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Khan v Workers' Compensation Regulator[2023] ICQ 2

Khan v Workers' Compensation Regulator[2023] ICQ 2

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Khan v Workers’ Compensation Regulator [2023] ICQ 002

PARTIES:

COLLEEN KAY KHAN

(appellant)

v

WORKERS’ COMPENSATION REGULATOR

(respondent)

FILE NO/S:

C/2020/16

PROCEEDING:

Appeal

DELIVERED ON:

24 February 2023

HEARING DATE:

21 October 2020, 8 December 2020

MEMBER:

Davis J, President

ORDER/S:

The appeal is dismissed

CATCHWORDS:

WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – EXCLUSIONS – where the appellant’s superior implemented a Performance Management Plan (PMP) on the appellant – where the appellant claimed workers’ compensation – where the claim was of a psychiatric or psychologic illness caused by the implementation of the PMP – where the injury was not compensable if it resulted from reasonable management action – where the appellant alleged that the PMP was not imposed in accordance with departmental policy – where WorkCover disallowed the claim – where the Workers’ Compensation Regulator (the Regulator) confirmed the rejection of the claim – where the appellant appealed to the Queensland Industrial Relations Commission (QIRC) – where the QIRC confirmed the rejection of the claim – where the appellant appealed to the Industrial Court of Queensland – whether the implementation of the PMP was reasonable management action – whether the QIRC erred in law in so finding

APPEAL AND NEW TRIAL – RIGHT OF APPEAL – SCOPE AND EFFECT OF APPEAL – where the appellant’s superior implemented a PMP – where the appellant asserted that the PMP was implemented contrary to published policies – where the appellant submitted that the implementation of the PMP was therefore not reasonable – where WorkCover rejected the appellant’s application for compensation – where the appellant sought review of that decision from the Regulator – where the Regulator confirmed WorkCover’s decision – where the appellant appealed the Regulator’s decision to the QIRC – where the hearing to the QIRC was a hearing de novo – where the QIRC dismissed the appeal – where the appellant appealed the QIRC’s decision to the Industrial Court of Queensland – where the appeal to the Court was limited to errors of law or jurisdiction except by leave – where leave was limited to cases in the public interest – whether the QIRC ought to have found that the implementation of the PMP was unreasonable because of the initial failure to take into account the policies – whether the function of the QIRC was to determine itself whether the implementation of the PMP was reasonable – whether an error of law by the QIRC was demonstrated – whether leave should be given to argue alleged factual errors Commonwealth Employees’ Rehabilitation and

Compensation Act 1988 (Cth), s 4

Health Services Act 1991, s 27

Industrial Relations Act 2016, s 407, s 424, s 557, s 565, s 567

Safety, Rehabilitation and Compensation Act 1998 (Cth)

Workers’ Compensation and Rehabilitation Act 2003, s 5, s 32, s 540, s 545, s 561

CASES:

Church v Blackwood (Workers’ Compensation Regulator) (2015) 252 IR 461, followed

Comalco Aluminium Ltd (Bell Bay) v O'Connor (No 2) (1995) 61 IR 455, cited

Comcare v Chenhall (1992) 37 FCR 75, considered

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, cited

Dango and Comcare (Compensation) [2018] AATA 2898, considered

DL v The Queen (2018) 266 CLR 1, followed

Harris v Caladine (1991) 172 CLR 84, cited

Khan v Workers’ Compensation Regulator [2020] QIRC 095, related

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, followed

Nutley v Workers’ Compensation Regulator [2019] ICQ 002, followed

O'Sullivan v Farrer (1989) 168 CLR 210, cited

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, followed

Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, cited

Wieczorek and Comcare (Compensation) [2017] AATA 994 18, cited

Workers’ Compensation Regulator v Glass [2020] QCA 133, followed

COUNSEL:

J A Greggory KC for the appellant

C J Clark, for the respondent

SOLICITORS:

Organic Legal for the appellant

Workers’ Compensation Regulator directly briefing counsel

  1. [1]
    This is an appeal by Colleen Khan against a decision of the Queensland Industrial Relations Commission (QIRC) dismissing an appeal from the decision of the Workers’ Compensation Regulator denying her claim to workers’ compensation.[1]
  2. [2]
    The Workers’ Compensation and Rehabilitation Act 2003 (WCR Act) establishes a workers’ compensation scheme for workers injured in their employment.[2] Claims are made to an insurer, WorkCover Queensland (WorkCover).[3]
  3. [3]
    Decisions of WorkCover allowing or disallowing claims are reviewable[4] by another body established by the WCR Act, the Workers’ Compensation Regulator (the Regulator), who is the current respondent.[5]
  4. [4]
    Decisions of the Regulator may be taken on appeal to the QIRC[6] and an avenue of appeal exists to this Court from decisions of the QIRC.[7]
  5. [5]
    The current appeal concerns, amongst other things, the scope of review of the various decisions along the process.

Background

  1. [6]
    Ms Khan was employed by the Townsville Hospital for many years as a dental assistant.  In 2010, she achieved the senior position of Administration Team Leader for Oral Health Services.
  2. [7]
    On 24 October 2015, Ms Khan broke her ankle while at work.  She took sick leave and began a gradual return to work in early 2016.
  3. [8]
    By the time Ms Khan broke her ankle, staff shortages at the workplace were putting stress on her.  On 23 February 2016, after she had returned to work following her ankle injury, a Performance Management Plan (the PMP) was initiated upon the decision of a supervisor, Ms O'Brien.  Ms Khan’s employment was managed until she left the workplace in June 2016.  
  4. [9]
    Ms Khan lodged an application for workers’ compensation on 8 August 2016 claiming psychological injury. She alleged that her injury occurred as a result of the initiation and implementation of the PMP.  
  5. [10]
    WorkCover rejected the claim.  It is accepted by the Regulator that Ms Khan suffered psychological injury, but it relied on s 32 of the WCR Act to uphold the denial of the claim.  That section provides:

“32  Meaning of injury

  1. (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. … 
  1. (4)
    For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.
  1. (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—
  1. (a)
    reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;
  1. (b)
    the worker’s expectation or perception of reasonable management action being taken against the worker;
  1. (c)
    action by the Regulator or an insurer in connection with the worker’s application for compensation.

…”[8] (emphasis added)

  1. [11]
    WorkCover decided that the injury was a result of “reasonable management action taken in a reasonable way”.  The Regulator agreed and Ms Khan unsuccessfully appealed the Regulator’s decision to the QIRC.[9]
  2. [12]
    Ms Khan’s case before the QIRC was that neither the initiation nor the implementation of the PMP was “reasonable management action taken in a reasonable way” and so the protection afforded to WorkCover by s 32(5) of the WCR Act was not available.
  3. [13]
    Ms Khan appeals the QIRC’s decision.  She raised two grounds:
    1. The Learned Commissioner erred in finding that the decision to implement the PMP was reasonable management action.
    2. The Learned Commissioner erred in finding that the management of the PMP was reasonable management action.
  4. [14]
    The grounds of appeal are very general but were particularised in Ms Khan’s outline of submissions.  As to ground 1 (the finding by the QIRC that it was reasonable to implement the PMP):

“26. Two errors were made by the Commission[10] in arriving at that conclusion.[11] Firstly, the Commission did not address the content and application of the employer’s policies which was in dispute. Secondly, the Commission did not have regard to O'Brien’s compliance with the requirements of the policies which was in dispute. Both errors related specifically to whether the employer’s policy required O'Brien to give consideration to  organisational factors which impacted the appellant’s performance.[12]

