Susan Worlley v State of Victoria (Workcover)
[2015] VMC 5
•27 FEBRUARY 2015
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION D13715116
BETWEEN:
SUSAN WORLLEY Plaintiff
-and-
STATE OF VICTORIA Defendant
MAGISTRATE: GINNANE
WHERE HEARD: MELBOURNE
DATE HEARD: 2, 3 & 4 FEBRUARY 2015
DATE OF DECSION: 27 FEBRUARY 2015
CASE MAY BE CITED AS: WORLLEY v STATE OF VICTORIA
Catchwords: Accident Compensation Act 1985 payment of compensation after 130 weeks – section 82(2A) – inquiry into working arrangement of business manager in school office put in place by previous acting school principal – new principal appointed – education department investigation into school – discussions undertaken to alter previous arrangement - reasonable management action- plaintiff’s claim dismissed
REASONS FOR DECISION
APPEARANCES Counsel Solicitors
For the Plaintiff Mr Ajzensztat Adviceline Injury Lawyers
For the Defendant Ms S Bailey Minter Ellison
HIS HONOUR:
1.The plaintiff is an experienced business manager who was employed by the State of Victoria and working at the Woori Yallock Primary School since 1996. The plaintiff has never worked a 5 day week. In the guise of business manager she reported to the principal, a position that during 2010 was occupied by an acting principal Marg Blanksby.
2.The plaintiff’s request for a modification was met and reflected in a letter dated 12 July 2010.[1] This letter approved a reduction in the plaintiff’s working time to 0.55 consisting of 4 days per fortnight working from the school office and the remainder of the time fraction to be undertaken from home or off site. As part of the arrangement, the plaintiff was also supplied with a mobile telephone and a laptop so as to allow her to remain in contact with the school office while off site.
[1] Ex P1
3.This arrangement proved satisfactory to the plaintiff because of personal circumstances including her husband’s employment being having been transferred to Geelong. The practical application of the arrangement was that every fortnight involved a period of 8 days in which the plaintiff was not available on site at the school office. There is no suggestion that the manner in which the plaintiff executed her duties was otherwise than diligent and competent. There is nothing to suggest that her flexible working arrangement occasioned any difficulties with the administration or operation of the school or the discharge of the functions of the previous acting principal. Nonetheless, benign though the practical application of this working arrangement was, it is not determinative of the controversy.
4.A new principal was appointed to commence at the school at the beginning of the 2011 school year. Danny Hyndamn was appointed after consideration by a selection panel convened for this purpose. The acting principal although a candidate was not appointed principal. The plaintiff had been a referee for Ms Blanksby. It would seem that Hyndman’s selection and appointment as principal was not well received by some including the plaintiff and also an anonymous letter writer[2]
[2] Ex D4 Anonymous letter dated 24.1.13
5.Ms Kerry Waite, who is both a teacher at the school, and the AEU representative, was a member of the selection panel. She testified that the plaintiff had disparaged Hyndman to her and expressed her hope that he would not be appointed. Ms Waite testified that the plaintiff had confided in her about some issues that had arisen between Hyndman and the plaintiff’s husband as members of a cricket team.
6.Hyndman testified. He said he came to the role of principal of the school not having previously acted in such capacity. He is however an experienced secondary school teacher.
7.In 2010 the school office consisted of three staff among whom the plaintiff was the senior and most experienced. The other two staff consisted of a woman named Melissa and Nicky. They did not testify.
8.Hyndman said that after commencing in his role he became conscious that the plaintiff was not on site and not attending the office each working day. He said that he was not aware of the plaintiff’s working arrangements before the start of the school year, but he became aware of them informally through discussions. He said that he was not aware of the basis that underpinned the plaintiff’s working arrangement.
9.The plaintiff testified. She said that Kerry Waite had confided in her that she told Hyndman after his selection as principal but before the commencement of the 2011 school year about the plaintiff’s working arrangement and that he was ‘very happy about it’. Kerry Waite testified. She said she did not tell Hyndman of the plaintiff’s situation prior to the commencement of the 2011 school year. I prefer the evidence of Hyndman and Waite to that of the plaintiff on this question.
10.The Department of Education instituted an in depth review of the school. The process undertaken was called an Extended Diagnostic Review (the review). Jill Jackson, a consultant external to the Department, was engaged to perform the review. One of the findings of the review was that the allotment of hours in the school office was excessive in relation to the number of enrolled students. In response to a query by Jill Jackson to identify the basis for her working arrangement the plaintiff sent an email dated 28 July 2011 that referred specifically to “page 5 of the Flexible work in Victorian government schools policy”. She wrote, that the policy “refers to ES staff working from home as part of a flexible working arrangement”.
11.Hyndman wrote to all of the office staff. The letter he sent to the plaintiff and dated 2 August 2011 read[3]:
Dear Sue,
In light of the Extended Diagnostic Review one of the recommendations is a restructure of our office. With this in mind I would like your feedback regarding the positives and negatives of our office over the last 12 months. I would also like your input into where you see the future directions of the office. If you can submit it to me your thoughts by Tuesday, August 9th, that would be great.[3]Ex P2
12.The plaintiff responded by letter dated 8 August 2011[4]. Relevantly, it read:
[4] Ex P3
Thanks Danny for the chance to submit my observations and input into the structure of the office over the previous 12 months and the future.
