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QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Queensland Nurses and Midwives' Union of Employees v Workers' Compensation Regulator  QIRC 076
Queensland Nurses and Midwives' Union of Employees
Workers' Compensation Regulator
Appeal against decision
21 May 2020
1, 2, 3, 7 May 2019
APPEAL AGAINST DECISION - Psychiatric or psychological injury – injury claimed to arise from a meeting with supervisor on resumption from work after long illness – whether prior notice should have been given of purpose of meeting – whether support person was necessary or appropriate for senior executive - whether relevant management action reasonable and taken in a reasonable way.
Workers' Compensation and Rehabilitation Act 2003 s 32(1) and s 32(5).
Mr P B Rashleigh of Counsel for the Queensland Nurses and Midwives' Union of employees, instructed by Hall Payne Lawyers.
Mr S P Gray of Counsel, for the Workers Compensation Regulator, directly instructed.
- The proceedings involve an appeal lodged by the Queensland Nurses and Midwives' Union of Employees (QNMU) against a decision made by the Review Unit of the Workers Compensation Regulator on 20 July 2018 which accepted an application for compensation made by Ms Margurite Walker in relation to a psychological injury said to have been sustained on 1 November 2016 during a meeting with the QNMU Secretary, Ms Beth Mohle.
- This appeal was heard concurrently with matter WC/2017/94 which related to an employment related injury sustained by Ms Walker no later than 13 June 2016. All of the evidence in the proceedings may be relevant to the determination of the subject appeal.
- In circumstances where the appellant has accepted that Ms Walker had suffered an injury in accordance with the provisions of s 32(1) of the Workers' Compensation and Rehabilitation Act 2003 (WCR Act), the issue in dispute is whether the injury is excluded from s 32(1) of the WCR Act by the operation of s 32(5) of the WCR Act which provides:
- (5)Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—
- (a)reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;
- (b)the worker’s expectation or perception of reasonable management action being taken against the worker;
- (c)action by the Regulator or an insurer in connection with the worker’s application for compensation.
Examples of actions that may be reasonable management actions taken in a reasonable way—
- action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker
- a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker’s employment.
- It follows that the appeal proceedings are preoccupied with the identification of the management action which it is claimed caused the psychological injury and the consequential assessment of whether such management action should be considered to be reasonable management action taken in a reasonable way.
- Ms Walker's meeting with Ms Mohle was held on her first day back at work after a period of illness and incapacity stretching from 13 June 2016 to 31 October 2016. Ms Walker's illness had been associated with management action taken in relation to disagreements between her and another manager, Ms Rogers, which culminated in complaints being filed by both Ms Rogers and Ms Walker about each other's conduct and behaviour.
- Ms Walker had commenced employment with the QNMU in November 2011. At the relevant times, she had been employed by the QNMU in the capacity of Director of Business Services.
- The QNMU organisation chart is in the evidence as Exhibit 1. The chart shows that the QNMU Secretary was supported by five direct reports viz the Assistant Secretary (Ms Sandra Eales); the Director of Campaigning and Communications (Ms Amanda Newman); the Director of Member and Specialist Services; the Director of Business Services (Ms Margurite Walker); and the Employment Relations Manager (Ms Julie Broszczak).
- Ms Mohle gave evidence in the proceedings along with all her direct reports except for the Director of Member and Specialist Services.
- Evidence in the proceedings was also given by three of Ms Walker's direct reports viz the Office Manager (Ms Gett); the IT Manager (Mr Kocovski); and the Finance Manager (Ms Connor).
- The introduction of a new computer based membership system (IMIS) was the cause of significant workplace tension, stress and some interpersonal conflict across periods of 2015 and 2016. The effect of Ms Eales' evidence was that the transitioning from the old system to the new system involved major organisation-wide changes and the process was the cause of stress for many QNMU teams, including Ms Walker's team who, inter alia, had responsibility for the implementation of the new system.
- On 18 April 2016, Ms Rogers had complained to Ms Eales about Ms Walker. On 27 April 2016, Ms Walker emailed a complaint about Ms Rogers to Ms Newman, Ms Broszczak and Ms Eales. A difference of opinion ensued about how the complaints should be resolved. Ms Walker wanted the complaints to be resolved by way of a workplace investigation, while the QNMU preferred that the complaints be addressed in a mediated process involving Ms Rogers and Ms Walker. While Ms Rogers agreed to participate in mediation, Ms Walker did not.
- On 18 May 2016, Ms Walker was informed in a meeting with Ms Broszczac and Ms Eales, that while an investigation may be necessary at some point, in the first instance, the QNMU would proceed with mediation, and that Ms Walker would be required to participate in the process.
- Ms Walker found this meeting stressful, and she asked that the meeting not continue. After the meeting, she left work and remained off work on sick leave until 25 May 2016. On her return to work, Ms Mohle confirmed the direction to participate in mediation.
- On 2 June 2016, Ms Walker was advised that the mediation had been scheduled to commence on 16 June 2016. However, Ms Walker became ill on 13 June 2016, and her illness led to her hospitalisation from 13 June 2016 to 1 July 2016. After being discharged from hospital, she remained on sick leave until the end of October 2016.
- Communications between Ms Walker and the QNMU between 2 July 2016 and the end of October 2016 were intermittent, but included a phone conversation between Ms Walker and Ms Mohle on 4 July 2016. Some time later, in August 2016, discussions between the QNMU and Ms Walker commenced in relation to her fitness for work, and her return to work.
- An email exchange (Exhibit 21) between Ms Broszczac and Ms Walker on 21 October 2016 established that it was Ms Walker's intention to return to work on 1 November 2016 and that Ms Mohle wanted to meet with Ms Walker when she arrived at work on 1 November 2016.
Medical status/fitness for work
- When it was known that Ms Walker was considering a return to work, the QNMU wrote to her on 19 August 2016, asked her to advise when she proposed to resume work, and requested that she obtain a medical clearance confirming her fitness for work.
- In response to the QNMU correspondence, Dr Jamal provided a medical certificate (Exhibit 28) dated 6 September 2016 in which he stated that Ms Walker was suffering from a medical condition and would be unable to perform her normal duties between 5 September 2016 and 18 October 2016.
- Subsequently, and after some discussion between Ms Walker and Ms Broszczak, Ms Broszczak emailed Dr Jamal on 4 October 2016 and asked that he provide a report addressing six questions which the QNMU wanted answered.
