Workers' Compensation Regulator v Adams
[2015] ICQ 1
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- Unreported Judgment
- Workers' Compensation Regulator v Adams[2015] ICQ 1
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Workers' Compensation Regulator v Adams[2015] ICQ 1
Workers' Compensation Regulator v Adams[2015] ICQ 1
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Simon Blackwood (Workers’ Compensation Regulator) v Adams [2015] ICQ 001 |
PARTIES: | SIMON BLACKWOOD (WORKERS’ COMPENSATION REGULATOR) |
CASE NO/S: | C/2014/21 |
PROCEEDING: | Appeal |
DELIVERED ON: | 29 January 2015 |
HEARING DATE: | 19 August 2014 |
MEMBER: | Martin J, President |
ORDER/S: |
|
CATCHWORDS: | WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – NATURE AND SCOPE OF APPEAL AND REVIEW – where the respondent claims she sustained a psychological injury as a result of being bullied and harassed in her workplace – where the respondent’s appeal against the rejection of her claim was upheld in the Commission – where the respondent filed a Statement of Stressors in which she listed what she called “the work events that caused my psychological injuries” – whether the Commissioner’s finding that the respondent’s aggravation injury did not arise out of, or in the course of, reasonable management action taken in a reasonable way was not reasonably open on the evidence and on the facts as found by her – whether the Commissioner erred when she enquired whether “unreasonable management action” was the dominant cause of the respondent’s disorder Workers’ Compensation and Rehabilitation Act 2003, s 32 |
CASES: | Q-Comp v Hochen (C/2009/47) – Decision |
APPEARANCES: | Mr S P Gray directly instructed by the Regulator for the appellant Ms L Willson instructed by Parker Simmonds for the respondent |
- [1]Mary Adams worked for Healthscope Ltd at the Allamanda Private Hospital from August 2006 until 31 August 2011. In the period from July 2008 until she left employment she worked in the central sterilising department (CSD). Her manager in that department was Lance Hippisley. Ms Adams claims that she sustained a psychological injury as a result of being bullied and harassed by Mr Hippisley. Her appeal against the rejection of her claim was upheld in the Commission.
- [2]The parties agree that Ms Adams was a worker at the time she sustained her personal injury and that her injury was a psychiatric or psychological injury. In the light of evidence from Ms Adams’ treating psychiatrist, Dr Brown, the Commissioner formed the view, which is not challenged on appeal, that the injury was an aggravation of a pre-existing personal injury. Before the Commissioner, the Regulator accepted that the aggravation injury arose out of or in the course of Ms Adams’ employment and the employment was a significant contributing factor to her injury, but the Regulator contested the events as they were described by Ms Adams.
- [3]At the hearing in the Commission the issue which had to be resolved was whether the aggravation injury arose out of or in the course of reasonable management action taken in a reasonable way.
Workers’ Compensation and Rehabilitation Act 2003
- [4]The relevant section of the Workers’ Compensation and Rehabilitation Act 2003 (the Act) is s 32.[1] That section provides the definition of the meaning of “injury”. So far as is relevant, the section provides:
“(3) Injury includes the following—
…
- (b)an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation –
(i) a personal injury);
…
..
- (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;
…”
- [5]In accordance with a directions order of 1 May 2013 Ms Adams filed a “Statement of Stressors” in which she listed what she called “the work events that caused my psychological injuries”. It was on the basis of that Statement of Stressors that the appeal was conducted in the Commission.