Obviously, the personnel (Nicky and Melissa) are a huge positive in the office as they are both very hard-working and extremely diligent.
I feel they are a great asset to the school as they are often the first point of call that new parents/students encounter. They both possess a very welcoming manner and deliver "nothing is too much trouble", approach in the roles.
Over the last 12 months Nicky has mainly been responsible the student admin, newsletter, all bookings, school communications, assisting teachers, ordering (stationery), front office duties and general office administration.
Melissa has assisted in all these roles, her other responsibilities include receipting/banking, all filing within the admin area, school council minutes an audit/DEECD council requirements, ordering (uniform) and regular stock takes, assisting parents with their statements/fees, O.H.S officer, book club,
My role of business manager encompasses all school finance, HR, school maintenance system, EMA, budgeting, ensuring that all DEECD requirements are being met and reporting to all relevant parties. I assist with staffing and school global budget requirements. Liaising with the OOSH co-ordinator and the integration co-ordinator in the delivery of their roles. General office duties.
The most significant positive to Woori Yallock P.S. in my opinion, has been the opportunity to increase the personnel in the office by employing ES staff at the entry-level increase in the level of knowledge through CASES P.D. days and onsite school training.
The staff (especially Mary) have definitely benefited from their assistance.
Parents and students also directly benefit from the high standard of assistance and dedication which has proved on a day-to-day basis.
I see the future development of the school office consisting of the present 3 staff members, with additional on ongoing professional development being a school office team priority: therefore creating greater flexibility within staff roles and responsibilities.
13.It was only as a result of the review that Hyndman became aware that the plaintiff’s arrangement including her working remotely was not supported by departmental policy. Furthermore Hyndman was coming to the view that he required the plaintiff as the office manager to work a different set of days resulting in greater continuity in the office. These developments were documented between the plaintiff and Hyndman. Hyndman wrote to the plaintiff by letter dated 15 August 2011[5]. The letter reads:
Dear Sue,
After having read documents relating to flexible work arrangements I believe it is necessary to complete a 12 month review of your current flexible work arrangements. As part of this review I would like feedback on how you are finding the current arrangement. What are the benefits to you? What are the benefits of the school? What are some of the challenges?If you could provide me with your feedback by Friday, September 2nd, that would be appreciated.[5] Ex P4
14.The plaintiff said that the receipt of the letter ‘made me feel overwhelmed’. I can see no logical basis for the letter having engendered such a response. However the plaintiff responded in writing to Hyndman in the terms requested dated 2 September 2011[6]. Her response omitting formal parts stated:
[6] Ex P5
Review: Flexible Work Arrangements
Susan Worlley T02547882 – Business Manager
Woori Yallock Primary School
2/9/2011
T/F .55
On Site .4 (15.2 hours), Offsite .15 (5.6 hours)School Benefits
Retaining an experienced Business Manager at the present time fraction, who has substantial knowledge, understanding and commitment to the administrative and financial aspects of war re-elect primary school.
Through SRAS the Business Manager has the ability to access all school computer sites including Edupay and CASES and perform administrative and financial duties when off-site. This is beneficial for the following reasons:- Time efficiency due to minimal disruptions and therefore greater productivity in time fraction ie data entry
- Privacy of school details of telephone communication
- Leadership, teaching and E.S. staff are able to e-mail the Business Manager within and outside of the Business Manager’s time fraction which gives the Business Manager time to plan and prepare advice and assistance.
Having the two work locations ensures attendances at relevant Professional Learning sessions with the least disruption to the school. (I have attended four days of Edupay training in the Barwon South Western Region)
Employee Benefits
Ability to perform Business Manager duties remotely rather than reducing time fraction.
Challenges
Throughout regular communication with the school office, by phone and e-mail, I believe we as a team or overcoming challenges. We have established open communication protocols, including shared problem-solving.
Distribution of duties is being alleviated as other staff members attend training and professional development. It has been very rewarding over the last twelve months the witness both Melissa and Nicky develop in the knowledge and confidence.
15.The plaintiff met with Hyndman on 22 September 2011. This was the earliest practical date for them to meet because, coupled with the plaintiff’s working arrangement, Hyndman had just become a parent, and had some time off in consequence of that event. I am satisfied that Hyndman took steps to meet with the plaintiff as soon as was practicable.
16.The plaintiff said that Hyndman told her that the arrangements for flexible working had not been set up within the Department and had only been put in place until the other two office staff had been trained up. Hyndman told the plaintiff that from the school's perspective he needed her to work on site. He told her that it helps him when she is working on site more than when she is working off-site, because the existing arrangement had a consequence of her working eight days straight every second week. He also told her there was no telecommuting agreement in place and that he wanted her to consider increasing her time fraction due to her skills and knowledge. He said that at the conclusion of their meeting he proposed that in term 4 a trial of 0.55 at school on Tuesdays Wednesdays Thursdays (a total of 20.8 hours) be undertaken. The plaintiff told him that she needed some time to digest the proposal.