- The purpose of the questions was to seek reassurance from Dr Jamal that Ms Walker would be able to safely return to work. The effect of the appellant's position was that it was obliged to satisfy itself that Ms Walker was fit for work and that she would not suffer any further injury in the event of a return to work.
- Dr Jamal's report in response was dated 6 October 2016. In his report, Dr Jamal advised that:
- (a)Ms Walker was suffering with a major depressive disorder which had been successfully treated, completing an outpatient CBT course as well as continuing on antidepressant medication;
- (b)Ms Walker assured him that she would be able to return to work as Director of Business Services without any major/acute risk to her mental health. On an objective review of symptoms, Ms Walker described no abnormalities in terms of mood, sleep, appetite, attention or concentration;
- (c)Ms Walker should work no more than 40 hours per week;
- (d)That he supported a return to work on a full time basis under a three month flexible working arrangement with monthly reviews allowing for work to be undertaken both at home and in the head office; and
- (e)That Ms Walker had assured him that she could manage her relationship in the work environment with Ms Rogers, and that she had no issues with Ms Rogers.
- The appeal is conducted as a hearing de novo and involves a fresh trial of Ms Walker's claim for compensation. It is for Ms Walker to establish how she sustained her injury and that the injury satisfies the statutory association with her employment. In circumstances where the association between the injury and the employment has been conceded, and where the injury is a psychological injury, the appeal turns on whether the injury was caused by management action which was not reasonable or not taken in a reasonable way. It is for Ms Walker to identify the management action which caused the injury and establish that the management action was unreasonable.
- It was the respondent's case that the injury was caused by unreasonable management action associated with the 1 November 2016 meeting and that the unreasonable management action was related to the following activities or outcomes:
- It was Ms Walker's expectation that she would return to work on 1 November 2016. The QNMU had requested, and had been provided with, a medical clearance. Further, a return to work plan had been formulated by Dr Jamal and presented to the QNMU. Nothing said or done by the QNMU suggested that Ms Walker would not resume work in her pre-existing capacity;
- When Ms Walker was informed on 21 October 2016 that she was required to meet with Ms Mohle on her arrival at work on 1 November 2016, she was not informed of the purpose of the meeting;
- When Ms Walker took steps to clarify the matters for discussion, Ms Walker was told that the purpose of the meeting was to discuss her return to work plan and to update her on matters that had occurred during her absence;
- Mrs Walker was not advised that the true purpose of the meeting was to negotiate a mutual separation of employment or, if no such agreement were reached, a performance management process would be commenced;
- The information provided by the QNMU about the meeting did not amount to full and frank disclosure, and it was grossly unreasonable for the QNMU not to tell Ms Walker the true purpose of the meeting.
Failure to take prior illness into account
- In not providing full disclosure, the QNMU gave no consideration to, or failed to adequately take into account, the fact that Ms Walker was recovering from a major depressive disorder;
- When the QNMU received a clearance from Ms Walker's treating psychiatrist to the effect that it was safe for Ms Walker to return to work, the clearance was given subject to the nominated conditions and should not have been treated as an authorisation for an immediate discussion about Ms Walker's ongoing employment;
- Given Ms Walker's history of illness, it was inappropriate and unreasonable for the QNMU not to give Ms Walker and Dr Jamal prior notice of the purpose of the 1 November 2016 meeting.
Support person not offered
- Ms Walker was not afforded the opportunity of having a support person in the meeting.
Insufficient time to consider offer
- Ms Walker was provided with only two days in which to consider the options provided to her by Ms Mohle. While the mutual separation option was understood, Ms Walker was not provided with details of the performance matters which Ms Mohle said would be subject to investigation if the separation did not occur.
- If there had been any prior discussion about a mutual separation, that exchange was not relevant in circumstances where the prior discussion occurred five months earlier and before Ms Walker fell ill. In these circumstances, Ms Mohle should not have presumed that Ms Walker’s view on the issue of a mutual separation would remain the same.
- The appellant's position on performance concerns was over-stated and, in particular, the IPP Consulting Pty Ltd report did not disclose genuine performance concerns.
- For the reasons that follow, I dismiss the respondent's submissions that unreasonable management action was associated with the absence of a support person or arising from the time allowed for consideration of the offer, or the lack of particulars associated with the proposed performance management plan.
- While historical considerations associated with performance issues are relevant, it is not necessary that I make findings about whether performance concerns held by the QNMU would have been substantiated in the event of a thorough investigation. It is sufficient that I accept that there was sufficient evidence in the proceedings to establish that Ms Mohle genuinely believed that there were performance shortfalls, and that these shortfalls had not been addressed or resolved when Ms Walker stopped work on 13 June 2016.
- It follows that the appeal turns on the evaluation of the evidence and submissions related to the scheduling and conduct of the 1 November 2016 meeting including whether Ms Walker's prior illness had been adequately considered or taken into account in the planning, scheduling and conduct of the meeting, and whether Ms Walker should have been told prior to the meeting that the purpose of the meeting was to discuss a proposal for a mutual separation.
- There was a significant conflict in the evidence about whether Ms Walker had previously asked the QNMU to negotiate a separation agreement.
- The appellant said that Ms Walker had raised the prospect of a mutual separation during a meeting with Ms Eales and Ms Boszczak on 18 May 2016 and in a meeting with Ms Mohle on 25 May 2016. Ms Walker however denied that she had suggested a mutual separation in either meeting.
- The effect of Ms Walker's evidence was that she did make proposals, or put forward suggestions, during the 18 May 2016 meeting, but that her position had been misunderstood by Ms Eales and Ms Broszczac. What she was proposing was not a permanent separation, but rather a temporary stepping aside from her role to avoid a conflict of interest:
MR GRAY: Firstly, what do you remember. Did you volunteer to enter into a separation agreement - - -?---No.
- - - with the union?---I – the discussions I had with Julie, Sandra and Amanda about separations agreement was not me separating from my role at the QNU. It’s a simply a normal process when you’ve got somebody on an executive or involved in a process where if there’s a conflict of interest, they should step away while that process is, is being determined. That is what we teach our council members. That’s what we teach everybody. My references to that was purely to that process.