  1. The employer had a policy in force in respect of the decision to implement a PMP, its content and its management; Performance Improvement (PI) Policy – G11 (QH-POL-190).[13] O'Brien accepted that she was required to comply with the policy.[14] The respondent did not submit that there were circumstances which justified O'Brien departing from the policy.
  2. The PI Policy expressly required consideration to be given to reasons for the performance concerns prior to commencing the formal PMP process.[15] The relevant passage was quoted in the reasons.[16] The PI Policy non-exhaustively identified particular considerations of a broad range of factors which impact employee performance. The intent of the policy is clear. Even if the PI Policy did not specifically direct attention to that consideration, common sense suggests it would be unreasonable for a manager to implement a PMP where the employer’s inadequate resources materially contributed to unsatisfactory performance. The PI Policy required O'Brien to give meaningful consideration to the range of factors which impacted the appellant’s performance.
  3. The relevant consideration in the present case was the adverse effect upon the appellant’s performance brought about as a result of time spent covering booking officer vacancies at reception.”[17] (emphasis added)
  1. [15]
    Paragraph 29 of Ms Khan’s written outline precisely identifies the relevant consideration which was allegedly not considered.  It is this which is said to vitiate the decision of Ms O'Brien and the three subsequent decisions on review of that decision.[18] I will refer to the consideration so identified as “The Relevant Consideration”.
  2. [16]
    As to ground 2:

“Ground 2: The Learned Commissioner erred in finding that the management of the PMP was reasonable management action (reasons at [429])

  1. The appellant’s case was premised on the alternative conclusions that either the unreasonable implementation or 

unreasonable continuation and extension of the PMP was a material cause of the appellant’s injury.

  1. On appeal, the appellant confines the resolution of ground 2 to the outcome of ground 1. It was not reasonable for the employer to extend a PMP which was unreasonably implemented.”
  1. [17]
    A good deal of evidence was led before the QIRC as to the manner in which the PMP was managed, and findings about that were challenged by ground 2 of the appeal.  As those challenges are now abandoned, the only issues on appeal are:
    1. whether The Relevant Consideration was considered in the making of the decision to initiate the PMP; or
    2. the impact if it was not.
  2. [18]
    For reasons later explained, an appeal to this Court is limited.  An appeal may only be based on an error of law or jurisdiction except by leave.[19] By leave, an appeal may be founded upon a factual error.  Ms Khan says that if the error she has identified is not an error of law, then she ought have leave to rely upon it as a factual error.

Some central issues

  1. [19]
    Two human resource policies were issued by the Department of Health:
    1. the Performance Improvement Policy Number G11 (QH-POL-190) issued in January 2014 (the PI Policy); and
    2. the Performance and Development Policy Number G9 (QH-POL-189) issued in June 2014 (the PD Policy).
  2. [20]
    The PI Policy is central to the appeal.  It is the policy referred to in the particulars of Ms Khan’s appeal as replicated in paragraph [14] of these reasons.
  3. [21]
    The PI Policy commences:

 “1  Policy statement

All employees are required to actively, and in good faith, participate in processes to manage unsatisfactory performance. The focus of a performance improvement process is to provide an employee with support and assistance to improve areas of unsatisfactory performance. 

Employees are responsible for achieving the performance requirements of their position. Managers have an obligation to help support employees achieve their performance requirements.” [22] It then provides: 

 “2  Performance monitoring

Managers and supervisors are required to effectively monitor employee performance and discuss performance concerns with employees at the earliest possible stage.

Consideration should be given to possible direct reasons and influences for the performance concerns, including:

  • faulty job design
  • problems with co-workers
  • unsuitable work environment
  • ill health
  • insufficient employee competencies
  • personal circumstances
  • indolence.”
  1. [23]
    The PD Policy prescribes an approach to employee performance generally.  Part of this general approach involves managing unsatisfactory performance.  That aspect is managed through the PI Policy.  The PI Policy and the PD Policy are therefore interrelated, but the PI Policy is the one that is critical to the present appeal.
  2. [24]
    Ms Khan alleged that any issues arising in her performance of her role were caused, or at least substantially contributed to, by the necessity for Ms Khan to attend to duties at reception.
  3. [25]
    As already observed,[20] Ms Khan’s case is that the decision to implement the PMP was taken without reference to the PI Policy with the result that the decision was infected by error in failing to take into consideration the impact on Ms Khan’s performance of the demands of the reception duties.  Ms O'Brien was cross-examined on this topic:

“And did you take into account the fact that the time she spent on reception in January and February of 2016 detracted from her ability to do her own work when deciding to implement the Performance Management Plan?---I can’t tell you what day she worked on reception during that time. It was not a requirement of her role to be on reception, and there was depth of coverage. So I couldn’t say what impact that had because I don’t know the number of dates or times or - yeah, I don’t know how often she rostered herself on reception.

So you didn’t take into account any time she spent on reception in deciding to do the Performance Management Plan?---I don’t think that it was - she was on there significantly. I don’t think she was on reception significantly over that time.

Are you saying you therefore did not take it into account?---The time of reception?

Yes?---No.

No, you’re agreeing with me? 

MR CLARK: Well - - -

MR GREGGERY: Sorry. I’ll deal with it later.

COMMISSIONER: I think the witness did. I mean, you didn’t take into account, from what I can - and tell me if I’m wrong. You just acknowledged that you didn’t take into account when you were implementing the Performance Management Plan the time Ms Khan had spent on the reception?---No, I don’t know the dates and times, but it wasn’t a requirement of the role for her to be on reception.

So you didn’t take that into account?---No.”

  1. [26]
    Ms Khan relies on this passage as proof that Ms O'Brien did not take The Relevant Consideration into account when deciding to implement the PMP.
  2. [27]
    Both the policies were admitted into evidence before the QIRC.[21] During the hearing of the appeal, four central issues arose.  Those were:

“a.  the legal status of the policy;

  1. b.
    whether a failure to follow the policy renders the decision to implement the PMP a decision contrary to law;
  1. c.
    if so, whether the Commission’s failure to so find was an error of law;
  1. d.
    if not, whether leave to appeal on errors of fact ought to be given.”[22]

The legal status of the Performance Improvement Policy

  1. [28]
    There have been various versions of the policy since the policy was originated by Directive 03/99 made by the Governor in Council on 25 November 1999 pursuant to s 27(1) of the Health Services Act 1991.  The Health Services Act 1991 has since been repealed.  It is unnecessary to consider the history further as the Regulator accepts that the policies were in force and binding upon relevant decision-makers at times relevant to the appeal.

Whether a failure to follow the policy renders the decision to implement the PMP a decision contrary to law

  1. [29]
    The Regulator accepts that the PI Policy must be considered by a decision-maker seeking to implement a PMP.  A failure to consider a mandatory consideration would render the decision to implement the PMP open to judicial review.[23] Because of relevant statutory provisions, the fact that the decision of Ms O'Brien to implement the PMP might be infected with error is not determinative of the current appeal. 
  2. [30]
    The decision to implement the PMP is clearly “management action”,[24] so the question under s 32(5) of the WCR Act is whether that management action was “reasonable” and “reasonably taken”.
  3. [31]
    Ms Khan submitted that:
    1. if the decision to implement a PMP was taken (as it was) by Ms O'Brien; and
    2. there was a failure by Ms O'Brien to take into account The Relevant Consideration; then
    3. the decision to implement the PMP was contrary to law; and
    4. was therefore not reasonable management action.
  4. [32]
    In support of that submission, Ms Khan cites Dango and Comcare (Compensation).[25] There, the Administrative Appeals Tribunal was considering a claim for compensation under the Safety, Rehabilitation and Compensation Act 1998 (Cth) (the SRC Act).  The SRC Act and the WCR Act both provide for compensation for employees injured at work.  The SRC Act contains provisions equivalent to s 32 of the WCR Act and in Dango questions arose as to whether the psychiatric injury suffered was a result of “management action reasonably implemented”. In the judgment, Member Parker observed:

“… as a minimum the action must be lawful.”[26]

  1. [33]
    It follows, so argues Ms Khan, that the implementation of the PMP was done without reference to the policy, so the decision was unlawful and therefore was not reasonable management action reasonably taken.
  2. [34]
    In Dango, Member Parker cites, as authority for the proposition appearing at paragraph [32] of these reasons, the decision of Cooper J in Comcare v Chenhall.[27] That case concerned a claim for compensation by a federal police officer.  His claim was not available if the injury was suffered “as a result of reasonable disciplinary action taken against [him]”.[28] The case considered the meaning of a term not defined by the legislation, namely “disciplinary action”.  In the course of his reasons, Cooper J observed:

“The nature of the action which may be taken, and which must be lawful, depends upon the nature of the duties and the rules of conduct or behaviour, and, the means provided for by statute or the common law to enforce them.”[29] (emphasis added) And:

“It is not possible, in my view, to say whether any particular conduct is or is not ‘disciplinary action’ within the meaning of the definition without determining the answers to the three questions posed above, 

and testing the conduct against the answers obtained to those questions. It follows that the effect to be given to the words is determined in any particular case by reference to the regulatory rules applicable to the employee in question and not by reference to general notions of good order and control of Commonwealth employees.