17.The plaintiff said that Hydnman told her that the arrangement would be “good for the school, good for her and good for Terry”. The plaintiff said that she was upset and took umbrage that Hyndman had referred to her personal circumstances and mentioned her husband Terry by his first name. In my judgment, I fail to see that there is a legitimate basis for the plaintiff’s complaint. Hyndman denied making the statement that was attributed to him but in a sense, it is a red herring because although Hydnman denied making the statement, he agreed that the sum effect of each of the matters he acknowledges raising with the plaintiff would have been good for the school office and thus to him as well beneficial to the plaintiff by increasing the continuous amount of time spent with her husband and family.
18.In any event, I am satisfied that the plaintiff was afforded the opportunity of sufficient time to consider and respond to the matters raised by Hyndman. However the plaintiff did not take any real time at all to respond. She replied very quickly to the matters discussed and by letter dated 23 September 2011[7] said:
[7] Ex P6
I am writing in response to a request made on 22nd September, 2011.
I am concerned about the requested changes to my time fraction and hours of work and I have sought advice from the AEU.
I have been advised that ES time fractions and times of attendance should not be changed without both the employer and employee agreeing to do so as per Clause 19 (3) (b) of the ES Agreement (see Below).
I have worked at war re-elect Primary School as the Business Manager to 15 years, and am very committed to the school and staff. My current hours and flexible working arrangements were agreed upon and have been working well for since May 2010. There are appropriate and effective measures in place to ensure the smooth operation of the school and allow me to balance my home and working life.
The requested changes to my hours and arrangement of work are significant to me. I do not wish to cause any discord, but I am not currently in a position to accept the requested.
I understand that you have reasons requesting the change not be happy to meet and discuss how we can work towards accommodating the needs of the school.
19.Pasted into the letter was the relevant clause referred to which reads:
An employee and the Employer may agree on the arrangement of ordinary hours of attendance, including but not limited to:
(i)daily starting and finishing times;
(ii)the time and duration of meal break;
(iii)attendance at school meetings and meetings with parents;
(iv)in the case of part-time employment, the number of hours worked per fortnight;
(v)flexible work arrangements; and
(vi)attendance during school holiday periods.
An employee and the Employer may agree to vary these arrangements at any time
20.Hyndman sent the plaintiff an email advising her that he would look into the matter. I am satisfied he did, and in consequence of the same, he met again with the plaintiff on 10 October 2011. On this occasion the plaintiff attended the meeting with a representative of the AEU. The plaintiff told Hyndman that because of her husband’s job she could not agree to an alteration to her working days or to working off site. The plaintiff told the court that she was a ‘mess in the meeting’ and that she ‘cried virtually the whole meeting’. Kerry Waite’s evidence was that although the plaintiff was emotional and had a quaver in her voice her presentation was not as pronounced as the plaintiff would have it. Hyndman also refuted the plaintiff’s account of her condition. I prefer the account of evidence by Ms Waite and Hyndman to that of the plaintiff. Ms Waite said she took notes of the meeting that she very soon after the meeting typed[8]. The notes of the meeting are instructive and I set them out as follows:
[8] Ex D3
Sue - due to family situation cannot change time worked at school to the hours Danny requires. Pointed out that present situation has been working successfully since May 2010.Sent letter to Danny re: advice from union. If unable to take work home where do I stand?
Danny – After school review and consulting AEU and 2 other bodies-found out that there has to be a telecommuting agreement for Sue to work from home, so current situation not legal.
Agree to disagree on effectiveness of working from home vs work at school. Not personal but any outcome has to be within the guidelines.
Danny values Sue’s contribution and acknowledges that Sue’s role is Danny's biggest weakness. Having Sue onsite is important to Danny.
Aware that this is a very difficult situation for Sue.
Sue to contact union re: the commuting agreement ASAP. If no T/C agreement could drop hours but devote entire time to job that she is paid for- dealing with finance. Other office staff need to do other jobs eg newsletter etc.
Danny - if you wish to drop hours, put in writing and have the talk/negotiate this.
Sue- need to be open communication from tomorrow re: general business.
Danny agreed.
Danny- agrees that Sue should contact union re: T/C agreement.
Coming from the legal aspect - hopes that both can work together to achieve agreeable situation both.
Both agree to further meeting.
21.The plaintiff did not take any steps to contact her union and seek clarification or direction regarding the circumstances required to meet the departmental guidelines applicable to a telecommuting agreement.
22.The plaintiff attended on her general practitioner Dr Kirwan. The plaintiff said that she was feeling depressed and that she was worried about the employment future of Nicky and Melissa if she did not comply with Hyndman’s request that she alter her hours. The plaintiff reverted on many occasions in evidence to concerns she harboured for the employment of the two other women in the office. I am satisfied that there is no realistic basis for the plaintiff’s refuge in this concern. There is nothing to indicate that their employment was in jeopardy because of any decision by the plaintiff. Neither employee testified for the plaintiff. However, Hydnman testified about their respective employment and, rather than the plaintiff’s position putting them at jeopardy, Hyndman said that after the plaintiff said she would reduce her hours he tried to utilise them and increase their work hours however both declined because of their own circumstances.
