State of Queensland (Department of State Development, Infrastructure and Planning) v Simon Blackwood (Workers' Compensation Regulator)
[2015] QIRC 33
•27 February 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | State of Queensland (Department of State Development, Infrastructure and Planning) v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 033 |
PARTIES: | State of Queensland (Department of State Development, Infrastructure and Planning) v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2014/37 |
PROCEEDING: | Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) |
DELIVERED ON: | 27 February 2015 |
HEARING DATES: | 16 June 2014 - 20 June 2014 |
MEMBER: | Deputy President Kaufman |
ORDERS : | 1. The appeal is allowed 2. The decision of the respondent dated 28 January 2014 is set aside. 3. Ms Lindley's application for compensation under the Workers' Compensation and Rehabilitation Act 2003 is rejected. 4. The respondents are to pay the appellant'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 - whether injury arose out of or in the course of employment - whether reasonable management action taken in a reasonable way |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 s 32 State of Qld (Queensland Health) v Q-Comp and Beverley Coyne [2003] QIC 118. |
| APPEARANCES: | Dr M. Spry, of Counsel, instructed by Crown Law for the State of Queensland (Department of State Development, Infrastructure and Planning), the Appellant. Mr S.P. Sapsford, of Counsel, directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent. |
Reasons for Decision
Ms Linda Lindley was diagnosed as suffering from a psychological injury, adjustment disorder with mixed anxiety and depressed mood,[1] which she alleged arose out of, or in the course of, her employment with the State of Queensland in the Department of State Development, Infrastructure and Planning.
[1] Exhibit R14.
Ms Lindley made a workers' compensation claim which was accepted by the Workers' Compensation Regulator overturning a decision of WorkCover. The State, as her employer, has appealed that decision on the basis that as Ms Lindley's injury arose out of management action which was both reasonable and taken in a reasonable way, it no longer fell within the definition of "injury" for the purposes of the Workers' Compensation and Rehabilitation Act 2003.
At the time of the injury, 22 April 2013, s 32 of the Act provided:
"(1) An injury is a personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
…
(5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances-(a)reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
(b)the worker's expectation or perception of reasonable management action being taken against the worker;
…"
As the appellant has conceded that Ms Lindley was a worker and that she suffered a psychological injury for the purposes of the Act, the issue to be determined is whether the injury arose out of, or in the course of, reasonable management action taken in a reasonable way by the State in connection with Ms Lindley's employment. Section 32(5)(b) does not apply because there is no suggestion that any action was taken against her.
Although the parties agreed, for the purposes of the appeal, that the date on which Ms Lindley sustained her injury was 22 April 2013 the regulator contends that management action taken after that date is relevant to the issue to be decided.
Ms Lindley's case was that there were several work related issues that, over a period of time, contributed to and caused her psychiatric injury. The regulator submitted that "the events both approximate [sic] to and prominent in the contraction of psychiatric injury" were those related to the closure of the Springwood office in which Ms Lindley had worked as a consequence of a restructuring following machinery of government changes after the State election in 2012. She also asserted that events that had occurred in February (the Page incident) and July (the Phoenix incident) 2012 contributed to her psychiatric illness "both in and of themselves and by way of sensitizing [her] to the other actions of her employer."
The Page Incident
This issue resolved around a meeting on 31 January 2012. Mr James Page, a retired agricultural economist, was engaged by the department to assist with an "investment framework program".
Mr Page met the Springwood office staff and explained the process to them. The evidence does not descend to detail. Broadly, he was seeking to ascertain the then "net present value of the work" that the staff were performing. This apparently involved staff estimating what costs were incurred in relation to their employment, such as travel, vehicle, administrative and telephone costs. Ms Lindley felt that she was not able to accurately provide those costs. It appears that Mr Page insisted on estimates, even if be a best guess. He had a verbal confrontation with Ms Lindley saying to her that if she did not know what she did and what value she was to the department, who did. Ms Lindley felt that her competency was being questioned and that she was being pushed into doing something that she believed was incorrect. She was very upset and in tears.