No | Date | Event/Short Description |
1 | OPT 2010-2011 | The claimant was employed at AllamandaHospital under the supervision of Mr Lance Hippisley. His behaviour in the workplace towards the claimant and other staff was often bullying, sexual in nature and caused the claimant significant distress. Behaviour would include swearing, shouting and inappropriately personal remarks in front of other staff. |
September 2010 | The claimant was involved in a misunderstanding regarding the cleanliness of instruments used in an operating room on one occasion, where Mr. Hippisley yelled at her in front of other staff, saying ‘I’ll pull your tits off if you do that again.’ The claimant was intimidated, embarrassed and too fearful of losing her job to make a complaint. | |
28th September 2010 | The claimant’s partner contacted the hospital following this incident and spoke with Rodney Green, the General Manager, about Mr. Hippisley’s behaviour in the workplace. Three weeks later he again contacted the GM who assured him he had talked to Lance and that ‘it had been dealt with’. The claimant continued to be harassed by Mr. Hippisley and felt like nothing had been done to change his conduct. Management did not conduct an investigation until September 2011. | |
May 2011 | The claimant returned to the workplace after a two week vacation. Shortly after that Mr. Hippisley humiliated the claimant in front of the other staff when she wasn’t feeling well. He said ‘What’s wrong with you?’ The claimant explained she wasn’t feeling well, from stress induced IBS. He said ‘What, did they get your false teeth and rub them on your arsehole and put them back into your mouth? Has your boyfriend been banging you up the arse too much?’ The claimant was extremely upset and reported the incident to the second in charge, Judy Falks. | |
18 July 2011 | On or about the 18th of July 2011 the claimant injured her back at work and had approximately six weeks to recover. Upon her return to the workplace wherein she had been informed by her GP to only perform light duties, Mr. Hippisley marched her into a meeting with the Workplace Health and Safety Officer Sandy Downs. Whilst discussing the incident with the Officer Mr Hippisley denied several statements she made and said that she ‘had shown his department up and it didn’t look good.’ The claimant was not allowed to speak as he consistently asserted his own opinions. This intimidated and distressed the claimant. | |
August-September 2011 | After the meeting the claimant was pursued by Mr Hippisley to the department, where the confrontation escalated. The claimant raised concerns over his behaviour and cited examples of inappropriate conduct. In the course of the argument the claimant said that she wanted a transfer away from him, and that she had reached her quota of his behaviour. The next day on or about the 30th of August the claimant returned to work where Mr Hippisley approached her at a set up table and said threateningly, ‘This is not over.’ The claimant felt immediate distress, anxiety, despair. She reported her feelings to Judy Falks. She was not offered any support or counselling services. | |
31st August 2011- September 2011 | The claimant met with the Director of Nursing to make a complaint about Mr. Hippisley’s behaviour and to request a full investigation. The claimant felt then unable to work at an appropriate standard and left, after requesting a transfer to another hospital. She later telephoned the Director again to make a formal complaint on the 6th of September 2011. |
The findings in the Commission
- [6]The Commissioner made findings with respect to the stressors set out in the statement.
Stressors 1, 2 and 4
- [7]The Commissioner made these findings:
- (a)“...the weight of evidence does not support a finding that Mr Hippisley made the alleged remarks to Ms Adams in either September 2010 or May 2011”.
- (b)The Commissioner preferred Mr Hippisley’s evidence about the language he used.
- (c)Although Mr Hippisley made derogatory comments about another female employee, the words he used were not those alleged by Ms Adams.
- [8]The Commissioner concluded with respect to these stressors that:
- (a)She was not satisfied that Mr Hippisley made sexually offensive remarks to Ms Adams personally.
- (b)That the language and conduct of Mr Hippisley, generally, constituted sexual harassment.
- (c)That there was sufficient evidence to find that, because of Mr Hippisley’s conduct, Ms Adams was offended.
Stressor 3
- [9]The Commissioner made these findings:
- (a)A complaint was made on two occasions by Ms Adams’ partner to Mr Hippisley’s superior, Mr Green.
- (b)As a result of the complaint Mr Green spoke to Mr Hippisley.
- (c)The Commissioner was “loath” to describe Mr Green’s actions as unreasonable management action taken in an unreasonable way but she did consider his omissions as significant “blemishes”.
Stressor 5
- [10]With respect to this allegation, the Commissioner preferred the evidence of Mr Hippisley and another employee. The Commissioner found that Mr Hippisley did not make the comments as alleged by Ms Adams in the Statement of Stressors.
Stressor 6
- [11]The Commissioner found that the management action taken by Mr Hippisley on 29 and 30 August 2011 was reasonable and reasonably taken. Further:
- (a)“… except for the yelling as it was described by Ms Buhmann, Mr Hippisley otherwise managed the situation in the CSD on 29 August 2011 reasonably. He directed Ms Adams to stop her errant behaviour as it was having a deleterious effect on other staff.”
- (b)“Mr Hippisley also took reasonable management action in a reasonable way on 30 August 2011 by advising Ms Adams that the matter was going to be escalated. Her behaviour in the workplace needed to be addressed because of the particular nature of the comments she directed to Ms Helen Law as well as having a heated exchange with Ms Featherston.”
Stressor 7
- [12]The Commissioner accepted that Ms Adams made a complaint to the Director of Nursing on 31 August 2011 about her treatment by Mr Hippisley and the effects on her health. The Commissioner held that there was nothing unreasonable in the action taken by management with respect to this stressor.
- [13]The Commissioner rejected the submission by Ms Adams that the claims should be considered globally:
“[65] … In my view it is not appropriate to consider the management actions globally as they were not ‘joined by subject matter, time and personality’.”
- [14]Notwithstanding the findings about the stressors relied upon by Ms Adams, the Commissioner held that she had been the subject of sexual harassment.
- [15]The following findings were made which addressed the general subject of the claim:
“[86] The Commission accepts that much of the evidence given by Ms Adams has not been accepted. It was at times neither coherent nor consistent with the Statement of Stressors. However, even though offensive comments were not personally directed to Ms Adams, I am reasonably satisfied that the workplace over which Mr Hippisley presided was uncomfortable for her because of his swearing and his use of derogatory terms to describe women, jokes with sexual innuendo, loudness and volatility. In her evidence Ms Adams said that this type of behaviour took her back to her childhood where she was subject to such conduct by adults. Such behaviour (and worse) was the original cause of her post-traumatic stress disorder and depression.