23.In St Mary’s School v Askwith.[9] The Court of Appeal identified the task before me as one “of an essentially factual enquiry, the question being one of degree, requiring evaluation[10]” I am mindful that in examining whether the plaintiff’s employment was a significant contributing factor to a worsening of a condition, that the defendant takes the plaintiff as it finds her and, furthermore, that it is not to the point that work influences may have had no effect on a person who did not suffer from pre-existing conditions or vulnerabilities and that a stressor may nevertheless be relied upon for the purposes of a case such if the plaintiff’s perception of an event or circumstance, has a real connection with events that occurred arising out of her employment – as distinct from an event she simply imagined was connected with her employment.[11] Bearing this guidance in mind, but on my evaluation of the facts, I am positively satisfied that the plaintiff’s evidence that the request of Hyndman and any refusal by her to comply led her to have a concern about her co-workers, was not one that exhibited a real connection with the events that arose out of her employment.
[9] [2011] VSCA 90
[10] Askwith at [13]
[11] Askwith at [12]
24.Hyndman said he was alerted by a message relayed to him from the office that the plaintiff had phoned in and asked him to call her which he did and he was then told by the plaintiff that she would not be in for a week as she had been to see her general practitioner who had prescribed her medication. Hyndman asked the plaintiff if her absence was because of the matters that had been under discussion between them in relation to her working arrangement and she said it was. Hyndman, properly in my view, did not further press the plaintiff. I don’t regard Hyndman’s inquiry of the plaintiff at this point in time about the possible cause of her absence as other than one stemming from an alertness of, and sensitivity to, the ongoing handling of a matter of concern to the plaintiff, but a matter nonetheless as principal he wanted and was entitled to resolve. It would be an abdication of the working compact between employer and employee that the existence of an unsettled working atmosphere simpliciter thereby anesthetised or inoculated a reasonable ongoing discussion of legitimate work matters between principal and staff.
25.On her return from work on 24 October 2011 and having furnished a medical certificate to account for her absence, Hyndman asked the plaintiff when it would be suitable for them to meet. The plaintiff requested that they meet be the following day and Hyndman agreed. On 26 October 2011 the plaintiff approached Hyndman and asked him if it was convenient for them to then meet. They did. The plaintiff said she wanted to be represented in the meeting and Hyndman agreed and said that he would as well, however, the plaintiff changed her mind and so the meeting proceeded between the two of them The meeting resolved that the plaintiff would reduce her time fraction to 0.49 commencing 24 October 2011 and she would revert to 0.4 commencing the following school year.
26.The plaintiff said that she felt relieved about the resolution of the matter.
27.The last week of the 2011 school year commencing Monday 19 December and concluding Thursday 22 December 2011 approached. It had become apparent that with the plaintiff's reduction in her working fortnight it would be necessary for the role of business manager to be "job shared". It was not suggested that there was anything untoward about this. Evidence was given as to the mechanism put in place to find a suitable person to job share the position of business manager. I was told that both parties thought it better for the administration of the school if they each turned their minds to anyone they might know who might be suited for the role. On 19 December 2011 plaintiff said that she was approached by Hyndman who told her that he had met up with an old friend whom he thought would be good for the position. This was Miss Heatherton, who proved successful in obtaining the role. The plaintiff said that she was ‘speechless’ that Hyndman would appoint Ms Heatherton because she had no school experience. Ms Heatherton gave evidence, and it is apparent that she came to the employment with a significant degree of expertise in areas relevant to the business management if not gained or deployed previously in a school environment. The plaintiff said that on 22 December 2011 at the conclusion of the staff lunch Hyndman came to her desk and ‘required me to enter her [Heatherton] onto the system’. The plaintiff said she asked Hyndman what level she would be employed at for the purposes of remuneration, and Hyndman said, ‘the same level as you’. The plaintiff was taken aback by this decision. However the real rub came when Hyndman then said to the plaintiff words to the effect, ‘you will need to speak to her about the days you will be working’. The plaintiff responded, ‘I thought it had been agreed’. The plaintiff said that Hyndman said to her words to the effect, ‘this is not about you’. He denied this choice of language.
28.The plaintiff said, and I accept, that she became distressed as a result of what she perceived to be a moderation or modification to the agreement of her work days for the 2012 school year. She said she went to see her general practitioner and told him what had happened and said that, ‘it was too much’. She was prescribed Pristiq.
29.The plaintiff described the period over Christmas and the New Year as one in which she was, ‘numb’. The plaintiff was taken to e-mail correspondence of late December 2011 that reveals no indication that the plaintiff was adversely affected by what had transpired before Christmas.
30.The plaintiff returned to work on 31 January 2012. This was an important day for the school year, because it was the day on which school books and the like were distributed for parents to collect for their children. The plaintiff said that after she completed the task she ‘closed down’. She said she left at about lunchtime that day going home sick. She said she rang the local doctor. She was unable to see her general practitioner until the next morning. She said saw Dr Kirwan on 1 February 2012 and that she was crying throughout the course of her appointment with him. She said her dose of Pristiq was increased and she said that Dr Kirwan told her that she had a WorkCover claim. She said she told her Dr Kirwan that she could not cope. She said he issued a certificate for a month. She said she was referred subsequently Kerry McDonnell, a psychologist however she no longer is under her care. On 1 March 2012 the plaintiff lodged a claim under the Act. She did not work during 2012. In April 2012 she undertook a bookkeeping course for a period of six weeks one day per week. In October 2013 she applied for bookkeeper’s job in Avenel for about five hours per week but was unsuccessful. In May 2014 she registered interest with the Department of Human Services for a position in the order of one or two days per week. She applied for a job with Australia Post for a position of one to two days per week but was unsuccessful. In June 2014 she responded to an Anglicare position comprising one day per week but was unsuccessful. She also applied for a position at the T’Gallant winery. Eventually in November 2014 the plaintiff was successful in securing a position with Peninsula Transport Association working three days per week five hours per day.