It may well be that the identification of the relevant duty or code of conduct or body of rules applicable to a particular employee operates in such a way that the only lawful disciplinary action which is available under that regime is a punitive sanction available only in cases of proven or admitted misconduct, and that the practical effect is that the operation of the definition is limited to those circumstances.

On the other hand, the regime may entitle certain types of action to be taken against employees to enforce discipline where the employer or some designated person has reasonable grounds to believe that an employee has breached or may have breached, or may in the future breach, any duty the employee owes or any applicable code of conduct or rules of behaviour without the requirement that misconduct be proven.

However, that result in either case comes not from the construction of the term ‘disciplinary action’ as a matter of English usage in the definition, but as a matter of what conduct may lawfully be taken by the Commonwealth as an employer against an employee to enforce the disciplinary regime so far as it concerns that employee.”[30] (emphasis added)

  1. [35]
    There is nothing in the judgment of Cooper J to suggest that action which may be lawfully taken, such as the implementation of a PMP, becomes relevantly “unlawful” because some relevant consideration was overlooked in the decision to implement the PMP.  Other authorities suggest the contrary.
  2. [36]
    In Dango, the judgment of Deputy President Humphries in Wieczorek and Comcare (Compensation)[31] is cited:

“... However, a failure to observe written policies prescribed for managing employee conduct must be regarded as prima facie evidence of a failure to execute action in a reasonable manner. The extent of any departure from a mandatory policy is a relevant consideration, and minor mistakes in its application might be disregarded. The extent, however, to which a failure to follow the policy resonates in the outcome of that process is a matter which cannot be disregarded. In the present case, the repeated failure by Ms Wieczorek’s supervisors to make, or retain, written records about the steps taken to manager her underperformance is more than a technical breach of their obligations. In this case, it has deprived the decision maker on the claim for workers compensation of valuable evidence as to the reasonableness of the steps taken to manage that underperformance. The policy itself describes the keeping of records by managers as crucial, for reasons which should be obvious.”[32] (emphasis added)

  1. [37]
    While a failure to follow a policy might be good evidence that the decision was not “reasonable”, that consideration does not follow automatically as a matter of law. Ultimately, the question here is whether the decision to implement the PMP was “reasonable”.  For reasons which follow, the decision under review on this appeal is that of the QIRC.  Therefore, the relevant inquiry is as to whether the QIRC took into account The Relevant Consideration.

Was the Commissioner’s failure to find that the failure of Ms O'Brien to follow the policy was an error of law, in turn an error of law by the QIRC.

  1. [38]
    This raises issues as to the function of the QIRC on an appeal from a decision of the Regulator.
  2. [39]
    When WorkCover makes a decision to reject an application for compensation, that decision is reviewable by the Regulator[33] who must act under s 545, which relevantly provides:

“545Review of decision or failure to make a decision

  1. (1)
    The Regulator must, within 25 business days after receiving the application, review the decision and decide (the review decision) to—
  1. (a)
    confirm the decision; or 
  1. (b)
    vary the decision; or
  2. (c)
    set aside the decision and substitute another decision; or
  1. (d)
    set aside the decision and return the matter to the decision-maker with the directions the Regulator considers appropriate. …”
  1. [40]
    The review is a hearing de novo of WorkCover’s decision, so the question for the Regulator was whether the decision to place Ms Khan on the PMP was a decision which was reasonable.  That was a necessary consideration because the employer relied upon s 32(5) of the WCR Act.  That required the Regulator to consider the PI Policy and, in particular, The Relevant Consideration.
  2. [41]
    The appeal to the QIRC is also an appeal de novo.[34] The QIRC must review all the material and decide itself whether the decision to implement the PMP was reasonable.  In so doing, it must turn its mind to all relevant considerations, including The Relevant Consideration.
  3. [42]
    In determining for itself whether the decision to implement the PMP was reasonable, it was not necessary to determine whether Ms O'Brien, or WorkCover, or the Regulator, had failed to take The Relevant Consideration into account.  The issue for the QIRC was to determine whether the decision to implement the PMP was reasonable.[35] That required the QIRC to consider The Relevant Consideration.

Whether leave to appeal to this Court on errors of fact should be granted

  1. [43]
    Section 407 of the Industrial Relations Act 2016 (IR Act) continues the Industrial Court of Queensland[36] as a superior court of record.  Section 424(1)(a) confers jurisdiction upon the Court to “perform all functions and exercise all powers given to the court under this Act or another Act”.  
  2. [44]
    Section 557 of the IR Act provides for appeals from the QIRC to this Court.  It is in these terms:

“557Appeal from commission

  1. (1)
    The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of—
    1. (a)
      error of law; or
    1. (b)
      excess, or want, of jurisdiction.
  2. (2)
    Also, the Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court, with the court’s leave, on a ground other than—
  1. (a)
    error of law; or
  1. (b)
    excess, or want, of jurisdiction.
  1. (3)
    However, subsections (1) and (2) do not apply to the Minister or another person aggrieved by a determination of the commission under chapter 4, part 3, division 2.
  2. (4)
    If a person may appeal a decision of the commission under both subsections (1) and (2), the person may only appeal against the decision with the court’s leave on a ground mentioned in subsection (2).
  3. (5)
    In this section— commission means the commission, other than the full bench constituted by the president and 2 or more other members.”
  1. [45]
    As to the question of leave under s 557(4), s 565 provides:

“565When leave for appeal must be given

If an application for leave to appeal is made under section 554, 557 or 560, the Court of Appeal, court or full bench—

  1. (a)
    must give leave if it is satisfied it is in the public interest to do so; and
  2. (b)
    may not give leave other than under paragraph (a).”
  1. [46]
    At least on its face, the IR Act authorises an appeal from the QIRC exercising jurisdiction under the WCR Act, and such an appeal is:
    1. on the grounds of error of law or excess or want of jurisdiction;
    2. unless by leave to argue other grounds; but
    3. leave to argue other grounds may only be given where it is in the public interest to do so.
  2. [47]
    The WRC Act also vests appellate jurisdiction on this Court.  Section 561 provides:

“561Appeal to industrial court

  1. (1)
    A party aggrieved by the industrial magistrate’s or the industrial commission’s decision may appeal to the industrial court.
  2. (2)
    The Industrial Relations Act 2016 applies to the appeal.
  3. (3)
    The appeal is by way of rehearing on the evidence and proceedings before the industrial magistrate or the industrial commission, unless the court orders additional evidence be heard.
  4. (4)
    The court’s decision is final.”
  1. [48]
    There is tension between ss 557 and 565 of the IR Act and s 561 of the WCR Act.  Section 561(3) provides that an appeal shall be by way of rehearing, but then provides that the IR Act applies to the appeal.  An appeal under s 557 is not classically an appeal by way of rehearing, as that term is understood.[37] It is an appeal limited to grounds alleging errors of law or jurisdiction.  A similar tension exists within the IR Act between ss 557 and 567, which provides:

