Stoddart v Simon Blackwood (Workers' Compensation Regulator)
[2015] QIRC 160
•12 August 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Stoddart v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 160 |
PARTIES: | Stoddart, Joanne v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2014/199 |
PROCEEDING: | Appeal against a decision of the Workers' Compensation Regulator |
DELIVERED ON: | 12 August 2015 |
HEARING DATE: HEARD AT: | 10 August 2015 - 12 August 2015 Rockhampton |
MEMBER: | Deputy President Kaufman |
ORDERS : | 1. The appeal is dismissed. 2. The decision of the Regulator 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 further application to the Commission. |
| CATCHWORDS: | WORKERS' COMPENSATION – APPEAL AGAINT DECISION - teacher - parent - bullying - harassment - personality clash - matters of credit |
| CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32 |
| APPEARANCES: | Mr S. McLennan, of Counsel, instructed by Ken Bressington & Partners, for the Appellant. Mr S. A. McLeod, of Counsel, directly instructed by the Workers' Compensation Regulator, for the Respondent. |
Reasons for Decision
On 12 August 2015 I dismissed Mrs Stoddart's appeal against the decision of the Workers' Compensation Regulator confirming the decision of WorkCover Queensland to reject her application for compensation under the Workers' Compensation and Rehabilitation Act 2003 (the Act). These are my reasons.
At all relevant times the appellant had been employed as a probationary teacher at the Theodore State School, having previously been employed by the Department of Education on a casual basis for a considerable period of time. Theodore State School is a small school with some 15 to 20 teachers and approximately 100 students ranging from prep to year 10.[1]
[1] T2-31/38.
In December 2012, Ms Katrina Bayldon was appointed as acting principal, replacing the previous principal, Mr Treasure. In addition to being the principal of the school Ms Bayldon was the parent of a year one child, Ruth Bayldon-Lumsden. Mr Robert Lumsden is Ms Bayldon's de facto partner and the father of Ruth. Mr Lumsden lived on the Gold Coast but would frequently spend time with his family at Theodore, often for a week or more at a time. Mr Lumsden was an active member of the school's Parents and Citizens' Association (P&C) joining at the end of 2012. In 2013, he was elected as the school's Queensland Council of Parents and Citizens Associations (QCPCA) representative and was responsible to represent Theodore State School's P&C at conferences and district meetings.
During most of 2013 substantial building and maintenance works were being performed at the school; the most significant of which was the $700,000 upgrading of the air-conditioning system. Mr Lumsden became heavily involved in these works and, to all intents and purposes, represented the school in the coordination of the works and the communication with the contractors who were performing them. He did so on a voluntary basis as a parent of a child of the school and as a P&C member.
Mr Lumsden was quite often present at the school as a parent and in relation to the works. On the occasions that he was in Theodore he would travel with Ms Bayldon and his daughter to the school in the mornings and generally remain at the school for the entire day. It was his habit to deliver Ruth to her class room. The appellant was Ruth's teacher.
Inevitably, there were interactions between the appellant and Mr Lumsden, both in his capacity as a parent of one of the appellant's students and in his capacity as the person coordinating the works.
The essence of Mrs Stoddart's case is that Mr Lumsden engaged in inappropriate behaviour, which she characterized as harassment, intimidation, bullying and sexual harassment, that, in conjunction with the actions of the school in dealing with Mr Lumsden, led to her decompensation. It is not contested that Mrs Stoddart sustained an anxiety/stress disorder during the first half of 2013. An independent psychiatrist, Dr Petros Markou, who examined the appellant in February 2014 diagnosed "adjustment disorder with anxious mood." Dr Markou based his diagnosis primarily on what Mrs Stoddart had told him of Mr Lumsden's treatment of her.