Eventually, Mr Page's questionnaire had to be amended. Mr Mark Forbes, Ms Lindley's director, accepted that the meeting had not been handled well or sensitively.[2]
[2] Exhibit A17; T1-62/25.
The Phoenix Incident
The Phoenix incident occurred in or around July 2012 when a number of Queensland and Australian government websites were attacked by a computer hacking group known as "Anonymous". This resulted in the release of data in the possession of the State some of which related to Ms Lindley's clients. There was a possibility that this material could be released in the public domain.
The department's Phoenix system was exposed for about four hours and the problem was resolved the same day.[3]
[3] Exhibit A37; T2-10/25.
The Springwood office staff, including Ms Lindley, were not advised of the hacking incident until January 2013 when they were sent an email stating that clients had been advised about the hacking and explaining what they should say to clients in the event that they were questioned about the breach.[4]
[4] Exhibit A36.
Ms Lindley said that the receipt of that email caused her great concern. The concern being that she didn't know which client's information had been published to the public.[5] Further, that staff hadn't been told, even though they requested to know, which, if any, client's information had gone out so that if a client contacted her she would at least know what she was dealing with. Much of the information in the Phoenix system was commercial in confidence and her concern was that although this incident had happened six months earlier, management had allowed staff to continue to input information, whilst they did not know that there had been a breach.
[5] T2-79/19.
Insofar as the Page incident and the Phoenix incident are concerned, there is no medical evidence to suggest that these events contributed to or are relevant to the injury. The only medical evidence relating to the psychological injury was that of a clinical psychologist, Rosalind Hurst, who stated in a letter of 26 April 2013, that "Ms Lindley meets diagnostic criteria for Adjustment Disorder With Mixed Anxiety and Depressed Mood".[6] In her evidence in chief, speaking of the consultation that led to that opinion, she said:
"Linda had been speaking about continued pressure that she was receiving from a manager, whose name I’m not aware of. Just the fact that it was a senior person requesting her to make a decision regarding change of workplace and in order to help her, she had requested on her report several times that she was unwell and needed – needed some space and a relief of the pressure from persistently requesting a decision. So I agreed to actually write that letter to support that request that she’d previously made to this manager."[7]
[6] Exhibit R14.
[7] T5-3/15.
Ms Lindley's evidence did not go so far as to suggest that the Phoenix or Page incidents caused her distress to the extent that her mental health had been affected.
In my view, there is insufficient connection between the events of January and July 2012 (albeit that Ms Lindley was not made aware of the Phoenix incident until January 2013) and the psychological injury that manifested itself on 22 April 2013.
Accordingly, I could not find that Ms Lindley's psychological injury arose out of, or in the course of, her employment, or that the employment was a significant contributing factor to the injury, insofar as the Page and Phoenix incidents are concerned. In those circumstances, a consideration of s 32(5) does not arise.[8]
[8] Q-Comp v Hohn (2008) 187 QGIG 139.
However, this is an appeal by the employer against a decision of the regulator to accept Ms Lindley's application for compensation, and I am bound by Coyne[9]. Accordingly, despite this appeal being a hearing de novo, the State carries the onus of satisfying me, on the balance of probabilities, that Ms Lindley's application should be rejected. Thus, it is not enough that I am unable to find that Ms Lindley's psychological injury arose out of, or in the course of, her employment, or that the employment was a significant contributing factor to the injury. In order for the appellant to succeed, it is necessary that I be positively satisfied that Ms Lindley's psychological injury did not arise out of, or in the course of, her employment, or that the employment was not a significant contributing factor to the injury, insofar as the Page and Phoenix incidents are concerned.
[9] State of Qld (Queensland Health) v Q-Comp and Beverley Coyne [2003] QIC 118.
Having regard to Ms Lindley's evidence and that of her psychologist, I am so satisfied. Accordingly, a consideration of s 32(5) is not necessary.
Even were I unable to form the view that Ms Lindley's psychological injury did not arise out of, or in the course of, her employment or that the employment was not a significant contributing factor to the injury, insofar as the Page and Phoenix incidents are concerned, I am satisfied that the psychological injury arose out of, or in the course of, reasonable management action taken in a reasonable way. Properly characterized, the situation was that Ms Lindley did not agree with, or approve of, the manner in which management handled the two incidents. I have sufficiently set out the facts that lead me to the conclusion that the management action was reasonable and taken in a reasonable way.