- A further explanation of her position was provided during re-examination:
What was the bit that was missed out, in terms of that exchange?---Well, the bit that was missed out was the offer; what I was putting forward as what I believed was a reasonable way for the management team to be able to go forward, look at this with – look at the problems; not be influenced by me. And my offer was to step away from the weekly management meetings, which was all I done; none of my job, none of my work, none of my responsibilities, just those management meetings, so that they could have free discussion, without feeling there was conflict. That was what I was offering to step aw – step down from; just the weekly. I do not believe Amanda and Julie understood that protocol, but it is a well-known protocol in all sorts of - - -
So you’ve given that eviden - - -?---My resolution was simply, "Look, I get you might not want conflict. The way you deal with this is I just move aside." I joked on the way out that I’m not taking a pay cut, because I’m not coming to the director’s meetings for three weeks, but that would have been a joke.
- While I did not find Ms Walker's evidence around this subject to be particularly coherent, I proceed on the basis that what she was proposing was that an investigation should take place into the complaints, and that during the investigation she would not participate in the weekly Directors' meetings so as to avoid any conflict of interest, presumably relating to any consideration of the outcomes of the investigation.
- It is not clear to me why Ms Walker would be required to step aside during a workplace investigation which would be independently conducted by either human resources or by an external investigator. Nor is it clear to me where a conflict of interest would arise in circumstances where Ms Walker would have no role in the investigation and no significant role in the decision making processes associated with the outcome of the investigation.
- If the investigation resulted in findings or recommendations adverse to Ms Walker, the response to the findings and recommendations would be a matter for Ms Mohle. If adverse findings were made against Ms Rogers, Ms Walker would not be involved in the response which would primarily be the prerogative of Ms Newman.
- Despite Ms Walker's evidence, both Ms Eales and Ms Broszcsac asserted that Ms Walker had advanced two separate and distinct propositions during the meeting, one of which was a proposal about a separation agreement. Ms Eales said:
All right. Now, did Ms Walker make any suggestions about what would satisfy her, with respect to her continued employment?---She said that she would be happy to step down as a director and, like, just take a lesser role and that was when I made the remark about, sort of, abdicating responsibility. That that wasn’t a viable option. And she said that it would – we would just need to get the numbers right or come to an agreement on the numbers for a separation.
All right?---So that was at the very end of the meeting. She stood up and said, you know, "It’s just a matter of negotiating the right numbers."
If she stepped down from her position as director, would there have been a position for her?---No.
- For her part, Ms Broszczac stated that, during the meeting, Ms Walker had introduced propositions or observations to the effect that the QNMU should consider asking her to step down from her current role and also that the QNMU should consider offering a significant separation package:
What were they?---She – Mar – Margurite did say at various times throughout the meeting that sh – we should consider a significant separation package, and she also did make mention at another time during the meeting that she would step down from her management role.
And did anybody respond to that issue about stepping down from the management role?---Yeah, so I – I recall Sandra advising Margurite that she can’t abdicate part of her role. That the director role is – is the whole role.
Yes. Did Ms Eales continue as – with respect to what options might be available if she wanted to abdicate or relinquish her role as director?---No, not to my recollection.
- In circumstances where both Ms Eales and Ms Broszczac may not have had a clear understanding of what Ms Walker meant when she talked about stepping down or stepping aside, the respondent suggested that they may have misunderstood what it was that Ms Walker was offering to do. When, however, the proposition was put to Ms Eales in cross-examination, she was clear in asserting that an offer of mutual separation had been made:
MR GRAY: Well, having regard to the exchange you’ve just had with his Honour, thinking about it, do you accept that it could have been the situation that what Ms Walker was saying to you was that she would step down from her position whilst this complaint was being investigated?---That could have been what she was getting at. But - - -
But you viewed it as an offer to then have a separation with the union later on?---No. No. She was clear by the end – before she walked out the door – like when she stood up at the end of the meeting, she was talking about a separation payout.
All right. I suggest to you that she didn’t raise that. What she had raised was to stand down or stand aside whilst the investigation was being undertaken?---That is not my recall.
- On Ms Broszczac's evidence, the meeting on 18 May 2016 had also included a statement by Ms Walker to the effect that she felt that she was being pushed to resign or was being constructively dismissed.
- Ms Eales said that she had briefed Ms Mohle on the outcome of the 18 May 2016 discussion. She told Ms Mohle that Ms Walker had rejected the mediation proposal and that "she was looking for a separation figure to be offered". It was Ms Mohle's evidence that Ms Walker had also raised the subject with her in a discussion between the two when Ms Walker returned to work from sick leave on 25 October 2016:
She was – at that meeting she expressed, like, considerable opposition to – to – to mediation. That’s what she was really focused on, and she raised with me at that time the potential for a mutual separation. I said that I was happy to have a further conversation with her about that, but I couldn’t do it at that time because I was – I had a taxi about to arrive downstairs to take me to Parliament House and that I’d arrange for my PA, Merryn, to make an appointment for us to have that discussion. I was happy to – to have that discussion with her at a later date.
- While Ms Walker denied that she had suggested a mutual separation in her 25 May 2016 discussion with Ms Mohle, she said that in this discussion she and Ms Mohle agreed that they probably needed "to have a chat about our relationship". Ms Walker went further later in her evidence and said that her relationship with Ms Mohle had "broken down" and that she recognised that she needed to try to "sort things out":
Okay. You commented to Ms Mohle that perhaps your relationship with her had broken down; do you remember that?---Yes.
And that she should negotiate a separation package with you?---No.
See, is that where you remember having raised the separation issue?---No – no. But our relationship had broken down, and as I’d said in my previous sentence, we – I would like some time, when things settled down, for us to try and sort things out.
You - - -?---I had worked with her for four years and had a very good relationship.
- The effect of the respondent's submission was that even if Ms Walker did raise the prospect of a mutual separation in May 2016, Ms Mohle was not entitled to rely on such a proposition some five months later after Ms Walker had suffered a serious illness and had been absent from work for an extended period of time.
- It was not in dispute that neither the subject of a mutual separation, nor the chat foreshadowed by Ms Walker, eventuated before Ms Walker fell ill on 13 June 2016.