In accordance with a directions order, the appellant provided an outline of the work events, a statement of stressors, which she claimed had caused her psychiatric/psychological injury. She further particularized her statement of stressors as follows:
(a)Harassment and intimidation by Mr Lumsden
i.Mr Lumsden's unscheduled attendances at the appellant's classroom to observe the appellant teaching without permission of the appellant;
ii.Mr Lumsden's unscheduled attendances at the appellant's classroom and uninvited entries into the appellant's classroom including on the morning of 14 March 2013 and the afternoon of 15 March 2013.
iii.Mr Lumsden's unscheduled approach of the appellant on the morning of 15 March 2013;
iv.Mr Lumsden's invasions of the appellant's privacy by way of sitting at her desk, entering the classroom storeroom, entering behind the appellant's partition and reading the notes on her cork board.
v.Mr Lumsden's invasion of the appellant's personal space on the afternoon of 15 March 2013; and
vi.The inability of the appellant to cope with Mr Lumsden's attitude, unfortunate manner and communication style, including those incidents at the parent teacher interview on 14 March 2013 and on the morning 15 March 2013.
(b)Unsatisfactory dealing of complaints
i.The continued attendance at and movement around the Theodore State School of Mr Lumsden following the complaint made by the appellant was a stressor.
(c)Sexual harassment
i.Mr Lumsden placed his hands down his shorts and scratched himself. After complaint by the appellant, Mr Lumsden proceeded to lift his shirt and expose his stomach and chest and used his other hand to go down further inside his shorts and scratch his anatomy; and
ii.Mr Lumsden sat with his legs spread and told the appellant that, "I have a big split in my pants." He remained in this position throughout the conversation ;
iii.No further sexual harassment occurred; and
iv.The investigation into the sexual harassment incidents was adequate (although see (b) above in relation to the action taken following the investigation).
During his opening of the case for of the appellant, her counsel, Mr S McLennan, properly conceded that in order for his client to succeed I would need to be satisfied on the balance of probabilities that the events as recounted by Mrs Stoddart had occurred.
The appellant and Mr Lumsden were the only people involved in the alleged events, except for some of the events on the morning of 15 March 2013, and there were no witnesses in relation thereto.
Mrs Stoddart's evidence extended over the best part of Monday, 10 August 2015 and Mr Lumsden's evidence extended over several hours on Wednesday 12 August. Ms Bayldon also gave evidence which largely corroborated that of Mr Lumsden in relation to the events of the morning of 15 March 2013.
At the conclusion of the trial I informed counsel that I did not require submissions on the evidence that had been led as it was fresh in my mind. I told them I had formed the view that where there was a conflict between the evidence of Mrs Stoddart, on the one hand, and Mr Lumsden and Ms Bayldon on the other, I preferred the evidence of Mr Lumsden and Ms Bayldon.[2] I asked Mr McLennan whether, having regard to his concession at the commencement of the trial, he accepted that the appeal must fail.
[2] See Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAC 189 at [66] ff. as to the desirability of an assessment of the credibility of witnesses to be made expeditiously.
The Evidence
The appellant
Mrs Stoddart is a middle-aged woman who suffers from a serious hearing impairment. She had difficulty hearing questions from counsel and the bench and often required that they be repeated.
In her evidence-in-chief, she tended to make somewhat generalized complaints about Mr Lumsden's conduct. For example she said that Mr Lumsden had come into her classroom on some six to eight occasions, he would sit at the back of the room and observe her teaching, he would sit at her desk in her personal space, he followed her into her storeroom.
She said that on 12 March 2013, two days before a parent/teacher interview with Mr Lumsden and Ms Bayldon, at approximately 8am, before class, Mr Lumsden walked into her classroom and asked her whether she liked the classroom. He put his hands inside his shorts and scratched himself, whereupon she said, "Don't! I find it offensive." He then lifted his shirt, exposed his stomach and chest, put his other hand deeper into his shorts and "had a good fiddle."