The Restructuring
It is nevertheless necessary to determine whether Ms Lindley's psychological injury arose out of, or in the course of, reasonable management action taken in a reasonable way in connection with her employment in respect of events arising from the restructure of her department. The parties have agreed, and I accept, that Ms Lindley sustained a psychological injury for the purposes of s 32(1) of the Act and that the injury was sustained on 22 April 2013. In my view, the injury was sustained in the sense that it was on 22 April that the injury crystallized when Ms Lindley decompensated.
Following the State election in March 2012 there was a significant restructure of the departments of state. Senior management established a new structure for the Department of State Development, Infrastructure and Planning. Thus, in mid to late 2012, Ms Lindley and many other public servants were involved in a program of significant workplace change, involving machinery of government changes and numerous redundancies. At the relevant time Ms Lindley was a senior economic development officer working from the Springwood office. Her substantive level was AO5, however, she had been acting in an AO6 position for several years. There were two other AO5 level positions in Ms Lindley's area.[10] As part of the restructuring process it was decided to reduce the number of AO5 officers from three to one. One of the three chose a voluntary redundancy package and left. Ms Lindley and the other officer contested the remaining position in a closed merit process. Ms Lindley was successful and the other officer was made redundant.
[10] Exhibit A7.
Ms Lindley contends that the manner in which the State handled the entire process was so badly managed that the process caused her considerable distress resulting in her decompensation. She succeeded before the regulator who found that her injury arose out of, or in the course of, her employment and that her employment was a significant contributing factor to the injury. The State was not able to persuade the regulator that her psychological disorder arose out of, or in the course of, reasonable management action taken in a reasonable way, so as to exclude it from the statutory definition of injury. The State appeals that decision and has the task of persuading me to that effect.
In addition to the Page and Phoenix incidents there are two distinct aspects to the way in which Ms Lindley made her claim for workers' compensation. She alleges that management acted unreasonably in the manner in which it dealt with her attempts to retain her AO6 classification. She also alleges that it acted unreasonably in the manner in which it handled the voluntary redundancy process, including the closure of the Springwood office, insofar as both of those matters impacted upon her.
The AO6 Position
The events relating to the AO6 reclassification attempt, as with the Page and Phoenix incidents, occurred well before the date at which Ms Lindley sustained her psychological injury. The evidence, particularly the medical evidence, does not disclose that there is any relationship between the AO6 issue and the psychological injury sustained by Ms Lindley. As with the Page and Phoenix incidents, I cannot find that Ms Lindley's psychological injury arose out of, or in the course of, her employment, or that the employment was a significant contributing factor to the injury. I am satisfied that her injury did not so arise.
However, in the event that it may be said that the AO6 matter is sufficiently related to the entire sequence of events leading to Ms Lindley's decompensation, so as to differentiate it from the Page and Phoenix incidents, I will deal with the issue of reasonable management action in relation to the AO6 reclassification.
After the State election in March 2012, it was announced in around April 2012, that unless it was business critical, there were to be no extensions of higher duties.[11] At that time Ms Lindley was performing higher duties in an AO6 classification, as she had been for some 2 ½ years on fixed term arrangements which had been extended from time to time.[12] Her then current arrangement was due to expire on 30 May 2012.[13]
[11] Exhibit A25.
[12] T2-67/34 - T2-68/20.
[13] T3-31/28.
Although Ms Lindley was aware that there were to be no extensions of temporary higher duty arrangements unless a business case could be submitted to the effect that it was demonstrably business critical that such an arrangement should be maintained, on 21 May 2012, she nevertheless requested that her current AO6 role be extended after 1 June.[14] Her director, Mark Forbes, in an effort to assist her, put forward a business case on her behalf. However this request was rejected and she reverted to her substantive AO5 classification on 1 June 2012. Unfortunately, she was not informed of this and only found out when she checked the online payroll system some two weeks later. She had continued to perform the AO6 role during that time. The AO6 role was given to another public servant who had effectively been displaced from another AO6 position that had been eliminated during the restructure.
