Wilson v Qantas Airways Limited
[2009] NSWWCCPD 121
•30 September 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Wilson v Qantas Airways Limited [2009] NSWWCCPD 121 | |||||
| APPELLANT: | Rhonda Wilson | |||||
| RESPONDENT: | Qantas Airways Limited | |||||
| INSURER: | Self insurer | |||||
| FILE NUMBER: | A1-8130/08 | |||||
| ARBITRATOR: | Ms A Simpson | |||||
| DATE OF ARBITRATOR’S DECISION: | 27 May 2009 | |||||
| DATE OF APPEAL DECISION: | 30 September 2009 | |||||
| SUBJECT MATTER OF DECISION: | Section 11A Workers Compensation Act 1987; reasonable action. | |||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O’Grady | |||||
| REPRESENTATION: | Appellant: | Slater & Gordon Limited | ||||
| Respondent: | Sparke Helmore | |||||
| ORDERS MADE ON APPEAL: | 1. Paragraphs one and two of the Arbitrator’s determination dated 27 May 2009 are revoked and the following orders are made: | |||||
| “(1) Award for the Applicant as follows: | ||||||
| $ 889.50 per week from 10 October 2007 to 10 April 2008 (section 36) | ||||||
| $ 374.90 per week from 11 April 2008 to 30 June 2008 (section 40) | ||||||
| $ 732.96 per week from 1 July 2008 to 27 August 2008 (section 38) $ 374.90 per week from 28 August 2008 to 30 September 2008 (section 37) $ 381.40 per week as adjusted from 1 October 2008 to date and continuing (section 40) | ||||||
| (2) Respondent to pay medical and hospital expenses (section 60). | ||||||
| (3) Respondent to pay the Applicant’s costs in accordance with the Arbitrator’s certification contained in the Certificate of Determination.” | ||||||
| 2. The Respondent is to pay the Appellant’s costs of the appeal. | ||||||
BACKGROUND TO THE APPEAL
Rhonda Wilson (‘the Appellant’) commenced employment with Qantas Airways Limited (‘the Respondent’) in 1996. The Appellant had earlier been employed by the Respondent between the years 1969 and 1977. Her position with the Respondent between 1996 and 2007 was Premier Customer Liaison Officer.
During the year 2006 the Respondent planned and proceeded to put in place major changes concerning services to Qantas First Class passengers and Chairman’s Lounge members. The reorganisation included a significant change to the duties performed by the Appellant. The Appellant was informed of the proposed changes and was invited to make application for the position which was to be newly created and which was to replace her then current position. The new position was known as Qantas First Host.
The Appellant successfully applied for the newly created position. Acceptance was communicated to her by memorandum dated 20 February 2007. The Appellant was one of nine fulltime appointees to the position of Qantas First Host. Two members of the Appellant’s earlier group of employees were unsuccessful in securing new positions. That fact caused some distress to the Appellant.
The Appellant took up the position which had been described as a “transfer” in the memorandum above mentioned. The nature of the Appellant’s duties had been significantly altered and, in particular, there were significant changes to the rosters which prescribed the working hours of the Appellant and her fellow fulltime workers.
The changes to the roster caused disruption of the Appellant’s domestic circumstances and caused difficulty in the day-to-day provision of services to the customers utilising first class and the Chairman’s Lounge facilities.
The Appellant performed her newly assigned duties from May until October 2007 when, whilst at work, she experienced severe chest pain and other symptoms which led to a physical collapse. The Appellant returned to work following hospital treatment however suffered further “attacks” and was absent from work. The Appellant was in November 2007 diagnosed as suffering emotional stress which produced symptoms by reason of hyperventilation. The Appellant remained off work on sick leave following which she arranged one month’s annual leave from employment.
The Appellant returned to part-time work on 5 January 2008 and forwarded an “Injury Notification Form” to the Respondent on 12 January 2008. A claim for workers compensation benefits was made against the Respondent on 10 February 2008. The injury alleged was a psychiatric/psychological injury. That claim was declined by the Respondent and a Notice pursuant to section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) was forwarded to the Appellant on 12 February 2008.
The dispute between the parties was referred to the Workers Compensation Commission (‘the Commission’) by the registration of an Application to Resolve a Dispute on 13 October 2008. The Application came before an arbitrator for conciliation/arbitration on 31 March 2009. The Application proceeded to hearing and was adjourned part heard to 24 April 2009, on which day the hearing concluded. The Arbitrator reserved her decision and a Certificate of Determination issued on 27 May 2009. That Certificate was accompanied by a Statement of Reasons for Determination (‘Reasons’). An award was entered in favour of the Respondent.
The Appellant, on 24 June 2009, filed an application in respect of an appeal against the decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 27 May 2009 records the Arbitrator’s orders as follows:
“The Commission determines:
1. Award for the Respondent
2. No order as to costs.
Complexity Order
That this matter is deemed complex and an uplift of 30% to the parties is reasonable in the circumstances.
Reasons:
· Bearing in mind Smith v RTA NSW (2) [2008] NSWWCC PD141 in arriving at the 30% uplift I have taken into account the substance of the matter, the legal complexity of the 1987 Act, the necessity of multiple witness statements, and the fact that the injury is of a psychological nature.
Costs Order
That each of the two days of the Arbitration hearing be treated separately pursuant to Schedule 6, Clause 9(2)(b).
