on the table." It would not be offered. She was not actively seeking redundancy as she wanted to stay where she was. However, she would have preferred redundancy to going into the proposed role because if she was made redundant she could "go off and get a job that I can do," and where she could use her administrative and accounting skills.
Mr Yamashita's account: In preparation for the meeting, Mr Yamashita had spoken with Ms Jeffs. The plan was that she would be a conciliatory person to explain what they needed to do and mould it for Mrs Grainger. However the meeting did not go to plan and, by his account, "went similar to the first meeting." The meeting was conducted in the boardroom at Slab Systems. It went for about half an hour. Mrs Grainger did not request an independent person to be present (although, according to Mr Yamashita, had she made that request he would have agreed). In particular, she did not ask if Mr Quiel could come in as a witness.
Mr Yamashita recalled that Ms Jeffs, rather than he, did most of the talking. Mrs Grainger was clear from the start of the meeting that she would not sign anything and wanted legal advice. At times she was quite "hostile" in what she said, and he found it "quite confronting." Mr Yamashita observed that "she gradually became more and more anxious and more and more distressed." She took a short break at one stage because she was distressed and crying.
The following Monday, 1 December 2014, Mr Yamashita prepared a detailed file note of the meeting (in the form of an email to himself). It is useful to quote the note at length:
"In this meeting we gave Deb the written letter of offer for her role change and also gave Deb the position description for the new role.
The plan was to give Deb the offer in writing and also give further details of the role description to try to alleviate Deb's apprehension in the new role
·Deb advised she would not be signing it and she would be seeking legal advice
·Deb advised that she hated change [and] that's why she was working at Slab Systems for 16 years
·Deb advised she was promised by management her role would never change
·Deb advised she did not want to interact with customers face-to-face
·Jennifer advised businesses change, and from time to time peoples roles do have to change
·Deb stated that from the previous meeting with GY that there was no training for the new role. This was incorrect and clarified in this meeting. Training would occur in the new products at Fencing branch.
·GY and Jen advised we were keen to work through the position description and to 'tweak' it so that she could transition into the customer facing component over time. eg. after 3 months of training, then have Deb customer facing etc.
·GY and Jen discussed that we could be flexible around her start date potentially as late as the new year, instead of 8th December to make the transition for Deb easier
·Jennifer advised this plan was happening and the changes to her role were not unreasonable
·Deb was not responsive or interact with any of the offers to work through the the transition to the new role
·Deb continually said no she was not accepting it". (Exhibit 9, emphasis added)
The following exchange between Mr O'Driscoll and Mr Yamashita was part of his examination-in-chief in relation to those notes:
"Okay. She advised that she didn't want to interact with customers face-to-face. How did you respond to that?--- I talk about it a little bit further down but in terms of my notes of the meeting that - but we talked about changing that role description and being flexible to - to what that actually is. I mean, it wasn't a case of saying this is your - this is your new role description. We don't care. That's - that's all it is. We - we talked about making things flexible and making things work for her around dates and - and whatnot." (T2: 45)
When asked to expand on the seventh dot point (about transitioning in to the customer-facing component of the new position), Mr Yamashita said that the discussion was in response to Mrs Grainger's concerns around the face-to-face matter. He continued:
"Deb's main concern was around the - was around the face-to-face more than - more than anything else. She didn't - she didn't highlight, I don't think, specific - she didn't sort of talk about the products themselves and that that was a big concern although she had said overall I'm worried I won't pick it up. So that - - -
Could you just repeat that, overall she said what?--- She said I won't pick up the new business was what she had previously said but it wasn't specifically around the products so she said overall, you know, I won't - I'm concerned I won't pick up - pick up the new job but then specifically around that point it was actually about it was actually about her face-to face so we - we said we would - we would adjust or modify the position description in an interim basis to - to allow her to mould into that role and that we do have a period that we would - we would set so that she could actually transition to that facing - customer-facing aspect as well.
Was that interactive process, that is, between you, Mrs Jeffs and Mrs Grainger?--- Yeah. We tried for it to be, yes, but - but Deb didn't want anything to do with - she didn't want to talk about that at all. She didn't - - -
For example, with the suggestion "We'll tweak it. We'll give you a three month transition program with training and then you can launch into the face-to-face?--- Yeah.
Did she respond to that or say that's inappropriate or to suggest some other alternative that might be suitable to her?--- She didn't say the word inappropriate but she was not accepting of it, definitely. She didn't offer any other plan B or any other interaction to say, well, that won't work but this might or - there was - there was - there was never any of that." (T2: 47, emphasis added)
Ms Jeffs' account: Ms Jeffs commenced as the HR advisor for Arrium for Queensland and the Northern Territory in October 2014. Among her responsibilities was ensuring that the redeployment or lateral shifting of employees within the organisation was fair, and that they would not lose any pay, that they were moving to proximate premises and would have a similar role and responsibilities. She was not involved in, and did not know about, the proposed redeployment of Mrs Grainger until Mr Yamashita asked her to assist him (on or after 26 November 2014) when they met with Mrs Grainger on 28 November 2014. Ms Jeffs understood (by reference to the position description and a discussion with Mr Yamashita) that the proposed position for Mrs Grainger was similar to her previous role because it involved customer service (including face-to-face interactions with customers who came to the office), sales and safety. She did not make specific enquiries of Mrs Grainger or Mr Quiel about what Mrs Grainger's role actually entailed. Ms Jeffs also understood from her conversation with Mr Yamashita that the proposed transfer was fair for the business, that management had taken everything into consideration, and that Mrs Grainger would not be detrimentally affected.
Ms Jeffs had no dealings with Mrs Grainger before this meeting. She knew nothing about her personality and said that she received nothing to suggest that there was any issue or concern about Mrs Grainger from a psychological or vulnerability perspective. Nor were there any issues or concerns with Mrs Grainger or her performance. However, before the meeting on 28 November 2014, Mr Yamashita told Ms Jeffs that when he spoke to Mrs Grainger previously she had indicated that she could not do face-to-face or did not recognise faces. He had some concern that Mrs Grainger was worried about transferring into the role. She did not seem very happy.
Although she did not recall receiving an email from Mr Yamashita dated 26 November 2014, Ms Jeffs agreed that she would have received it. As noted earlier, that email included the following passages:
· "Deb advised that she hates change and she has been at Slab Systems for 16 years and she does not want change
· Deb advised that she has concern that she won't be able to 'pick up' a different business and that if she couldn't learn the new business then she would not have a job
· Deb highlighted that she did not want to have face to face contact with customers - she reiterated this several times and seemed she had some anxiety over dealing with people face-to-face. She advised that she actually does not recognise people face-to-face, and that there would be problems because customers would expect her to recognise them."(Exhibit 6)
Mr Yamashita asked Ms Jeffs to be present at the meeting to ensure that he was doing everything fairly. Ms Jeffs said that she also made sure that they were looking after Mrs Grainger by following the legislation, trying to understand her concerns, and ascertaining whether she needed any help and how they might provide that help.