- I prefer the appellant's evidence around the question of whether a mutual separation had been discussed in May 2016 for the following reasons:
- Ms Walker's evidence that Ms Eales and Ms Broszczac may have confused her offer to step down from her role with an offer of mutual separation was unnecessarily complicated, and not particularly coherent nor plausible. Nor was Ms Walker's suggestion that she should step aside from Directors' meetings because of conflict of interest. This evidence did not assist her version that she did not introduce any proposal for a mutual separation;
- A discussion about a negotiated settlement would have been consistent with the employment related factors weighing on Ms Walker at the time of the 18 May 2016 meeting. These factors included that Ms Walker felt that she was being pushed into a resignation; that she believed that her relationship with Ms Mohle had broken down; that she knew that Ms Mohle had concerns about her performance; that Ms Mohle thought that she should have found a better way to resolve her conflict with Ms Rogers; and that her dispute with Ms Rogers was unresolved and heading for mediation which she wanted to avoid;
- The evidence of the appellant's witnesses was straightforward and consistent in asserting that Ms Walker had proposed both a mutual separation and also an offer to step aside in the 18 May 2016 meeting;
- While it would have been consistent with the appellant's evidence for any offer of a mutual separation to have been seriously considered or taken up by the QNMU soon after the 18 May 2016 meeting, there were reasons why this did not occur. Firstly, Ms Walker was on sick leave from 18 May 2016 to 25 May 2016. Secondly, when she returned to work, she only stayed at work for eleven days before stopping work again on 13 June 2016. It followed that a mutually convenient time for the conversation may not have arisen. Thirdly, and alternatively, the QNMU had committed to action the mediation process and had, on 2 June 2016, scheduled the first mediation session for 16 June 2016. It may not have been compatible to concurrently pursue the two courses of action at least pending the conclusion of the mediation process.
- The appellant submitted that performance issues had placed a strain on the working relationship between Ms Walker and Ms Mohle and were legitimate contributing factors to the decision taken by Ms Mohle to pursue a mutual separation on 1 November 2016.
- A number of performance related concerns had been expressed during the proceedings including concerns raised by Ms Mohle during a professional appraisal and development meeting with Ms Walker on 10 May 2016; concerns associated with the efficacy of the IMIS implementation project as disclosed in the Executive Summary to the IPP report; and Ms Mohle's dissatisfaction with Ms Walker's failure to independently resolve her conflict with Ms Rogers. These were the historical concerns which preceded Ms Walker's absence on sick leave on 13 June 2016.
- A complicating factor was that, just prior to Ms Walker's scheduled resumption of work on 1 November 2016, complaints about Ms Walker were made by three key subordinates. While these complaints weighed on Ms Mohle's mind in the lead up to the 1 November 2016 meeting, she elected not to raise the complaints with Ms Walker.
- Ms Broszczak said that on 26 October 2016, she had received complaints about Ms Walker from Mr Zakowski (IT Manager) and Ms Connor (Finance Manager). The complaints were received after Ms Broszczak's conversation with Ms Walker on 21 October 2016, and before Ms Walker's meeting with Ms Mohle on 1 November 2016. Soon thereafter, Ms Gett also said that she wanted to make a complaint against Ms Walker. The complaints are in the evidence as Exhibits 2, 3, and 4. It should not be in dispute that, on their face, the complaints raised serious allegations and allegations of such a nature that it might render Ms Walker's department dysfunctional, at least during any investigation into the complaints. The implications of this state of affairs for Ms Walker's continuing employment were not lost on Ms Mohle:
But what about – what was the difference in these other complaints made by her staff?---The difference, in this situation, made it incredibly more complex and the timing could not have been worse, I’ve got to say. It made it impossible for Ms Walker to be able to return to work because she had three senior employees, who were direct reports to her, who had made allegations that needed to be investigated that were serious. We could not risk having her come back into the workplace because they were – they were her direct reports. So we had to actually – as I said, I was hopeful that Ms Walker would actually accept, yep, I’ve actually put mutual separation. I do want to do that. Because then that would have necessitated – that – we wouldn’t have had to have had any investigation. She would have just been able to part the organisation.
- It was Ms Mohle's evidence that the three complainants were senior and long standing employees of the QNMU and that their combined service approximated eighty years. All three complainants reported directly to Ms Walker. Ms Mohle said that the complaints "came totally out of left field" and were not anticipated. Ms Mohle had spoken to all three complainants about their complaints prior to the meeting with Ms Walker on 1 November 2016.
- It is not in dispute that Ms Walker was not informed of the existence of the complaints either before, or on, 1 November 2016. While, however, Ms Mohle said that she did not advise Ms Walker of the complaints during their 1 November 2016 meeting, she said that they were relevant to her approach in that served as confirmation of the desirability of a mutual separation.
- I make no findings about any of the performance issues other to the extent that I accept that the concerns were genuinely expressed and were likely to be subject to further examination and discussion if Ms Walker's employment continued.
- According to the respondent, the QNMU's failure to provide full and frank disclosure had occurred in circumstances where the QNMU had been actively promoting, in the following ways, an expectation that Ms Walker would resume her employment as normal:
- (a)A medical clearance to return to work had been obtained and return to work transitional arrangements had been settled;
- (b)Prior to the meeting on 1 November 2016, Ms Walker had been advised that the purpose of the meeting was to discuss her return to work plan and to update her on matters that had occurred during her absence;
- (c)When Ms Walker took steps to clarify what would be discussed at the meeting, Ms Broszczak did not give her any reason other than to conclude that the meeting would involve a routine operational update;
- (d)Ms Walker was not advised that the purpose of the meeting was to negotiate a mutual separation of employment or that she would be subjected to a performance management process in the event that the separation of employment could not be negotiated.
- The respondent submitted that all the aforementioned conduct indicated that Ms Walker’s employment was going to continue, not that the QNMU was intending to seek to negotiate a mutual separation. In the context described by the respondent, it was submitted that it was grossly unreasonable for the QNMU not to inform Ms Walker of the true purpose of the meeting. Rather than provide honest feedback however, the QNMU was content to let Ms Walker proceed on an incorrect description of what would be discussed in the meeting. It was in these circumstances, that when she presented for her meeting with Ms Mohle on 1 November2016 after recovering from a major depressive disorder, Ms Walker was confronted with an unexpected proposition that she agree to a termination of her employment.
