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Hilliar v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 157

Hilliar v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 157

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Hilliar v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 157

PARTIES:

Hilliar, Joanne

(Appellant)

v

Simon Blackwood (Workers' Compensation Regulator)

(Respondent)

CASE NO:

WC/2014/348

PROCEEDING:

Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator)

DELIVERED ON:

21 August 2015

HEARING DATES:

13 to 16 April 2015

8 July 2015 (Respondent's Submissions)

11 August 2015 (Appellant's Submissions)

HEARD AT:

Yeppoon and Brisbane

MEMBER:

Industrial Commissioner Thompson

ORDERS:

  1. The Appeal is dismissed.
  2. The Decision of Simon Blackwood (Workers' Compensation Regulator) dated 13 November 2014 to reject the Application for Workers' Compensation stands.
  3. The claim is not one for acceptance.
  4. The Appellant is to pay the Regulator's costs of and incidental to this Appeal.

CATCHWORDS:

WORKERS' COMPENSATION ‑ APPEAL AGAINST DECISION ‑ Decision of Simon Blackwood (Workers' Compensation Regulator) ‑ Appellant bears onus of proof ‑ Standard of proof ‑ Balance of probabilities ‑ Witness evidence ‑ Appellant was a "worker" - Appellant sustained a personal injury of a psychiatric/psychological nature - Personal injury sustained by the Appellant arose out of or in the course of employment - Appellant's employment was a significant contributing factor to the injury - Injury suffered by the Appellant is not compensatable - Reasonable management action taken in a reasonable way - Injury excluded

through operation of s 32(5)(a) - Appeal dismissed - Decision of the Regulator stands - Claim is not one for acceptance - Appellant is to pay the Regulators costs of and incidental to this Appeal.

CASES:

Workers' Compensation and Rehabilitation Act 2003 s 11, s 32

Whistleblowers Protection Act 1994

Browne v Dunn (1893) 6 R. 67 (H.L.)

Cumming v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 168

APPEARANCES:

Mr J. Morris of Counsel, instructed by Shine Lawyers for the Appellant.

Mr F. Lippett, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent.

Decision

  1. [1]
    Joanne Hilliar (Hilliar) on 4 December 2014 lodged a Notice of Appeal with the Industrial Registrar pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of Simon Blackwood (Workers' Compensation Regulator) (the Regulator) released on 13 November 2014.  The application for workers' compensation was lodged on 20 May 2013.
  1. [2]
    On 29 October 2013 a number of amendments to the Act came into effect which included the Respondent to the Appeal now being known as Simon Blackwood (Workers' Compensation Regulator) (the Regulator).
  1. [3]
    Further changes included that in the case of a psychiatric or psychological disorder the employment must be the major significant contributing factor to the injury.
  1. [4]
    The legislation relevant to this Appeal was the legislation in place at the time the application for compensation was lodged which requires the employment to be a significant contributing factor to the injury.
  1. [5]
    The decision of the Regulator confirmed the decision of WorkCover Queensland (WorkCover) to reject an application by Hilliar for compensation in accordance with s 32(5) of the Act.

Relevant Legislation

  1. [6]
    The Legislation pertinent to this Appeal is 32 of the Act:

"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. (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 Authority or an insurer in connection with the worker's application for compensation.

Examples of actions that may be reasonable management actions taken in a reasonable way ‑

  • action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker
  • a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment."

Nature of Appeal

  1. [7]
    The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the Appellant.

Standard of Proof

  1. [8]
    The standard of proof upon which an Appeal of this nature must be determined is that of "on the balance of probabilities".

Evidence

  1. [9]
    In the course of the proceedings, evidence was provided by eight witnesses.
  1. [10]
    The Commission, in deciding to précis the evidence of the witnesses, and submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety.

Witness Lists

  1. [11]
    The witnesses for the Appellant were:
  • Hilliar;
  • Dr Karen Chau (Dr Chau); and
  • Bryan Cook (Cook).
  1. [12]
    The witnesses for the Regulator:
  • Karen Chidgzey (Chidgzey);
  • Clay Bailey (Bailey);
  • Donna Litschner (Litschner);
  • Joanne Walsh (Walsh); and
  • Gregory Phillips (Phillips).

Appellant

  1. [13]
    In accordance with the Further Directions Order of 19 December 2014 Hilliar provided a Statement of Stressors (dated 19 January 2015) alleged to have caused and/or contributed to her psychiatric injury.  The stressors were identified as being:
  • abusive and threatening phone call;
  • missing personnel file;
  • conduct of the employer and failing to undertake any or adequate investigation;
  • lost statutory declaration, wage and positions.

Hilliar

  1. [14]
    Hilliar commenced with Queensland Health (QH) on 19 April 2010 undertaking administrative work at the AO2 classification level as an agency employee and then in May 2010 accepted a contract with QH at the same level.  The work duties undertaken by Hilliar were in connection with payroll where she was part of the "roster plotting team".  Her initial work involved the WorkBrain System for which a level of training was provided.
  1. [15]
    Hilliar gave specific evidence about the process involving staff overtime that required the signing off by an authorised delegate of an Attendance Variation and Allowance Claim (AVAC) form before such a payment could be processed.  Hilliar whilst employed had never processed overtime worked by herself or for others where an AVAC form had not been signed off by the delegate.  At any given time a person could be required to process up to 50 AVACs relying on the following procedures:
  • enter AVAC information into WorkBrain System;
  • forward a copy back to the delegate who had signed it;
  • AVACs were paper batched in pay periods and after time, archived; and
  • filing would occur usually at the hands of an AO2.

