Hardy v Workers' Compensation Regulator
[2015] ICQ 27
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- Hardy v Workers' Compensation Regulator[2015] ICQ 27
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Hardy v Workers' Compensation Regulator[2015] ICQ 27
Hardy v Workers' Compensation Regulator[2015] ICQ 27
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Hardy v Simon Blackwood (Workers’ Compensation Regulator) [2015] ICQ 027 |
PARTIES: | BARBARA MARY HARDY (appellant) v SIMON BLACKWOOD, WORKERS’ COMPENSATION REGULATOR (respondent) |
FILE NO/S: | C/2014/57 |
PROCEEDING: | Appeal |
DELIVERED ON: | 8 October 2015 |
HEARING DATE: | 5 February 2015; further submissions 6 August, 13 August 2015 |
MEMBER: | Martin J, President |
ORDER/S: | Appeal dismissed. |
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 appellant claims she suffered a compensable psychiatric injury as a result of bullying, harassment and inappropriate behaviour in the workplace – where the appellant provided a list of 49 stressors – where the appellant identified major stressors – whether the Commission erred by failing to consider the stressors on a global basis to support a finding that a ‘toxic work environment’ existed – whether the Commission erred by failing to make any findings with respect to which of the stressors were considered to involve management action – whether the Commission erred in finding that the injury was excluded under s 32(5) of the Workers’ Compensation and Rehabilitation Act 2003 Workers’ Compensation and Rehabilitation Act 2003, s 32(5) |
CASES: | Delaney v Q-Comp (2005) 178 QGIG 197 Q-COMP v Hohn (2008) 187 QGIG 139 |
APPEARANCES: | SD Anderson instructed by Shine Lawyers for the appellant F Lippitt directly instructed by the Regulator for the respondent |
- [1]In September 2009 the appellant (Ms Hardy) commenced working for the Diamantina Shire Council as a receptionist. Ms Hardy claims to have suffered a compensable psychiatric injury as a result of bullying, harassment and inappropriate behaviour in the workplace. She says this occurred in the period from September 2009 to June 2011.
- [2]She appeals from the decision of the Commission which dismissed her claim for compensation.
- [3]Ms Hardy was a worker for the purposes of the Workers’ Compensation and Rehabilitation Act 2003 (‘the Act’) and the Regulator accepted that she was suffering from a psychiatric illness. The questions before the Deputy President were:
- (a)Was her employment a significant contributing factor to the injury? And, if so,
- (b)Was the injury excluded by s 32(5) of the Act?
- (a)
- [4]At the time relevant to this appeal, s 32 provided:
“(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the 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;
- (b)the worker’s expectation or perception of reasonable management action being taken against the worker;
…”
- [5]The Deputy President, after a detailed examination of the relevant evidence, held:
- (a)That Ms Hardy’s claim had not been substantiated; and
- (b)Her injury was excluded under s 32(5) of the Act.
- (a)
The appellant’s case
- [6]The appellant argues that the Deputy President failed to apply s 32(5) properly and that the Deputy President failed to make any findings with respect to which of the stressors had involved management action.
“Stressors”
- [7]In the ordinary course, an appellant seeking to demonstrate a compensable psychiatric injury will be directed to file and serve a list of “stressors”. This process is used to identify those events or matters which an appellant says caused the injury. Contrary to the manner in which it was tendered in the hearing below, the list is not, by itself, evidence.[1]
- [8]The mere provision of such a list does no more than alert the respondent of the case to be advanced by the appellant. An appellant should bear in mind that the list must be confined to those matters that are relevant to the injury. It is not an opportunity to set down a list of grievances.
- [9]In this case, the appellant itemised 49 “stressors”. Two of them were the same as two others, thus there were 47 unique stressors. Some were nothing more than complaints about office processes, for example, stressor 2 was: “Ms Wells assigned to me the task of handling the dog registration tags”.
- [10]It is the responsibility of all parties to appeals before the Commission to conduct the litigation as efficiently as possible and to confine the matters for decision to those which truly need to be decided. It is a matter for concern that a list of 49 matters was presented to the Commission when, in the internal review conducted by the Regulator, only two stressors were relied upon.
Which of the stressors were important?
- [11]During the proceedings, Ms Hardy was asked to identify those stressors which caused her more distress than the others. She did so. No evidence was called, of an expert nature, to establish any link between the stressors and the injury experienced by the appellant. When the review decision was made by the Regulator (then called Q-Comp), the decision-maker referred to some medical reports but, apart from a report from a psychologist tendered by the respondent, the Commission appears not to have had the benefit of any assistance about the relationship between the conduct alleged in the list of stressors and the injury. In any event, the case was not conducted on the basis that there was no causal connection between the stressors and the injury. Rather, the respondent argued that Ms Hardy’s psychological difficulties were attributed to her own personality traits and a misperception of some workplace events.