“567Nature of appeal

  1. (1)
    An appeal to an industrial tribunal, other than a public service appeal to the commission, is by way of re-hearing on the record.
  2. (2)
    However, the industrial tribunal may hear evidence afresh or additional evidence if the industrial tribunal considers it appropriate to effectively dispose of the appeal.” 
  1. [49]
    In Workers’ Compensation Regulator v Glass,[38] Sofronoff P, sitting alone on an application to strike out a notice of appeal, held that the authority to appeal decisions under the WCR Act came via the WCR Act rather than the IR Act.  In terms then, of s 407 of the IR Act, the jurisdiction of this Court to hear the appeal is from powers given to the Court under “another Act” (the WCR Act), rather than “under this Act” (the IR Act).  
  2. [50]
    In Nutley v Workers’ Compensation Regulator,[39] Martin P considered the provisions of the IR Act and the WCR Act and concluded that an appeal to the Court under s 561 was one limited to errors of law and jurisdiction except by leave.  This was because s 561(3) picks up the limitations in s 557(1) of the IR Act.  That is, in my respectful view, the correct construction.
  3. [51]
    It follows then, that the question on this appeal is whether:
    1. the QIRC took into account the PI Policy in determining whether the imposition of the PMP was reasonable; and
    2. if not, whether that failure was an error of law.
  4. [52]
    However, as earlier observed, Ms Khan seeks leave to argue broader grounds.  As s 561 of the WCR Act picks up the limitations in s 557(1) of the IR Act, it must also pick up s 565 of the IR Act.  Therefore, leave to advance grounds beyond errors of law and jurisdiction may only be given if it is in the public interest to do so.[40]
  5. [53]
    Ms Khan advances the following as the justification for leave to appear on errors of fact:

“If not, whether leave to appeal on errors of fact ought be given

  1. The appellant submits this question should be answered in the affirmative. 
  2. The hearing in the Commission was conducted on the parties’ common understanding the employer was required to comply with its obligations under the policy. The parties litigated the issue of whether Ms O'Brien took into account the admitted link between the time spent by the appellant covering vacancies at the reception desk and her performance, as she was required to do under the policy. The reasons for judgment did not engage with that issue and it remained undetermined.
  3. The parties also conducted the appeal in the Industrial Court on the basis that the policy applied to the decision of Ms O'Brien as the decision maker, and each side has filed written submissions and made oral submissions on the facts relevant to the determination of the question.”
  1. [54]
    That submission does not address questions of the public interest.  All it submits is that the relevance of the policy and whether it was breached was litigated below and that the QIRC did not determine that issue.  If that is so, and the failure constitutes an error of law by the QIRC, then Ms Khan will win her appeal.  If not, then it is simply a factual issue which is not justiciable on appeal to this Court.  There are no public interest considerations.

Considerations

  1. [55]
    For reasons which have been explained, the real question on the appeal is whether the QIRC took into account The Relevant Consideration identified in the particulars to the grounds of appeal.  
  2. [56]
    The Industrial Commissioner commenced his reasoning by reciting some basic propositions (including that he was conducting a hearing do novo)[41] and then proceeded to summarise the evidence.  
  3. [57]
    Firstly, the Industrial Commissioner considered Ms Khan’s evidence, both in chief and in cross-examination.  Throughout her evidence, the problems which Ms Khan was experiencing because she was covering reception duties was mentioned.  In particular:

“[14]Khan described the nature of work undertaken on a daily basis on the front desk at the Kirwan facility being at times ‘just mayhem’.  On the issue of telephone calls there were often over 100 phone calls per day and at one point in 2014 there were over 250 calls in a day. Appointments were required to be managed and in particular when someone didn’t turn up they needed to try and fill that spot. The failure to attend rate had been an issue because it would leave a dentist and dental assistant without work for that period.

[15] Khan gave evidence about experiencing difficulties managing staff at times, of staff shortages and of engaging with O'Brien regarding the recruitment of more staff. In August 2013 there was dialogue with O'Brien in which Khan informed her of concerns regarding her workload in the following terms:

Thank you for showing concern re: my wellbeing. I have on many occasions expressed to you my concerns re: work priorities etc., and I have also advised my work priorities would not be a concern should I be able to work in my own role. A huge percentage of my last 8 months has been covering reception whilst still trying to complete my own duties. The main priority which was continually advised by my previous Manager was manning reception. I have not had the manpower to do this without backfilling myself. I am aware of the EAP program, thank you and will certainly be following this up should the current trend continue. I also have medical conditions which are being maintained. An example of how frustrating it is to be able to fulfil my requirements to even my expectations is I have now spent 1 hour of the 2 hours 

I have had available today writing this email … to be followed by a meeting with yourself.”

Later:

“[18] Khan gave evidence that for some time there had been ongoing discussions with O'Brien about workload which were reflected in email exchanges between the two in November 2013. The effect of having insufficient staffing numbers in the reception posed a significant barrier to her completing the Team Leader role. The staff shortages continued up to and including when she left work in June 2016.

[19] A number of meetings were held in December 2013 and January 2014 to deal with roster and back filling arrangements for the receptions at both North Ward and Kirwan health campuses. A meeting held on 6 February 2014 generated a file note by O'Brien that recorded:

  • Operational issues had been identified by both myself and Colleen Khan which indicated that there were some unaddressed factors which were impacting on the ability for Colleen Khan to undertake core responsibilities of the Administration Team Leader role likely due to the amount of time that she was rostered on reception.
  • Several attempts to address the issues internally were not successful and the involvement of Allison Perry and Chris Pittard occurred in an attempt to move forward with resolution of issues.” (emphasis added) Later:

“[25]On 10 September 2015 Khan sent an email to O'Brien at 8.48 am in which she advised that:

  • she was currently working on reception to cover for another staff member;
  • there were backlogs of work; and
  • there wasn’t enough staff to cover reception the next day.” (emphasis added)

Later:

“[27] On 14 September 2015 O'Brien informed Khan of requests she was making in regard to the recruitment plan. She was confident that the positions would be approved in three days’ time so that Khan could ‘. . . work to these dates when undertaking your planning for staffing’. This prompted a response from Khan in an email forwarded to O'Brien some 32 minutes later:

  • My main concerns with employing new staff to reception is the amount of training required and the impact on my own role and TL priorities . The internal Oral health processes and unique data system make it extremely difficult to become proficient and autonomous in this role quickly, and ongoing support is required.
  • I am also extremely upset at losing Fiona after investing so much time and training into her skill base. She has been an asset to my team.
  • Should a thoughtful and successful recruitment process provide suitable candidates I am sure I can provide enough support to uphold reception functions.

[28] A meeting of the administration team was held on 9 September 2015 following which O'Brien generated a File Note (dated 18 September 2015) and referenced her disappointment to ’workload review’ not being on the agenda, given that it was a priority of Khan’s role. At the end of the meeting she noted that Khan had burst into tears. She further recorded that:

The next day I asked how she was after the meeting. She said she was well but felt that the meeting was mostly about ‘shifting blame’ and the (sic) she ‘knows where this is going’ and that she would ‘ride it out’. It was further raised by Colleen that she felt that the reception desk had unfair workloads, did not receive assistance from other administration staff and it was unfair that other administration staff could take breaks as they wished. I noted that addressing these areas were all within the scope of her role and before any further resources are shifted to provide further support to reception that she would need to undertake an administrative review as originally requested.

I suggested that we should put a plan in place and she was agreeable to organising a performance appraisal so that a plan could be implemented to address the issues of the administration team.” Later:

“[31] At 7.58 am on 30 September 2015, Khan emailed O'Brien about the need to obtain backfill for reception coverage that day due to staff being off sick. O'Brien replied at 8.04 am stating:

Can you please consider your urgent priorities and those of yourself and your team and determine your preferred backfill based on workloads, deadlines etc.? If you cannot meet the requirements within your team or you have urgent workload that is required and are requesting additional resources let me know what you are requesting to support coverage.