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(i) allowing the Respondent to rely upon the provisions of section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’) by way of defence to the Application;
(ii) allowing the Respondent to allege reasonable action was taken by it in respect of “performance” within the meaning of section 11A(1);
(iii) in finding that the Respondent’s actions in respect of rosters was action within the meaning of section 11A;
(iv) in failing to find that the deficiencies in the roster system, being less staff available on busier shifts, was a causative factor in the Appellant’s injury, and
(v) in failing to properly apply the provisions of section 11A.
The issues as above summarised are taken from the written submissions which accompany the Appellant’s application filed with respect to this appeal.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
There is no dispute between the parties concerning the threshold requirements as prescribed by section 352 of the 1998 Act.
The appeal having been lodged within the time prescribed by that section and the fact that the monetary threshold prescribed by that section has been met, together with a consideration of the arguments raised on appeal, lead me to conclude that it is appropriate that leave be granted to proceed with the appeal and I so order.
EVIDENCE
The documentary evidence which was before the Arbitrator is summarised at [10] of Reasons. That summary notes that the evidence included an “agreed wages schedule”. That document is before the Commission and has, it seems, been endorsed by the Arbitrator in the following terms, “Agreed between [the] parties at arbitration 24.4.09”. The content of the document is addressed below with particular attention to an apparent error which appears. It is to be noted that the document is not a “wages schedule” as provided for in Part 15 Rule 5 of the Workers Compensation Commission Rules 2006 (‘the Rules’). The form of the document contains a summary of the quantum of the Appellant’s claim with respect to weekly payments and those sections of the legislation pursuant to which liability for those payments is said to arise.
As noted by the Arbitrator at [11] of Reasons some oral evidence was taken at the hearing. There is a transcript of proceedings conducted before the Arbitrator on each day (‘transcript’). The transcript of proceedings conducted on 24 April 2009 contains, at pages 54 and55, a record of unsworn evidence given by the Appellant in response to questions put to her by the Arbitrator.
The Appellant relied upon the contents of a statement made by her on 21 January 2008. The Appellant had, for a period of seven years, performed the duties of a Premier Customer Liaison Officer with the Respondent. In 2006 the management of the Respondent took steps to reorganise deployment of staff concerned with provision of services to first class passengers and members of the Chairman’s Lounge, such customers being described as “premium customers”. That reorganisation involved the abolition of the Appellant’s position and she was invited to make application for a new position which had been created known as Qantas First Host. Such new positions were advertised and the worker’s application was successful. The Appellant received a memorandum from the Respondent dated 20 February 2007 confirming that she had successfully applied for the fulltime position as Qantas First Host in the Qantas Club. That Memorandum is before the Commission and is headed “Confirmation of Transfer”.
The Appellant took up training in March 2007. The Appellant states that at the time the new position was advertised she was advised that those appointed “…would be rotating between early AM shifts, day shifts and PM shifts.”. Rosters which were published following the establishment of the new work regime provided that ‘part-timers’ were to perform most of the AM and PM shifts and the nine ‘fulltimers’, of which the Appellant was one, “…most of the day shifts.” The Appellant states that in the new position she had gone from a Level 4 to a Level 6 employee however some of the fulltime staff “ended up losing money”.
The Appellant states that in her earlier position she was “looked upon as one of the leaders of the Team and a role model”. Her superiors asked for her assistance in setting up the new work regime and training. This task was taken on by the Appellant and she was required to travel to Melbourne to assist in that role. She states all nine fulltime staff were “unhappy with the roster arrangements”. The Appellant states that it was not “just the money situation” but that the new rosters had an affect on lifestyle and staff coverage was such that there were not sufficient staff members to meet the demands of the work. The Appellant approached members of management concerning the roster on her own behalf and that of her fellow workers. The Appellant states, “For me personally it wasn’t about the money. For me it was about my lifestyle.”
The Appellant states that she has been married for a period of 32 years, has two married children and two grandchildren. She enjoys a very close family life and had in the past enjoyed shift work and was able to “manage my family commitments and work commitments”.
The Appellant states that in mid 2007 she approached the then manager, Mr Robert Lillington and Mr Roy Gardener, supervisor in charge of roster, for the purpose of discussing a change to the rosters. Following those discussions the Appellant spent many hours of her own time at home redrafting rosters designed to “give us the coverage that we needed as well as a small variety or [sic] morning and evening shifts”. The proposed rosters were shown to Mr Lillington who stated that he would implement them. At about that time Mr Lillington was transferred from management of the Appellant’s department and Mr Gardener was appointed temporary Manager with Mr Dean Colton appointed as caretaker of the Appellant’s team. Neither Mr Gardener nor Mr Colton was prepared to make any changes to the roster following the departure of Mr Lillington.
The Appellant states that, for the first time in her working life, she was unhappy “coming to work” and was “taking on board the unhappiness of all the fulltimers…”
The Appellant states that on 5 October 2007 whilst working overtime checking in customers she experienced “a massive pain” in her chest. She felt nauseous and dizzy following which she collapsed. She was transported to Prince of Wales Hospital where she remained until the evening of the following day. Investigations at the hospital demonstrated there was “no damage done to heart” and she was advised to consult with her cardiologist. Other evidence establishes that the Appellant had been diagnosed as suffering from heart disease in 2002.
The Appellant states that she suffered a further attack of chest pain on 12 October 2007 whilst travelling in her husband’s car, following which she was admitted to Kareena Hospital at Miranda. She remained in that hospital until 15 October 2007 and came under the care of Dr Smith, consultant cardiologist. The Appellant was informed by Dr Smith that her symptoms did not appear to be related to the function of her heart.
