Mahaffey v Simon Blackwood (Workers' Compensation Regulator)
[2015] QIRC 116
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- Mahaffey v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 116
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Mahaffey v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 116
Mahaffey v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 116
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Mahaffey v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 116 |
PARTIES: | Mahaffey, Samantha (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) |
CASE NO: | WC/2014/250 |
PROCEEDING: | Appeal against a decision of the Workers' Compensation Regulator |
DELIVERED ON: | 15 June 2015 |
HEARING DATE: | 12 - 14 May 2015 |
MEMBER: | Deputy President Kaufman |
ORDERS : |
|
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - whether the injury arose out of, or in the course of, employment - reasonable management action - abuse - yelling - interrelationship between s 32(1) and s 32(5) |
CASES: | Bowers v WorkCover Queensland (2002) 170 QGIG 1 Davis v Blackwood (Workers' Compensation Regulator) [2014] ICQ 9 WorkCover Queensland v Heit [2000] QIRC 22 Q-Comp v Hohn (2008) 187 QGIG 139 |
APPEARANCES: | Mr M Hovarth, of Counsel, instructed by Ms C Heisler, Quinn & Scattini Lawyers, for the Appellant. Mr S Gray, of Counsel, directly instructed by K Bednarek, Workers' Compensation Regulator, the Respondent. |
REASONS FOR DECISION
- [1]Ms Mahaffey, the appellant, was employed at Mount Cotton Constructions from 28 February 2012 to early September 2012. She alleges that during the period of her employment she was exposed to multiple stressors at work that led to her suffering severe psychological injuries which, in September 2012, were diagnosed as severe anxiety and depression. She resigned from her employment on 12 September 2012 and on the same day made an application for workers' compensation which was accepted by WorkCover Queensland but set aside by the regulator. It is against this decision that she appeals.
Issues for Determination
- [2]It is not in contention that Ms Mahaffey was a worker and suffered a personal injury, which is a psychiatric or psychological disorder.
- [3]The regulator also accepted in its submissions that there was sufficient evidence presented at the hearing to lead to a finding that the appellant's injury is one arising out of, or in the course of, her employment and that her employment is a significant contributing factor to the injury. I agree.
- [4]Dr Karen Chau, a psychiatrist, provided a report on 13 April 2015 wherein she concluded that the appellant was suffering from a psychiatric condition being adjustment disorder with mixed anxiety and depressed mood and an aggravation of social phobia as a result of feeling harassed by her employer at work and, additionally, because the appellant believed she had not received adequate support or training during the course of her employment. The doctor opined that the cause of the psychiatric disorder was a combination of the bullying, intimidatory and aggressive behaviour of her employer, Mr Chris Scroopes as well as the stress caused by dealing with hostile telephone calls from creditors and the lack of support she perceived she was receiving in relation to those phone calls.
- [5]Therefore the main issue for determination is whether the injury arose out of, or in the course of, management action which was both reasonable and taken in a reasonable way in connection with the appellant's employment, thereby removing it from the definition of "injury" for the purposes of the Workers' Compensation and Rehabilitation Act 2003 ("the Act").
- [6]In accordance with a directions order the appellant filed a "Statement of Stressors" said to outline the work events that caused her psychiatric/psychological injury. These can be summarized as:
- A hostile work environment resulting from Mr Scroopes' abusive behaviour;
- The bullying and abuse by Mr Scroopes of the appellant as well as her observation of similar behaviour towards other employees;
- A failure to allow the appellant to take work breaks; and
- A failure to ensure that the appellant was provided appropriate reasonable management action in order to appropriately and adequately deal with and manage hostile and abusive telephone calls and attendances by unsatisfied customers or creditors.
Mr Gray characterized the second dot point as, "Approaches from other employees who were extremely upset due to the behaviour directed at them." This is not an accurate characterization of the appellant's second stressor. Not surprisingly, no evidence was led of "approaches."