At the parent/teacher interview on 14 March 2013, the appellant said that Mr Lumsden did most of the talking and was very aggressive, dominating, loud and intimidating. There was a suggestion by Mr Lumsden that his daughter, whom he considered to be gifted, having had her assessed at the University of Queensland with a high IQ, was not being challenged in her reading because she was not bringing home "chapter books". Mr Lumsden was also insistent that the appellant refer to his daughter as Ruth Bayldon-Lumsden. Mrs Stoddart had apparently called her "Ruthie" and only used the Bayldon portion of her surname orally and when tagging her books.
On 15 March, the appellant said that, at 8 am Mr Lumsden was waiting for her on the landing outside the teacher aide room. When she approached he waved a book in her face, shouting "…this is the chapter book Ruth is reading from at home, I expect you to teach from it!" Mr Lumsden allegedly grabbed her by the elbow and demanded that she go into the principal's office. She went in, Ms Bayldon was on the phone and Mr Lumsden while waiting was stomping his foot. A heated argument ensued, the appellant became frightened, ran out of the room and slammed the door. Later that morning Ms Bayldon came to see the appellant and asked her to accompany her to see Mr Lumsden. Mrs Stoddart said that she was not ready, but Ms Bayldon pleaded with her saying that Mr Lumsden had threatened to take Ruth out of the school and return to the Gold Coast. Mrs Stoddart said that it was the last straw and that she was ready to take legal action. The two of them went to the tuckshop where Mr Lumsden was helping out and Ms Bayldon forced the appellant to shake hands with him.
In the afternoon of 15 March at approximately 4:30 pm Mr Lumsden entered the classroom without knocking and pulled up a chair in the narrow enclosure next to the appellant's desk thereby preventing her egress. He reminded the appellant that she was on probation as he leaned back in the chair and spread his legs wide remarking "Are you aware I have a split it in my shorts?" The appellant did not look down and maintained eye contact with Mr Lumsden who said "Are you aware I have huge amounts of money?" Mr Lumsden kept looking between his crotch and Mrs Stoddart. The appellant felt very frightened and terrified, her heart was racing, her head was pounding and she was gasping. Incredibly, given what was allegedly transpiring, this meeting lasted between forty-five minutes to an hour.
The behaviour of Mr Lumsden affected the appellant to the extent that subsequently she kept herself confined to the classroom with the doors locked. She was concerned about passing her probation because of Mr Lumsden's harassment and the bearing he might have had on her prospects. Mrs Stoddart felt extremely unsafe because she had no idea what Mr Lumsden would do and when he might appear. She spoke about these matters to Mr O'Shannessy, Mr Thompson, Mrs Collins and others. Mr Lumsden did not attend the school for some two weeks after this incident but when he returned she received a message, which had been sent to all staff, advising of his return. Mrs Stoddart thereupon restricted herself to her classroom and felt that she could not move around the school freely. She again became anxious, frightened and suffered from nosebleeds.
During the cross examination of Mrs Stoddart it became apparent that there were two desks in the classroom at right angles to each other with a small gap between them providing the only means of egress. Mrs Stoddart sat at one desk, that which faced the class, and the other which was against the wall seems to have been used more as a return. There was a filing cabinet at one end of the desk and the egress point was between the desk facing the class and the filing cabinet.
Mrs Stoddart made much of an incident where allegedly Mr Lumsden came into her classroom, asked for a lunch bag, followed her into the storeroom, sat at her desk to fill in the lunch order and declined to leave when asked by her saying, "No it's fine…I'll use it here, I'm comfortable." He again went into the storeroom and came back to her desk and filled in another lunch form.
Mrs Stoddart accepted that Mr Lumsden was heavily involved in the air-conditioning and maintenance program and that he was managing that for the school.
When asked why she did not raise the hand-down-the-shorts incident with Ms Bayldon, the appellant said she was too shocked and horrified. She came to the conclusion that Mr Lumsden is a sexual predator. She complained to the Department of Education and Training that it was harbouring someone who is a paedophile. She said that she complained that Mr Lumsden was "perving" at young female students and she had formed the view that he was a pervert. She said that she saw Mr Lumsden "perving" at young students in her classroom and in the playground. She had made no suggestion of these matters during her evidence-in-chief.