- [12]The Regulator tendered a report from Dr Atkinson, an organisation psychologist. She had been engaged by the Diamantina Shire Council to perform a psychological assessment of Ms Hardy. Dr Atkinson formed views about Ms Hardy including that she had a pre-existing psychological disorder when she commenced work at the Council and that that adversely affected her capacity to interact appropriately with her Council colleagues. The Deputy President accepted the evidence of Dr Atkinson about the events of her study of the interaction between Ms Hardy and others at the Council. But she does not appear to have relied upon the pre-existing condition which Ms Hardy suffered.
- [13]The case for Ms Hardy before the Commission was put in this way:
“…The case for the appellant is that this was a toxic work environment and it was made toxic by the CEO and by Alana Donovan, who was … not only an employee or a contractor there but also his partner in life, and that the individual bullying and harassment allegations that are made by Ms Hardy involve not only those two but also Misty Girdler and Lisa White.”[2]
- [14]The description of the case as being one concerning a “toxic work environment” was questioned during submissions and Ms Anderson, who appeared for Ms Hardy, confirmed for the Deputy President that the case to be presented would not go outside the stressors which had been identified.
- [15]The appellant argues that, given the number of stressors identified by her as major stressors, it was appropriate for the Deputy President to “consider the impact of the stressors on a global basis”. That is, with respect, not an accurate description of the procedure described by Hall P in Delaney v Q-Comp.[3] An approach of that nature may be valid where there are findings of the kind discussed by Hall P in Delaney. As Hall P made clear, such an evaluation will be appropriate where there are “repetitive blemishes joined by subject matter, time and personality in a discordant workplace”[4]. Such an approach is not justified simply by the fact that an appellant nominates a large number of stressors.
- [16]The appellant also referred to Q-Comp v Hohn[5] and submitted that the reasoning in that decision justifies an evaluation of each stressor and whether (and how much), it contributed to the development of the psychiatric injury. It was then submitted that once such an evaluation has taken place a “global assessment of the facts” is required to determine whether an injury ought to be excluded by the operation of s 32(5)(a) of the Act. The effect of the reasoning in Hohn was not the subject of detailed submissions by either party. It is not appropriate to attempt, in those circumstances, to tease out the meaning of that decision. It is sufficient, for these purposes, to note that where a party identifies individual acts or circumstances as contributing to the development or exacerbation of a psychiatric illness, it is the role of the Commission to consider each of the stressors relied upon, to consider it in the light of the provisions of s 32(5) and to determine whether it can be regarded as responsible, in some way, for the injury complained of. If, after that task is performed, the Commission determines that none of the stressors has the effect claimed by the worker, then there is no call to undertake any type of “global assessment”.
- [17]The case conducted by Ms Hardy before the Commission concentrated on those stressors which were considered by Ms Hardy to be major or more significant. On the appeal in this Court the appellant again concentrated on those “major” stressors. The Deputy President referred to all of the stressors but, given the way in which the case proceeded, only dealt with those which had been nominated as major. That was an appropriate course in the circumstances. I will do the same in these reasons.
- [18]Stressor 5: “Ms Hardy was asked to find the Real Property Descriptions for some properties. She was unable to get the required information after asking a number of other employees. Mr Mason had yelled at her from the doorway of the main office telling her that the task should have only taken 5 minutes.”
- [19]Both Ms Hardy and Mr Mason gave evidence about this incident. The Deputy President found that Mr Mason may have been brusque in his approach but was unable to see how this interaction could have adversely affected Ms Hardy to the point where she nominated the event as one of the major stressors. The Deputy President further found that the interaction with her had the appearance of a comment from someone who thought the matter should have been finalised more quickly.
- [20]The only point made by the appellant with respect to this stressor is that it, in combination with others, demonstrated that there was a toxic work environment. That approach, that is, the global evaluation approach, is not open unless some “fault” can be found in more than one of the stressors.
- [21]Stressor 6: “Ms Hardy was inquiring about funding for a course she wished to undertake from another employee. She was told by Ms White that she would first require approval from her manager for such funding. Ms Hardy felt humiliated by this experience.”