- Ms Walker was informed of the 1 November 2016 meeting in an email exchange between Ms Broszczac and Ms Walker on 21 October 2016. In her email, Ms Broszczac had informed Ms Walker that Ms Mohle wanted to meet with her when she arrived at work on 1 November 2016:
Beth would of course like to meet you on your first morning back on Tuesday, 1 November (so that's not next week, but the week after), so I was going to contact you next week to see what time you were going to be coming in on your first day so that I can get Merren to arrange a meeting first thing that morning. Could you please advise what time you intend to get to work on your first day?
- Ms Broszczac's email had dealt only with the scheduling of the meeting to take place between Ms Mohle and Ms Walker and did not include any explanation about the purpose of the meeting. However, after receiving the email, Ms Walker had phoned Ms Broszczac and asked her about the purpose of the meeting:
Now, Ms Walker rang you to talk about what that meeting was going to entail?---That’s correct.
And you told her that it was just to up-date her on what’s been happening operationally since or during her absence?---I think I said something along the lines of to up-date her on recent events and operational matters.
- Ms Broszczac said that notwithstanding the answers she gave to Ms Walker's questions, she was aware, from her liaison with Ms Mohle, that the meeting might include a discussion about a mutual separation. Ms Broszczac said however that she was not sure how Ms Mohle would conduct the meeting, nor whether Ms Mohle would raise the separation. In these circumstances, it was Ms Broszczac's evidence that it was not appropriate for her to inform Ms Walker that a mutual separation would be discussed.
- While the respondent's submission was to the effect that Ms Broszczac's omission had misled Ms Walker or led her to believe that only insignificant conversation would be exchanged in the 1 November 2016 meeting, I am not inclined to attach significant weight to this proposition for a number of reasons.
- Firstly, when Ms Broszczac said that the meeting would deal with "recent events" and "operational matters", she was not, in my view, excluding anything from the conversation to take place. To the contrary, the term "operational matters" could allude to any of the serious unresolved issues which had implications for Ms Walker's ongoing employment.
- Secondly, I accept Ms Broszczac's evidence that it was not for her to specifically inform Ms Walker that the meeting would include a mutual separation proposal. It was not Ms Broszczac's responsibility to remind Ms Walker of the pressing matters which needed to be discussed on her return and which may have had some bearing on her employment relationship. There was no evidence to the effect that any of the unresolved issues had disappeared with the effluxion of time and in my view it would have been strange had Ms Walker not expected, on her return to work, that Ms Mohle would want to canvass some, if not all, of these matters.
- Thirdly, whatever interpretation was placed on the information conveyed by Ms Broszczac, it is relevant that Ms Walker was afforded ten days notice of the 1 November 2016 meeting, and that she had ample opportunity to seek professional advice or more information in relation to the meeting. There was also nothing preventing Ms Walker, or her representative, from making direct contact with Ms Mohle to clarify matters of concerns, particularly in circumstances where Ms Broszczac's brief description of meeting could hardly be considered fulsome or exhaustive.
- The respondent submitted that, given the subject matter of the 1 November 2016 meeting, Ms Walker should have been afforded the opportunity to have a support person present at the meeting, and that the only reason Ms Walker did not ask the QNMU to consent to the attendance of a support person was because of the QNMU misrepresentations about the purpose of the meeting. Ms Walker's evidence was broadly consistent with this proposition:
MR GRAY: Now, Ms Walker, you’d decided not to have a support person present with you at the discussion with Ms Mohle on the 1st of November 2016. Why did you make that decision?---I’d made – thought I’d made suitable inquiries to feel confident it was an operational update. And I took into account the advice I’d been given from Together, that – and I did understand that to go back into a senior position and not being able to have a meeting may give them reason to argue that I was not capable working in my substantive position. And I didn’t – and – yeah, I didn’t feel that there was anything that was going to come up that I wasn’t feeling well or strong enough at that point to – to deal with, given what I’d known before I went away.
- Ms Walker emailed the Together Union on 24 October 2016 and asked that the Union provide a representative to attend the 1 November 2016 meeting with her in the capacity of a support person:
I have received clearance to return to work on the 1 November. The Secretary has requested I meet with her on the first morning and I would like to have a support person. I will ask the HR manager to put any requests etc. in writing so I don’t have to meet with her on my own during the week as she wishes to discuss my return to work plan. Can I forward any issues and could you be available next Tuesday morning for the meeting. If so can you please advise what times you could be available so I can advise her PA.
- While the manner in which the evidence was adduced suggests that the email to the Together Union followed the telephone discussion between Ms Walker and Ms Broszczac about the purpose of the 1 November 2016 meeting, the evidence does not conclusively determine the chronological order of events.
- If the email came after the telephone call, it would appear to contradict Ms Walker's evidence that she had relied on the representations made by Ms Broszczac in deciding not to ask for a support person. Rather, the chronology would disclose that the support person had been requested despite what Ms Broszczac had said, not because of what Ms Broszczac had said. The effect of the email in these circumstances would have been that Ms Walker held continuing concerns about her meeting with Ms Mohle including that she did not want to meet with Ms Mohle "on her own", that she would ask for "requests etc. in writing"; and that she would wanted to forward issues to the Together Union for review.
- If the email preceded the phone call between Ms Broszczac and Ms Walker, then the email presents as evidence that was broadly consistent with Ms Walker version of events in which she set out to get clarification from Ms Broszczac about various matters associated with the meeting.
- Whatever was the true chronological order, in the end result, Ms Walker decided not to request a support person and her reasons for so deciding included her reliance on advice that she received from the Together Union in response to her 24 October 2016 email:
While I understand that you wish to have things in writing, that you wish for any requests etc. to be recorded, and not to have to meet with some particular individuals on your own please be aware that as part of the employer-employee relationship it would be considered reasonable for management to meet with their employee(s) to discuss matters, and that not all meetings would necessarily be appropriate to have a support person in attendance, and not necessarily all requests need to be in writing, insisting on such may place an undue burden on your ability to perform the inherent requirements of your role.
- It seems to me, on objective review, that while Ms Walker attempted in her evidence to convey a view that she was equally influenced, in deciding not to have a support person, by what she had been told by Ms Broszczac and the advice that she had received from the Together Union, it is more likely that the Together Union advice was more influential. Ms Walker can only go so far with the proposition that she was misled by Ms Broszczac in a factual context where Ms Broszczac did not exclude anything in her very brief response to Ms Walker's phone call, while the Together Union advice was very expansive and quite direct in informing Ms Walker of a recommended course of action.