[32] On 9 October 2015 O'Brien sent an email to Khan requesting the provision of information by close of business on 14 October 2015 that related to ‘Urgent Attention: Administration Outcomes’ and that the information ‘should be concise and provide a summary of events’. Khan responded to the email on 12 October 2015 in the following terms:

I am required to backfill reception at present and don’t feel I will be able to submit a comprehensive response within the timeframe requested. These issues have been ongoing for a long time and I would like to ensure all relevant information is provided.

I should be able to have this completed by Friday this week.

Is that ok?” (emphasis added)

Later:

“[34] Khan provided the following response later that day:

I will endeavour to be prepared for Thursday’s meeting. Unfortunately I will be rostered on the desk again tomorrow which means I have barely had 1 day to prepare months and months of meeting notes, times, dates etc. for one of the topics you wish to discuss. I also have topics to discuss with you and would like to have suitable preparation for those and the other topics you have raised. I would also like to take you up on your offer of discussion notes re …

I would appreciate some time with you today to discuss reception coverage to allow for some time for meeting preparation and other priority tasks please.”

Later:

“[40] In January 2016 the limited staffing in the administration area was impacting on Khan’s performance of her functions having to constantly backfill and mentor staff. The front reception staff at that time were basically copping a lot of aggressive patients which required Khan as the Team Leader to de-escalate the situation. This caused Khan to become distressed with the ‘pressure parts of the role were ten times - tenfold harder, because we were all so under the pump all the time’. It was said to be ‘upsetting, it was soul destroying’. A recruitment exercise at that time for an EO1 Booking Officer was unsuccessful which placed more work on the staff causing further stress for Khan.”

(emphasis added) Later:

“[43] Khan forwarded an email to O'Brien on 19 February 2016 which stated: 

I have just attended my doctor to assess the increased pain and aggravation to my ankle injury due to the constant demands of the reception functions. An x-ray taken two weeks ago confirmed healing was ongoing. I can no longer continue carrying out backfilling reception for long periods and during high impact periods.

…

I am always fully committed to Oral Health’s Business needs, however, I need to firstly consider my physical health. My mental wellbeing is being affected, and my stress levels are also at an increased level due to the impact carrying out two roles has on my Team Leader role’s functions and requirements.

In evidence, Khan confirmed the two roles referred to in the email were that of Booking Officer and ATL.

[44] O'Brien responded later on 19 February 2016 to Khan’s email which informed:

Thank you for raising your concerns with me about you (sic) pain levels. I agree that if you are experiencing pain then options will need to be considered in relation to appropriate coverage of reception and also the priorities of roles within the administration team that do not provide direct patient support.

My recommendation is to consider your rosters over the next four weeks, taking into consideration booked leave, organisational priorities within your team and the possibility of emergent leave and identify any gaps that might cause some issues with coverage on reception. The expected outcome will be to ensure coverage is achieved and also minimise rostered or emergent coverage for you.

Firstly consider coverage within your delegation to see what strategies can be considered. You might like to consider RDO swaps, additional shifts for part-time staff, renegotiating booked leave and other non-frontline positions in the team.

If you find there are still gaps I would recommend you consider liaising with other seniors regarding any support that might be available for the days of concern. It might also be worth getting in contact with Jean or Leila (not sure who is in the role at this moment) to see if there is any possibility of support.” (emphasis added)

  1. [58]
    When summarising Ms O'Brien’s evidence, the Industrial Commissioner observed:

“[107] Khan raised workload issues but when explored by O'Brien they hadn’t been documented and in her opinion were anecdotal. O'Brien contacted Khan on 20 August 2013 for the purpose of catching up ‘about your plans for rostering the administration team and your proposed backfill arrangements’ as she sensed that there were some issues around rostering and recruitment. On 28 August 2013 an email was sent to Khan requesting by close of business that day, O'Brien be provided with the following information:

  • send through your copy of the administration roster for the next four weeks;
  • outline how you are planning to cover reception in the case of emergent leave;
  • list any non-reception priorities that you or your team have that will need to be factored into planning for next week; and
  • outline any additional resources which are in excess to your current Booking, Billing and ATL resources that you feel that you may require for the next four weeks.

I am sure that you appreciate that this is a priority to the service and your team.” (emphasis added)

  1. [59]
    And later:

“[109] Khan’s role, historically allowed for a small allocation of backfill on reception but only for short periods and not long periods, however in the second half of 2013 she was spending more time than would have been expected on reception. O'Brien adopted an approach of assisting Khan in a collaborative environment to work through roster arrangements, business rules and leave management. A file note prepared after a meeting involving O'Brien, Perry[42] and Khan that was held on 6 February 2014 included the following commentary:

Reception Roster Arrangements

Reception roster arrangements were initially addressed during discussions. The aimed outcome was to develop a roster pattern which optimally utilised the 3 FTE Booking Officers permanently rostered to the reception. The next goal was to identify the amount and required hours that would need to be supplied from the ‘ISOH Audit’ Booking Officer and/or Billing Officer. It was agreed that the Administration Team Leader should not have any ongoing scheduled roster requirements based on current administration FTE.

To address these issues the following factors were required to be considered and agreed upon by Colleen Khan and myself: 

  • Cyclic roster patterns for 3.0 FTE Booking Officers allocated to the reception
  • Service delivery requirements including patient arrival patterns
  • Requirement and confirmation of amount of additional hours necessary outside of 3.0 FTE to be rostered on reception and identification of required position to undertake reception duties
  • Planned leave arrangements and business rules relating to leave approval and backfill
  • Emergent leave considerations

Prior to the meeting on 6/2/14 Colleen Khan had provided 3 options for roster arrangements which were discussed by Allison, Colleen and myself. A hybrid of two options was chosen and Colleen had indicated that she had discussed the proposed changes with staff and they were supportive of the new times. Colleen had indicated an implementation date of 17/2/14 would occur. Based on the new roster patterns there would be no requirement for Colleen to undertake ongoing work on reception.

The purpose of the arrangement was to allow Khan the opportunity to have time to do the supervisory aspects of her role.

[110] Upon returning from a second period of maternity leave in June 2015, O'Brien discovered there were a variety of things that had happened over the twelve months including:

  • anecdotal workload concerns;
  • rostering leave; and
  • Khan was still on reception duties” (emphasis added) And later:

“[124] O'Brien did not accept that when Khan was performing the relief role of booking officer at reception she was not performing the core duties of her substantive role but ‘probably trying to juggle both’. Time spent on the booking officer role formed a direct relationship with the reduction in time available for her core duties, resulting in a drop in performance. In respect of improvement in the waitlist for dental treatments in or around April 2016, O'Brien did not accept a core part of the improvement was Khan’s administration team, but acknowledged there was an element of work directly from that time with two additional administration positions. O'Brien was unable to give specifics about the two additional staff. In the period 2012-2013 there was a jump in the treatment numbers which resulted in outsourcing of some treatments and an increase in resources to minimise the impacts on the reception.”

(emphasis added)

And later:

“[126] On 7 September 2015 O'Brien in an email to Khan advised that it was ‘fantastic to acknowledge’ that the failure to attend rate had dropped. At this time there had been a positive improvement by Khan in respect of the administration team, however this was not being consistently achieved. The administration team meetings were not happening regularly as requested by O'Brien. On 30 November 2015 an email was generated by O'Brien stating, ‘In October we have gone back up to 14% and this is most likely a reflection of being short staffed’. This occurred whilst Khan was on leave with an injured leg. Khan previously expressed frustrations about being on reception. Whilst Khan was on leave and in her absence there may have been one administration meeting despite the expectation that these meetings happen monthly.” (emphasis added)

And later: 

“[128] When the issue of increased workload was raised with her by Khan, she would rely on the knowledge that she had of how they maintained the level of clinics for a period of time, but did not access any evidentiary resources that would have been available to her. O'Brien at the time discussed with Dr Wilkinson, ‘the levels and the change and the cap’ which she evidenced was because they worked in a partnership model and worked as co-leaders with the senior dentist. In 2015/2016 there were no changes in clinical usage which did not drive her to look at staff numbers, specifically because there were other indicators available to her that would indicate the clinical activity. In the same period, it was O'Brien’s evidence that Khan was focused on ensuring the reception desk was staffed and she had a diligence around operating rosters for clinicians.