31.Various allegations were made against the principal during the course of the hearing. In particular a number of assertions were made by the plaintiff regarding the manner and tone he adopted towards her in the course of meetings held between the two of them. The plaintiff accepted that when she met with the principal in the company of Kerry Waite that there was no oppressive conduct exhibited by Hyndman. I consider that the plaintiff exaggerated in her evidence the manner and tone used by Hyndman. I observed him in the course of giving his evidence and in the course of cross-examination and his demeanour and presentation in Court belied any suggestion or indication that he would behave in an overbearing or bullying manner. Certainly there was nothing in the evidence comprising the minutes taken during the course of the meeting and that Kerry Waite attended to suggest he behaved in any untoward or unprofessional manner in her presence. Even making allowance for the fact that he may have behaved otherwise when there was no third-party, I accept the submission by counsel for the defendant, that it would be peculiar if having experienced such behaviour by Hyndman as the plaintiff alleged to have occurred in the past when they met alone, that she was prepared to attend a further face-to-face meeting without an independent corroborator. In any event, and in relation to that third meeting, the plaintiff acknowledged that she left it feeling relieved that she had in place an agreement to accommodate her needs and that of the principal moving forward into 2012.
32.There is no doubt that an area of considerable concern arose as a result of the plaintiff's concern that the agreement she believed had been put in place for 2012 had been abandoned or, at least put in jeopardy. In order to understand the concern that was expressed in this way it is important to revisit the third of the meetings held face-to-face between the plaintiff and Hyndman on 26 October 2011. At the conclusion of the meeting the plaintiff provided to Hyndman a time fraction change authorisation. This document completed by the plaintiff shows the plaintiff at the time was working 18.45 hours or 0.49 fraction per fortnight and that in consequence of the agreement struck with Hyndman for the 2012 school year she was to reduce her hours per week to 15.2 or 0.4 fraction. The authorisation document described the reason for the change in the plaintiff’s hours, as ‘employee and principal agreement (personal circumstances)’. The plaintiff signed the document on 26 October 2011. The document was countersigned by Hyndman on 15 November 2011. One of the matters in evidence raised by the plaintiff was the worry and concern and stress brought on by the delay between the date that she had signed the authorisation and the time it took for it to be returned signed by Hyndman. I reject any suggestion that this was a deliberate act on the part of Hyndman. The evidence is that the plaintiff provided him with it and put it in his in tray and as a result of work and other tasks associated with his position, a period of time elapsed before it was signed and returned to the plaintiff. Both the plaintiff and Hyndman said in their respective evidence that irrespective of a signed document an agreement had been struck between them in the terms reflected in the change authorisation. I also reject the suggestion that there was any impediment on the part of the plaintiff in being able to have approached Hyndman to enquire about progress of his signature to the form. The plaintiff said she didn't wish to badger him. I do not suggest that the plaintiff ought to have put herself in such a position, but that is not to say, that it would not have been reasonable to have expected or anticipated that if she was experiencing the concern that she testified to, that could not have made a tentative enquiry of Hyndman. She did not.
33.The real matter stemming from the agreement is not the delay between the signature by the applicant and the signature by Hyndman, but rather what should be taken by the comments he made to the plaintiff on the cusp of the end of the school year to the effect that she would be expected to have discussions with Hetherington around the hours proposed to be worked pursuant to the agreement in the 2012 school year. Hyndman conceded when questioned, that in retrospect he would not have expressed himself as he did. His explanation for doing so, however seems to me to have been sound and rational. He said that he was not recanting on the agreement and that his comments were intended to do no more than to point out to the plaintiff that Miss Hetherington also might be expected to need some input into the way in which the arrangement would impact on her given her own status as a mother of young children.
34.Between the periods of time that Hyndman made the comment to the plaintiff and her return to the school on 31 January 2012 the plaintiff made contact with Hyndman but raised no concerns about the matter and certainly not in the e-mail exchange over the holiday period I have identified. Moreover, the plaintiff did not work at all pursuant to the agreement to so see if any difficulty arose in its actual implementation. Rather the plaintiff presumed, peremptorily in my view, that the comments by Hyndman were an indication that the agreement would not be upheld. I regard that assumption, in all the circumstances pertaining to the plaintiff, as unreasonable.