- [7]At the time of the injury, the Act relevantly provided:
32Meaning of injury
(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 apsychiatric or psychological disorder arising out of, or in thecourse of, any of the following circumstances—
(a)reasonable management action taken in a reasonable way by the employer in connection with the worker’semployment;
(b)the worker’s expectation or perception of reasonablemanagement action being taken against the worker;
…
- [8]The appellant's case was that there were several work related issues that, over a period of time, contributed to and caused her psychiatric injury. Several of the stressors identified by the appellant related to aspects of the alleged hostile work environment in which she worked. An additional factor was said to be the failure to ensure that the she could take breaks for lunch or even to go to the toilet.
Background
- [9]The appellant had been initially employed as a filing clerk in the accounts department of the employer. In May 2012 she became responsible for taking telephone calls, including those relating to outstanding accounts.
- [10]The company had been experiencing cash flow difficulties due to a dispute with one of its large customers with the result that on a daily basis there were several irate creditors querying why their accounts had not been paid. The appellant found dealing with these calls stressful as some of the people with whom she dealt were irate and abusive.[1] She reported this to her brother-in-law Craig Cooper, the accounts/commercial manager and the second most senior person in the company.[2] He had worked for the company from January to September 2012. Indeed it was he who obtained the position for the appellant. He instructed the appellant to provide him with a list of the abusive calls at the end of the day and he would deal with them. The appellant nevertheless continued to take the telephone calls.[3]
- [11]In approximately June she was transferred to the reception desk where her duties continued to include dealing with suppliers querying why their accounts had not been paid. She generally worked five days a week between 8:30 am and 4:30 pm. Mr Cooper was aware that the appellant was struggling to take those calls and it was affecting her.[4] He said he had met the appellant outside work hours on two occasions to specifically discuss the issue. Mr Cooper instigated a system intended to shield the appellant from irate customers by transferring such inquiries to himself in order that he could deal with them.[5]
- [12]The managing director of the business, Chris Scroopes, appears to have a rather volatile temper. The appellant said that on several occasions each week she would observe or hear him screaming, yelling and using profane language during his intercourse with members of his staff. On several occasions his foul temper was directed at the appellant. On one occasion whilst she was delivering refreshments to the boardroom, when she knocked on the boardroom door, Mr Scroopes expostulated with the words "Now what?" in a "nasty tone" and this made her feel scared and as though she had done something wrong. In July/August when she was working in reception she needed to take a message to him in the boardroom. The door was open and as she approached, he said "Fuck!" to her before she gave him the message. He then snapped "close the door behind you." This frightened her and again made her feel she had done something wrong. On another occasion when Mr Scroopes did not have a personal assistant, Ricki-Lee Hamilton, who commenced employment as a receptionist, later moving into projects, estimating and took over as Mr Scroopes' personal assistant,[6] was photocopying some documents for Mr Scroopes and asked the appellant not to let him leave the office without the documents. The appellant heard him open the back door and called out to him, "Chris". He replied, "What the fuck now?" She told him that Ricki-Lee had documents for him to take whereupon he marched back to the photocopier. The appellant was frightened and shaking and again felt as though she had done something wrong. On a fourth occasion, Mr Scroopes was in the board room with another employee with the phone on loud speaker. Mr Scroopes was swearing, ranting and raving and he punched a wall. The appellant was frightened. [7]
- [13]The appellant said that Mr Scroopes would shout, swear, throw files, and tell employees that their work was not good enough on a weekly basis and would reduce staff to tears. Overall, she was frightened, anxious and nervous when Mr Scroopes was in the office.
- [14]Mr Cooper confirmed that Mr Scroopes was very volatile and would go off about things he was not happy about with him on a weekly basis. Mr Cooper sought to resign three weeks into his position and again in around August but was persuaded to remain. His reasons for his attempted resignations were due to disagreements about the way certain matters were conducted, as well as Mr Scroopes' aggressive manner. Mr Cooper eventually resigned in September during an amicable meeting with Mr Scroopes and for personal reasons.
- [15]Mr Cooper said that whenever Mr Scroopes was in the office the atmosphere was very difficult due to his yelling and screaming. Mr Cooper said that some staff took stress leave due to the pressure that was placed upon them. An estimator took stress leave of one week's duration two or three times during Mr Cooper's employment. Mr Cooper also said staff turnover was very high due to the stressful environment linked to Mr Scroopes' behaviour. When asked in cross examination why he secured a position in the company for his sister in law given the hostile environment he replied he thought he could bring the situation under control.