Ms Jeffs recalled that the meeting was held in the conference room where Mrs Grainger was working. The meeting went for about 30 to 40 minutes. By her account:
"we spoke to her about how we would like to transfer her into the role down the road with - at ARC Fences Coopers Plains, and she - during that conversation she expressed concerns about wanting to move, what I would call putting up roadblocks with excuses that the business is only doing this to get rid of me. It's really redundancy, and you can't offer me a redeployment. She also said - and then if you do transfer me, I understand there's plans to close down that business so that then you will make me redundant when I'm there. You're putting me in a role so that I am going to fail because you're not happy with me, and I was promised to have this role for life." (T3: 5)
Ms Jeffs recalled that Mrs Grainger raised a concern at the meeting that Mr Yamashita had told her there would be no training. Ms Jeffs did not know whether Mr Yamashita denied that, but thought he had agreed that it did happen at the first meeting. Mrs Grainger did not say that she would get Mr Quiel to confirm Mr Yamashita's previous statement. They then went over what training the company could offer Mrs Grainger.
Ms Jeffs said that the central concern was that Mrs Grainger did not want to work with them to do the transfer, and she was coming up with excuses (e.g., about redundancy, the company trying to get rid of her) which were not valid. They were happy with Mrs Grainger as an employee and were trying to do all they could to work with her. Ms Jeffs was trying to offer Mrs Grainger everything from training to not doing face-to-face sales until she was comfortable with the product, and delaying her transfer. In Ms Jeffs' assessment "there were no real concerns from her [Mrs Grainger's] end that sent alarm bells in my mind." In other words, Ms Jeffs had no concerns about Mrs Grainger's state of mind, and considered that Mrs Grainger was "just unhappy and argumentative." In particular Ms Jeffs said that there was nothing that Mrs Grainger said or did to make her develop concerns that Mrs Grainger had a condition or was going to struggle or suffer. Ms Jeffs considered that she answered Mrs Grainger's every question and concern, and could see no other valid reason why Mrs Grainger could not move. They were trying to work with her and were asking for her input.
Ms Jeffs said that the position description for Mrs Grainger's new CSO role was a generic description because the company had several CSO roles. The role involved dealing with customers as they came into the ARC Fences office. According to Ms Jeffs, Mrs Grainger did not mention any issue about dealing with customers face-to-face. Although Ms Jeffs asked her whether there were any issues of which she needed to be aware, the only matter that Mrs Grainger brought up was a suggestion that they were trying to get rid of her. Mrs Grainger said that she was stressed because of what was happening with her transfer. But when asked whether there was any other condition that Ms Jeffs needed to be aware of, Mrs Grainger said "No." According to Ms Jeffs, Mrs Grainger:
"was argumentative and obviously unhappy about the transfer. She just argued about reasons, but she didn't bring up anything. I asked her if she was okay. She brought nothing up in my - so that in my mind I could go there's more to it other than a person just doesn't want to move. … She wasn't crying but … she was unhappy about the whole thing." (T3: 10)
Ms Jeffs said that she needed to hear Mrs Grainger's concerns (e.g. about whether she would be able to recognise customers from one time to another) and said that Mrs Grainger did not tell her that she had issues dealing with customers face-to-face.
When Mrs Grainger was given the letter of offer she responded by saying that she would seek legal advice because, in her mind, she was being made redundant. Apparently the redundancy issue was mentioned more than once. At this meeting, Mrs Grainger said that they were making her role redundant and, on her reading of the policy, they could not redeploy her. They had to offer her a redundancy. In Ms Jeffs' opinion, Mrs Grainger wanted a redundancy and the associated payout. However, according to Ms Jeffs, Mrs Grainger's position was not being made redundant. Someone else was to fill it, and would take on some extra responsibilities. Mrs Grainger was being transferred to another position which matched her skills set and which was essentially the same as her previous position. There was no change in salary, it was not a demotion, and the position was located some 20 to 40 metres away from the Slab Symptoms office.
In cross-examination:
(a)Ms Jeffs was shown the email from Mr Yamashita stating that Mrs Grainger had reiterated that she was not good at dealing with customers face-to-face;
(b)it was put to Ms Jeffs that during the meeting Mrs Grainger became quite distressed and had to take a break to get tissues (and Ms Jeffs was referred to Mr Yamashita's evidence that that occurred); and
(c)it was put to Ms Jeffs that Mr Yamashita said that the face-to-face issue was raised in the meeting (and she was shown a copy of Mr Yamashita's email to himself dated 1 December 2014 (Exhibit 9) which stated, among other things "Deb advised she did not want to interact with customers face to face").
Without resiling from her recollections, Ms Jeffs stated that Mr Yamashita had "a better memory than me obviously" and that he made more notes of the meeting because he was the manager and had had dealings with Mrs Grainger beforehand. Ms Jeffs also explained that, as she had been in the HR position for four weeks and had to cover 79 sites and four businesses, one could understand why her recollection of the meetings with Mrs Grainger was not very clear.
To the extent that Ms Jeffs' evidence is inconsistent with Mr Yamashita's evidence, I prefer his account. Without impugning her credit as a witness, I note that she had been in the HR position for a few weeks at the time of the meeting, she had been busy with numerous matters, and she acknowledged that Mr Yamashita had a better memory of the events and that he made more notes of the meeting. His notes of that and his other meetings with Mrs Grainger, in whatever form they were prepared, are detailed and were prepared within a short period after each meeting. They are almost contemporaneous records of those meetings. Her note of the meeting was made on 30 January 2015, some two months later.
Mr Carter's evidence: Mr Carter confirmed that after the meeting on 28 November 2014 he was advised that Mrs Grainger had concerns about face-to-face contact. He said they found it hard to understand some of Mrs Grainger's claims because they had not seen any of that demonstrated behaviour in the integration of the Slab System business to that date. They were trying to understand her level of stress when they saw no real change in the responsibilities of the role they were proposing for Mrs Grainger.
After that meeting and before the meeting on 2 December 2014, Mr Carter gave directions to ensure that they were working through the business imperatives and that Mrs Grainger felt that she was going to be a valuable employee going forward, and that she would be provided with suitable training to undertake the new role before undertaking that role. They did not consider:
(a)talking to Mrs Grainger about other options before the meeting on 2 December 2014;
(b)training Mrs Grainger in relation to the chain of responsibility role at Slab Systems so that she could stay there and not go to the other role about which she was anxious.
As to (b), Mr Carter explained that, from a business point of view, ARC already had numerous people who were fully trained, probably more than it needed. The business had already gone to great expense to train those people, and had vacancies in other parts of the business for which, he felt, Mrs Grainger's skill set was suitable.