35.Has the plaintiff’s mental injury been caused wholly or predominantly by reasonable management action within the meaning of s 82(2A) of the Act? Management action is defined by s 82 (10) of the Act in the following terms:
management action, in relation to a worker, includes, but is not limited to, any one or more of the following—
(a) appraisal of the worker's performance;
(b) counselling of the worker;
(c) suspension or stand-down of the worker's employment;
(d) disciplinary action taken in respect of the worker's employment;
(e) transfer of the worker's employment;
(f) demotion, redeployment or retrenchment of the worker;
(g) dismissal of the worker;
(h) promotion of the worker;
(i) reclassification of the worker's employment position;
(j) provision of leave of absence to the worker;
(k) provision to the worker of a benefit connected with the worker's employment;
(l) training a worker in respect of the worker's employment;
(m)investigation by the worker's employer of any alleged misconduct—
(i) of the worker; or
(ii) of any other person relating to the employer's workforce in which the worker was involved or to which the worker was a witness;
(n) communication in connection with an action mentioned in any of the above paragraphs;
36.The question for me is one of fact to which the employer has the evidentiary onus of establishing that the management action was taken on reasonable grounds and in a reasonable manner, and if so, then the plaintiff has the legal onus of demonstrating that her condition did not arise wholly or predominantly from such action.
37.I respectfully agree with the principles distilled from a variety of jurisdictions by Garnett M in Joanne Krygsman –Yeates v State of Victoria[12] at [35]:
[12] B10717659 Decision dated 4 November 2011
(a) whether the conduct of the employer complained of constitutes management action as contemplated by s82(10);
(b) if so, whether the management action was taken on reasonable grounds;
(c) if so, whether the management action was taken in a reasonable manner;
(d) …
(e) whether the mental injury was caused wholly or predominantly by that management action which was taken on reasonable grounds and in a reasonable manner;
(f) when considering the “reasonableness" of that action, it is to be considered objectively having regard to all of the circumstances leading to it being taken and the manner in which it is taken in a global context taking into account:
(i)that the management action and the manner in which this taken should not be irrational, absurd or ridiculous but moderate and fair;
and,
(ii)the judgement is whether the action taken was done quote reasonably" not whether it could have been done more reasonably or in a different way more acceptable to the court;
and,
(iii)the action and the manner in which it is taken may be reasonable even if particular steps involved are not;
and,
(iv)the action and the manner in which it is taken should be assessed at the time it has taken without the benefit of hindsight, taking into account the attributes and circumstances including the emotional state of the worker.
38.The expression ‘management action’ is not exhaustively defined under the Act. It is a necessary part of the Court’s exercise in such matters to identify when management action commenced. I think management action began when Hyndman asked the plaintiff to respond to him in writing about her role. Was it a legitimate action by Hyndman to take steps to identify the basis on which the plaintiff’s existing work arrangements were predicated? I am satisfied that it was. Whilst I accept the fact that the arrangement not being recorded or implemented in a manner accordant with departmental guidelines was not the fault of the plaintiff, this is not a licence for the prevailing arrangement to be immune from proper inquiry and scrutiny. The departmental guidelines for telecommuting had not been implemented. Arising from the in depth review conducted by an external consultant engaged by the department, Hyndman adopted the position that moving forward such an arrangement needed to pass muster and comply with departmental requirements. Hyndman was transparent about this and there is no question that the plaintiff was kept in the dark about the extent of the issue. The further management action taken by Hyndman was to commence an inquiry into the hours and days that the plaintiff was working and how this was fulfilled. The fact that the suite of continuous days worked from the office each fortnight had worked well in the past also cannot mean that it is shielded from legitimate scrutiny or that an examination of its continuance could not amount to reasonable management action.
39.I am satisfied that Hyndman told the plaintiff, and she well knew, that in his capacity as principal adjudged against his assessment of the assistance he required on a day to basis in the discharge of his functions that he would be assisted by the plaintiff working her hours more continuously and in the office.
40.Hyndman did not impose any decision on the plaintiff. In fact he was singularly unsuccessful in obtaining a greater continuity of attendance by the plaintiff. Rather, as a result of the plaintiff being unable and unwilling to compromise her existing arrangements because of the priority she chose to give her personal circumstances, the plaintiff elected to reduce her working hours each fortnight. Hyndman agreed to this request. He did so orally in the meeting with the plaintiff on 26 October 2011 and he confirmed this arrangement in writing on 15 November 2011.
41.It was submitted in the hearing that the plaintiff suffered a stressor when she learned that Hyndman had employed a person who had not before worked in a school office environment and that it would fall to her to assist in her training. I have no doubt having listened to and observed the plaintiff that she was significantly upset because Hetherington was to be employed at the same level as she was and she did not believe it was fair or equitable. I do not accept the stated concern by the plaintiff of being corralled into providing excessive training as a legitimate concern. Certainly the concern was not grounded in evidence.
42.Given that I am satisfied that the investigation by Hyndman amounted to management action taken on reasonable grounds was it also undertaken in a reasonable manner? This element of the inquiry requires a judgement to be brought to bear on the particular facts of the case. The reasonableness of the manner in which an investigation is undertaken is a matter will inevitably be informed by facts known to the defendant or that ought to reasonably have been within its purview and knowledge at the relevant times throughout the course of its investigation. Facts may of course alter and information may come to light during the course of an investigation that may warrant the reasonableness or otherwise of a course being followed to be recalibrated. What may amount to a reasonable manner of conducting an investigation is not fixed and immutable. I am satisfied that Hyndman conducted the matter of the inquiry and resolution of the plaintiff’s working roster reasonably.
