Waugh v Simon Blackwood (Workers' Compensation Regulator)

[2014] QIRC 222

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Waugh v Simon Blackwood (Workers' Compensation

Regulator) [2014] QIRC 222

PARTIES: 

Waugh, Astrid

(Appellant)

v

Simon Blackwood (Workers' Compensation

Regulator)

(Respondent)

OTHER: 

State of Queensland

(Employer) by leave to appear and be heard

CASE NO: 

WC/2013/419

PROCEEDING: 

Appeal against a decision of Simon Blackwood

(Workers' Compensation Regulator)

DELIVERED ON: 

22 December 2014

HEARING DATES: 

28 July 2014 - 30 July 2014

22 August 2014 - Appellant's Written Submissions
5 September 2014 - Employer's Written Submissions
19 September 2014 - Respondent's Written
Submissions
22 September 2014 - Respondent's amended Written
Submissions
25 September 2014 - Appellant's Written
Submissions in reply

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 costs of the Respondent in an amount to be agreed between the parties, or failing agreement, on application to the Commission.

CATCHWORDS: 

WORKERS' COMPENSATION - APPEAL AGAINST DECISION - whether the injury arose out of, or in the course of employment - whether reasonable management action taken - psychiatric injury - photographs - sexual harassment - appeal

dismissed

CASES: 

Workers' Compensation and Rehabilitation Act

2003 s 32

Croning v Worker’s Compensation Board of

Queensland (1987) 156 QGIG 100

APPEARANCES: 

Ms C. Hartigan, of Counsel, instructed by Hall
Payne Lawyers for the Appellant.

Mr C.J. Clark, of Counsel, directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent.

Ms K. Phillipson, of Counsel, instructed by the Crown Solicitor for the Employer, the State of Queensland.

Reasons for Decision

[1]     Ms Astrid Waugh has appealed the decision of Simon Blackwood (Workers' Compensation Regulator) which set aside a decision of WorkCover Queensland to accept Ms Waugh's application for compensation and substituted a new decision to reject the application.

[2]     In the written submissions for the appellant it is submitted that Ms Waugh developed a psychiatric injury as a result of being sexually harassed in the workplace. The harassment is said to be the covert taking of photographs of her, focusing on her bust, by Mr Bruce McGregor, the former director of corporate services at the State Library of Queensland and her superior. It is also contended that unreasonable management action in dealing with Ms Waugh in respect of the sexual harassment contributed to her injury.

[3]      Ms Waugh submitted that the primary stressor was the sexual harassment engaged in by Mr McGregor. It was further put that the sexual harassment crystallised when Ms Waugh was advised of the existence of the photographs and ultimately saw them. Secondary stressors are said to be the actions of management in respect of advising Ms Waugh, and dealing with her after she was informed, of the existence of the photographs, the taking of which, without her knowledge or consent, constituted the alleged sexual harassment.

[4]      In order to succeed on the appeal, the appellant must satisfy me, on the balance of probabilities, that she suffered a personal injury that arose out of, or in the course of, her employment and that the employment was a significant contributing factor to the injury.

[5]     It is probable that Ms Waugh suffered a personal injury, a psychiatric or

psychological disorder. Dr Khoo, her treating psychiatrist diagnosed her as suffering

1

an adjustment disorder with mixed anxiety and depressed mood. Dr Richardson, an

independent medical examiner, concluded that she suffers from an adjustment

2

disorder with depressed and anxious mood.

[6]      However, even if that is the case, I cannot be satisfied that the injury arose out of, or

in the course of, her employment. Although the photographs were taken

clandestinely whilst the appellant was at work, the workplace was merely the

3

background or setting in which the inappropriate behaviour took place.

[7]      Even if it could be said that the injury arose out of, or in the course of, her employment, the employment was not a significant contributing factor. The significant contributing factor was the taking of the photographs by Mr McGregor. This had nothing to do with the employment.

[8]      The appellant complains that the manner in which management dealt with the issue was unreasonable and that this was one of the causative factors leading to her psychiatric injury.

[9]      The appellant complains that management brushed her off after she first became

aware that she might have been photographed without her knowledge. At a meeting

with the State Librarian, the chief executive officer of the employer, and Ms

Katherine Winlaw, the Acting Director of Corporate Services, the rumours she had

heard were confirmed when she was informed of the existence of photographs taken

of her without her knowledge by Mr McGregor. When she asked what the photos

contained she was "diverted" by being told that the photos showed her "fully clothed

4

in a public place". She was asked, "What would you have to gain by looking at

5

those photos?" and was told that Mr McGregor was suffering from a serious mental

6

illness and that the management hoped that "he would make a full recovery". She

subsequently sought copies of the photos on some three occasions. At one stage she

was told by Ms Winlaw that her head was not even in most of them. This, she said,

7

made her feel humiliated and hurt. After going home on sick leave she received the photos by registered post some three days later. They comprised 14 photographs of her in a work situation wearing a purple dress. Six of the photographs concentrated on her bust.

[10]    Ms Waugh submits that the manner of advising, and dealing with, her in respect of the photographs was unreasonable management action. I disagree.

[11]    Having regard to the medical evidence, it appears that to some extent the appellant's personal injury arose out of the management action to which I have referred. However in my view, the action of the employer was reasonable and appropriate. It appears to me to have been designed to try to shield the appellant from exposure to the photographs. Insofar as her managers explained that Mr McGregor was suffering from a serious mental illness, that was no more than an attempt to provide an explanation for what had occurred. There was nothing untoward in the expression of a desire that he recover.

[12]   To the extent that the appellant's personal injury arose out of, or in the course of, management action I find that the action taken was reasonable management action, taken in a reasonable way by the employer.

[13]   For these reasons I would dismiss the appeal. The appellant is to pay the

1 Exhibit A3.
2 Exhibit A5; Exhibit A6.

3 Croning v Workers' Compensation Board of Queensland (1987) 156 QGIG 100.

4 T1- 14/9 to T1 - 15/10.

5 T1- 15/4.

6 T1 - 29/30; T1- 12/24.

7 T1 -17/40.