[14] Exhibit A26.
Ms Lindley complains that although Mr Forbes' efforts to retain her in the AO6 position were commendable, they created an expectation in her that she would retain that acting position. She also complains that although she had performed well in that role, the AO6 position was given to a person who had no expertise in that particular role. Further, Ms Lindley unwittingly continued in the role for some 10 days and was then required to assist the new incumbent. She also complains that she was not told that she had been unsuccessful in retaining the AO6 position and only found out about it when she electronically interrogated the payroll system some ten days later.
The regulator submitted that these matters, particularly the failure of the State to inform her of her unsuccessful application, was management action which was taken in an unreasonable way. The regulator has not submitted that the management action was unreasonable of itself.
I do not accept this submission. Although the decision in relation to her classification request should have been communicated to Ms Lindley directly and in a timely manner, I am satisfied, having regard to the entire sequence of events, that the management action was taken in a reasonable way. The word "reasonable" in s 32(5) means reasonable in all the circumstances of the case.[15] Management action may be reasonable although it is not perfect; it may be reasonable although blemished.[16] The unexplained failure to inform Ms Lindley that she had not succeeded in retaining the A06 classification does not, in my view, render the way in which the management action was taken unreasonable.
[15] WorkCover Queensland v Kehl (2002) 170 QGIG 93.
[16] Q-Comp v Hohn (2008) 187 QGIG 139.
To the extent, if any, that the regulator relies on the rejection of Ms Lindley's proposal to swap her AO5 position with that of an AO6 officer who was to be made redundant in order that she could be made redundant, I accept Dr Spry's submission that the rejection of that proposal was reasonable management action taken in a reasonable way.
The VR and the closure of Springwood
Mr Sapsford summarized these inter-related events thus:
(i)"The representations as to the Springwood Office remaining open;
(ii)The placing of the worker upon her election as to a voluntary retirement or the closed merit selection process; and
(iii)The subsequent denial of a voluntary retirement combined with pressure to make an election as to either the Ipswich or Gold Coast office."
Representations relating to the non-closure of Springwood
Ms Lindley, who worked from the Springwood office, said that she was lied to by Ms Katherine Schaefer, the Deputy Director-General for Regional Services in the department, when she was told by Ms Schaefer that the Springwood office would not close as a result of the restructure.[17]
[17] T3-19/1.
On 31 August 2012, Ms Schaefer attended the Springwood office to explain the restructuring process to staff. She spoke to all the staff collectively and then to each member of staff individually. She was questioned as to whether the Springwood office would remain open. It was generally known that the lease on those premises was to expire in May 2013. Ms Schaefer's evidence was that she told the staff that the future of the premises was not at the forefront of her mind and that she was more focused on working with staff through the restructuring process. She said that she had made no commitment in relation to the Springwood office and that she would not commit to that until she had found out the outcome of the closed merit process.[18] The closed merit process involved staff at the office applying for positions at their level in circumstances where there were to be fewer positions than had been the case previously.
[18] T1-23/16-26.
Ms Schaefer told Ms Lindley that only one of the three AO5 positions was required and that the three incumbents would be able to apply for that position using the closed merit process. She said that she told Ms Lindley that she would be eligible to apply in the closed merit process, that she would be eligible to take a voluntary redundancy if she so desired or that she could remain as an officer being redeployed by the Public Service Commission looking for an alternate placement.[19] I accept this evidence.
[19] T1-23/35-40.
As Ms Lindley was about to travel overseas on a prearranged period of extended leave, Ms Schaefer told her that in order that she not be disadvantaged she would be able to participate in the closed merit process whilst abroad and that arrangements would be made to enable her to do so.
Ms Schaefer denied having given Ms Lindley any undertaking to the effect that the Springwood office would not be closed.[20] In cross examination she said that she told Ms Lindley that she was not in a position to indicate to her whether Springwood would remain open or not.[21]
[20] T1-75/24-26.
[21] T1-42/24.