The Appellant states that she experienced a similar attack on 5 November 2007 at her home following which she was again admitted to Kareena Hospital where she remained for a day. At about that time Dr Smith expressed the view to the Appellant that her “turn” was likely related to stress from her work situation. That view was also expressed by Dr Lim, the Appellant’s general practitioner.
The Appellant returned on 21 November 2007 to work normal hours on a reduced three day per week regime. That reduction in workload was arranged with Mr Gardener and Mr Colton. The following day the Appellant suffered a further “attack” in the course of her work. She sought treatment from her general practitioner who arranged for her referral to Dr Robert Gates, diagnostic physician, whom she saw on 26 November 2007. Following that consultation the Appellant was referred to a psychologist and to Dr Alex Pilsky, psychiatrist.
The Appellant states that she remained on sick leave until 2 December 2007 following which, by reason of her inability to return to work, she took one month’s annual leave.
The Appellant returned on 5 January 2008 to resume her eight hour shifts for three days per week.
The Appellant tendered a second statement which was made by her on 8 August 2008. That statement notes that she commenced employment with the Respondent in approximately 1996 and that she had been employed earlier by the Respondent between 1969 and 1977. The Appellant describes her duties and the change of her position following reorganisation of her department. The Appellant states that when she made application for the new position she was informed that she would continue working on the seven day rotational shift roster requiring her to work early morning, day and afternoon shifts. It is stated “When I applied for the position I was told I would still be doing my morning and afternoon shifts. Qantas however failed to advise just how limited these shifts would be.”
The Appellant proceeds to state that the manner in which the rosters were drawn resulted in there being insufficient staff allocated to the busy day shift periods. The Appellant states that following the change in rosters she “hardly had any contact with [her] family.” The Appellant describes her involvement in reviewing the rosters in her own time and making suggestions to management concerning changes. It is stated that Mr Lillington was “responsive” however he was relieved of his position and replaced by Mr Roy Gardener. The Appellant made complaint to both Mr Lillington and Mr Gardener concerning the effect the roster was having on her family life. Complaint was also made to Mr Troy Gallant, manager, whose response was, “that’s the job, if you don’t like it maybe you should be looking elsewhere”.
The Appellant also relied upon a supplementary statement which she made on 9 September 2008. The Appellant outlines her dealings with management during 2008 including detail of absences from work. It is stated by the Appellant that, following consultation with Dr Smith, psychiatrist she was totally unfit for work from 27 August 2008.
The evidence establishes that the Appellant provided the Respondent with an Injury Notification form on 12 January 2008 and lodged a workers compensation claim against the Respondent on 10 February 2008. As noted in [7] that claim was denied by the Respondent and a section 74 notice was forwarded to her on 12 February 2008.
The evidence concerning the Appellant’s work history since January 2008 is somewhat unclear however it appears that the following events have taken place:
· The Appellant took sick leave on 11 and 22 February 2008.
· The Appellant took annual leave between 12 March 2008 and 1 April 2008.
· The Appellant returned to fulltime work on 16 July 2008.
· The Respondent, on 21 July 2008, offered the Appellant reduced hours five hour per day five days per week as a Qantas First Host. That offer was not accepted by the Appellant.
· The Appellant suffered a further “attack” at work on 5 August 2008.
· The Appellant’s request for one day’s leave, which was made on 26 August 2008, was refused by the Respondent.
· The Appellant, on 27 August 2008 ceased work because of illness.
· The Appellant took long service leave.
· On 7 October 2008 a discussion took place between the Appellant and Mr Troy Gallant concerning her future employment.
· The Appellant was granted leave from work which commenced on 20 October 2008 and extended to 6 February 2009.
· Three months leave was approved for the Appellant to date from 7 February 2009.
The memorandum dated February 2007 from the Respondent to the Appellant concerning her transfer contained the following:
“We are pleased to advise that you have been successful in your application for the above position, on a permanent full time basis.
The terms and conditions of your transfer to the above position are set out below and replace all prior written and oral representations made to you about your employment. These terms and conditions continue to apply to any other positions you may hold with Qantas Airways Limited (Qantas unless otherwise amended in writing. We ask that you read this letter carefully and acknowledge that you have understood and accepted these terms and conditions.
DUTIES AND RESPONSIBILITIES
Your position as Qantas First Host and your duties and responsibilities are set out in the attached position description. You must also perform such other duties and responsibilities as may be required by Qantas from time to time and are within your capabilities. If required operationally, you may be required to perform shiftwork or day work or any combination thereof.”
The Respondent’s section 74 notice, a copy of which was attached to the Appellant’s application, particularised section 11A of the 1987 Act as being one of the bases upon which denial of liability was made. The notice contains a summary of that provision together with the following assertion:
“Our evidence indicates that any psychological injury you may have suffered was a result of reasonable management action.”
The Appellant relied upon a number of WorkCover medical certificates together with medical reports from Dr Lim, Dr Robert Smith, Dr James Roy (of the Prince of Wales Hospital), Dr Pilsky and Dr Selwyn Smith, consultant psychiatrist. A report by Dr Gertler, psychiatrist dated 5 February 2009 was also in evidence before the Arbitrator. That report was prepared by Dr Gertler as an Approved Medical Specialist (‘AMS’) to whom the Appellant was referred by the Arbitrator for assessment prior to the hearing. All medical evidence is thoroughly and accurately summarised by the Arbitrator at [26] of Reasons.