Visiting the doctor on 30 November 2014
Mrs Grainger said that after the first meeting she had not slept, would not eat and did not know what she was doing. She explained "I don't like change." She saw her doctor on Sunday, 30 November 2014 because she could not sleep and "needed something to calm me down." The doctor increased the dosage of medication that Mrs Grainger was already taking (for another condition - hot flushes) in order to ease her anxiety. Although the doctor asked whether she wanted some time off work, Mrs Grainger said there was a new girl starting on the Monday so she would go to work to teach her how to do Mrs Grainger's job.
Handover on 1 December 2014
On Monday, 1 December 2014, Mrs Grainger showed Ms Jones what she did. According to Mrs Grainger, Mr Yamashita came in and told her he was there "to make sure that I wouldn't be mean to her." She felt angry that he came in for that purpose, and told him that she was "disgusted on how unprofessional he must think I am."
Mr Yamashita described the style of training as "buddy training," with the two women working next to each other in the same office. He said that, because of how badly his previous two meetings with Mrs Grainger had gone, he was concerned that some "negative things" towards Ms Jones might be manifest. He wanted to be there in case that happened. It didn't. He did not recall saying to Mrs Grainger that he was there to make sure she was not nasty to Ms Jones, nor Mrs Grainger responding to the effect that he did not think she was very professional.
At 8:01 am on 2 December 2014, Mr Yamashita sent the following diary note in the form of an email to himself:
·"GY worked from Slab System Monday 1 December in the morning due to concerns around Deb potentially displaying negative behaviour toward Madison Jones.
·Deb appeared to treat Madison with respect and there were no issues
·Deb continued to be negative and non engaging with respect to discussing her new role
·Deb advised she didn't want to discuss as she hadn't received her legal advice
Plan is to have discussion this morning at 830am along with HR to discuss transition plan and hope to get some form of conversation or engagement from Deb." (Exhibit 11)
Meeting on 2 December 2014
Mrs Grainger's account: Mrs Grainger recalled receiving some telephone notice about the meeting with Mr Yamashita and Ms Jeffs on Tuesday 2 December 2014. Mrs Grainger said that again she was not offered a support person and, on the way into the boardroom, when she asked Mr Yamashita whether Mr Quiel could come into the meeting he said "No."
Mrs Grainger recalled that Ms Jeffs had come back with offers of not doing face-to-face work to start with, and being able to commence doing work in the background. Ms Jeffs was "trying to help me out there." Mrs Grainger said that she "could see how that could have been an answer, but I just knew that it wouldn't make any difference. … Because I still can't do sales." Mrs Grainger recalled some discussion about a transition period but could not recall how long that was. She was "pretty upset" in the meeting and did not recall any other changes or alternatives that were offered to her. However, she said there was no discussion about keeping her in her current role, despite having asked for that. Nor was there any discussion about putting her into some other role, despite her suggesting that there must be somewhere in the company where her skills could be used.
According to Mrs Grainger, she was told at that meeting that she was to attend the following Monday at the new position or she did not have a job. More specifically, Ms Jeffs told her that if she did not turn up for that job on Monday it was "strike one of three" for disciplinary action. She felt "Really bullied. Pressured" and was emotionally "Devastated." She was physically sick after the meeting.
Mrs Grainger explained that she had demanded a support person at the meetings because she "thought it was policy." She also said that she felt threatened by Mr Yamashita and Ms Jeffs because they were trying to make her "do something that I didn't want to do." By her account there was shouting and yelling during the third meeting when she was "hardly able to say anything; I was so upset."
Mr Yamashita's account: Mr Yamashita said that the final meeting was to "round out" matters discussed in previous meetings. He had hoped that Mrs Grainger would start at ARC Fences the following Monday. He agreed that, from the series of meetings with Mrs Grainger, it was apparent that she was genuinely distressed about the prospect of working in face-to-face customer service.
Mr Yamashita did not consider that the new position was a demotion "in any way" and said that Mrs Grainger had never said to him that she saw it as a demotion.
Ms Jeff's account: According to Ms Jeffs, this meeting was to follow-up the previous discussion, see whether Mrs Grainger had a chance to obtain legal advice, consider what they had spoken about previously and ascertain whether there was anything more that management needed to consider. The meeting went for about 30 minutes.
Mrs Grainger advised that she had not sought legal advice, was not happy, was not going to accept the transfer, was not going to sign the letter of offer, and was not going to move. Ms Jeffs responded by saying that it was a reasonable management direction and they would have to consider what happens if Mrs Grainger did not take on this move. The move needed to happen and would happen. If she did not attend to perform the new role on the following Monday there would likely be disciplinary action. However, they would rather work with her to make the transfer as easy as possible.
Although Ms Jeffs said that Mrs Grainger never told her that she would not be able to do the job and would struggle with face-to-face interactions, Mr Yamashita had mentioned that Mrs Grainger had raised those concerns with him. At the meeting, Ms Jeffs stated that they could change the date when Mrs Grainger would start in her new position. If Mrs Grainger was not happy with the face-to-face work she did not have to do that until she was comfortable. According to Ms Jeffs, the reason for offering a period was because Mrs Grainger was not familiar with the products and did not feel comfortable with products she did not know. Mrs Grainger did not speak to her about difficulties dealing with customers face-to-face. Whatever the rationale for offering a transitional period, a potential period of three months was suggested to allow Mrs Grainger to "come up to speed" in the new role. Ms Jeffs referred to an extensive training program (although it seems that for the customer service officer position a buddy system of training would be used). In summary, she offered Mrs Grainger "a whole host of things to make her feel comfortable with the move." However, Mrs Grainger said that she was not going to do it. Ms Jeffs concluded that no matter what avenue she followed, Mrs Grainger would put up an excuse as to why she could not do it.
[100]Ms Jeffs told Mrs Grainger that she had to perform. The company was giving her all the help they could but if she could not perform after three months then potentially disciplinary action could be taken. According to Ms Jeffs, she decided that it was best to be "absolutely honest" with Mrs Grainger about this matter, particularly as Mrs Grainger had said that the company had not been honest with her. Having been advised of this approach, Mrs Grainger would not "get a shock if it goes down that avenue."
[101]Ms Jeffs did not recall Mrs Grainger's demeanour changing through the meeting. Rather, Mrs Grainger continued to be unhappy and argumentative and just said "No." She was fairly quiet, did not appear distressed, and did not add any input to any of the avenues put by Mr Yamashita and Ms Jeffs. Mrs Grainger asked about redundancy and Ms Jeffs told her again that the role was not being made redundant. Mrs Grainger said she was stressed because of what was happening. When Ms Jeffs asked whether she had any other condition that Ms Jeffs needed to be aware of, Mrs Grainger replied "No."