- [22]The Deputy President found that there was nothing inappropriate in another employee interrupting the conversation and providing appropriate information. The appellant submits that it was not open to reject Ms Hardy’s evidence in the absence of any evidence from Ms White. As a general rule, a Tribunal will accept uncontradicted evidence where it is otherwise consistent and believable. But this is a case about characterisation of conduct. Ms Hardy had not taken any steps to find out the proper process to obtain funding for a self-education course. The fact that she may have thought it inappropriate to interrupt may be correct but it does not mean that it is a matter which, in the absence of any compelling evidence, could contribute to a psychiatric or psychological injury.
- [23]Stressor 7: “Ms White corrected Ms Hardy in front of a customer on two occasions when she couldn’t find a particular tool which the client requested.”
- [24]This is another example of Ms White correcting Ms Hardy but the relevant point for consideration in this issue is that the problem was created by Ms Hardy contacting the wrong person, leaving her work station and, in effect, being the author of the situation which resulted in (justifiably) Ms White speaking to her in the manner described.
- [25]Stressor 10: “Ms Hardy said she was often required to perform work for Mr Mason outside of her duties at the workplace. This work related to his involvement in the local Parents and Citizens Committee. On one occasion she was required to return to work on a Saturday to complete some tasks for Mr Mason relating to this committee.”
- [26]The Deputy President dealt with this briefly, with good reason. This was work which Ms Hardy had been asked to do and had not done during the week. She was asked to perform the work on the Saturday afternoon, she was paid overtime for it, it took about an hour and there was no suggestion that it interfered in any way with her social or private life. Ms Hardy did not give any evidence to indicate the incident caused any psychological or other problem. It may have been an annoyance to Ms Hardy but this more in the nature of a grievance than something which would give rise to an injury.
- [27]Stressors 15 and 16 were said by Ms Hardy to be linked.
- [28]Stressor 15 was: “Ms Hardy had advised her workplace that she was home sick, but Mr Mason had called her around midday asking her to come back to work.”
- [29]Stressor 16 was: “Ms Hardy was asked by Ms Donovan to process a receipt while she was performing another task. Ms Donovan asked to use Ms Hardy’s computer, however, the computer was locked. This required Ms Hardy to leave what she had been doing to unlock her computer and in doing so she ‘became frustrated, overwhelmed and angry’ and slammed the papers in her hand onto the desk. Ms Donovan took it personally and yelled at her, telling her that she did not like her ‘attitude’.”
- [30]It is difficult to understand the appellant’s case on these points. Ms Hardy had advised Mr Mason that she had been sick in the morning but that she felt better around midday. He said there was no obligation on her part to come in but she said that she would be in after lunch. There was no coercion on Mr Mason’s part. It is suggested that there is something wrong with an employer calling an employee when the employee called in sick when the employer has become concerned about the employee’s use of sick leave. There was nothing in any of the argument to suggest that that was inappropriate and the Deputy President did not find that it was so.
- [31]As for stressor 16, this was a circumstance in which it appears to be, as the Deputy President found, Ms Hardy who lost control and, like the Deputy President, I am unsure as to why this was nominated as a major stressor.
- [32]Stressor 22: “This stressor related to Mr Mason asking Ms Hardy to find some documents. When he found them, he said aggressively to Ms Hardy ‘look at this – this is the date they came in and what is the date now’? Ms Hardy said she felt humiliated and intimated by his comments. She requested overtime to deal with the workload but this was refused by Mr Mason.”
- [33]Mr Mason did not recall that incident. The Deputy President found that some documents had not been processed in the manner in which they should have been processed. The Deputy President found that Ms Hardy should not have been surprised at Mr Mason’s reaction. The evidence of Mr Mason supported the finding made by the Deputy President.
- [34]Stressor 23: “Ms Hardy had become unwell on this day. Mr Mason telephoned her around 9am and advised her that she should have rung in earlier. Mr Mason advised that he would issue a warning letter to Ms Hardy. At a subsequent staff meeting the first agenda item related to sick leave. If a supervisor could not be reached when an employee was calling in sick, then that person could proceed through the chain of command. Ms Hardy says this was different to earlier advice given by Mr Mason that the employee should call the workplace between 6am and 7am. As it transpired, no warning letter ever issued to Ms Hardy.”
- [35]The complaint here appears to be that Mr Mason did not fairly describe her reason for failing to notify the Council that she was sick when he communicated with her direct supervisor. But that is not what the stressor says. Mr Mason gave evidence that it is standard practice to prepare a warning letter in circumstances such as this but decided not to because there were other issues with which he had to deal. No reason of substance was advanced to disturb the Deputy President’s finding on this point.