- Ms Mohle's evidence was to the effect that, given the way she intended to conduct the meeting, there was no need for a support person. Ms Mohle said that all she intended to occur in the meeting was that she would put a proposition to Ms Walker and then ask Ms Walker to consider the proposition. Nothing was required of Ms Walker other than to listen to the proposition which was to be confirmed and particularised in an email:
And you would expect that decisions would be made as to whether she would have a support person, or ask anything further about the meeting would be influenced by what she’s told by her employer?
---There was no necessity for a support person, because we were just putting a proposition to Ms Walker. So there was no need for any support person. I had no support person there, no legal advice. It was a one-on one meeting that was arranged to demonstrate respect for Ms Walker being at an
executive position. I could’ve, I guess, sent an email or a letter. I would not do that to another human being. I’d pay them the respect of having a conversation face to face.
- I prefer Ms Mohle's evidence around the support person issue. Firstly, it was intended that the meeting not go beyond the presentation of a proposition in respect of which Ms Walker was not required to provide any immediate response. Secondly, no allegations or complaints were put to Ms Walker and she was not asked to answer any questions or to provide any responses. Thirdly, Ms Mohle wanted to preserve confidentiality, principally in my view, to create the opportunity for Ms Walker to leave the organisation on her own terms, and most likely at her initiative. Fourthly, Ms Walker had not asked for a support person, and Ms Mohle did not consider that an employee engaged at the executive level of the organisation should be incapable of participating in a meeting with her manager without a support person.
- Ms Walker was part of the QNMU's leadership team, and she directly reported to Ms Mohle. While it is common practice to offer an interviewee in a disciplinary setting the opportunity to be accompanied by a support person, the practice is common among front line workers or less senior employees where there is a clear imbalance of power and where the employee was most likely not competent or confident in debating issues or in challenging a manager's version of events.
- It would be a significant anomaly if a person of Ms Walker's calibre and seniority in the organisation did not have the capacity to meet one on one with her supervisor and participate in awkward or sensitive discussions. In fact, as observed by the Together Union, a refusal to meet with her supervisor could render the employment arrangement null and void.
Scheduling and conduct of meeting
- When Ms Walker commenced sick leave on 13 June 2016, she left unresolved a number of issues which had raised questions about whether her employment relationship with the QNMU would survive. While she had been medically cleared to return to work on 1 November 2016, her ongoing employment was still contingent on the unresolved issues being resolved to Ms Mohle's satisfaction either subject to conditions or not. The unexpected presentation of complaints by three of Ms Walker's key subordinates left Ms Walker's prospects of continuing employment precariously placed, if not untenable.
- It was not unexpected therefore that the effect of Ms Mohle's evidence was that, prior to the 1 November 2016 meeting, she had arrived at the view that it was in everyone's best interests for Ms Walker to separate from the QNMU's employment on mutually acceptable terms.
- The appellant said that the first opportunity for Ms Mohle to raise the issue of a mutual separation with Ms Walker arose in the 1 November 2016 meeting. It was submitted that Ms Mohle could not reasonably have raised the issue prior to Ms Walker receiving a return to work clearance. Ms Mohle also took the view, correctly in my opinion, that it would not be appropriate to enter into a discussion about a mutual separation via correspondence, and it was an issue that needed to dealt with in a face to face communication:
… As I said, it was only a short meeting. It was a 10 minute meeting. What I could have – what I – what I could have actually done, which I didn’t think was appropriate to do because I don’t it’s a very humane approach, is I could have actually emailed Ms Walker or communicated with her by a letter. We were cognisant, though, of the fact that we couldn’t have a conversation until she was fit to return to work and that return to work day was the 1st of November. But I thought that – the way that I operate is the fact that I want to have conversations with people one-on-one – even difficult conversations. I believe that I really owe, particularly to a senior staff member who’s a member of the leadership team, that it was the respectful and appropriate thing to do was to actually have this conversation and then follow it up in writing so that she could actually consider it appropriately.
- It was Ms Walker's evidence that the meeting lasted only five or ten minutes and that Ms Mohle had said words to the effect that she did not want her to resume employment and that she wanted her to negotiate a mutual separation agreement. Ms Walker said that she was told that if she did not enter into a separation agreement, upon resumption of employment she would be placed on a performance management plan.
- Ms Mohle said in her evidence that she had a short conversation with Ms Walker in which she told Ms Walker that she wanted to negotiate a mutual separation. Ms Mohle's version of what transpired at the meeting was set out in an email that she sent to Ms Walker not long after the meeting had concluded:
The purpose of this meeting was to advise you that I have significant concerns including that our relationship is not functional and has deteriorated over time. I feel that there has been a breakdown in trust and confidence and am of the view that there exists significant performance issues. These have been outlined to you previously, including in your Performance and Appraisal meeting earlier this year.
As such, pursuant to clause 30 of your employment contract, I am seeking to negotiate a mutual separation with you, as I believe this option would be in the best interests of you and the QNU.
As discussed, if you do not wish to negotiate a mutual separation pursuant to clause 30 of your contract, I will be formally raising with you my concerns regarding your performance and conduct. This process would be conducted in accordance with clause 28 and 30 of your contract.
I just wanted to confirm that I will phone you on Thursday 3 November to discuss the outcome of your deliberations regarding your employment at the QNU and the two options put to you at our meeting this morning.
- Ms Mohle said that in informing Ms Walker that she wanted to negotiate a separation pursuant to clause 30 of her employment contract, she did not ask Ms Walker for an immediate response. The meeting was brief, and once the proposition had been put, Ms Walker was asked to provide a response after two days consideration. During this period of consideration, Ms Walker was instructed to stay at home on full pay. Subsequently, on 3 November 2016, Ms Walker emailed her response to Ms Mohle:
Thank you for providing this information. After giving this considerable thought I do not wish to negotiate an ex gratia payment. I have been working very hard with my medical team to ensure I could return to my position and think it's important I do this. I understand the consequences and will work constructively with you to address concerns going forward.