Actions following the meeting on 2 December 2014
[102]Mrs Grainger saw her doctor that day, not long after the meeting. According to Mrs Grainger, when her doctor saw her on the previous Sunday and Mrs Grainger had insisted on going to work on Monday, the doctor said that if she felt uncomfortable at work she should come straight back. As Mrs Grainger was feeling very uncomfortable following the meeting, she consulted the doctor and obtained a medical certificate. She has not returned to work since then.
[103]At 11.05 am on 2 December 2014 Mr Yamashita sent the following email to Mrs Grainger (cc Ms Jeffs):
"Deb
As per our meeting this morning and previous discussion, pertaining to necessary changes in the business resulting in your transition into the Customer Service Officer role at Coopers Plains Fences effective Monday, 8 December 2014 I wish to communicate the below:
We have:
· Had 2 meetings with myself, Jennifer Jeffs from HR and yourself in an attempt to communicate to you as much as possible the details of the new role and ease any concerns you have by trying to work with you to assist in your transition in the role, including offering additional support or a modified transition date should you require it as well is providing you with a copy of the job description. You preferred to review this job description by yourself rather than work through this together. You have not requested any change in the transition date and to date you have not requested any additional support other than the standardised training that is offered for any employee in a new role.
· Offered you the opportunity to meet your new managers […] prior to the move however you have declined this opportunity.
· Informed you that you can contact either myself or Jennifer Jeffs at any stage during this process to communicate any concerns in relation to additional support etc to assist you in this transition.
· Tried to work with you in relation to this change however to date you have failed to acknowledge this change in roles and therefore you have been informed that failure to comply with this direction may result in disciplinary action.
We prefer to have open dialogue to discuss and agree the details around the transition. This however has not occurred (as above), and so this note is to inform you of the plan going forward:
· Your start date in the new role will be on Monday 8th December
· A training and onboarding program will be in place when you begin in your new role
· We will review progress on your training to help aid your transition
· We envisage that training in the role should be sufficiently complete after 3 months
· Our expectation is that you are able to perform in your new role after this 3 month period of training
· Like any employee in ARC, should your performance be unsatisfactory after you have received sufficient training and support, it may lead to disciplinary action.
Again, I would like to re-iterate that I am available to discuss any reasonable concerns you have to assist with your transition into this role." (Exhibit 10)
[104]Mr Yamashita said that, in response to matters highlighted in the previous two meetings, a training program had been prepared for Mrs Grainger. On Wednesday, 3 December 2014, he had communicated with the team at ARC Fences that, rather than being a normal redeployment, there would be some differences in how Mrs Grainger would fit into the CSO role. Preparations were made for her to commence there on Monday, 8 December 2014.
[105]Mrs Grainger was unwell and had a medical certificate that she was unfit for work from 8 to 12 December 2014 inclusive (Exhibit 12).
[106]On 12 December 2014, the Mr Yamashita received a call from the manager at ARC Fences indicating that he had been informed by Mrs Grainger that she would not be attending work and that she was lodging a workers' compensation claim. Mrs Grainger did not return to work. Mr Yamashita had no contact with Mrs Grainger after 12 December 2014.
[107]It seems that on or about 12 December 2014 Mrs Grainger filled in a WorkCover claim. She was advised on 15 December 2014 to cancel that claim as ARC was self-insured. Her Application for Compensation with OneSteel was dated 23 January 2015.
Other factors and circumstances
[108]Before considering the medical evidence in relation to the nature and cause of Mrs Grainger's injury, it is appropriate to:
(a)outline the evidence in relation to her difficulties recognising people and performing sales work; and
(b)summarise the evidence in relation to a series of events in her life outside of her employment, which preceded by some years the workplace meetings between 26 November and to December 2014 and which had some effect on her.
[109]Ms Grainger's difficulties recognising people and performing sales work: According to Mrs Grainger, her only employment in a face-to-face customer service role was in about 1998 at a takeaway fish and chip shop. She said that she and her employer found that she was "better off out the back" because she found it difficult to approach people she did not know and remember their orders. In particular, she had difficulties when people asked for their usual orders.
[110]Mrs Grainger:
(a)said that she had difficulties with a sales job, and the interface or recognition of people with whom she had contact;
(b)agreed that she had some difficulty recognising names and faces or putting them together;
(c)said that she had little contact with people other than work colleagues in the workplace, and was not troubled by meeting new people within the ARC organisation because she was not selling things to them;
(d)said that she would not be able to recognise in public a work colleague who she had known for 10 years, in other words, she would not recognise people with whom she was familiar if she saw them out of context;
(e)agreed that she had never understood why she had difficulty remembering peoples' faces and linking them to their orders;
(f)had not thought it was a physical or mental problem, or even a difficulty;
(g)had not sought any assistance to obtain some insight into this matter because she had no interest in sales and "figured it wasn't a problem;"
(h)said that to her knowledge it was not a medical condition;
(i)had not sought treatment for it;
(j)said that her husband knows that she has a problem with face recognition;
(k)had not discussed the matter with Mr Quiel in the nearly 15 years that they worked together because sales were not part of her job description and the matter would never have come up.
[111]In her oral evidence, Mrs Grainger also expressed her personal concerns about aspects of sales work, particularly the "quote to sales conversion where you have to chase people up on their quotes" which she described as being like "cold calling." Later she referred to struggling with "chasing them up … because that is forcing people. It's like cold sales."
[112]In cross-examination, Mrs Grainger agreed that she was unable to provide any reason to Mr Yamashita or Ms Jeffs as to why she could not do the sales work other than she was "not a salesperson" and could not do sales face-to-face. She also suggested that part of the problem was that she was not familiar with the products to be sold.
[113]In her written statement attached to her application for compensation, Mrs Grainger wrote in relation to her meeting with Mr Yamashita on 26 November 2014:
"George Yamashita called me into Nick Quiel's office and advised me my position was to cease and I would be redeployed to another business to be a front desk sales person. I advised I can't do sales or reception. … Again I advised him that I done [sic] reception or sales and I can't speed type and I find face to face very difficult. He said that my customers and suppliers speak highly of me. I advised him that I only speak to them on the phone or email never face to face." (Exhibit 1)
[53] Davis v Blackwood [2014] ICQ 009, [47].
[241]Appellant's submissions: As noted earlier, the Appellant submitted that Mrs Grainger's employment was not the major significant contributing factor to her injury. Further, or in the alternative, the Appellant submits that her injury arose out of reasonable management action taken in a reasonable way and that her perceptions of it were fuelled by the underlying disorders the medical practitioners found.
[242]In the Appellant's submission, Mrs Grainger's difficulty or concern interacting with others was either a manifestation of the Social Phobia, the Generalised Anxiety Disorder, or some combination of both. Hence, it submits, the comments made by Mrs Grainger in the course of her meetings with Mr Yamashita and Ms Jeffs were the manifestation of the underlying disorders, that is:
(a) she thought she was being performance-managed out;
(b) she couldn't do face-to-face sales.