Mrs Stoddart complained to the police alleging that Mr Lumsden is a paedophile. However, an email from Detective Sergeant Bradley Doyle dated 10 July 2013 addressed to the appellant, which was provided to me but not tendered in evidence, wherein the sergeant explained why the police could not act on her complaint, suggests that no allegation of paedophilia was made.
These somewhat wild and unsubstantiated allegations caused me to have some concerns as to the veracity of Mrs Stoddart's evidence. This view was further compounded when Mrs Stoddart often resorted to saying "I don't recall" when various matters were put to her in cross-examination.
On several occasions Mrs Stoddart said that she found Mr Lumsden to be aggressive. As I mentioned earlier, Mrs Stoddart has a severe hearing difficulty. During cross-examination she often asked Mr McLeod to repeat himself. On one occasion when he repeated his question in a loud voice and asked Mrs Stoddart whether that was okay, she replied to the effect that had he spoken any louder she would have found him to be aggressive. I discerned nothing aggressive in Mr McLeod's manner, but this exchange led me to question Mrs Stoddart's perceptions.
Mr Lumsden
Mr Lumsden impressed me as a witness. He gave his evidence in a forthright, calm and responsive manner. He denied that the hands down the shorts incident had occurred. In respect of the interchanges the subject of Mrs Stoddart's allegations he provided cogent and credible versions of the events that cast a benign light upon them. He produced a visitor's entry log, which detailed most of his attendances and provided a credible account of his activities on each occasion. He satisfactorily explained each of his encounters with Mrs Stoddart. For example, in relation to the lunch bag incident his evidence was that his daughter had told him that another student had lost her lunch money on the bus, and that he and his daughter, the other student and a third student went into the classroom whereupon he asked Mrs Stoddart where she kept the lunch bags in order that he could provide one for the girl who had lost hers. He said that Mrs Stoddart showed him where they were kept in the storeroom and gave him one. He knelt down at the end of one of Mrs Stoddart's desks and filled out the lunch order. The tuckshop price list was on a cork board adjacent to the desk and rather than have Mrs Stoddart take it down, he completed the form at the desk close to the corkboard. He then went into the storeroom to get another lunch bag for a second student.
As to the split in the shorts incident, Mr Lumsden said he went to the classroom in the afternoon of the day they had shaken hands, to confirm that the earlieraltercation between him and Mrs Stoddart had in fact been settled. He denied sitting with his legs astride, saying that he sat on a small student chair, that to the best of his knowledge he had not blocked Mrs Stoddart's egress and that if he had mentioned the split in his pants it was only to explain why he was sitting awkwardly. As to the "chapter book" incident, Mr Lumsden said that he had taken the chapter book that his daughter had been reading at home to school on the morning in question to show to Mrs Stoddart. He was on the landing adjacent to the administration area and attempted to show the book to the appellant. She became loud and aggressive, accusing his daughter of an inability to read and write sentences properly. This occurred whilst other people were present and he asked her to follow him into Ms Bayldon's office. He denied grabbing Mrs Stoddart by the elbow or touching her at all. He asked Mrs Stoddart to tell Ms Bayldon what had just occurred, Mrs Stoddart commenced by saying "Ruthie…" whereupon Mr Lumsden reminded her that his daughter's name is "Ruth". Mrs Stoddart snapped that she did not like Mr Lumsden's aggressive manner and stormed out of the office. He denied being aggressive.
Ms Bayldon
Ms Bayldon also generally impressed me as witness of credit, albeit on one occasion, after having denied that she had sought Mrs Stoddart's removal from the school, she was reluctant to accept that she had done so in the face of an email from her that demonstrated that to be the case. Her evidence in relation to the parent/teacher interview, and the incident in her office after the "chapter book" incident and the apology at the tuck shop was cogent and generally corroborated that of Mr Lumsden.