- On the available evidence, it was open to the QNMU to conclude prior to the 1 November 2016 meeting that, while the meeting may be a cause of stress for Ms Walker, it was a reasonable expectation that Ms Walker would have the capacity to deal with any stress that might arise:
- Ms Walker had been off work since 13 June 2016 and out of hospital since 1 July 2016, and had benefited from a long recovery period;
- On 6 October 2016, Dr Jamal supported a return to work on a full time basis with very limited restrictions. On the same date, Ms Walker reported to Dr Jamal that she was able to resume her role of Director of Business Services;
- On 6 October 2016, Ms Walker assured Dr Jamal that she had no issues with Ms Rogers and said that she could confidently manage that situation;
- In circumstances where Ms Walker knew that her relationship with Ms Mohle had broken down and where she knew that Ms Mohle held significant performance concerns, it was not unreasonable to expect that Ms Walker should have anticipated that she would have to navigate some difficult issues with Ms Mohle on her return to work.
- It is relevant that Ms Mohle did take steps to mitigate any stress or anxiety. Firstly, the meeting was not scheduled until Ms Walker had recovered from her illness and was fit for work. Secondly, the meeting was scheduled ten days out and gave Ms Walker ample time to get advice or representation. Thirdly, she limited the scope and duration of the meeting by electing not to introduce general performance concerns nor to apprise Ms Walker of the complaints made by her subordinates. Rather, she directly and candidly told Ms Walker of her view on the relationship, proposed a separation on mutually acceptable terms, and allowed time for the offer to be considered.
Consideration of offer
- The respondent submitted that it was not reasonable to allow Ms Walker only two days in which to consider the options provided to her. Nor was it reasonable that Ms Walker was not provided with details of the performance issues that Ms Mohle proposed to investigate in the event that Ms Walker did not accept a mutual separation.
- The respondent's position cannot be sustained for a number of reasons. Firstly, Ms Walker gave no evidence in the proceedings supporting a claim that she did not have sufficient time to consider Ms Mohle's offer, nor that she did not understand what was being put to her in terms of an alternative position. On objective review, two days would have allowed sufficient time for consideration. She was already receiving advice from the Together Union, and the legal position was relatively uncomplicated in that Ms Mohle was proceeding by way of clause 30 of Ms Walker's employment agreement which only allowed for termination in the event of mutual agreement.
- Secondly, if Ms Walker needed additional time to consider her position, or more information to assist her decision making, she could have directly requested same from Ms Mohle or asked the Together Union to make those representations on her behalf. There was no evidence however of any such requests or representations.
- Thirdly, when Ms Walker emailed her response to Ms Mohle on 3 November 2016, she did not complain about the amount of time allowed for consideration but said inter alia that after giving Ms Mohle's proposal "considerable thought", she had decided against a mutual separation.
- Additionally, rather than contest in her email the existence of performance issues, or challenge the need for a performance management plan, Ms Walker said that she understood the consequences of her rejection and would work constructively with Ms Mohle to address her concerns. It logically follows that Ms Walker understood that Ms Mohle did hold concerns and that Ms Mohle would want her concerns addressed.
- For the reasons that follow, I do not accept that the QNMU acted unreasonably in the scheduling and conduct of the meeting held between Ms Mohle and Ms Walker on 1 November 2016.
- The starting point is to accept that there is a strong evidential foundation supporting the reasonableness of Ms Mohle's conclusion that the employment relationship had failed or was not tenable, and Ms Mohle's decision that a mutual separation should be negotiated. When Ms Walker commenced sick leave on 13 June 2016, her relationship with Ms Mohle was experiencing significant difficulty and Ms Walker had accepted that the relationship had broken down; performance concerns held by Ms Mohle had remained unresolved; Ms Mohle had expressed her disappointment that Ms Walker had been unable to independently resolve her differences with Ms Rogers; and processes put in place to try to resolve Ms Walker's conflict with Ms Rogers had not commenced and the relationship remained in disrepair.
- Ms Walker did not describe in her evidence the particular factors that contributed to the broken relationship. In the absence of any specific complaint about Ms Mohle, it is reasonable to infer that the difficulties in the relationship were primarily associated with Ms Mohle's dissatisfaction with aspects of Ms Walker's performance and a consequential diminished level of trust in Ms Walker's capacity to perform her role to the required standard or in a manner consistent with QNMU values.
- When complaints were made by three direct reports of Ms Walker, it became improbable that a functional working relationship between Ms Walker and her three key subordinates would exist upon her return to work. Further, Ms Mohle knew that the nature and severity of the complaints made it untenable for Ms Walker to return to work during any investigation into the complaints. It was in these circumstances that any reservations that Ms Mohle had about the necessity for a mutual separation were removed.
- Ms Walker had suggested, in May 2016, to Ms Eales, Ms Broszczac and Ms Mohle that her employment with the QNMU be ended by way of a negotiated settlement. It is not known, on the evidence, what would have prompted Ms Walker to suggest a separation, but it was a course of action which was consistent with the difficulties that Ms Walker was experiencing in her employment relationship at the time, and it was a proposal made in the same meeting that she had expressed a concern about whether the QNMU wanted her to resign. It was not unreasonable for Ms Mohle in the lead up to the 1 November 2016 meeting to surmise that Ms Walker may be amenable to a mutual separation.
- It follows from an understanding of the contextual circumstances that any claim of unreasonable management action must turn on narrow procedural considerations which require an examination of whether the QNMU should have informed Ms Walker prior to 1 November 2016 that the purpose of the meeting was to propose a mutual separation, and a consideration of the manner in which Ms Mohle conducted the meeting. The resolution of these matters turns, to a significant extent, on the medical advice provided to the QNMU in relation to Ms Walker's return to work.
- It is relevant to observe in the first instance that Dr Jamal, as Ms Walker's treating psychiatrist, would have been familiar with the causes of Ms Walker's illness, and knew that those causes were employment related. Both Dr Jamal and Ms Walker should have known that none of the employment stressors that had contributed to her injury had been resolved prior to Ms Walker's hospitalisation on 13 June 2016. It followed that there must have been some awareness between Ms Walker and Dr Jamal that it was probable that unresolved employment issues would be raised upon Ms Walker's resumption of employment. In some respect, the QNMU had put them on notice of these matters when they specifically sought advice about Ms Walker's current relationship with Ms Rogers.
- It follows that when both Dr Jamal and Ms Walker committed to a safe return to work on or about 6 October 2016, they were doing so in the knowledge that employment related stressors that caused her injury remained, and would have to be confronted, probably sooner rather than later on her resumption of work. It was therefore unlikely that Ms Walker was naïve to the possibility that topics might be introduced into the 1 November 2016 meeting which could be stressful and unsettling.