Mr Sapsford did not refer to the evidence of Ms Schaefer in his submissions but submitted that Ms Lindley's evidence and that of Ms Karen Wiik was that a meeting occurred on 3 September 2012 wherein a specific representation was made by Mr Tim Schuurs, the regional director, South East Queensland South, for the department at the relevant time, that the Springwood office would not close. Mr Sapsford submitted that Mr Schuurs represented that the Springwood office would not close given the area that it serviced made up such a large part of the Queensland economy.
This submission seems to overstate the evidence. In his examination-in-chief Mr Schuurs said he told staff that at the time no decisions had been taken about the office locations but evidence would be gathered about the customer base and decisions would be based on that.[22] He agreed that at the meeting Ms Wiik had indicated that the Springwood office lease was to expire in May 2013 and that it was an office which would likely have its future considered and that that would be important to staff in making a decision about their future. As outlined by Mr Sapsford in his written submissions, Mr Schuurs accepted that he was asked by staff to confirm that that meant that the Springwood office would not close. Mr Schuurs also accepted that he told staff that, in his opinion, it made no sense to close Springwood as it serviced an area that makes up such a large part of the Queensland economy. However Mr Schuurs denied saying that the Springwood office would not close, commenting that he would have been careful not to be categorical. Ms Wiik's evidence was that he said, in his view, Springwood was not a target for closure, she guessed, because of the service delivery importance of Springwood.[23]
[22] T1-75/24.
[23] T3-36/30.
No evidence was led from Ms Lindley about Mr Schuurs' comments relating to the future of the Springwood office. Ms Lindley's version of what Mr Schuurs had said was to the effect that "Springwood was too important to close, that just the size of the greater Southside area was too important and that they were not considering closure which was very much along the same lines as Ms Schaefer in the earlier meeting."[24]
[24] T2-70/22-24.
I do not accept Ms Lindley's evidence that she was told that the Springwood office would not close. I prefer the direct evidence of Ms Schaefer as well as that of Mr Schuurs and Ms Wiik. Mr Schuurs' evidence is consistent with that of Ms Schaefer's. It is unlikely that either of them would have made a firm commitment as to the Springwood office's future.
The Options Available
As I have mentioned, Ms Schaefer said that staff had three options from which to choose; they could contest the available positions by means of a closed merit process, they could elect to take a voluntary redundancy package or they could seek a transfer or re-deployment.[25]
[25] T1-38/43 - T1-39/7; Exhibit A8.
Ms Lindley was adamant that Ms Schaefer had told her that she was required to participate in the closed merit process for the one remaining AO5 position. It is apparent from an email that Ms Lindley sent to Mr Schuurs that she misunderstood information that she had requested from the HR department.[26] It appears that she had sought advice as to whether she would be able to take a voluntary redundancy package if she were to be successful in applying for the AO5 position through the closed merit process. She understood the response to be that she would have no choice "if directed" to undertake a closed merit process. This understanding is at odds with what she had been told by Ms Schaefer, whose evidence was that on 31 August 2012 she told Ms Lindley that she did not expect any officer to make a rash decision; that she would be eligible to apply for the remaining AO5 position in the closed merit process; that she would be eligible to take a voluntary redundancy if that was what she wanted; or she could become an officer requiring redeployment.[27]
[26] Exhibit A32.
[27] T1-23/35-40.
Mr Sapsford submitted that because Ms Lindley had been misinformed as to the position by the HR department and that she was jet-lagged and overseas, reasonable management action would have necessitated either a deferral of the decision making process until Ms Lindley returned or, alternatively, clear and unequivocal instructions as to her options at the time. I disagree. The State had gone to considerable effort to try to explain to affected officers what the restructure involved and how it would impact upon them. The department took steps to ensure that Ms Lindley, whose pre-arranged leave resulted in her being abroad for some ten weeks, would not be disadvantaged by being able to fully participate in the closed merit application process should she be so minded. Given that the restructure affected the entire department it is unreasonable to expect that the process concerning Ms Lindley be deferred. It is obvious, that others would be impacted by any decision Ms Lindley would make.. Mr Sapsford criticizes Mr Schuurs response to Ms Lindley's email of 10 September 2012 as inveigling a response from Ms Lindley. In my view, this is an unfair characterization of an email that is couched in sympathetic and empathetic terms and which makes it clear that, although Mr Schuurs expresses his dismay at Ms Lindley's indication that she is minded to take the redundancy package, she has that option – "if you wish after reading this email to not involve yourself in the closed merit interview … please email back with this request."[28] This also confirms that Ms Lindley was aware that she was not required to apply for the position, she could have taken a redundancy package.