The Arbitrator at [33] of Reasons made a finding which was founded upon the medical evidence earlier summarised, that the Appellant had suffered a personal injury, being a psychological injury arising out of or in the course of her employment with the Respondent. That finding is not challenged on this appeal. Where relevant the detail of that medical evidence is addressed below and I gratefully adopt the summary of the relevant evidence as stated by the Arbitrator at [26] of Reasons.
The Appellant relied on a number of other documents including copies of rosters which are not directly relevant to the issues raised on this appeal. Reference is made to those documents where relevant below.
The oral evidence, which was unsworn, given by the Appellant at the hearing referred to at [18] above related to the nature of the duties of a Qantas First Host. Those duties included attending to check in for premium customers prior to their arrival at the airport, greeting those passengers upon arrival and escorting them through the baggage procedures and then onto a lounge following which they are escorted to the aircraft. The Appellant stated that when working in the afternoon there are four Qantas flights and there could be 30, 40 or 50 premium customers to be attended to at that time. The transcript records the following exchange between the Arbitrator and the Appellant:
“ARBITRATOR: How many people at the desk?
APPLICANT: One - two people at the desk, and you would have someone out at check-in, but now they have someone who does the meet and greet at the kerbside. They have someone at the check-in area. They have the other people in the lounge and they have someone that takes them from the lounge down. But when it first started, there was, like, two of us on to do all of that.”
The Respondent relied upon a report dated 24 January 2008 prepared by Austrace Investigations and Consultant Specialists. That report had attached a number of documents including a statement by Mr Roy Gardener, dated 22 January 2008. Mr Gardener’s occupation was stated as Qantas Club Supervisor. He had been acting as Manager between August and December 2007. Mr Gardener states that the Appellant and all other fulltime staff were “not happy with the rostering arrangements”. Those rosters were prepared by Mr Gardener and he states that they “were done fairly and in accordance with Management and Union Regulations.” Mr Gardener acknowledged that the Appellant in her own time had worked to reframe the rosters. Mr Gardener states that those changes “…were looked at but no changes were made at that time. In recent times minor alterations have been made, ie more shift penalties.” Mr Gardener proceeded to state that in his opinion the rosters were “fair and all staff worked under similar conditions including fulltime and part-time staff. [The Appellant] was no more disadvantaged than any other member of staff.”
The Respondent relied upon a statement dated 8 December 2008 made by Mr Troy Gallant. Mr Gallant’s occupation is that of Manager – Sydney First and Business International Lounges. Mr Gallant took up his role as manager at a time when the Appellant was on annual leave. Mr Gallant states that before that absence the Appellant had been absent on sick leave “due… to a suspected heart condition which later was diagnosed as a psychological injury which took place on the 10th October, 2007.” Mr Gallant acknowledges that on 23 January 2008 he became aware that the Appellant had been diagnosed as suffering “anxiety and panic attacks with agoraphobia precipitated by changed work responsibilities/roles.”
Mr Gallant states that he was aware that the Appellant “had issues” concerning rosters prior to his appointment as manager. He further states that he had assisted development of the rosters which had a “mix of fulltime and part-time employees enabling them to manage various customer touch points within the airport operation.” The statement of Mr Gallant contains detail of the work pattern and absences of the Appellant during the year 2008. It is noted by Mr Gallant that the Appellant was rostered to return to fulltime duties from 16 July 2008. On 11 August 2008 Mr Gallant called a meeting with the Appellant as he could see that the Appellant “was struggling with fulltime work hours.” The Appellant requested sick leave at this meeting which request was refused. Mr Gallant’s statement contains details of discussions between himself and the Appellant concerning alternative work arrangements and the Appellant’s refusal to attend a consultation with Dr Allan White. It is stated that on 10 October 2008 extended leave (annual and long service leave) had been approved for the Appellant.
There is a further statement by Mr Roy Gardener dated 8 December 2008. Mr Gardener states that he ceased being responsible for rosters in the Appellant’s department at the end of March 2008. It is again stated by Mr Gardener that at the time he was responsible for rosters he “…ensured that everyone was treated fairly and [the Appellant] did have issues with the rosters and I listened to what she had to say and I explained to her the reasoning behind the formation of the rosters due to operational requirements to suit the business.” Mr Gardener further states, “I am aware that there have been changes to the roster arrangements since April 2008 due to operational needs.” The statement of Mr Gardener contains further affirmation that the rosters both before and after his period of responsibility were “fair” to all staff.
The Respondent relied upon a number of other documents including copies of emails and correspondence which documents are not strictly relevant to the issues raised on this appeal. Reference is made to the content of those documents where relevant below.
SUBMISSIONS DISCUSSION AND FINDINGS
The Appellant’s first ground of appeal challenges the Arbitrator’s decision permitting the Respondent to rely upon the provisions of section 11A of the 1987 Act. That section provides relevantly:
“(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
It was argued before the Arbitrator that the notice provided by the Respondent pursuant to section 74 did not contain sufficient particulars to enable the Appellant to discern with any certainty the case she had to meet. The Arbitrator’s ruling with respect to this objection is to be found at [57] of Reasons where it was stated:
“In my view the s74 Notice was clear on the face of the document as to the grounds of the dispute and the Applicant was on notice with respect to the s11A defence. It would now be prejudicial to the Respondent to deny it that defence.”