43.In my judgment it would be an impermissible interference in the autonomy of the school for the Court to import its own value judgements about the obvious and important decisions a principal need make to ensure he or she has adequate support from staff in their varied capacities in the discharge of his or her functions. This is not to say that any principal has carte blanche but in my view, so long as the evidence discloses that the reasons for taking management action are within the realm of what is objectively reasonable, then it would be improper for the Court to substitute its own assessment of a principal’s requirements. Nor do I think that the reasonableness of the action by Hydnman in requesting the plaintiff consider working her job differently and doing more hours in the school office can only be made out if the request can be judged against a real or imminent concern about the satisfactory running of the school office or of Hyndman’s ability to discharge the functions of principal adequately in the absence of such a change being affected. Hydnman in the important role of principal was entitled to conclude that someone with his dearth of prior experience as a principal required a different form of attendance by the manager of the school office and to endeavour to effect such a change so long as the way in which it was pursued was reasonable. In my view, it was.
44.The court’s inquiry must always be whether the action taken was done ‘reasonably’ not whether it could have been done more reasonably or in a different way and more acceptable to the court. In any event, in this case it was not suggested that the action and the manner in which the management action was taken was not reasonable because, for example, some particular step required to have been taken by Hyndman was not.
45.I accept that in the context of the important meeting convened between the plaintiff and defendant on 26 October 2011 that took place against a backdrop of disquiet over the plaintiff’s working days and resulted in the controversy having been quelled and agreement reached, that Hyndman’s statement to the plaintiff on 22 December 2011 was inopportune. I also accept that the statement could be seen as amounting to further management action by him given that it consisted of a communication by him with the plaintiff in connection with a benefit connected with her employment that is, the suite of hours to be worked pursuant to the time fractional change he had approved on 26 October 2011 and confirmed in writing dated 15 November 2011. If that is so, then was this further management action taken on reasonable grounds in a reasonable manner?
46.The action and the manner in which management action was taken by Hyndman is to be assessed at the time it was taken and without the benefit of hindsight, taking into account the attributes and circumstances including the emotional state of the worker. This is an important facet of the case. Hyndman said that when he spoke with the plaintiff on 22 December 2011 he was aware that Hetherington had expressed her own reservations about the role because of her parental responsibilities and that he believed that some allowance might need to be given to this down the track and as the plaintiff’s arrangement unfolded over the course of 2012. However, Hyndman was aware as of 18 October 2011 when he spoke with the plaintiff that she had been to the doctor, that she would be off work for a week, that she was attributing her incapacity to the matters that had been discussed between them. Being aware of the plaintiff’s sensitivities and the emotion the plaintiff had invested in resolving the way in which she would work her role as business manager in the future, and also being aware that the plaintiff did not regard Hetherington as having the requisite experience for the position, but would nonetheless be employed at the same level as the plaintiff, it was reasonable to conclude that the plaintiff would be particularly sensitive to any perceived interference with the arrangement that Hyndman had agreed for in 2012.Taking into account the attributes of the plaintiff and the circumstances including her emotional state about which Hyndman was fixed with knowledge, his comments to the plaintiff on 22 December 2011 were likely to trigger an episode on the part of the plaintiff.
47.Was Hyndman’s statement concerning the need for the plaintiff to work with Hetherington as part of implementing her reduced fractional working year, reasonable? I think on balance it was. If however, I am wrong about this then, in any event, the extent to which Hyndman’s conduct contributed in a significant manner to the plaintiff’s injury has not been made good on the evidence. On the balance of probabilities I am satisfied that any upset occasioned by Hyndman was of limited duration and effect. I am satisfied that had it been otherwise the plaintiff would have made complaint or brought the issue to a head with him or through her union all of which matters she had the opportunity to do. In fact, as I have pointed, out the plaintiff communicated with Hyndman by e-mail Hyndman over the holiday period and made no reference to the matter. On her return on 31 December 2012 no issue was raised. I am satisfied that such adverse effect in relation to the plaintiff had dissipated very soon after the comments made by Hyndman to her on 22 December 2012.
Medical condition
48.The plaintiff’s condition is the subject of medical evidence introduced by the parties without objection. It comprised:
(i)Dr Entwisle - Dr Entwisle is a consultant psychiatrist and he reported to the defendant’s authorised insurer on 11 April 2012 after having examined the plaintiff on 3 April 2011. He recorded that despite the matters of her working arrangements having ‘comprised a large part of her dissatisfaction she indicated that there were also “hundreds of other matters” which she felt were relevant. When asked about these, she named two, those being a sense of being pressured, and the tone the Principal used to address her’. In regard to allegations of undue pressure or the disposition of Hyndman, I have already concluded in these reasons that neither complaint is based on any logical connection with fact. Dr Entwisle diagnosed an ‘Adjustment Disorder with Anxious Mood’. In his opinion the plaintiff did at that time have a capacity for pre-injury duties at an alternative workplace. He noted that the plaintiff ‘has made a decision not to return to her former workplace’ and he assessed her expected duration of incapacity as ‘brief’.