- [16]Ms Hannah Speirs who had worked for the company for two years in various positions including her last six to eight months as the personal assistant to Mr Scroopes also confirmed Mr Scroopes exhibited volatile behavior.[8] She said that throughout her employment she would witness him being irate, angry and yelling and screaming at people on a daily basis. Generally the evidence of Ms Rikki-Lee Hamilton[9] and Ms Kym Milne[10] who described situations when Mr Scroopes had yelled or abused people confirms that Mr Scroopes was often quick of temper and volatile towards those around him.
- [17]Linda Draper, who was employed as the HR Manager at Mount Cotton Constructions from approximately early March to October in 2012,[11] said she never had concerns or issues regarding her working relationship with Mr Scroopes and she observed him behave with the staff in a businesslike manner.[12] However she could recollect Mr Scroopes calling Ms Speirs a 'bitch' which concerned her and she had a vague recollection of Ms Hamilton being called 'useless, or that she was doing a poor job'.[13] Her view was that the appellant's interactions with Mr Scroopes were minimal, however she conceded when asked about Ms Speirs' interactions that her observations were minimal because her position in the office was sectioned off from everyone else.
- [18]Patrick Carroll, worked in the office two days per week. He had very minimal, if any, contact with the appellant and agreed that in the time the appellant worked there they likely saw each other approximately five times.[14] He had no knowledge of people who were owed money turning up to the office, nor did he have any involvement in the dealing with creditors.[15] While he disagreed that Mr Scroopes was one to walk around the office yelling and abusing people when he was unhappy,[16] he was either not involved with, or was not aware of, the relevant events and circumstances where that behaviour was alleged to have taken place. His evidence was largely of no assistance.
- [19]Linda Thompson, the ex-wife of Mr Scroopes, who had been involved in the business when it was located at the matrimonial home, came to work at Mount Cotton Constructions again in July 2012. At the time the appellant was already working on reception. Ms Thompson did receive calls relating to outstanding accounts but did not have to deal with any calls that were aggressive in nature.[17] She had observed interactions between the appellant and Mr Scroopes and said they were limited to the appellant bringing in the mail, passing on messages or bringing Mr Scroopes cups of tea or water. Her observations were that the appellant was treated by Mr Scroopes in a polite manner.[18] When asked whether she would consider being snapped at with "What Now?" to be aggressive or abusive behaviour she answered "No".[19] Ms Thompson said he did display this kind of behaviour in the office at times.[20] She had not observed Mr Scroopes bang on walls or tables, had not been in meetings when Mr Scroopes had staff typing on the big screen, nor had she observed people turning up to the office upset about being owed money and wanting to talk to Mr Scroopes.[21]
- [20]I found Mr Scroopes to be a somewhat disingenuous witness. Rather than answer the questions asked of him, he tended to answer in a non-responsive manner by attacking the credibility of those who made adverse comments about him. For example:
"Mr Hovarth: Did you have people leaving on stress leave during that year?‑‑‑I actually – to be honest with you, I don’t recall. The only thing that I recall is in this thing reading that was that – that lady ‑ ‑ ‑
You forgot that ‑ ‑ ‑?‑‑‑Hannah Speirs.
You forgot that Hannah Speirs had left on stress leave ‑ ‑ ‑?‑‑‑Hannah Speirs ‑ ‑ ‑
‑ ‑ ‑ during 2012?‑‑‑ ‑ ‑ ‑ was bashed by her boyfriend twice and the police came to talk to us about it. We gave her a pay rise. We gave her accommodation. We tried to help her out. She was bashed by her husband and she came to work with black eyes. She was devastated because her boyfriend was knocking her around.
You did not stress Hannah Speirs while she worked for you? Is that what you’re telling this court?‑‑‑Hannah Speirs had so many issues going on in her life. Up until the end, we got on very, very well. With – with her boyfriend bashing her all the time and the police turning up wanting to talk to us about how we were going to protect her, that was her issue.[22]
…
Mr Hovarth: Do you remember a lady called Kym Milne?‑‑‑Yes.
Working for you?‑‑‑Yes.
She worked for you earlier while you were still at your home?‑‑‑Correct.
And ‑ ‑ ‑?‑‑‑She was another lady that was getting – domestic violence orders on her.