It is argued on this appeal that the Arbitrator has erred in so ruling. Whilst the Appellant did not, either before the Arbitrator or on this appeal, make reference to the provisions of section 289A of the 1998 Act it is clear from argument advanced that reliance was being placed upon the provisions of subsection (1) of that section which provides:
“(1) A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.”
The Appellant asserts in submissions on this appeal that “the Respondent can only rely upon matters that are noted in its section 74 Notice.” That submission seems to be founded upon the provisions of section 289A(1). It is to be noted that section 289A(4) grants the Commission a discretion to permit the hearing of a previously unnotified matter if the Commission is satisfied that it is in the interests of justice to do so. The Appellant in submissions has made no reference to that discretion but has argued that, by reason of the lack of particularity contained in the notice, the Respondent should not have been permitted to rely upon the defence.
Whilst the Arbitrator made reference to the provisions of section 289(A) as well as to relevant authority concerning the exercise of discretion under subsection (4) of that section it is clear from the terms of [57] of Reasons as above quoted that she has construed the notice as being “clear… as to the grounds of dispute”. The Arbitrator’s reference to the element of prejudice in that paragraph suggests that the provisions of subsection (4) and the discretion granted by that provision was in the Arbitrator’s contemplation at the time her ruling was made.
Whatever the case may be as to the basis upon which the Respondent was permitted to rely upon the defence, I conclude that the Appellant has failed to establish that such ruling was in error. It is correct, as submitted by the Appellant, that the terms of the section 74 notice were general in form however I express my agreement with the Arbitrator that the facts concerning the dispute known to the Appellant would have, as stated by the Arbitrator “…left the Applicant in no doubt that any of the defences might well be raised and probably most of them.” It is clear from the context of that statement that the Arbitrator was referring to the terms “transfer”, “promotion”, and/or “performance appraisal”. I conclude that the Arbitrator did not err in permitting the Respondent to rely upon the defence afforded by section 11A(1) in respect of those matters which I have identified.
The Appellant’s second ground of appeal challenges the Arbitrator’s decision to allow the Respondent “to rely upon performance (work pressures) when this had not been raised in its Section 74 notice”. For the reasons which I have attempted to outline above I reject the suggestion that there has been error on the part of the Arbitrator in so ruling. It should be said that this ground has no substance as a challenge to the Arbitrator’s determination given her ultimate conclusion with respect to the application of the provisions of section 11A. At [83] of Reasons the Arbitrator said “In my view, considering the documentary evidence, the elements of section 11A(1) which are affected are transfer and promotion.” It may be seen that the Arbitrator has not founded her decision upon “performance appraisal” as it appears in section 11A. In the circumstances I reject the Appellant’s argument that an error in any relevant sense has been made by the Arbitrator with respect to her ruling which permitted the Respondent to rely upon the defence.
The Appellant’s third ground of appeal suggests error on the part of the Arbitrator in “finding that the Respondent’s actions in respect of rosters was action within the meaning of section 11A”. In submissions the Appellant does not identify that part of the Arbitrator’s reasons to which this objection is taken. The Arbitrator dealt with matters raised with respect to the proper construction and application of section 11A between [58] and [83] of Reasons. The Arbitrator’s discussion addresses the broad range of issues raised for consideration under that section and made the following observation at [68]:
“In my view, taking into consideration all the evidence, but especially that evidence I have noted above as being more contemporaneous to the onset of the Applicant’s psychological symptoms, the Applicant’s actions in implementing its rostering system to meet its marketing and business needs was the strongest cause of the Applicant’s psychological injury. I find that the Applicant’s psychological injury was wholly or predominantly caused by the actions taken by the Respondent.”
As noted the Arbitrator at [83] of Reasons concluded that “…the elements of 11A which are affected are transfer and promotion”. A reading of the last two quoted extracts of Reasons confirms, in my view, that the Arbitrator has, as submitted by the Appellant, treated the Respondent’s conduct with respect to the provision of rosters as being action taken with respect to transfer and/or promotion within the meaning of section 11A. The Respondent submits that “…the rosters were an integral part of the Appellant’s promotion and/or transfer and therefore relevant to the section 11A issue.” The real question raised by this ground and the matters put on behalf of the Appellant require a determination as to whether the term transfer as it appears in section 11A is limited to the singular and discreet action on behalf of the employer effecting transfer of the Appellant from Premier Customer Liaison Officer to Qantas First Host. Similarly the question is raised as to whether the term “promotion” as it appears in the section is limited to the action concerning promotion of the Appellant from grade four to grade six or whether other related circumstances are relevant.
In my opinion the concept of “action” with respect to both transfer and promotion includes those employment conditions which prevail as a consequence of that transfer or promotion. On the present facts the immediate consequence of both the transfer and the promotion was a requirement that the worker adhere to a revised roster. The majority in Manly Pacific International Hotel v Doyle (1999) 19 NSWCCR 181 (‘Manly Pacific’) Mason P and Fitzgerald JA expressly disapproved of the view expressed by Davies A/JA in that case that the consequences of actions taken with respect to transfer do not include “the worker’s response to employment conditions encountered after a transfer…”. Fitzgerald JA (with whom Mason P agreed) expressed the opinion that the proposition as stated by Davies JA was “… too broadly stated” (at [7]). Guided by the observations of the majority in Manly Pacific I conclude that the provision of the new roster forms part of the “action” with respect to either or both transfer and promotion. On the present facts any finding that the provision of such roster “wholly or predominantly caused” the subject’s psychological injury gives rise, in my opinion, to the need to determine the availability or otherwise of a defence pursuant to section 11A. In the circumstances I reject the Appellant’s arguments raised with respect to this ground.