[243]ARC did not know about these factors at the time the decision was made to redeploy her. Although ARC was aware of other health issues that Mrs Grainger was facing (i.e., her cancer and her bereavement issues), it was unaware of those other matters, as was Mr Quiel who had worked with her for a long period of time.
[244]The Appellant contends that it is difficult to see how it should have done more in response to Mrs Grainger's assertions about why she could not perform in the role to which she was to be transferred. Mr Yamashita had recognised as "unusual" Mrs Grainger's response, and yet he observed that she was functioning well and did have face-to-face interaction in her role at Slab Systems. The Appellant submits that it was not required to have some type of psychological screening to ascertain whether an individual carrying out their work has some hidden problem of which they are unaware. Even when Mrs Grainger indicated that she could not recognise faces, there is a question as to what the Appellant should have investigated. In her oral evidence, Mrs Grainger was adamant that she did not have any disorder or problem. She had not been to a doctor and had not sought any treatment of this condition, and had effectively hidden it since she worked at the fish and chip shop in 1998.
[245]The Appellant submits that it acted reasonably. Mr Yamashita was concerned about Mrs Grainger's unusual situation and appropriately involved Ms Jeffs. When Ms Jeffs asked Mrs Grainger whether there was something that Ms Jeffs was missing, Mrs Grainger responded in the negative. In the Appellant's submission, one would think little more could be done at that point.
[246]In my view, it is not clear what else Mrs Grainger could have been expected to do in those situations. She had described her inability to Mr Yamashita, and had repeated it in a subsequent meeting with him and Ms Jeffs. Having never sought, or needed to seek, expert advice or assistance in relation to that inability, there was little if anything she could add in conversation with them.
[247]Respondent's submissions: The Respondent submits that an injury is not removed from the definition of "injury" just because the Commission may find that some of the employer's relevant actions were reasonable and reasonably taken. The Commission is required to look more broadly at whether the injury arises out of reasonable management action reasonably taken. The examples listed in the Act following s 32(5), in particular action to transfer or redeploy a worker, specify actions which "may" be reasonable management action taken in a reasonable way. However, it will be a matter for the Commission to determine in a particular case whether such an action is reasonable management action in all of the circumstances, and whether it was taken in a reasonable way.
[248]In the Respondent's submission, the Commission would not be satisfied that Mrs Grainger's injury arose out of reasonable management action taken in a reasonable way because:
(a) the decision to redeploy Mrs Grainger from her administrative role at ARC Slab Systems to a front counter sales role at ARC Fences was not a reasonable decision;
(b) the decision to persist with the redeployment after the worker made it clear that she had no experience or aptitude for sales, had difficulties with dealing with people face-to-face and had high anxiety at the prospect of such a role was unreasonable; and
(c) the action was not taken in a reasonable way.
[249]In support of that submission, the Respondent notes that:
(a)Mrs Grainger had qualifications in drafting and had previously worked in a drafting role, and she had experience working in construction and held a boiler operators ticket. When she commenced working for Slab Systems she initially performed some estimating tasks.
(b)After the acquisition of the business by the ARC Group in 2012, Slab Systems remained a relatively autonomous business, subject to integration of some of its computer systems and general processes.
(c)Immediately before the relevant events, the Slab Systems business comprised Mrs Grainger and Mr Quiel running the office. Although Mr Quiel was the branch manager, Mrs Grainger reported directly to the Queensland state manager, Mr Carter. The only other staff at that business were the production staff who worked two persons per shift, and about three or four delivery drivers.
(d)It was extremely rare for customers to visit the business in person. The customers (builders) would rarely telephone the business to speak to Mrs Grainger. Mr Quiel would perform the estimating work in respect of the product required, and Mrs Grainger would process the order from the plans based on his estimates. The customers' subcontractors (usually concreters) would telephone the business periodically and would speak to Mrs Grainger about aspects of the delivery and supply of the product which had already been ordered.
(e)Mrs Grainger was also responsible for purchasing and primarily would deal with suppliers by email. Mrs Grainger's role involved:
a.no selling whatsoever, as she was only required to deal with contractors after the sale had been made and to deal with aspects of delivery; and
b.almost no face-to-face dealing with people other than the relatively few people who worked at the office, or occasional visitors from elsewhere in the company.
(f)After the acquisition of Slab Systems by ARC, Mrs Grainger's title was changed to administration supervisor and she negotiated the terms of the position description (see [9] to [11] of these reasons). Her role was not a sales role.
(g)It is apparent that Mr Yamashita, Ms Jeffs and Mr Carter only looked at the apparent similarities between the administration supervisor and the CSO roles on paper, without performing any consultations or making any investigations to ascertain what Mrs Grainger's role entailed. However, the redeployment from the administration supervisor role to the CSO role was not a lateral movement involving similar skills, particularly in relation to sales and face-to-face contact with customers.
(h)Mr Quiel had issues with his increased workload after the ARC acquisition and had requested additional resources, particularly to assist with estimating. Additional resources had been provided on an ad hoc basis. His preference was for a permanent increase in his office staff. He had not specifically requested assistance in dealing with safety issues. He was not dissatisfied with the performance or skills of Mrs Grainger in his office.
(i)The principal driver behind the decision to remove Mrs Grainger from Slab Systems and replace her with Ms Jones was not that Ms Jones had training in a "chain of responsibility" protocol with respect to load restraint on vehicles. Rather, Mr Yamashita's rationale was that he wanted to expand some of the skills utilised in the position at the Slab Systems office, including with respect to transport and other issues, and Ms Jones had demonstrated a very high level of adaptability.
(j)The decision was made without reference to Mr Quiel, even though he had been running the business for 14 years and had specific knowledge of the skills and resources required. He was informed, rather than consulted, by Mr Yamashita about the decision. It was entirely unreasonable to make a decision in that manner, and subsequent events indicate that Mr Quiel's workload has not be eased.
The Respondent submits that, on all of those bases, the decision to redeploy Mrs Grainger and replace her in the Slab Systems business with Ms Jones was not reasonable management action. That critique includes criticisms of both the substance of the decision and the manner in which it was made and conveyed to Mrs Grainger and Mr Quiel.
[250]Further, the Respondent submits that it was perfectly reasonable and understandable that Mrs Grainger viewed the move as a demotion or a downgrade, rather than a lateral move. (Her view was shared by Mr Quiel). In particular:
(a)although Mrs Grainger retained the same salary, it was a salary that substantially exceeded that of the existing CSOs at ARC Fences and reflected her extensive experience in significant responsibilities at Slab Systems compared with the requirements of a front office CSO at ARC Fences;
(b)at Slab Systems she reported directly to the state manager (rather than to a warehouse manager), was effectively jointly running the business with Mr Quiel, and was at least the second-in-command and nominally in charge when Mr Quiel was not there (as opposed to being a front counter salesperson).