- [36]Stressor 24: “Ms Hardy was asked by Ms Donovan to assist her to do the banking. Ms Donovan was stressed and this caused Ms Hardy stress. Ms Donovan started making personal attacks towards Ms Hardy. Amongst other things, Ms Donovan accused Ms Hardy of lying about the non-receipt of an email. Ms Donovan told Ms Hardy that she was going to ‘prove you to be the liar that you are’.”
- [37]The appellant relies upon the “toxic work environment” said to have been created by the behaviour of others in the workplace. The difficulty with that submission (which is made a number of times) is that if there was toxicity, it was toxicity created by the attitude and conduct of Ms Hardy.
- [38]The evidence which was presented allowed the Deputy President to make this finding and no error has been demonstrated in doing that. The Deputy President concluded that it was a reasonable assessment of the circumstances to describe it as being “another example of Ms Hardy creating an unpleasant situation and then complaining about the consequences or perceived consequences of her creation”. The appellant did not demonstrate that this was an unreasonable view or that it was in any way infected by error.
- [39]Stressor 25: “A dispute occurred on the occasion Ms Hardy had set out the crockery to be used for a Councillors’ function. Ms Hardy found other employees using the crockery before the Councillors had and they had eaten some of the morning tea. When Ms Hardy discussed her concern with another employee, Ms Donovan berated her and told her she was going to make a complaint against her and left the building yelling that she didn’t even want to work here until ‘they’ve done something about her’ (pointing directly at Ms Hardy).”
- [40]The appellant complains that the Commission considered the issue of intention in relation to Ms Donovan’s conduct, whereas the issue was whether the stressor should have been excluded pursuant to s 32(5) of the Act. The respondent submits that Ms Donovan was not in a position of authority over Ms Hardy and that this was not a management action incident. The Deputy President found that it was Ms Hardy’s overreaction to a fairly simple situation which was extreme and which did nothing more than create disharmony in the workplace. If fault need be assigned in a circumstance such as this, then clearly it is Ms Hardy’s behaviour which led to the interaction with Ms Donovan.
- [41]Stressor 26: “A meeting was arranged between Ms Hardy and Mr Ball from the Australian Services Union for the purpose of Mr Mason discussing Ms Hardy’s ‘inappropriate behaviour’. Ms Hardy had called Mr Ball after Ms Donovan’s comments and Mr Mason accused her of making personal calls during working time.”
- [42]The Deputy President found that Mr Mason had arranged for Mr Ball to attend the meeting. The matter to be discussed was Ms Hardy’s unprofessional conduct while at the front desk. She found that Ms Hardy had agreed that she had been making derogatory comments about staff in a loud way and so that others in the office could hear her. Ms Hardy agreed with that. In the circumstances, it was Ms Hardy who had exhibited inappropriate behaviour.
- [43]Further examples (Stressors 30, 31, 33, 38, 39, 41, 42 and 45) were considered in depth by the Deputy President. In each case, the appellant was found either to have been the person at fault in the circumstances or that the conduct of the employer was in accordance with ordinary managerial behaviour. In each case there was evidence to support those findings. Ms Hardy submits that different findings should have been made but has not been able to demonstrate the necessary level of error to justify a different result.
- [44]The Deputy President included as a “major stressor” stressor 40. That was an error. Stressor 40 was not nominated by Ms Hardy as being in the same category as the ones already considered. It is argued by the appellant that to the extent that it was considered to be a major stressor by the Commission it tainted the Deputy President’s consideration of the cause of the injury and led the Commission into error. I do not understand how that can be so. Whether it is described as a major stressor or a primary stressor or just, simply, a stressor, it is still one of the matters relied upon by Ms Hardy as having caused her injury. The fact that Ms Hardy had nominated some stressors as being more important than others does not change the circumstance that all of them had been nominated as causative.
Conclusion
- [45]The Deputy President engaged in a careful and detailed analysis of each of the stressors alleged to have been responsible for the injury. She held that most of the stressors did not relate to management action but to interactions between employees within the office. The Deputy President accepted that the work environment at the Council could be difficult at times. She accepted the appellant’s claim to the extent of finding that the general work environment was at times difficult not only for Ms Hardy but also for other employees as a consequence of Ms Hardy’s actions on a number of occasions.
- [46]The Deputy President took into account the arguments advanced on Ms Hardy’s behalf and determined that the evidence did not support the case for the appellant.
- [47]This was a case in which the advantage held by the primary tribunal in assessing witnesses is substantial. The assessments made by the Deputy President were supported by the evidence and the appellant’s case was, in effect, an argument that a different conclusion should have been reached. But the conclusions which were reached were all open on the evidence. The appellant has not demonstrated any error of law, fact or exercise of discretion.
- [48]The appeal is dismissed.