Before proceeding to deal with the fourth and fifth grounds raised on behalf of the Appellant, each of which concern the Arbitrator’s factual findings and her application of the provisions of section 11A, it is convenient to examine the Arbitrator’s reasons to ascertain the nature of those findings made which led to the entry of the award. The Arbitrator at [32] and [33] of Reasons considered the evidence and concluded that the Appellant had suffered a personal injury within the meaning of section 4 of the 1987 Act. The analysis of the evidence leading to that conclusion appears at [32] where it was stated:
“All the medical evidence is also consistent with the fact that the Applicant’s condition arose out of or in the course of employment. Although the original symptoms manifested as chest pain, Dr. Lim, and then the physician Dr. Gates came to the conclusion that the symptoms were stress related when extensive tests ruled out heart problems. Ms Wilson had previously diagnosed and treated coronial artery disease and in fact the tests indicated that the treatment in the intervening few years had been very effective. The conclusion of a psychiatric injury was confirmed by Dr. Selwyn Smith. Ms Wilson’s (sic) has provided consistent histories to all doctors she has seen of a new rostering system which has created significant difficulties with her home life, leading to her experiencing stress and anxiety. She attempted to change the new rostering system, on behalf of both herself and as spokesperson for other staff members, but was unsuccessful and this caused her further stress and anxiety. She has stated that not only did the new system create significant problems with her family life, there was also a loss of penalty rates leading to a lesser income even though the new position was a promotion from a level 4 – a level 6 staff officer. These facts were not challenged.”
The Arbitrator between [34] and [46] of Reasons addressed the application of the provisions of section 9A to the facts. Following a consideration of submissions by the parties and relevant authority, the Arbitrator concluded that the Appellant’s employment was a substantial contributing factor to her psychological injury in terms of section 9A. It is of significance on this appeal, having regard to arguments raised on behalf the Appellant, that the Arbitrator reached the following conclusions of fact when addressing issues raised by the application of that provision (at [45] of Reasons):
“45. Applying the terms of section 9A(2), I make the following findings:
…
…
e)In considering ‘the probability that the injury or a similar injury would have happened anyway’, there is no evidence that such an injury would have been sustained. The evidence is that the rostering system and its effect on Ms Wilson’s family life was the cause of the injury, and it is almost impossible to separate the ‘rostering system’ from employment. The system was the basis upon which Ms Wilson’s working life was structured.
f)In relation to ‘the worker’s lifestyle and his or her activities outside the workplace’, it could be argued that her close family relationships contributed to the emotional decompensation that occurred when this bond was significantly challenged.”
There is no challenge on this appeal to the findings of the Arbitrator concerning the issue of injury and the application of section 9A, however the Appellant complains in ground four that the Arbitrator “…erred in failing to find that deficiencies in the rostering system which caused less staff being rostered to work on the busier shifts was a causative factor in the worker’s injury.” The Appellant is correct when she asserts that the Arbitrator had no regard to “staffing levels” which resulted from the new rostering and any consequences that may have followed including causation of the Appellant’s injury. The Appellant gave evidence that the new rostering gave rise to staff shortages during peak times. That evidence, it is submitted, was not challenged. It was the Appellant’s case that worry and concern caused by such staff shortages was, in part, causative of her psychiatric injury. The Respondent argues that the Arbitrator’s analysis of the evidence and her conclusions of fact were “logical and correct” and seeks to emphasise that it is clear that the Arbitrator had found as a fact that “…the issue of the effect of the changed roster on the Appellant’s social life was the cause of her injury.” It appears to be also suggested by the Respondent that even if it was concluded that the new roster resulted in an unintended “added workload” that was a consequence of “…the change in the business that the Appellant had applied for and contracted to perform.” This argument appears to suggest that any such consequence was the result of “reasonable action” taken by the Respondent.
The fifth ground of appeal raised by the Appellant is a general challenge to the manner in which the Arbitrator applied the provisions of section 11A to the facts as found. The Respondent’s submissions seek to support the Arbitrator’s process of reasoning and her ultimate conclusions concerning the application of that section.
The Arbitrator has not only found “injury” within the meaning of the Act and that employment was a substantial contributing factor to that injury but has also found in the course of her consideration of the application of section 11A that the Appellant’s injury was wholly or predominantly caused by action taken by the employer. As noted above those matters are not challenged on this appeal and therefore I consider it unnecessary to examine those matters raised with respect to the fourth ground of appeal. The Arbitrator’s apparent disregard of the effect, or otherwise, of staffing levels is relevant to matters raised by ground 5 and is addressed below.
There remains the general challenge to the Arbitrator’s application of the provisions of section 11A (ground five). Having regard to the findings as earlier noted there remains but one matter which requires attention. That is the correctness or otherwise of the Arbitrator’s approach to the question as to whether the Respondent’s action was “reasonable” within the meaning of that section.
Given the need to examine that question I now consider it appropriate to determine whether the Arbitrator was correct to disregard the Appellant’s suggested concern in relation to staffing levels as raised by the Appellant. Her serious health problems commenced in October 2007 at which time medical treatment was sought. The evidence reveals that the Appellant was until mid December 2007 reluctant to accept a diagnosis that attributed her symptoms to stress and/or anxiety. An examination of the report of Dr Lim dated 11 June 2008 reveals that by 9 January 2008 she had accepted that her panic attacks had been precipitated by workplace changes and increased workplace responsibilities. (At page 3 of that report).