Khan was also comfortable communicating with her, ‘via email or drop in or meetings’.

[129] The booking officer role was described as a ‘fast-paced AO3 role’ requiring contact with members of the public who were frustrated about things that may not have been happening and could be difficult interactions. An email dated 28 August 2013 was tendered for the purpose of identifying ‘as relevant to the information that this witness had about that situation’. Contained in the email was the reference to ‘not coping on reception’ and the following:

I won’t be coming in tomorrow, I don't care anymore if I have no sick leave. My family are the one’s I talk to about how I’m feeling but obviously there is nothing they can do to rectify this, so I guess for my own sanity I need to look for another job in the meantime. I’ll be going back to part-time hours and pray that with some counselling I can get through working out on reception.

[130] O'Brien was taken to exchanges with Khan from December 2013 to February 2014 about resources in Khan’s administration team in which they were ‘attempting to resolve roster and recruitment gaps’ brought about by emergent leave and the temporary filling of positions. At a PAD meeting with Khan held on 5 November 2013 the notes of the meeting recorded that O'Brien had been reviewing possible workload reporting on management tools to assist in quantifying workload issues currently being experienced on the reception desk. Khan provided information as to staffing requirements for booking officers on a fortnightly basis which identified, ‘at least three days a fortnight shortfall, not factoring in emergent leave’.” (emphasis added)

“[131] Depending on how part-timers were utilised, O'Brien’s evidence was that there might not have been a shortfall and she refuted the proposition that there was an assumption Khan would fill in as a booking officer for the rostered days off which would be three full days. At one stage, O'Brien temporarily took over the line management of some staff in the administration team understanding that Khan would be disappointed. O'Brien accepted that Khan had good attendance at work but was not able to say that she started work before everyone else. O'Brien was unable to confirm when Khan started or finished work nor if she did work in her own time at home.” (emphasis added)

And later:

“[134] As a manager she was aware that in January and February 2016, ‘high levels of workload could be productive of stress in employees’. Khan forwarded an email to O'Brien (dated 19 February 2016) in which she advised: 

I am again experiencing a severe shortage of reception staff due to leave, emergent leave and sick leave taken by backfill options.” (emphasis added) And later:

“[136] O'Brien was aware that in January 2016 Khan was on a suitable duties plan due to having limited movement in one leg. Also, she had been informed by Khan that there was a relationship between the reception duties and an increase in physical pain from her injury. In an email to O'Brien on 19 February 2016 she stated: 

My mental wellbeing is being affected, and my stress levels are also at an increased level due of (sic) the impact carrying out two roles has on my Team Leader role’s functions and requirements.

[137] O'Brien in responding to Khan, amongst other things, said:

My recommendation is to consider your rosters over the next four weeks, taking into consideration booked leave, organisational priorities within your team and the possibility of emergent leave and identify any gaps that might cause some issues with coverage on reception. The expected outcome will be to ensure coverage is achieved and also minimise rostered or emergent coverage for you. 

The recommendation was a reasonable response in that it redirected Khan to consider her Team Leader function particularly as she was not satisfied these tasks were done as instructed. Despite having performed well in January/February 2016, O'Brien did not give her the ‘benefit of the doubt’ because there had been long-term patterns of Khan not undertaking her role. O'Brien did not accept she failed to address the question of Khan’s mental stress as she ‘redirected her back to rehab to consider what other things might need to be considered in her suitable duties plan’ and in doing so a general practitioner could look at any other matters. O'Brien accepted that her email referenced only ‘physical pain’ with there being no reference to Khan’s ‘mental wellbeing and stress levels’. She conceded the communication could have been better on this occasion and could have included ‘mental wellness’. O'Brien was aware that a person with mental wellbeing affected by stress would be less likely to be able to discharge their duties to their full capacity and their work performance would be adversely affected.” (emphasis added) And later:

“[161] In reference to a note made by O'Brien for the meeting on 29 February 2016 with Khan, she was taken to paragraph 5: 

The decision to escalate to a formal performance management plan relates to a scheduled communication that occurred 11/2/16. The meeting was scheduled as an agreed outcome of the PAD. The meeting was to allow Colleen an opportunity to escalate issues for consideration and support and to provide an opportunity for Melissa to provide feedback on outcomes. The communication ended in high emotion, perceived aggression relating to other members of the administration team and was cut short as Colleen reported illness and that she was leaving the organisation. The conversation resumed after Colleen informed me that she had contacted an employee directly after the conversation which is an action that could be perceived as aggressive. There is concern that these actions demonstrate a gap in the ability to effectively and professionally communicate with management and staff relating to issues within the workplace particularly asd (sic) this was very recently formally linked to PAD outcomes.

The reference in the paragraph to a communication was her perception over the contact with Parry when she left the meeting on 11 February 2016. The file note (dated 17 February 2016) mentioned O'Brien being contacted by three staff members informally about an incident at the reception between Khan and Parry. There was a record of Khan talking of ‘[t]hose bitches’ and ‘needs to get in first and complain. But I noted that they are her team. She insisted that they are not’.”

  1. [60]
    Allison Perry was the Business Services Manager.  She gave evidence before the QIRC and the judgment relevantly records:

“[162]Perry, the Business Services Manager for the Department of Medicine at the Townsville Hospital and Health Service (THHS), was taken to an email forwarded by her on 14 November 2013 to Khan and O'Brien which in part stated:

Subject:TL and Booking Officer workload

These issues appear to have been around for a very long time and certainly will not help to be addressed by long emails going back and forth. Could I ask that email communication regarding these issues is ceased for the time being? I believe they are not conducive to productive and healthy working relationships or real solutions.

I am wondering if the workload Management Tool has ever been utilised to document workloads and their impacts to escalate to management/institute? Where to next … we need to move forward and quickly. The amount of time spent on the reception desk appears to be what you are describing, Colleen, as a significant barrier to your completing work. I agree we need a solution for this.” (emphasis added)

And later:

“[164]Perry recalled attending meetings on 5 December 2013 and 23 January 2014 at which time resources were devoted to alleviate the issue of Khan spending time on reception. Khan’s behaviour was described as defensive and of being unable to articulate her issues. The responsibility for recruitment and rostering in the administration team belonged to Khan.” (emphasis added)

And later:

“[167] In re-examination, the witness confirmed that the allocation of staff on a daily basis was the responsibility of a Team Leader.

In the time period from late 2013 to early 2014 the aim of the exercise was to find a solution to enable Khan to undertake the tasks of her role and not reception work.” (emphasis added)

  1. [61]
    Chris Pittard was the Manager of Employment Services.  As to his evidence, the judgment records:

“[177] Pittard, the current manager of employment services with the THHS, was previously the acting manager at Oral Health Services in the period from June 2014 to June 2015 at which time Khan reported to her whilst O'Brien was on maternity leave. In January 2014 whilst acting in the role of Business Service Manager, Health and Wellbeing she forwarded an email to Khan (dated 28 January 2014) that included the following: 

The action item from our last meeting on the 23rd Jan was for you to prepare at least 2 scenarios (maybe 3 if possible) for the Reception roster that had the arrival area/s covered with your admin staff. This was to be without you on the front desk to allow for specific time to concentrate on your role. 

We did discuss limited time for the other admin to assist in reception, to be rostered on a morning or afternoon but for specified time only. First thing was to look at the scenarios and then work with Mel from there.” (emphasis added)

  1. [62]
    The Industrial Commissioner carefully recorded Ms Khan’s submissions.