[251]The Respondent also submits that, irrespective of the many failings in the initial decision to redeploy Mrs Grainger, it was entirely unreasonable for the employer to continue to insist upon that redeployment once Mrs Grainger had made it clear that she was unsuited to sales, had problems with her face-to-face contact and had a high degree of anxiety about those issues. Mr Yamashita had full notice of them after his first meeting with Mrs Grainger on 26 November 2014, something which is clear from the email he sent to Mr Carter and Ms Jeffs on that day (Exhibit 6), as well as his oral evidence. As a consequence, Mr Carter and Ms Jeffs were aware of Mrs Grainger's concerns. Mr Quiel also backed up Mrs Grainger at the meeting on 26 November 2014 and told Mr Yamashita that she could not do sales. Mrs Grainger repeated her concerns at the meetings on 28 November 2014 and 2 December 2014. Yet the employer's response was to insist that Mrs Grainger go into the CSO role.
[252]Although Mr Yamashita and Ms Jeffs apparently offered various adjustments to the transition to the CSO role, the Respondent submits that it should have been plain to them that the adjustments made no difference to Mrs Grainger. She genuinely and reasonably considered that she could not perform the role, and that she was unable to perform a sales role and would experience significant anxiety around attempting to do so. Delaying the start would not solve the problem. The Respondent submits that a reasonable employer in that situation would not have insisted upon Mrs Grainger going into the CSO role. It was not reasonable for Mr Yamashita and Ms Jeffs to insist that she did so.
[253]The Respondent submits that, while it is reasonable and necessary for businesses to be able to structure their workforces in ways which best maximise their efficiency and operations, it is not reasonable for an employer to insist that a particular employee go into a role for which they are manifestly unsuited, incapable and which will cause them severe anxiety.
[254]The message conveyed to Mrs Grainger at the meeting on 2 December 2014, and contained in Mr Yamashita's email of that date (which she might not have received before leaving work that day), was that she was expected to start a new role on Monday, 8 December 2014, with the proposed training she should be able to perform a new role after three months, and if her performance was not satisfactory at that stage there might be a disciplinary action. Indeed, if she did not attend work on 8 December 2014 she would likely be subject to disciplinary action. Consequently, Mrs Grainger was given no option but to move to a role which she knew she could not perform and with the threat that if (as she thought) she did not perform the role she would be subject to disciplinary action. It was the practical, if not intended, effect of the direction that Mrs Grainger was set up to fail.
[255]In the Respondent's submission, following each of the three meetings with Mrs Grainger, the Appellant had the opportunity to change its course and not insist upon her redeployment. For example:
(a)a person with load restraint protocol training could have been put into the Slab Systems office on a temporary basis until a permanent solution was found;
(b)ARC could have allowed Mrs Grainger to remain in her position at Slab Systems and potentially acquire additional skills to assist Mr Quiel further;
(c)ARC could have considered Mr Quiel's requests for additional manpower, instead of alternative manpower;
(d)ARC could have considered whether there were other roles within the company structure which would have suited Mrs Grainger's aptitudes, experience, skills and personal traits; and
(e)if none of those or other options was practical, ARC could then have considered whether it was appropriate to offer Mrs Grainger a redundancy or some similar form of termination payment.
[256]Focusing on what the Appellant did (rather than the options that might have been open to it to proceed differently in relation to Mrs Grainger), the Respondent submits that Mrs Grainger's injury arose out of the decision to redeploy her and the manner in which it was conveyed to her. Even more so, her injury arose out of ARC's refusal or failure to acknowledge her concerns and to recognise that she was unsuited to the new role. Consequently, the Commission would not be satisfied that her injury arose out of, or in the course of, reasonable management action taken in a reasonable way by ARC in connection with Mrs Grainger's employment.
[257]Consideration and conclusion: As the Act states, reasonable management action can include action to transfer or redeploy a worker. It was clearly open to ARC, as part of the restructuring following the acquisition of Slab Systems to enhance the skills set of employees at the Slab Systems office to meet the needs of the company, particularly in relation to the safety requirements and any related protocol by transferring Ms Jones to that office. It was for management to decide how urgent the need was for the Slab Systems office to have such a person located there, and whether to redeploy someone who already had the relevant training and skills rather than expend additional resources (including time and money) in providing additional training to another employee. If it is necessary to do so, I find that Mr Carter decided on the transfer of Ms Jones to the Slab Systems office in order to address in a timely manner the consequences of the HPI incidents by ensuring that an employee who was suitably qualified in relation to safety matters and was working in that office. That was consistent with his undertakings to allocate resources urgently and have the appropriate protocol in place.
[258]Early in these reasons, reference is made to Mrs Grainger's queries about and annotations of some statements in the position description of her administration supervisor role which, she said, did not reflect the actual work that she undertook. Whether or not the position description was amended in the way she suggested, and whether or not she signed a revised version of the document, that and other evidence points to a difference between the Appellant's understanding of the nature of the role and aspects of how business was actually conducted. In particular, I am satisfied that Mrs Grainger had little, if any, face-to-face contact with customers and that, to the extent that she dealt with orders, that work was primarily with contractors and was undertaken by telephone or email.
[259]When her managers (in particular Mr Carter and Mr Yamashita) decided to transfer or redeploy Mrs Grainger to the CSO position at ARC Fences which involved more direct sales work, they did so by reference to the apparent similarities of the position descriptions for the two roles and to reports about her performance at Slab Systems.
[260]It was open to management to decide to transfer or redeploy Mrs Grainger to what, on the face of it, was a substantially similar position, physically proximate to the current Slab Systems office, and on the same remuneration. However, I accept that the CSO role was different in some significant aspects, particularly the sales work and face-to-face interaction with customers, and that Mrs Grainger would have been reporting to someone at a lower level than the state manager.
[261]Even with those qualifications, I am not satisfied that, up until the meetings between Mr Yamashita and Mrs Grainger (attended also by Mr Quiel or Ms Jeffs), the decisions taken in relation to the transfer or redeployment of Ms Jones and Mrs Grainger were unreasonable. At the point at which the decision to transfer Mrs Grainger was taken, it was a decision that was within the discretion of management having regard to the perceived needs in the Slab Systems office and the perceived transferability of Mrs Grainger's skills and knowledge to a different but apparently similar role at ARC Fences.
[262]The issue is whether, once Mr Yamashita and others were aware of Mrs Grainger's resistance to take on the proposed CSO role at ARC Fences and, in particular, the reasons for her anxiety and resistance, the insistence by ARC that Mrs Grainger commence work in that role from 8 December 2014 (even on a transitioning basis) could be described as reasonable management action taken in a reasonable way.