The Appellant in her statement to a compensation investigator made on 21 January 2008 made complaint that staff coverage was such that there were insufficient staff when most needed to service the customers. That statement and the history as recorded by Dr Lim is amplified by the unsworn oral evidence of the Appellant given at the hearing.
It is correct, as the Respondent has indicated in submissions, that a response to the evidence at the hearing was not possible. However the matters raised in the Appellant’s written statement and those recorded by Dr Lim remain unchallenged. On a review of the evidence in its totality I conclude that one of the consequences of the introduction of the new roster was a reduction in staffing levels. I find that the Appellant’s concern relating to staffing levels combined with the other consequences of the introduction of the roster as found by the Arbitrator wholly or predominantly contributed to the Appellant’s psychological injury.
A further issue raised by the Appellant requiring attention before proceeding to the question of reasonableness is the suggestion to be found in ground of appeal five, that the Arbitrator had erred in concluding that the Appellant’s injuries “…were wholly or predominantly caused by reasonable action in implementing its roster system…”. It is asserted in written submissions that “…there are a number of factors that were causative of the worker’s injury.” The Appellant in her submissions has failed to recognise that “action” and its consequences are all to be taken into account when considering whether injury was caused by the relevant action. That there are a number of consequences of that action which contribute to injury does not, in my view, prevent the Respondent’s action concerning transfer and promotion, including the issue of new rosters, falling within the provisions of section 11A. The Arbitrator has concluded that the Appellant’s injury was caused wholly or predominantly by that action and that is a conclusion with which I respectfully agree.
The question of reasonableness is addressed by the Arbitrator between [69] and [83] of Reasons. The Arbitrator had earlier (at [62] of Reasons) correctly observed that the onus of proof with respect to matters raised pursuant to section 11A is upon the employer. The question of reasonableness is one of fact.
Was the Respondent’s action reasonable?
The proper construction of section 11A, and in particular the meaning of “reasonable action” was considered by Armitage J in Ritchie v Department of Community Services (1998) 16 NSWCCR 727 (‘Ritchie’). His Honour in Ritchie placed reliance upon what was said by Bowen CJ and Gummow J in Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 where it was stated (at 263):
“The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience… The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account.
Armitage J proceeded to state in Ritchie:
“…it is apparent that the test in this case is an objective one, where one must weigh the consequences of the Respondent’s conduct against the reasons given for it, and I have done so. It follows of course from the objective nature of the test that evidence given by the Applicant as to perceived unreasonableness of the Respondent’s conduct or from the Respondent as to the reasonableness of its conduct from its perspective will not be determinative of this issue.”
His Honour at [48] in Ritchie discusses earlier judgements by the Compensation Court concerning “reasonableness” and made the observation that there was a need to have “…regard to the fairness appropriate in the circumstances.” Having regard to the approach adopted by the Court in Ritchie I conclude that a determination as to whether the Respondent’s action was reasonable involves both an examination of the action itself and the surrounding circumstances together with the consequences of that action. As was stated by Burke J in Melder v Ausbowl Pty Ltd (1997) 15 NSWCCR 454 (‘Melder’) (at 458):
“…I would think that the action of transferring, demoting, promoting or discharging an employee would encompass the whole of the transaction between the employer and employee. But it is the action of transferring or whatever, not the whole of the history of the relationship between the parties nor the subsequent developments, that is relevant. What went before or after may be a guide to the reasonableness of the particular action but is not part of it.”
In the present matter the Respondent asserts that the transfer or promotion of the Appellant was necessary as one of the means of meeting the challenges of a highly competitive market. That such conditions existed in the marketplace is not disputed by the Appellant. Staff levels had been increased. An intrinsic element of that action was the provision of the new roster. The statement by Mr Gardener relied upon by the Respondent includes the following:
“In my opinion the rosters were fair and all staff worked under similar conditions including full time and part time staff. Rhonda was no more disadvantaged than any other member staff.”
Mr Gardener’s view concerning fairness is not determinative of the question as to whether the action was reasonable. In my view a circumstance relevant to the question of reasonableness is the fact, unchallenged by the Respondent, that before accepting the terms of the new employment contract the Appellant had sought an indication from the Respondent that the existing rosters were to be adhered to. The Appellant’s evidence in this regard is not challenged. This aspect of the evidence was addressed by the Arbitrator at [82] of Reasons where it was stated –
“Although Ms Wilson may well have understood that her previous rosters would stand, she signed what appeared to be a fair and transparent contract agreeing to its terms. Those terms in respect to work arrangements and rosters appeared to be adhered to in the first roster, i.e. that a position holder might be required to work morning, evening or day shifts and overtime when required.”
It is apparent that the Arbitrator has treated as significant the fact that the Appellant had entered into a “fair and transparent contract”. In my view the question of reasonableness is not illuminated by a consideration of the terms of the contract alone. On this review I find that an indication had been given that the Appellant would continue working on the seven day rotational shift roster in a manner similar to that performed before the transfer. I infer that the Appellant was induced to seek the transfer, in part, upon the basis of that indication. Whilst it is correct as the Arbitrator has noted in her reasons, that the new contract provided for a potential change to rosters and an express exclusion concerning any earlier representations I conclude that the imposition of the new roster contradicted those earlier indications.