Relevantly:

“[220] To the extent there were any genuine concerns about Khan’s performance, the meeting notes and the PAD attached to the letter 23 February 2016 identified direct causal links between difficulties encountered by her in discharging her duties and factors outside of her control. They included: 

  • administration staffing including the non-renewal of Schmidt’s contract, increased workload and Khan’s request for a more private desk;
  • ongoing recruitment instability and the impacted functions of Khan’s duties as a Team Leader and requests for support from O'Brien for enough fulltime equivalent staff to cover reception;
  • identified challenges within the administration team relating to staffing levels which impacted across a variety of functions including both emergent and planned leave; and
  • ‘workloads … extremely busy … short staffed’.

[221] O'Brien was well aware of the direct relationship between the time spent by Khan in the reception area and the possible drop in performance. On 19 February 2016 Khan reported ongoing difficulties with workloads and shortage of reception staff which impacted her ability to perform her own role and further additional difficulties by way of increased pain from the constant demands of reception duties. Tellingly, it was said by Khan:

My mental wellbeing is being affected, and my stress levels are also at an increased level due to the impact carrying out two roles has on my Team Leader role’s functions and requirements.” (emphasis added) And later:

“[224] The decision of O'Brien not to take into account Khan’s stress and her overwork in deciding to implement the PMP was a clear breach of the requirements imposed by clause 2 of the PI Policy. This omission by O'Brien is consistent with the language used by her in the letter of 23 February 2016 which contained the following references to the considerations required by clause 2 of the PI Policy:

Reasons for performance issues

You have advised me that your unsatisfactory performance is predominantly related to:

Organisational Factors

Impacts relating to a perception in increased workloads for Booking Officer staff rostered on reception;

Difficulty maintaining a stable establishment of skilled Booking Officer on reception for positions that require temporary backfill; and

The high need to roster yourself on reception to cover planned and emergent leave.

The letter acknowledges that Khan reported the factors impacting on her performance but stopped short of accepting what had been reported was true. This along with O'Brien's evidence establishes a further deficiency in the implementation of the PMP.”

  1. [63]
    The Regulator’s submissions were also recorded.  The policies were referred to at paragraph [271] and then:

“[274] Further, in response to the proposition that O'Brien had not taken into account the issue of workload in deciding to implement the PMP, there had been a response from O'Brien that she had no specific knowledge Khan spent an inordinate amount of time on reception in the precise period for her to be over stressed and over worked. It was the case in Khan’s role that ‘it was not a requirement of her role for her to be on reception’.”

  1. [64]
    As to the implementation of the PMP, the Industrial Commissioner said:

“[332] Further, it was stated that:

Reasons for performance issues

You have advised me that your unsatisfactory performance is predominantly related to:

Organisational Factors

Impacts relating to a perception in increased workloads for Booking Officer staff rostered on reception;

Difficulty maintaining a stable establishment of skilled Booking Officer on reception for positions that require temporary backfill; and

The high need to roster yourself on reception to cover planned and emergent leave.”

  1. [65]
    There was reference to the policies at [335] and then:

“[344] The PAD notes amongst other things raised issues as follows:

  • Khan identified areas of development:
  1. -
    busy role and constant workload;
  1. -
    would like more stability and skilled staff - ongoing recruitment requirements;
  1. -
    impacted ATL functions include development of business plans, relationship building, training and meetings; and
  1. -
    believed that issues with past recruitment timeframes were not due to actions of herself but from above.
  • Khan requested the following support from O'Brien:
  1. -
    enough FTE to cover reception;
  1. -
    increased information sharing based on historical concerns of being left out of decisions relating to team outcomes;
  1. -
    opportunity to advance and grow (i.e. CDBS), workbench training;
  1. -
    support to increase ability to develop business case skills; and
  1. -
    increased support (personal and professional).

(underlining added)”

And later:

“[411] An examination of the lengthy transcript confirmed that the meeting transversed the content of the Action Plan in significant detail with a high degree of participation from Khan who was offered every opportunity to present her view on matters, including responses to a multitude of points made in the course of the meeting by Tauti, which included:

  • conceding that it was a common error on her behalf that she took on all the actions rather than spread them out amongst the team and had been doing that for a ‘long time to be honest’;
  • conceding there were client reception issues that she needed to delegate or escalate on a daily basis;
  • agreeing that she needed to work on her communication with the Team Leader and in particular issues around being professional at all times and demonstrate a high level of personal conduct; and
  • apologising for her conduct in a recent meeting with Tauti.”
  1. [66]
    At paragraph [329] of the reasons, the Industrial Commissioner turned to consideration of the implementation of the PMP.  He observed:

“[334] In determining whether the decision to implement the PMP was reasonable management action taken in a reasonable way consideration must be given to:

  • the content and application of the employer’s Human Resources Policies in operation at the relevant time; and
  • Khan’s level of performance in the period stipulated in the PMP.” (emphasis added)
  1. [67]
    What followed was an examination of the policies and a reference to various evidence.  He then observed:

“[350] It was evident, certainly as at 14 January 2016, that there was an agreed process for a continued response to areas of Khan’s work performance which required ongoing development in areas critical to her role as a Team Leader, specifically including:

  • communication;
  • issue escalation/de-escalation;
  • general management; and
  • decision making.

[351]It was not difficult therefore to mount argument that significant areas of Khan’s employment at this date required a level of continued intervention by the employer to lift her performance to a standard that embraced the expectations and parameters of the Team Leader role.”

  1. [68]
    After considering further evidence of both positive and negative aspects of Ms Khan’s performance, he then observed:

“[369]On the issue of workload, prompted by staff shortages, there was common ground this had presented difficulties for the administration team and in the case of Khan who had a preponderance herself to undertake the front desk role rather than the activities assigned to the role of Team Leader. In Khan’s own evidence in chief, there was acknowledgement of having issues with the undertaking of her duties on numerous occasions that included:

  • late 2013;
  • February 2014;
  • April 2014;
  • February 2015; and
  • September 2015.

[370] At the same time O'Brien responded to those situations in a timely manner with offers of assistance to Khan, none of which were successful in having Khan remove herself from the front office role to concentrate on the Team Leader functions. The overall effect of Khan’s performance was to expose deficiencies in the role and by all accounts this continued up to and including October 2015.” (emphasis added)

  1. [69]
    What followed was reference to the PAD Policy and the PI Policy:

“[371]This policy[43] regulates the implementation of a PMP with an obligation on a manager or supervisor to meet the standards identified at clause 2 of the PI Policy:

Performance monitoring

Managers and Supervisors are required to effectively monitor employee performance and discuss performance concerns with employees at the earliest possible stage.

Consideration should be given to possible direct reasons and influences for performance concerns, including:

  • faulty job design
  • problems with co-workers 
  • unsuitable work environment
  • ill health
  • insufficient employee competencies
  • personal circumstances
  • indolence.

Reasonable adjustment should be considered for employees with an impairment. For more information on the requirement to provide reasonable adjustment refer to Reasonable Adjustment HR Policy G3. 

Prior to commencing a process to address unsatisfactory performance an employee should have been provided with:

  • information on the performance expectations, standards and/or requirements, in writing
  • appropriate training and associated resources
  • feedback and counselling where concerns are identified with performance.

Where appropriate performance expectations, standards and requirements should be determined in consultation with the employee.

When an informal process does not lead to a satisfactory improvement in performance a formal performance improvement process may commence.

[372] The appellant cited deficiencies in the PMP implementation and in particular the reliance by O'Brien on the PAD Policy which was claimed not to be informal discussions about unsatisfactory performance, but routine discussions conducted in accordance with the PAD Policy. It was also argued that in the PAD documents attached to the correspondence of 23 February 2016 there had been no reference of unsatisfactory performance.” (emphasis added)

  1. [70]
    Later, the Industrial Commissioner said:

“[378]At the end of the day it is, in the view of the Commission, reasonable for an employer who had become dissatisfied with the performance of an employee in the circumstances that were applicable in this instance to Khan, for a decision to be made to utilise the PI Policy and seek to implement a PMP. Grounds for such action were identified in the PAD and other meeting outcomes which were not successfully refuted in evidence before the proceedings.”