(ii)Kerry McDonnell – Kerry McDonnell is a psychologist who prepared a report dated 20 April 2012[13] In it she noted that the plaintiff had been referred to her by Dr Kirwan in February 2012 after he had diagnosed, ‘depression, work related stress and anxiety and loss of self worth’. Ms McDonnell diagnosed a psychological issue based in anxiety. She concluded that the plaintiff presented in a distressed state as a result of her treatment at work and that this resulted in her being unable to work. Ms McDonnell’s report is heavily value judgement based in that it is predicated on a conclusion about the plaintiff’s ‘treatment at work’ and ‘difficulties that arose with the new principal in 2011’. I have not found the report useful.
(iii)Dr Weissman is a consultant psychiatrist who examined the plaintiff at the request of her solicitors on 1 May 2014 and provided a detailed report on examination of that date[14]. Dr Weissman took a history from the plaintiff and he made note that she expressed a sense of responsibility for the two ‘junior people in the office beneath her’. He went on to note that the plaintiff told him that ‘during 2011 she was distressed about the job insecurity of the other two (junior) women in her office. She alleges that the principal made their jobs insecure. She felt responsible for them and this placed added stress and pressure on her’. Dr Weissman went on to record that the plaintiff told him that ‘when the principal was negotiating what days she would work, he made the point that the number of days that she …worked would determine whether the other two ladies would be able to keep their jobs’. Dr Weissman elsewhere narrated a version of events provided to him by the plaintiff’s former solicitors of the circumstances of the final week of the 2011 school year. Dr Weissman referred to the plaintiff’s perceptions of her interaction with the principal as amounting to ‘emotional manipulation …regarding the welfare of her colleagues’. Dr Weissman concluded that the plaintiff suffered from a ‘moderate group of work-related psychiatric symptoms and features consisting of moderate anxiety, traumatisation features, and mild depression’. As to the plaintiff’s work capacity, Dr Weissman said that because of ‘the unresolved nature of the issues and problems at work, she is totally incapacitated for her pre-injury duties and she will never be able to return to her pre-injury duties again in the future’ meaning as Dr Weissman explained ‘her exact pre-injury duties and hours at her pre-injury school’. He recommended ongoing treatment with Ms McDonnell. It is evident that that Dr Weissman’s opinions are also predicated to a substantial degree on findings of conduct by the principal that I have rejected.
(iv)Dr Kirwan – Dr Kirwan is the plaintiff’s General Practitioner and was at an earlier stage in the plaintiff’s working life, her employer. He has provided 5 written reports to the plaintiff’s solicitors dated 24 April 2012, 28 May 2012, 12 May 2014, 4 June 2014 and 28 January 2015.[15] In addition his complete record was before me[16].I do not feel I need to recite the various accounts recorded by Dr Kirwan. I have taken account of them including his diagnosis of ‘anxiety and mild depression’ and on his account, ‘a degree of post traumatic stress disorder’. As at the date of his most recent report, he noted that the plaintiff ‘still suffers from mild anxiety and mild depression’ requiring Pristiq and that he condition ‘has now stabilised and ‘on the whole she is coping well with life’ and he made note of her recent employment with Peninsula Transport Association.
[13] Ex P13
[14] Ex P14
[15] Ex P12
[16] Ex D8.
49.I make brief mention that had my primary findings been otherwise the question of the application of one of the principles expressed in Kerridge v Monsfelt Pty Ltd[17] as to the effect of an incapacity occasioned by an inability to return to a particular workplace as attracting and engaging the befits provisions under the Act, might have been required. In light of my findings, it has not proved necessary.
Conclusion
[17] [2009] VCC 0154
50.I find that the plaintiff suffered from a mental injury in the form of mild depression and anxiety which arose out of or in the course of her employment with the defendant. I find that her injury occurred as a consequence of the view she formed about being asked to alter her working arrangements. I am satisfied that such part of her working arrangement pursuant to which she had been working off-site was not in accordance with departmental guidelines. I am satisfied that the matter of working off site and the days she worked came to light as a result of an independent investigation initiated by the Department of Education. I am satisfied that on becoming aware of both the potential irregularities in relation to working off site and the number of days worked per fortnight that the new principal concluded he needed to investigate options for change to the plaintiff’s working arrangements I am satisfied that this amounted to reasonable management action. I am satisfied that Hydnman conducted his inquiries in a transparent and fair and reasonable manner and that this ultimately resulted in a resolution that was reflected in agreement made between the plaintiff and him on 26 October 2011 in relation to the 2012 school year. I am further satisfied that Hydnman took management action in relation to the plaintiff in connection with the operation and implementation of the agreement for 2012 and that given all the circumstances known to him at that time including, the plaintiff’s illness and upset and reaction to Hetherington’s employment and her level of remuneration, that his comments made on 22 December 2011 were nonetheless expressed in a reasonable manner.
51.I am satisfied that the defendant has discharged its evidentiary onus of establishing that the management action was taken on reasonable grounds and in a reasonable manner. I am not satisfied that as a matter of law that the plaintiff has made good its legal onus and demonstrated that her condition did not arise wholly or predominantly from such action on the part of the defendant.
52.The plaintiff’s claim is dismissed. I will hear the parties as to the appropriate form of orders including costs.
0