The manner in which section 11A operates, in particular the extent of the protection afforded by its terms in respect of “reasonable action”, was considered by Burke J in Melder where he stated (at 459):
“For the purposes of the exclusion of liability provided by the statute, what follows consequentially upon the action or proposed action of the appropriate nature must surely attract the same protection.”
I respectfully agree with the observations of Burke J as above quoted. It is necessary on the present facts to examine those consequences of the Appellant’s acceptance of transfer and the imposition of the new roster.
It is abundantly clear that the Arbitrator concluded that a significant consequence following introduction of the roster was a substantial disruption of the Appellant’s domestic life. I respectfully agree with the Arbitrator’s conclusions concerning that disruption however I am of the opinion that there were other significant consequences which also require examination when determining the reasonableness of the Respondent’s action.
It is clear that the original manager Mr Lillington was, prior to removal from that position, prepared to contemplate amendment to the roster. The Appellant, I accept, devoted considerable time and energy to the task of amending the roster. That was done in her own time. It is clear that, following Mr Lillington’s departure, management was unwilling to make any changes. It is the Appellant’s evidence, which I accept, that following her injury there were changes effected to the roster. Those changes corresponded to the amendments suggested by her. The only evidence presented by the Respondent concerning this matter is an acknowledgement by Mr Gardener that he was “…aware that there have been changes to the roster arrangement since April, 2008 due to operational needs.” The term “operational needs” may be characterised as corporate language the meaning of which is not clear. I infer that the need for change was occasioned by the inadequacy of the original roster.
The inadequacy of the roster was demonstrated, in my view, by the inappropriate deployment of staff which created shortages and caused staff to be overworked. The Appellant’s evidence in this regard is not challenged by the Respondent.
The transfer of the Appellant to the role of Qantas First Host constituted a promotion, as was found by the Arbitrator. Her position changed from grade four to grade six within the Respondent’s organisation. Notwithstanding that promotion it is clear on the evidence that, by reason of the original roster introduced at the inception of the new regime, the Appellant and her fellow full time employees were financially disadvantaged. Mr Gallant, the new manager, gave evidence that five members of the Appellant’s original “team” were successful in securing new positions as Qantas First Hosts. That evidence contrasts with that of the Appellant who asserts that nine of her full time fellow employees were successful in securing a position. Mr Gallant has stated that there are twenty three hosts which made up the Qantas First Host Team. Given that Mr Gallant took up his position as manager some considerable time after the establishment of the new regime I consider it more probable that the Appellant’s evidence as to numbers of full time employees engaged is correct. Mr Gallant’s view that the Appellant “was not disadvantaged with the new roster as it was developed based on the new Qantas First Host product” is evidence to be taken into account in determining reasonableness however, as above stated such subjective view is not determinative.
The matters which I have attempted to summarise above are each consequences that have disadvantaged the Appellant. The provision of the roster was at odds with indications given to her prior to entering into the contract prepared by the Respondent; that roster caused immediate and significant disruption to the Appellant’s domestic life; the roster as introduced resulted in short staffing and work overload for some employees on some shifts, and the Appellant, and others, suffered a financial disadvantage notwithstanding the promotion. Having regard to all the circumstances, in particular the unfair consequences of the Respondent’s action as summarised above I conclude that the Respondent’s action with respect to transfer and/or promotion of the Appellant was not reasonable within the meaning of section 11A. The Respondent has failed to discharge the onus upon it to establish reasonableness and hence the defence raised under that section must fail.
I am of the opinion that the appeal should succeed and the Appellant is entitled to an award. As noted above there is no issue between the parties of the occurrence of injury, that the Appellant’s employment was a substantial contributing factor to the injury and that, if successful on appeal, she is entitled to an Award of weekly compensation as sought in her original application. She is entitled to payment of reasonable medical expenses. The quantum of the Appellant’s entitlement and the basis upon which such entitlement is founded has been the subject of agreement between the parties and is recorded in the document referred to at [17] above. That document contains an obvious error being the dates of the first relevant period of entitlement to weekly benefits. The hand written notation is “10.01.07 to 04.10.08”. Having regard to the evidence it is apparent that the correct period is “10.10.07 to 04.01.08”. Should my assumption of error be wrong or give rise to any difficulty the parties may apply to mention the matter on short notice. There will be an award entered in terms as appears below.
DECISION
Paragraphs one and two of the Arbitrator’s determination dated 27 May 2009 are revoked and the following orders are made:
“(1) Award for the Applicant as follows:
$ 889.50 per week from 10 October 2007 to 10 April 2008 (section 36)
$ 374.90 per week from 11 April 2008 to 30 June 2008 (section 40)
$ 732.96 per week from 1 July 2008 to 27 August 2008 (section 38)
$ 374.90 per week from 28 August 2008 to 30 September 2008 (section 37)
$ 381.40 per week as adjusted from 1 October 2008 to date and continuing (section 40)
(2) Respondent to pay medical and hospital expenses (section 60).
(3) Respondent to pay the Applicant’s costs in accordance with the Arbitrator’s
certification contained in the Certificate of Determination.”
COSTS
The Respondent is to pay the Appellant’s costs of the appeal.
Kevin O’Grady
Deputy President
30 September 2009
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
Amendments:
The orders in 1(1) page 1 and at [85(1)] page 18 were amended on 22.01.2010.
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