[28] Exhibit A32.
I prefer the way Dr Spry characterized this interchange in his submissions. "Ms Lindley made a considered decision, having had time away from work to reflect on her future. She was clearly aware that she had the choice to participate in the closed merit interview process or to take a redundancy. She chose to participate in the closed merit interview process. She did this although her evidence was that she was concerned about Springwood closing because of the lease coming up… She won her position… Now with the benefit of hindsight she regrets her decision."
That Ms Lindley made a considered, unpressured, decision is confirmed by her email to Mr Schuurs of 11 September 2012:[29] "I appreciate you taking the time to respond as thoughtfully as you did. … Having some time out on the trip today, and our subsequent arrival to this fabulous city this afternoon has given me a lift…or as John says, more likely the jet lag has begun to pass. I really appreciate that you have expressed not only a concern for the people who will ultimately be under your leadership, but also that you sound as though you have a direction that you plan to go in once you have established a team. For those reasons I have decided that I should go through the interview process, and I apologise for the wavering." This also strongly indicates that Ms Lindley well knew that she had the choice of taking a voluntary redundancy package or participating in the closed merit process.
[29] Exhibit A33.
The events closest in time to Ms Lindley's decompensation occurred well after her return to work from leave on November 2012 and after she had successfully secured the one remaining AO5 position. It would appear that she had become somewhat disillusioned at the way she perceived the department to be operating. A meeting was held at the Springwood office on 16 January 2013 where options for office accommodation were discussed. At that time there were only five employees working out of the Springwood office. Following the meeting Ms Lindley sent an email to Mr Schuurs suggesting Beenleigh as an ideal location for an office. [30] It transpired that the decision was made to locate the offices at Ipswich and the Gold Coast. Staff, including Ms Lindley, were informed at a meeting held on 28 February 2013 that Springwood would close at the expiration of its lease and that Springwood staff would have the choice of relocating to Ipswich or Southport. This was confirmed by email to Ms Lindley on 13 March when she was reminded by Mr Michael Whiting, the Regional Director for South East Queensland West, that at the meeting held on 28 February staff had been asked to let him know their choice of location by 14 March. He expressed his understanding of the situation, offered his support and sought Ms Lindley's decision as to her preferred location.[31]
[30] Exhibit A35.
[31] Exhibit R8.
On 13 March 2013, not having received Ms Lindley's election, Mr Whiting telephoned her. He reminded her of the need to make a choice. Ms Lindley told him that she had put in a couple of job applications and requested that he give her more time because she didn't see herself being able to work at either of those offices on a full‑time basis. She sought until the closure of the Springwood office at the end of May to give him a response.[32]. According to Ms Lindley he told her that if she did not give him a response he would "…get Sarah to deal with me".[33] Ms Lindley perceived this as bullying "…because the word 'deal' infers that something is going to happen to me, and I didn't know what that was."[34] When asked in cross-examination whether it was reasonable for her employer to have her decision, Ms Lindley replied that she believed it was reasonable for her to request longer given that she was saying that she did not anticipate going to either office.[35] Ms Lindley asked Mr Whiting to put his request in writing, which he did in the email of 13 March to which I have referred.
[32] T3-7/10.
[33] T3-7/43.
[34] T3-7/40-44.
[35] T3-8/10-15.
The next interaction that the two of them had was on 3 April when they met face to face and Mr Whiting again asked for her decision. Ms Lindley said that she explained to him that her response was that she really did not see herself working at either Ipswich or Gold Coast and she was requesting time to make alternative arrangements and that she would give him her decision by the end of May when the Springwood office was to close.[36]
[36] T3-9/34 - T3-10/12.