Other witnesses
The critical events occurred when only Mrs Stoddart and Mr Lumsden were present and on a couple of occasions when Ms Bayldon was also present. Although the appellant called several other witnesses, their evidence was largely irrelevant. Mrs Jackie Jewell, worked in the administration office at the relevant time. Her evidence went no further than to confirm that Mr Lumsden was often present at the school, that he would answer the phone on occasion and deliver messages. She confirmed that Mr Lumsden was heavily involved in the maintenance/refurbishment project.
Mrs Beth O'Shannessy was a high school teacher at the relevant time at the school and relieved for the appellant for 70 minutes per week. She considered the appellant to be a very thorough and exemplary teacher. She observed that the appellant had changed from her generally efficient, polite and professional demeanour in 2012 to one of being anxious and hyper-vigilant in 2013 after Ms Bayldon and Mr Lumsden arrived on the scene. She described Mr Lumsden as always looking dishevelled and wearing "grungy stubby" shorts. She considered him to be unprofessional and suggested that "…he'd be hovering around." She suggested that Mr Lumsden would often stand on a balcony in a position where he would be able to look up the skirts of students. I note that there was no evidence to suggest that he did so. She added that he used the pretext of fixing computers to justify his presence in her area. Mrs O'Shannessy obviously felt that Mr Lumsden was acting beyond his role as a parent and member of the P&C committee. She is a friend of the appellant's and her evidence was given in a less than impartial manner.
Ms Tracy Howe was an office assistant who reported to Ms Bayldon. Her evidence did little more than confirm the frequent presence of Mr Lumsden at the school and his involvement with the maintenance/refurbishment project. Mr Joseph Maloney is a musician who worked at the school as a teacher aide at the relevant time. He also looked after the computers. He spoke of Mr Lumsden being involved in tagging and testing electrical cords and the checking of invoices which Ms Bayldon wished to ensure were appropriate.
Mr Graeme O'Shannessy, Mrs O'Shannessy's husband, was a teacher at the school at the relevant time having been there between 2009 and the end of 2013. He was also the teachers' union representative. He confirmed that Mr Lumsden was often at the school and that he was involved in the works, especially the air-conditioning replacement. He suggested that Mr Lumsden told him that a certain project, entry into the "Archie Bull" competition would not be approved unless a particular student was involved in it. When asked whether the appellant had made any complaints about Mr Lumsden's conduct he replied that she had not done so specifically. He directed her to the union's legal representative and communicated with the regional representative, a Mr Thompson, after Mrs Stoddart later made a formal complaint about Mr Lumsden. Mr O'Shannessy participated, as her support person, at an interview between her and the regional Director of the Department of Education and Training. He said that 20 minutes after that interview Ms Bayldon, who was not at the meeting, approached him and told him that everything that the appellant had said was utter fantasy and that he should treat it that way. He then relayed some of the things that the appellant had told him about Mr Lumsden's behaviour.
Mrs Trish Collins is, and was at the relevant time, a director of regional services with the Department. She oversees Central Queensland policy, advice and responds to escalated complaints. She was involved with the appellant's complaint. She spoke to the appellant, Ms Bayldon and Mr Lumsden on the phone as well as exchanging emails with the appellant and Mr Lumsden. She gave evidence of steps that had been taken to isolate Mr Lumsden from Mrs Stoddart after the latter's complaints. She also felt that Mr Lumsden had a hold over Ms Bayldon and might have been influencing her from a distance. She confirmed that on 5 June 2013 a letter had been sent from the regional Director of the Central Queensland region to the appellant advising her that it was not possible to assess further the veracity of her allegations or to take any follow-up action other than to ensure that she remained safe in the school and in her accommodation. She confirmed that in April 2013, Ms Bayldon expressed concern about Mrs Stoddart's lesson planning, that she thought that she had potential but that some areas needed to be addressed. She spoke of the role of a volunteer in the school and noted that some teachers felt that Mr Lumsden was stepping beyond that role and was giving direction to teachers.