- Before any return to work, and before any meetings were arranged, the QNMU had taken positive steps to inform itself about Ms Walker's fitness for work. Dr Jamal was asked to provide answers to a number of questions, including whether there were any restrictions on the work that Ms Walker could be required to perform as Director of Business Services. The effect of Dr Jamal's responses was that the only restrictions were around hours of work and the ability for Ms Walker to perform some work from home.
- The QNMU had also sought Dr Jamal's advice about Ms Walker's mental and emotional state and her capacity to manage stressful interactions at work with persons with whom there was a history of conflict. The question, which was directed at Ms Walker's relationship with Ms Rogers, is set out below:
The QNU is concerned not to expose Margurite to risk in the workplace. Given the seniority of the role, it is an inherent requirement that the Director, Business Services work closely with many Team Leaders and Supervisors across the organisation. This includes the Growth and Recruitment Team Leader whom she recently submitted an internal complaint about and whom she alleges was the partial cause of her recent psychological condition. In your medical opinion, would this continued communication with the Growth and Recruitment Team Leader exacerbate Margurite's medical condition?
- It seems to me that, in response to a detailed enquiry of this nature, it was open to Dr Jamal to counsel against any stressful interactions at work or to recommend adjustments or allowances which would enable Ms Walker to successfully manage any difficult encounters, particularly when those interactions involved persons with whom she had a troublesome relationship.
- Dr Jamal's response however was to advise the QNMU that Ms Walker had assured him that she had no current issues with Ms Rogers and that she "could confidently manage that situation within the workplace environment".
- The effect of the medical advice, and what Ms Walker had communicated to Dr Jamal, was that Ms Walker was fit to resume her executive role and was capable of managing her relationship with Ms Rogers, notwithstanding that it was this failed relationship which had significantly contributed to her hospitalisation and lengthy absence from work.
- It follows that it was not unreasonable for the QNMU to conclude that the medical advice did not preclude a discussion about Ms Walker's employment relationship in general, and the viability of her relationship with Ms Mohle in particular. Further, once Ms Mohle had decided to discuss a mutual separation, the most appropriate way to communicate her proposal was in a face to face meeting, and I have difficulty in appreciating how a prior email or telephone call to Ms Walker telling her of the subject matter would cause anything to be done differently, particularly when Ms Mohle thought that Ms Walker may be amenable to the proposal that she had in mind.
- Ms Walker's period of sick leave did not make pre-existing difficulties in the employment relationship disappear, and Ms Walker could not have expected to resume work without some discussion between herself and Ms Mohle about the state of their relationship, and about what needed to be done to restore a functional working relationship. The fact that in the period intervening the onset of illness and the resumption of work, Ms Walker had been diagnosed with a major depressive disorder, does not mean that these discussions cannot or should not take place.
- The effect of Ms Mohle's evidence, which I accept, was that she was constrained in the timing of the discussion by Ms Walker's absence on sick leave, and the acceptance of a view that it would have been inappropriate to discuss a mutual separation with Ms Walker while she was on sick leave. It followed that the first opportunity for Ms Mohle to have the discussion with Ms Walker was her first day back at work. The subject matter was sensitive, and Ms Mohle sensibly concluded that the discussion should occur face to face and not via another medium.
- I do not accept that the QNMU acted unreasonably in not giving Ms Walker advance notice of the purpose of the 1 November 2016 meeting. Ms Walker was a senior executive meeting with her manager on her first day back at work in circumstances where Ms Walker would most likely have anticipated that some difficult issues pertinent to her employment relationship would be introduced by her supervisor. It was Ms Walker's decision not to bring a support person and it was a decision made for good reasons as elucidated in the advice that she had received from the Together Union.
- Ms Mohle's hope was that Ms Walker would acknowledge the difficulty of her predicament and concede, without acknowledging fault on her part, that a viable ongoing employment relationship was unlikely. In the face of any such concession, the way was open to negotiate a confidential separation arrangement which would allow Ms Walker to depart on mutually acceptable terms, and without reputational damage.
- I accept that Ms Mohle was conscious of Ms Walker's health in her approach to the 1 November 2016 meeting, and in her conduct of the meeting. The recent complaints made by Ms Walker's subordinates were not introduced, Ms Mohle avoided raking over the embers of historical performance concerns, and she did not advance any elaborate or self-serving justification for a mutual separation. It was sufficient to note that there were unresolved issues to be addressed, and to state the obvious that these concerns would need to be addressed in the event of the mutual separation option not being accepted.
- While Ms Mohle was direct in communicating her wish that a mutual separation be negotiated, she avoided any particular criticism of Ms Walker's conduct or behaviour, kept the discussion brief, and made it clear to Ms Walker that she did not want a response to her proposal there and then. The meeting was conducted in a business-like manner and was transactional in nature. Ms Walker was given two options and it was for her to consider which option she preferred.
- There was nothing inherently unreasonable in either option being advanced in the meeting. The mutual separation option had been canvassed previously, but irrespective of that consideration, the facts supported Ms Mohle's conclusion at least to the extent that it was in her interests, and the QNMU's interests, for a mutual separation to be negotiated. If the mutual separation option were not accepted, Ms Mohle was simply stating the inevitable when she told Ms Walker that performance management activities would be commenced. Performance management was inevitable because it was never the case, in my view, that the pre-existing issues of concern to Ms Mohle would have evaporated with the effluxion of time, or in some other way assumed insignificance, because Ms Walker had been absent from work for some months suffering from a major depressive disorder.
- The evidence in the proceedings supports a balance of probabilities finding that Ms Walker's injury was not caused by unreasonable management action or by management action taken in an unreasonable way.
- The appeal is allowed. The decision of the Workers' Compensation Regulator dated 20 July 2018 is set aside and replaced with a decision that Ms Walker's application for compensation is not one for acceptance. The respondent is to meet the appellant's cost of the appeal.
- Published Case Name:
Queensland Nurses and Midwives' Union of Employees v Workers' Compensation Regulator
- Shortened Case Name:
Queensland Nurses and Midwives' Union of Employees v Workers' Compensation Regulator
 QIRC 76
21 May 2020