[263]The evidence in relation to the meetings on 26 and 28 November 2014 and 2 December 2014 and email messages and diary notes in relation to those meetings is summarised at [33] to [103] of these reasons. It need not be repeated. However, it is appropriate to highlight the following:
(a)at the meeting on 26 November 2014, Mrs Grainger raised various concerns about the proposed transfer and advised Mr Yamashita that she could not do sales work because of her difficulty facing people and remembering or recognising people's faces;
(b)Mr Yamashita recorded in writing that Mrs Grainger highlighted that she did not want to have face-to-face contact with customers and reiterated that she had anxiety over dealing with people face-to-face, advising that she does not recognise people face-to-face and there would be problems because customers would expect her to recognise them;
(c)Mr Yamashita advised Mr Carter and Ms Jeffs in writing of those concerns and others expressed by Mrs Grainger;
(d)at the meeting on 28 November 2014 Mrs Grainger reiterated her advice that she could not do sales, that she did not want to interact with customers face-to-face;
(e)at the meeting on 2 December 2014, when the transfer proposal had been revised so that Mrs Grainger would not have to do face-to-face work to commence with, Mrs Grainger considered that such a transition would not make any difference because she still could not do sales.
[264]I note that, although there is no direct medical evidence that Mrs Grainger has the condition known as prosopagnosia, some of the medical practitioners referred to her reported inability to recognise faces. Dr Fuls recorded that Mrs Grainger was concerned that it would be difficult for her to be forced to sell things to other people. Mrs Grainger also indicated that she sometimes found it difficult to remember customers' faces and names, she could get flustered under those circumstances, and that could be embarrassing. In Dr Fuls' opinion, that anxiety about her capacity to perform a function did not indicate a disorder.
[265]Mr Riordan noted that, when her job status changed, Mrs Grainger felt she was placed in a work environment beyond her capabilities and out of her skill set, in particular, being required to do a sales job when she had never had any training or skills in that area. Mrs Grainger perceived that she was not able to do the work and felt she was not a salesperson. She was asked to do things that were outside her character range. More specifically, his notes recorded that Mrs Grainger gets really anxious meeting people. She cannot hold visual information. It takes regular contact for years for her to remember things and processes.
[266]Dr Samios reported that Mrs Grainger's concern about face-to-face work and being unable to recognise faces reflected her anxiety in relation to those things and possibly a vulnerability to anxiety, but was not reflective of a diagnosis that she had a disorder.
[267]I am satisfied that Mrs Grainger has difficulty recognising faces and matching the names and faces of people. For the purpose of this appeal, it is not necessary to decide whether Mrs Grainger's inability to recognise or remember faces is a specific medical condition. I find, however, that her anxiety and resistance in relation to the proposed transfer to the CSO position was in part precipitated by, or reflected, her longstanding inability to remember customers' faces and names. To the extent that she has a social phobia that involves fear of critical assessment by others, that phobia would be triggered if Mrs Grainger was put in situations where she had difficulty dealing with customers because of her inability to recognise or remember them.
[268]I acknowledge that this was not the only reason why Mrs Grainger resisted the proposed transfer of her to the CSO position. However it assumes considerable significance in relation to this appeal.
[269]Whatever Mr Yamashita might have expected going into the meeting on 26 November 2014, it is clear that at that meeting Mrs Grainger not only expressed her resistance to moving to a position which involved sales (including face-to-face contact with customers) but also gave a plausible reason for her resistance. This was not merely an instance of an employee not wanting to move because they were comfortable in their current position or because they had some general apprehension about change. In this case, Mrs Grainger put Mr Yamashita on notice that, in her estimation, she was incapable of performing that role and not merely reluctant to do so. That message was clearly received and recorded by Mr Yamashita who, in his email of 26 November 2014 to Mr Carter and Ms Jeffs, specifically recorded that:
"Deb highlighted that she did not want to have face to face contact with customers - she reiterated this several times and seemed she had some anxiety over dealing with people face-to-face. She advised that she actually does not recognise people face-to-face, and that there would be problems because customers would expect her to recognise them." (Exhibit 6)
[270]At that stage, there was a misunderstanding between Mrs Grainger and her managers. On the one hand, Mrs Grainger explained the reason why she considered that she could not, and hence would not, perform the role to which she had been assigned. Although she did not consider her inability to recognise faces to be a condition for which medical assessment or assistance might be appropriate, it was something of which she had been aware for many years and which she had managed by avoiding situations in which it impeded her capacity to work. Only when she was confronted with a transfer over which she had no choice did she need and choose to disclose the difficulty to her employer. The fact that she had not mentioned it to her close work colleague, Mr Quiel, in the course of many years that they had worked together does not detract from the credibility of her raising it on 26 November 2014. It merely illustrates that the issue had not arisen and hence there was no need to address it in the workplace before that date.
[271]On the other hand, Mr Yamashita and others seemed to consider that Mrs Grainger could perform the face-to-face sales role with some training, experience and encouragement from her work colleagues. They did not proceed on the basis that she apparently lacked the capacity to do that work. It is understandable that Mr Yamashita was perplexed by what Mrs Grainger told him, and wondered what to do next. In his oral evidence he said that he found Mrs Grainger's explanation unusual because he did not experience that himself and did not know anyone else who had experienced it. His response, and the response of those whom he consulted, was to adapt the proposed transfer to allow a period for Mrs Grainger to transition into the position. However, it was not simply a matter of easing Mrs Grainger into the role with appropriate support. It appears she could not perform the role no matter what training or support was offered to her. As Mrs Grainger said, she knew that the transitional arrangements would not make a difference because she could not do sales.
[272]That misunderstanding had another significant consequence. It seems that, having explained her circumstances to Mr Yamashita and Ms Jeffs, Mrs Grainger characterised their insistence that she move to the new position as providing a means to manage her out of employment by ARC. There is no evidence of such a proposal by ARC, and I accept that ARC had no intention of managing her out of its employment. Her perception of that, however, can be explained if one proceeds on the basis that she thought that Mr Yamashita and Ms Jeffs understood that she could not perform the sales task but insisted on her transferring to it nonetheless.
[273]The Appellant submits that only a perfect system would impute upon the Appellant some prescience of knowledge of which Mrs Grainger was herself unaware, i.e. that she could not do face-to-face sales and/or recognise faces. But that submission is contrary to Mrs Grainger's evidence that she was aware of her inability. Indeed she articulated and repeated it to her employer when the need arose. What she apparently failed to acknowledge or recognise was that this inability might constitute a medically recognised condition. Before late November 2014, she had not needed to seek such advice as she had managed to avoid employment where this inability would have been exposed.
[274]I am satisfied that, having been advised by Mrs Grainger of the reason why she resisted the transfer, and having recorded, but not apparently understood the import of, that advice, management persisted with steps to effect a transfer. That persistence from late November into early December 2014 can be characterised as unreasonable management action.