So when she ‑ ‑ ‑?‑‑‑If I’ve got 120 staff, it was very unusual but both those ladies had serious issues with their boyfriends. Hannah Speirs’ husband was put in jail and I think – so that’s all – you can find that anyway. It’s a matter of record. And ‑ ‑ ‑" [23]
- [21]I found Mr Scroopes to be somewhat arrogant and evasive as a witness. I am satisfied that Mr Scroopes regularly behaved in the volatile and belligerent manner of which his former employees have complained.
- [22]The respondent relied upon a spreadsheet prepared for the purpose of analysing Mr Scroopes' credit card payments in an attempt to compare the appellant's working hours against the days when Mr Scroopes was at the office in in order to demonstrate that the two had very little interaction. Mr Hovarth in cross-examination was easily able to demonstrate several errors in the time entries in the spread sheet. In my opinion the spreadsheet is so unreliable as to be useless. I accept the appellant's evidence and other witness's recollections of how often he was at the office. The appellant had ample opportunity to observe his interactions with others in the office and to be exposed to his behaviour
- [23]After the incident when the office phone went unanswered and a complaint was made to Mr Scroopes, when the appellant was working on reception, she said that the Human Resources Officer, Ms Linda Draper, told her that she was not to leave the reception desk under any circumstances.
Is the injury precluded by s 32(5) ?
- [24]As I am satisfied that the appellant suffered an injury and the injury arose out of the employment which was a significant contributing factor, the issue to be decided is whether the injury arose out of reasonable management action taken in a reasonable way. This is a question to be determined on the facts of each case.
- [25]In Davis v Blackwood (Workers' Compensation Regulator),[24] Martin, J President, made the following observation:
"The task of the Commission when applying s 32(5) does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances. There may be any number of actions or combinations of actions which would satisfy s 32(5). The proper task is to assess the management action which was taken and determine whether it was reasonable and whether it was taken in a reasonable way. Sometimes, that may involve consideration of what else might have been done but that will only be relevant to whether what was done was, in fact, reasonable."
- [26]In this case, there are a number of stressors said to have contributed to the psychiatric/psychological injury of the appellant. So long as one event is not excluded by s 32(5) and is a significant contributing factor to the injury, the appellant may succeed.[25] Martin, J, in Davis[26] agreed with the reasons of Hall, P in Hohn[27] where he said that the mere occurrence reasonable management action will not insulate a disorder from the characterization as an injury.
The hostile and abusive telephone calls
- [27]The appellant, clearly, was experiencing difficulty dealing with the hostile creditor phone calls and she reported this to one of her managers, Mr Cooper. Mr Cooper in turn, took steps to address the appellant's complaints. Realistically, the phone calls required the answering of the call as well as someone to respond to the creditors' concerns. When the appellant began making a list for Mr Cooper, he attempted to address the issue. However nevertheless the appellant was required to continue to answer the calls. When Mr Cooper again became aware that the appellant was still experiencing difficulties in taking the calls, he took further action to relieve her of the issue by directing her to transfer the calls to him so he could deal with them. Of necessity, the appellant could not know the nature of the call when she answered the telephone. Short of relieving her of the duty of answering any phone calls, this could not be avoided.
- [28]The appellant led no evidence of her having to deal with an "attendance" by an unsatisfied customer, albeit she said that she witnessed an argument between Mr Scroopes and another person in the reception area.
- [29]Management action need not be perfect or carried out "without blemish", so long as it is "reasonable in all the circumstances of the case."[28] It was not feasible to entirely relieve the appellant from answering phone calls as this was integral to her role in the business. The management action taken by Mr Cooper to address the appellant's complaints was reasonable in the circumstances. In my view, it cannot be said that the injury, to the extent caused by the hostile phone calls, arose out of management action. The injury arose out of dealing with the phone calls independently of management action.. However, I am satisfied that the injury, to the extent it was caused by the hostile phone calls, arose in the course of reasonable management action, being the steps taken by Mr Cooper in a reasonable way to address the issue. Therefore it is not an "injury" as defined by the Act, as it is removed from that definition by s 32(5).
The hostile work environment and bullying and harassment of the appellant and other employees.