Ms Lindley's evidence was that Mr Whiting had an email in front of him from which he read verbatim and he said "tell Linda that her remuneration and career options would be limited if she does not give a response."[37] This shocked Ms Lindley as she had never previously received any sort of warning. This is not an accurate representation of the email from which Mr Whiting was reading. The email from Vicki Battaglia, manager, business support, purported to be advice from HR to Mr Whiting to the effect that he should meet individually with Ms Lindley to allow her to raise her concerns and issues and to address those if there were solutions. He was also advised to explain that if she did not nominate a site, she would be directed to respond (or directed to a location depending on what she decides). This would be by letter and would be a lawful direction. Mr Whiting was to explain to her that the risk of not obeying a lawful direction could be a career risk or a remuneration risk.[38]
[37] T2-74/10-17.
[38] Exhibit R9.
Ms Lindley's mischaracterization, or at the very least misunderstanding, of what she had been told - the consequences of failing to obey a lawful direction, is but one of many instances where she appears to misperceive events.
As there was no work to be done in the Springwood office Ms Lindley, not having made an election, was permitted to then work "on a voluntary basis" on a project in the city.
On 5 April 2013 Mr Whiting again emailed Ms Lindley seeking her locational preference.
As Dr Spry succinctly put it: "prior to 22 April 2013, the agreed date of injury, Mr Whiting met with Ms Lindley on 28 March 2013 he telephoned her on 13 March 2013, and emailed her on that day and he met with her on 3 April 2013 and emailed her on 5 April 2013. Leaving aside the meeting on 28 March 2013 (of which Ms Lindley makes no complaint), Mr Whiting was merely following up with Ms Lindley as to her preferred work locations. There is nothing unreasonable in Mr Whiting's conduct."
I agree.
Events Post 22 April 2013
Ms Lindley saw her general practitioner, Dr Anita Kaveri on 23 April 2013 at which time she obtained a medical certificate stating that she was receiving medical treatment and, for the period Monday, 22 April 2013 to Friday, 26 April 2013 inclusive, would be unfit to continue her usual occupation.[39] It did not refer to the nature of Ms Lindley's medical problem.
[39] Exhibit R12.
Dr Kaveri was not called to give evidence however her clinical notes were tendered by the appellant without objection.[40] From those notes it is apparent that Dr Kaveri was not Ms Lindley's usual doctor. The note of 23 April relevantly reads:
"…stress at work – for one year, Unable to go to work today or this week, requests time off until Friday
works in Qld Govt.
is seeing private psychologist – seen her last week, scheduled for this wk again – on Friday as well.
I explained re MHCP on Medicare to her. She is familiar spoke about it with Dr RW in the past
Will think about it. If happy may come back tomorrow.
Actions:Letter Created – re-medical certificate to."[40] Exhibit A1.
Although nothing turns on it, the formal diagnosis of the injury was not made by Dr Kaveri as submitted by the regulator, rather it was made by the psychologist Rosalind Hurst on 26 April 2013.[41] Nevertheless, I am prepared to accept the agreement of the parties that the date of the injury was 22 April 2013.
[41] Outline of submissions by the respondent, paragraph 105.
The regulator submits that:
"…the coercion of Ms Lindley occurred before, during and after formal diagnosis of the injury by Dr Kevari."[42]
"Mr Whiting, after being provided with a medical certificate as to total incapacity from 22 April 2013 to 26 April 2013 on the morning of Wednesday, 23 April 2013 … pressed on by continuing to communicate with [Ms Lindley] and pushing [her] towards the making of a decision she did not wish to make while she was psychiatrically unwell."[43]
[42] Ibid.
[43] Outline of submissions by the respondent, paragraph 97.