[275]The Appellant asks, in its submission, what inquiries it should have made or what alternatives it should have pursued as reasonable management action in the circumstances. The Respondent in its submission suggests some. They are summarised earlier in these reasons. However, as noted earlier, it is not the role of the Commission to set out what it regards as the type of actions that would have been reasonable in the circumstances. The Commission's task is to assess the management action which was taken and determine whether it was reasonable and whether it was taken in a reasonable way.[54]
[54] See Davis v Blackwood [2014] ICQ 009, [47] (Martin J).
[276]I simply observe that there were other courses of action open to the Appellant after 26 November 2014. Indeed, the Appellant provided evidence to that effect. Mr Carter said that attempts were made, well after the date on which Mrs Grainger lodged her claim for compensation, to get her to return to the workplace. Apparently he and Ms Jeffs spoke by teleconference with Mrs Grainger about other opportunities within the organisation. They provided her with a draft position description which was developed to meet what they knew of her phobia around dealing with people. Ms Jeffs gave evidence that (about four or five months after Mrs Grainger started her leave) the role was specifically created for Mrs Grainger, and it had no customer facing requirements. The role was created because, having communicated with a doctor, the HR manager advised that they needed to see whether it was possible to create a role that dealt with Mrs Grainger's concerns about dealing with customers.
[277]That management action, taken well after the date of her decompensation, cannot influence whether Mrs Grainger's claim for compensation is one for acceptance. I note it for the limited purpose of illustrating the point that, when proper consideration was given to Mrs Grainger's condition, another more suitable option for employment within the organisation was found.
Did the injury arise out of Mrs Grainger's perception of reasonable management action taken against her?
[278]In Q-COMP v Foote (No 2), Hall P wrote:
"Where the psychological disorder develops out of a worker's perception of reasonable management action being taken against the worker, it is withdrawn from the definition of injury (see s 32(5)(b) of the Act)."[55]
[55] Q-COMP v Foote (No 2) (2008) 189 QGIG 802, 810.
[279]In Sheridan v Q-COMP, Hall P referred to "a statutory deviation from the general rule where the psychological disorder arises out of or in the course of a claimant's expectation or perception of reasonable management action being taken against the worker, compare s 32(5)(b) of the Act."[56]
[56] Sheridan v Q-COMP (2009) 191 QGIG 13, 16 (Hall P).
[280]In Svenson v Q-COMP,[57] Hall P found that the appellant had "developed a propensity to perceive 'bullying' in the conduct of others and to react to it." Hall P continued:
[57] Svenson v Q-COMP (2006) 181 QGIG 629, 630 (Hall P).
"Perfectly reasonable activity in the workplace may be held to be a significant contributing factor to a psychiatric injury where a claimant's perception of what has occurred is quite different to the reality of that which has occurred. But an injury which arises out of or in the course of reasonable management action reasonably taken is not removed from the exclusion at s 34(5) because of the claimant's flawed perception, see esp. s 34(5)(b)."
[281]Appellant's submissions: The Appellant submits that Mrs Grainger's perception, verbalised on a number of occasions, was that she was being performance-managed out of the business, i.e. she was being deliberately set up to fail. That was simply untrue. The Appellant was embarking upon a legitimate reallocation of resources. Mrs Grainger also wrongly perceived that she was being undervalued and the transfer was a demotion.
[282]Mrs Grainger's perception that she was being set up to fail because she could not do face-to-face sales ties in with her condition. The Appellant did not and could not know about that condition. The Appellant reasonably could not know that that her difficulties with face-to-face sales was such that she would decompensate in a way completely inconsistent with the manner in which she had carried out her work over the preceding years, being a valued and trusted employee. Mrs Grainger did not give a hint that there was anything amiss before these events unfolded in a very short time frame.
[283]Respondent's submissions: The Respondent submits that it is a prerequisite of the application of s 32(5)(b) of the Act that the management action must be reasonable and taken in a reasonable way before issues of perception become relevant. For the reasons advanced in relation to s 32(5)(a), the Respondent submits that the Commission would not find that prerequisite is satisfied. In any event, the Respondent submits that:
(a)to the extent that Mrs Grainger perceived that she was being demoted, the perception was reasonable; and
(b)whether or not Mrs Grainger was being deliberately "set up to fail," that was the practical effect of the situation.
[284]Consequently, the Respondent submits that the Commission could not find that the injury arose out of Mrs Grainger's perception of reasonable management action taken in a reasonable way.
[285]Consideration and conclusion: Given my conclusion that s 32(5)(a) of the Act does not operate to exclude Mrs Grainger's psychiatric or psychological disorder from the definition of "injury" in s 32 because the management action was not reasonable, it follows that s 32(5)(b) does not preclude Mrs Grainger's disorder from that definition. In other words, because the management action taken in relation to Mrs Grainger on and after 26 November 2014 was not reasonable management action taken in a reasonable way, s 32(5)(b) does not apply.
[286]In any case, although Mrs Grainger's perceptions may not have been accurate (at least to the extent that she was not being performance-managed out of the business), her perceptions were based on actual conduct by Mr Yamashita and Ms Jeffs who insisted that she transfer to the CSO position despite her explanation as to why she could not do the job.
[287]As noted earlier, Dr Fuls agreed that Mrs Grainger was concerned about her ability to perform in her new sales role, regardless of the training or support she was given. Hence Mrs Grainger held the view that if she was not up to standard at the end of a period she would be disciplined. That could explain her reaction about motivations of her employer, whether or not her perception about that was correct. In a similar vein, Mr Riordan recorded that Mrs Grainger considered that she was unable to do that work. She perceived that the job she was being asked to do could only result in her failure to perform. That led to her anxiety that she was no longer being supported in the workplace and that she was effectively being sacked in a roundabout way. In other words, she perceived that she was being performance-managed out of the job.
Conclusions and Orders
[288]Having regard to the evidence and for the reasons set out above, I find that:
(a)Mrs Grainger has an injury which is a psychiatric or psychological disorder in the nature of a major depressive disorder and a generalised anxiety disorder, and the injury occurred on 2 December 2014;
(b)her injury arose out of, and in the course of, her employment and the employment was the major significant contributing factor to her injury;
(c)her anxiety and resistance in relation to the proposed transfer to the CSO position was in part precipitated by, or reflected, her longstanding inability to remember customers' faces and names;
(d)the decision to insist on Mrs Grainger's transferring to the CSO position despite her repeated advice that she could not perform the sales role because of her inability to recognise or remember faces was not reasonable management action taken in a reasonable way;
(e)hence, her injury did not arise out of, or in the course of, reasonable management action taken in a reasonable way by ARC in connection with her employment.
Consequently, the appeal cannot succeed.
[289]In light of those findings:
(a)the appeal is dismissed;
(b)the decision of the Respondent is confirmed;
(c)the Appellant is to pay the Respondent's costs of and incidental to the appeal to be agreed or, failing agreement to be the subject of a further application to the Commission.
[290]I order accordingly.
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