- [30]For convenience, these two stressors can be dealt with together as they are intrinsically linked with, and arise from, Mr Scroopes' conduct.
- [31]Mr Gray, in his written submissions, seems to have accepted that, to the extent that the appellant's injury was due to Mr Scroopes' behaviour, in the event that I were to accept the appellant's version of his behaviour, it arose out of, or in the course of her employment. He did not suggest that it arose out of management action. However, during the course of his oral submissions he said the regulator "will not be submitting that you could find that management action to be reasonable and taken in a reasonable way … "[29] Yet, later in his oral submissions, in answering questions from the bench, he did not agree with my proposition that if I were to find Mr Scroopes' conduct was a significant contributing factor, s 32(1) would be satisfied, with the result that the appellant would succeed. He submitted that to do so would be letting s 32(1) to prevail over s 32(5).[30]
- [32]It seems to me that a manager's interaction with staff, at least to the extent of giving them directions, making requests of them, and so on, comfortably falls within the concept of management action. A manager's language, tone of voice and demeanour are relevant to determining whether management action was taken in a reasonable way.[31]
- [33]However, yelling at, name calling and belittling staff in this context could never be said to be reasonable management action. As I have said, Mr Scroopes acted in an unreasonable manner towards, and in front of, the appellant on a regular basis. Other staff employed by him experienced similar emotions to that of the appellant, some were teary, while others were stressed or anxious when they were dealing, or had dealt, with Mr Scroopes or when he was in the vicinity of them in the office. I accept the appellant regularly observed such behaviour and the effect it had on those subjected to it. It was also directed at her on a handful of occasions. This had a detrimental effect on her. Mr Scroopes' unacceptable behaviour and demeanour created an environment in the office that was extremely unpleasant to work within. Although the appellant was sensitive in nature, the result of working within an environment where she was experiencing and observing that kind of behaviour in my view, significantly contributed to the injury she suffered. From my observation of the appellant it seems to me that Mr Scroopes' behaviour was probably the major significant factor.
- [34]It follows that the appellant's injury arose out of, or in connection with management action which was neither reasonable nor taken in a reasonable way.
- [35]If I am wrong, and it did not arise out a management action, it nevertheless arose out of, or in the course of, the appellant's employment.
- [36]I do not accept Mr Gray's submission that by finding that Mr Scroopes' behaviour was a significant contributing factor to the appellant's disorder I would be allowing s 32(1) to prevail over s 32(5). It is necessary, in cases such as this, to assign weight to the various factors which go to the creation of a psychiatric disorder.[32]
- [37]In the circumstances it is unnecessary to consider the remaining stressor - the alleged failure to allow her adequate rest breaks, which I doubt, in any event, is made out on the evidence.
- [38]The appeal is allowed, the decision of the regulator is set aside and the appellant's workers' compensation claim should be accepted. The respondent is to pay the appellant's costs.
- [39]Order accordingly.
Footnotes
[1] T1-25/11; T1-27/21.
[2] T1-63/11.
[3]T1-25/4 - T1-26/21.
[4] T1-70/16.
[5] T1-70/20.
[6] T2-20/23.
[7] T1-34/15.
[8] T2-5/26.
[9] T2-21/20.
[10] T2-31/9.
[11] T2-36/5.
[12] T2-37/33, T2-39/33.
[13] T2-51/44, T2-53/38.
[14] T2-67/15.
[15] T2-66/1; T2-67/6.
[16] T2-66/11.
[17] T2-71/32.
[18] T2-72/22.
[19] T2-80/42.
[20] T2-81/8.
[21] T2-82/8 - T2-82/40.
[22] T2-100/2 - T2-100/21.
[23] T2-105/9 - T2-105/19.
[24] [2014] ICQ 9, 47.
[25] Q-Comp v Hohn (2008) 187 QGIG 139.
[26]Davis v Simon Blackwood (Workers' Compensation Regulator) [2014] ICQ 009.
[27] Q-Comp v Hohn (2008) 187 QGIG 139.
[28] Bowers v WorkCover Queensland (2002) 170 QGIG 1.
[29] T3-3/27.
[30] T3-10/25 - 40.
[31] WorkCover Queensland v Heit [2000] QIRC 22.
[32] Davis at [51].