[87] The Commission also acknowledges that Mr Hippisley and Ms Adams only worked together in the CSD for short periods. In my view it is not a matter of the quantity of the time they were both in the CSD but the nature of that time.”
Ground 1 of Appeal
- [16]This ground is based upon the assertion that the Commissioner’s finding that Ms Adams’ aggravation injury did not arise out of, or in the course of, reasonable management action taken in a reasonable way was not reasonably open on the evidence and on the facts as found by her.
- [17]The case which was mounted by Ms Adams before the Commission was one which was based upon the stressors set out in the Statement of Stressors. The Regulator was entitled to engage in the proceeding on the basis that they were the matters which constituted the entirety of the claim made by Ms Adams.
- [18]The Commission rejected nearly everything of substance advanced by Ms Adams so far as those stressors were concerned.
- [19]In making the findings set out in paragraph [86] of her reasons, the Commissioner departed from the case which had been conducted before her. The conduct found to have occurred was not the conduct which was the subject of the Statement of Stressors. It is an error for a Tribunal in cases where the boundaries of the application have been set by a document such as a Statement of Stressors to go beyond that boundary when making findings. It was an error to find that the conduct (offensive as it was) operated to cause Ms Adams’ injury simply because this conduct was likely to have caused distress to Ms Adams. I accept the appellant’s argument that Ms Adams did not give evidence of the conduct that Mr Hippisley admitted to and, accordingly, it could not have operated to have caused her injury.
- [20]Ms Adams had specifically identified the episodes and types of conduct which she said led to her injury. Her account was rejected. It is not open to a Tribunal to then proceed to make findings that other matters did give rise to the injury.
- [21]The Commissioner was not assisted by the nature of the expert evidence relied upon by the parties. Professor Whiteford’s report was based upon Ms Adams’ assertions and recollections which, so far as is relevant, were rejected by the Commission. Dr Brown’s report was of an informal nature but could not be regarded as falling into a category of impartial experts’ reports, especially where he expressed opinions as to the strength of a possible “antidiscrimination claim”. Nevertheless, both the experts were of the view that there was a causal connection between the events which occurred in August/September 2011 and Ms Adams’ injury. The finding of the Commissioner, inconsistent as it was with her earlier determination that the matters should not be considered globally, was also inconsistent with the unchallenged evidence by the two doctors. In circumstances where the evidence is that the necessary trigger could be identified and, in other findings, it has been held that the trigger was reasonable management action taken in a reasonable way, then it is an error not to have concluded that the injury was excluded by virtue of s 32(5).
Ground 2 of the appeal
- [22]In this ground the appellant argues that the Commissioner erred when she enquired whether “unreasonable management action” was the dominant cause of Ms Adams’ disorder.
- [23]Under this heading, the appellant argues that in order to have reached the conclusion referred to above, the Commissioner must have searched for a “dominant factor”. I was referred to Q-Comp v Hochen.[2] In that case Hall P said that an enquiry as to whether or not unreasonable management action was the dominant cause of an injury was an erroneous approach. I accept that that is correct. I do not accept, though, that it can be demonstrated that the Commissioner necessarily engaged upon a search for a “dominant factor”.
Ground 3 of the appeal
- [24]The appellant argues that the Commissioner erred by allowing s 32(3) of the Act to “prevail” over s 32(5) of the Act.
- [25]This is another way of describing the argument in ground 1 and need not be taken further.
Conclusion
- [26]The error which has been identified by the appellant which is of signal importance is that the Commissioner relied upon material which was either inconsistent with or not advanced by Ms Adams as the cause of her injury. At [88] of her reasons, the Commissioner said:
“I accept that Mr Hippisley’s conduct on 29 and 30 August 2011 caused Ms Adams distress because she found it intimidatory and precipitated her decompensation. However, his actions were found to be reasonable and taken reasonably in the circumstances.”
- [27]It is in the next paragraph of the Commissioner’s reasons that the error is manifest. The Commissioner describes those actions as having occurred against a backdrop of an uncomfortable and unpleasant work environment. That was not the case before the Commission. Having found that the distress was caused by conduct which came within s 32(5) of the Act and not having accepted virtually all of Ms Adams’ claims concerning other conduct, it was not open for the Commissioner to find that Ms Adams’ fell within s 32(3) of the Act.
Orders
- [28]The following orders are made:
- (a)The appeal is allowed.
- (b)The decision of the Queensland Industrial Relations Commission in this matter is set aside.
- (c)In its place the order is that the appeal filed by the respondent on 22 April 2013 is dismissed and that the decision of 7 March 2013 is confirmed.
- [29]I will hear the parties on costs.