In my view, this submission significantly overstates the case. The Springwood staff had been required to make their elections as to which office they chose by 14 March 2013. I have already set out the interaction between Ms Lindley and Mr Whiting in relation to his attempts to have Ms Lindley make her choice. Mr Whiting did not further communicate with Ms Lindley in relation to this matter after he emailed her on 5 April 2013, until he emailed her on Friday 19 April seeking a meeting the following week.[44] An appointment was apparently made for Wednesday 24 April 2013. On Tuesday 23 April Ms Lindley copied Mr Whiting into an email advising that she was unwell and was not able to come to work on that day. Mr Whiting sent her an email indicating that if she did not feel up to it they could meet on Friday instead of Wednesday.[45]
[44] Exhibit R11.
[45] Exhibit A42.
Due to difficulties of coordination, the meeting went ahead on Wednesday 24 April 2013. Ms Lindley said that the first thing she did at the meeting of was to provide Mr Whiting with the medical certificate she had obtained from Dr Kavari.[46] Mr Whiting said that after he was provided with the medical certificate after the meeting had commenced and that he terminated the meeting shortly thereafter.[47] I prefer Mr Whiting's evidence on this point. It is inherently more credible as it is unlikely that Mr Whiting would have continued with the interview. This is consistent with Mr Whiting's conduct, when he did not press Ms Lindley for an answer on the morning of 26 April after she told him that she was about to see her psychologist. That conversation appeared to be fairly robust, during the course of which Ms Lindley told Mr Whiting that she was considering making a workers' compensation claim and, in response to his asking her what she wanted, told him that she wanted to walk away with a redundancy package as she had requested whilst she was overseas. Ms Lindley said that she felt bullied by Mr Whiting when he told her that if she did not give him her decision he would have to get other people to talk to her.[48] Ms Lindley says that she told Mr Whiting that she had an appointment to see her psychologist on the Friday that she was really struggling and that the stress was greater than when she first met him when she spoke with him about stress.[49]
[46] T2-76/9.
[47] T2-54/16-T2-55/47; T2-60/35-47.
[48] T2-76/43.
[49] T2-77/10.
Mr Whiting had telephoned Ms Lindley at home at approximately 10 am, which is when she advised him that she was unable to speak with him as she was about to leave for an appointment with her clinical psychologist. Mr Whiting told her that he needed her decision but as she had a doctor's appointment he would ring her that afternoon, which he did at approximately 4 pm.[50] He said that he was trying to help her and that she was lucky to be speaking with him because there were others who would be much harder on her. Ms Lindley told him that she was in no position to give him an answer and that she would let him know by email. Mr Whiting said that she should just forget the email and tell him over the phone. At this point Ms Lindley hung up the telephone.[51]
[50] T2-57/42.
[51] T2-59/26.
The regulator submits that in circumstances where Mr Whiting had been provided with a medical certificate the concurrency of which was from 22 to 26 April and was dealing with a tearful woman who was to attend a clinical psychologist on the 26th and where Mr Whiting was aware of the nature of her illness, it was unreasonable to continue to press her to make an election as to which of the two offices she wished to work.
I do not agree. The department had been going through a major restructuring and staff in the Springwood office were to have indicated their choices by mid-March 2013. It is clear that Ms Lindley was not prepared to work at either the Gold Coast or the Ipswich office. It is apparent that Ms Lindley wished to go back on her election to contest the AO5 position and wanted the voluntary redundancy package which was no longer available. In my view the evidence discloses that considerable effort was made to try to accommodate Ms Lindley but that she refused to cooperate.
I do not accept that in this case, the events that occurred after the date of psychological injury should be taken into account. Ms Lindley saw a GP on 23 April and she was certified to be unfit for work. That she had suffered a psychological injury at that time was confirmed by the diagnosis of her clinical psychologist. As a matter of logic, events after that date could not have been causative of her injury. It is not the regulator's case that they aggravated a pre-existing condition.
In any event, I am satisfied that the management action in relation to the matters of which the regulator complains was reasonable management action taken in a reasonable way. The process had been ongoing for some time. Others would almost certainly be impacted by Ms Lindley's decision. In my view it was reasonable for management to seek to conclude the matter. The way in which it dealt with Ms Lindley was, in my view, reasonable in the circumstances.
The appeal must be allowed and an order made that Ms Lindley's claim be rejected. I will also order that the Respondent pay the State's costs.
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