Mr David Pokroy, a psychologist and a recently retired guidance officer had Theodore State School as one of the 10 or 11 schools he looked after.. He knew the appellant during the one and a half years that he was involved with the school and spoke of her dedication and abilities in glowing terms. He spoke of Mr Lumsden's belief that his daughter was gifted and ought to be promoted to a higher grade and the outcome of an IQ test which found her to be in the 120 to 130 range. He also noted a significant change in Mrs Stoddart's demeanour after the arrival of Ms Bayldon and Mr Lumsden.
In my view the evidence of these witnesses is largely irrelevant to the issues to be decided. It does not assist in determining the critical issue of what transpired between Mrs Stoddart and Mr Lumsden.
Dr Markou confirmed his diagnosis and accepted that it was based on the information given to him by the appellant. He also accepted that if the events described by the appellant had not occurred his diagnosis would be materially affected.
In submitting that despite my rejection of Mrs Stoddart's version of the events, she could succeed on the basis of stressor (a)(vi) set out above, Mr McLennan referred me to Leigh Sheridan v Q-Comp, 191 (Vol 2) QGIG 13-17, where President Hall said:
"In respect to psychological injury, there is an 'egg-shell psyche' principle which is the equivalent of the 'egg shell skull' principle … So long as the events within the workplace are real rather than imaginary, it matters not that they impact upon the claimant's psyche because of a flawed perception of the events attributable to a disordered mind. Further, to resort to a notion of 'clash of personalities', is not to deny the Appellant's claim. The inability of a worker to psychologically cope with an attitude or manner of another worker is analogous to a worker being made unable to cope with any other feature, including a physical feature, or aspect of the work environment."
[Original citations omitted]
Although a decompensation as a result of a clash of personalities in the workplace might be an "injury" within the meaning of the Act, the events relating to the alleged clash of personalities must be real rather than imaginary. Having preferred Mr Lumsden's and Ms Bayldon's version of the events and not being satisfied that Mr Lumsden exhibited an "attitude" or "unfortunate manner and communication style", I did not accept Mr McLennan's submission that this ground had been made out. Further, Mrs Stoddart did not allege that it was Mr Lumsden's attitude, unfortunate manner and communication style that led to her decompensation. Her case was that his alleged bullying and harassment were the cause thereof.
In so far as it is alleged by Mrs Stoddart that Mr Lumsden's continued attendance at, and movement around, the Theodore State School following her complaint, was a stressor, the evidence is that once Ms Bayldon became aware of the complaint she requested Mr Lumsden not to attend the school, which request he honoured, until the week of 22 April 2013 where he was requested to attend at the school to assist in the relocation of classrooms. Strict parameters were placed around his movements whereby he would not be present in the areas in which Mrs Stoddart could reasonably be expected to come into contact with him. Further, Mrs Stoddart was informed of his presence and in what particular locations he would be working. To the extent that her psychological/psychiatric injury arose out of these movements it arose out of, or in the course of, reasonable management action taken in a reasonable way. It is thus excluded from the definition of "injury" in the Act.
At the conclusion of the evidence, I asked Mr McLennan whether his position was still that if I did not accept the evidence of his client the appeal must fail. He confirmed that this was the case, save and except for the matters adverted to in paragraphs 38 and 39 above. I informed the parties that I had no hesitation in accepting the evidence of Mr Lumsden and Ms Bayldon where that was inconsistent with the evidence of the appellant. I rejected Mr McLennan's submission in relation to the clash of personalities submission. Having rejected that submission and not being satisfied that the events had occurred in the manner in which Mrs Stoddart had portrayed them, or in one instance at all, I dismissed the appeal and ordered that the appellant pay the regulator's costs, to be agreed or as settled by the commission.
0
0
0