  1. [71]
    Reasons for judgment should not be read artificially or over-critically.  The purpose of reasons is to explain why a decision is made.[44]
  2. [72]
    The PI Policy prescribes various considerations for “performance concerns”.  These form the foundation of “The Relevant Consideration” articulated by Ms Khan in her written submissions.
  3. [73]
    Here, the Industrial Commissioner carefully analysed the evidence, which included many references to Ms Khan’s evidence that she was overloaded with work, particularly because of the demands of reception.  A good deal of the evidence concerned the contest between the Regulator’s position that Ms Khan was not performing satisfactorily and Ms Khan’s case that any defects in performance were caused by her being overloaded with work.  
  4. [74]
    That analysis led to the findings at paragraphs [369] and [370] of the judgment which then were followed by reference to the PI Policy.  The Industrial Commissioner referred to the policy.  He was obviously aware of Ms Khan’s case on that point.  He referred to her evidence.  He made findings, as I have explained.
  5. [75]
    The Industrial Commissioner did take into account The Relevant Consideration but he found against Ms Khan.  The appeal should be dismissed.

Orders

  1. [76]
    The appeal is dismissed.

Footnotes

[1] Khan v Workers’ Compensation Regulator [2020] QIRC 095.

[2] Workers’ Compensation and Rehabilitation Act 2003, s 5.

[3] Workers’ Compensation and Rehabilitation Act 2003, Chapter 8.

[4] Workers’ Compensation and Rehabilitation Act 2003, Chapter 13, Part 2.

[5] Workers’ Compensation and Rehabilitation Act 2003, Chapter 7.

[6] Workers’ Compensation and Rehabilitation Act 2003, Chapter 13, Part 3.

[7] Workers’ Compensation and Rehabilitation Act 2003, s 561.

[8]  Statutory notes omitted.

[9] Khan v Workers’ Compensation Regulator [2020] QIRC 095.

[10]  A reference to the Queensland Industrial Relations Commission.

[11]  A reference to the finding of the Queensland Industrial Relations Commission to find that the decision to implement a Performance Management Plan was reasonable.

[12]  Reasons [218]-[225], [302] (summary of appellant’s submissions), [273]-[275] (summary of respondent’s submissions).

[13]  Exhibit 150, T 8-61, l 43 to T 8-62, l 27.

[14]  T 10-24, ll 9-13. Other witnesses called by the respondent also accepted the proposition at T 9-24, ll 2-11 (Tauti) and T 8-62, ll 8-27 (Murakami).

[15]  Exhibit 151, p 2 of 3 “Performance Monitoring”.

[16]  Reasons [371].

[17]  And see paragraph 31 of the written outline.

[18]  The decision of WorkCover, the decision of the Regulator and the decision of the Queensland Industrial Relations Commission.

[19] Industrial Relations Act 2016, ss 557 and 565 incorporated into the appeal by Workers’ Compensation and Rehabilitation Act 2003, s 561(2).

[20]  Paragraph [14] and [15] of these reasons.

[21]  The Performance and Development Policy became Exhibit 150 and the Performance Improvement Policy was Exhibit 151.

[22]  Direction Order dated 21 October 2020.

[23] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39.

[24]Workers’ Compensation and Rehabilitation Act 2003, s 32(5).

[25]  [2018] AATA 2898.

[26]  At [178].

[27]Commissioner for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75.

[28] Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth), s 4.

[29]  At 84.

[30]  At 84.

[31]  [2017] AATA 994 18 at [99].

[32] Wieczorek and Comcare (Compensation) [2017] AATA 994 18 at [99].

[33] Workers’ Compensation and Rehabilitation Act 2003, s 540(a)(viii).

[34] Church v Blackwood (Workers’ Compensation Regulator) (2015) 252 IR 461 at [27].

[35]  See generally, Harris v Caladine (1991) 172 CLR 84 at 124-125, Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 297-298.

[36]  Established under earlier legislation.

[37] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [11]-[14].

[38]  [2020] QCA 133.

[39]  [2019] ICQ 002.

[40]  See generally, Comalco Aluminium Ltd (Bell Bay) v O'Connor (No 2) (1995) 61 IR 455, O'Sullivan v Farrer (1989) 168 CLR 210.

[41] Khan v Workers’ Compensation Regulator [2020] QIRC 095 at [4].

[42]  A reference to Allison Perry, the Business Services Manager; see paragraph [60] of these reasons.

[43]  The Performance and Development Policy.

[44] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259, DL v The Queen (2018) 266 CLR 1 at [33].

Close

Editorial Notes

  • Published Case Name:

    Khan v Workers' Compensation Regulator

  • Shortened Case Name:

    Khan v Workers' Compensation Regulator

  • MNC:

    [2023] ICQ 2

  • Court:

    ICQ

  • Judge(s):

    Davis J

  • Date:

    24 Feb 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Church v Simon Blackwood (Workers' Compensation Regulator) (2015) 252 IR 461
2 citations
Jump To
Cite 1 - (2015) 252 IR 461
Cite 2 - (2015) 252 IR 461
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
2 citations
Jump To
Cite 1 - (2000) 203 CLR 194
Cite 2 - (2000) 203 CLR 194
Comalco Aluminium Ltd v O'Connor (1995) 61 IR 455
2 citations
Jump To
Cite 1 - (1995) 61 IR 455
Cite 2 - (1995) 61 IR 455
Comcare v Chenhall (1992) 37 FCR 75
2 citations
Jump To
Cite 1 - (1992) 37 FCR 75
Cite 2 - (1992) 37 FCR 75
Comcare v Chenhall [2018] AATA 2898
2 citations
Jump To
Cite 1 - [2018] AATA 2898
Cite 2 - [2018] AATA 2898
DL v R (2018) 266 CLR 1
2 citations
Jump To
Cite 1 - (2018) 266 CLR 1
Cite 2 - (2018) 266 CLR 1
Harris v Caladine (1991) 172 C.L.R 84
2 citations
Jump To
Cite 1 - (1991) 172 C.L.R 84
Cite 2 - (1991) 172 C.L.R 84
Khan v Workers' Compensation Regulator [2020] QIRC 95
4 citations
Jump To
Cite 1 - [2020] QIRC 95
Cite 2 - [2020] QIRC 95
Cite 3 - [2020] QIRC 95
Cite 4 - [2020] QIRC 95
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
2 citations
Jump To
Cite 1 - (1986) 162 CLR 24
Cite 2 - (1986) 162 CLR 24
Nutley v Workers' Compensation Regulator [2019] ICQ 2
2 citations
Jump To
Cite 1 - [2019] ICQ 2
Cite 2 - [2019] ICQ 2
O'Sullivan v Farrer (1989) 168 CLR 210
2 citations
Jump To
Cite 1 - (1989) 168 CLR 210
Cite 2 - (1989) 168 CLR 210
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
2 citations
Jump To
Cite 1 - (1987) 10 NSWLR 247
Cite 2 - (1987) 10 NSWLR 247
Turnbull v New South Wales Medical Board (1976) 2 NSWLR 281
2 citations
Jump To
Cite 1 - (1976) 2 NSWLR 281
Cite 2 - (1976) 2 NSWLR 281
Wieczorek and Comcare (Compensation) [2017] AATA 994
3 citations
Jump To
Cite 1 - [2017] AATA 994
Cite 2 - [2017] AATA 994
Cite 3 - [2017] AATA 994
Workers' Compensation Regulator v Glass(2020) 4 QR 693; [2020] QCA 133
2 citations
Jump To
Cite 1 - [2020] QCA 133
Cite 2 - [2020] QCA 133

Cases Citing

Case NameFull CitationFrequency
State of Queensland (Queensland Police Service) v Workers' Compensation Regulator & Neville Stretton [2023] ICQ 152 citations
Turay v Workers' Compensation Regulator [2023] ICQ 134 citations
Turay v Workers' Compensation Regulator (No 2) [2023] ICQ 192 citations
1

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