Hilliar identified a Central Queensland Hospital and Health Service document [Exhibit 2] which contained the policy regarding overtime approval.

  1. [16]
    On Sunday 5 September 2010, whilst undertaking payroll duties she became aware of two AVACs for Chidgzey and Walsh that had been entered into WorkBrain, not authorised by the delegate and for overtime not yet worked.  She took immediate steps to contact her team leader Julie Smith (Smith) to seek advice and copied both AVACs.  A copy of Chidgzey's AVAC for the period 23 August to 5 September 2010 [Exhibit 1] had been entered into WorkBrain by Walsh.  Hilliar no longer had a copy of Walsh's AVAC that was said to be similar to Chidgzey's in terms of the overtime not worked.  Hilliar spoke to Smith again on 6 September 2010 who informed her she would take the matter up with her supervisor (Litschner).  A screen dump of Chidgzey's and Walsh's WorkBrain entries for the same pay period, in particular 5 September 2010, was tendered in the proceedings and according to Hilliar there was evidence that Phillips had made changes to the overtime claimed for that day.  Phillips is alleged to have told of an approach by Chidgzey and Walsh to alter the overtime claimed as there was no AVAC to cover the overtime with the changes being made on 7 September 2010.
  1. [17]
    In mid‑September 2010 whilst undergoing Code of Conduct training Hilliar said she had raised her concerns about the AVAC incident with the presenter (whose name she was unable to recall) who gave her the name of a QH person in Brisbane (Siobhan O'Connor) to contact.  A conversation with O'Connor occurred with Hilliar and Smith (on speaker phone) and they later sent copies of the AVACs in question to O'Connor.  Contact between Hilliar and O'Connor continued through email exchanges where on 20 October 2010 O'Connor informed Hilliar:

"Depending on what occurs, you may or may not be provided with advice regarding exactly how the matter was dealt with.  You will, however, be advised when it has been dealt with."  [Exhibit 4]

  1. [18]
    Hilliar had disclosed documentation regarding the overtime to O'Connor that had subsequently been forwarded on to the Ethical Standards Unit (ESU).  In the period between September 2010 and 28 February 2011 she had spoken to one other person but gave no specific details to that person.
  1. [19]
    On 28 February 2011 as she left work she received a call on her mobile phone from an "unknown" number where an unidentified person said "…are you the nosy cunt that was snooping in payroll business?".  The caller was male and told her if he could get her private number and he could find her address.  She told him to "fuck off", hung up and ran to her car where she sat for a while as she was too shaken to drive home.  The incident was reported by phone to Smith on the way home and to the Active Service Manager ‑ Payroll, Andrew Walker (Walker) the next day.  A conference call was arranged with Human Resources in Brisbane the next day and included at a local level participation from Walker, Walsh and Kylie Portelli (Portelli) where advice was given that as she was outside the building the employer could not help and she would need to contact the police.  Hilliar as a result of what happened had the rest of the week off.
  1. [20]
    On her return to work, still having concerns about the phone call and how her number may have been obtained, attempted to locate her personnel file from an unsecured area only to find it was missing.  She reported the matter to Smith, Walker and O'Connor but the file was never located nor was her concerns allayed that someone had access to her personal information.  Hilliar acknowledged that a lot of her details including her mobile phone number and address were in the file.  In July/August 2011 she had time off work due to an illness where amongst other things she was having difficulties sleeping because she could not get her head around "the fact her personnel file was still missing".  The reason for being unable to sleep was not specifically conveyed to her treating doctor.  In all she was off work for about six months.
  1. [21]
    On about 14 October 2011 she received an email from Portelli advising that the investigation process was continuing and that "once the matters are resolved/finalised you will be formally notified of this with as much explanation as is possible provided to you".  Following receipt of the email Hilliar on 15 October 2011 lodged with the Crime and Misconduct Commission (CMC) an online complaint [Exhibit 9] in relation to "possible fraudulent activities of currently employed Queensland Health Shared Service Partner Payroll and Establishment Staff".  In the complaint she further stated "I wish to be given the opportunity to provide further documentary evidence in relation to this matter".  Later that month Hilliar contacted Janelle Wade (Wade) from the ESU about the payroll issue and was informed by Wade that inquiries were still being made regarding the payroll allegations and the ESU was satisfied with the progress being made and would continue to monitor the situation.
  1. [22]
    Hilliar returned to work in January 2012 still not sleeping due to concerns about the earlier phone call and living at an isolated property with her son following the departure of her partner.  At work, because of what happened in the past she felt uncomfortable and at the time applied for six to ten jobs outside Rockhampton and in areas of government other than Health.  A position was obtained at the Nambour Hospital commencing on 6 April 2012 and the work undertaken was outside of the payroll area.
  1. [23]
    In late 2012 Hilliar forwarded an email to QH regarding the issue of "fraud and misconduct prevention" and of her complaint from some two years ago.  A response was received from Peter Patmore (Patmore) on 1 January 2013 who advised that Portelli had sent her an email on 17 October 2012 about a request for a meeting.  Hilliar replied indicating her QH email address had changed in April 2012 and wanted to know where things stood at the moment.  This led to further telephone conversations with Patmore which went through until April 2013.
  1. [24]
    In or about May 2013 Hilliar became ill with symptoms similar to what she had in Rockhampton which were said to be headaches, loss of weight, coughing as well as lack of sleep.  She sought medical treatment from a doctor at the Burpengary Medical Centre not disclosing at the time anything about QH until around June 2013 when she "told him everything".  At that time she was still upset about the telephone call she received in 2011 feeling "sick in the stomach" and "frightened".  She continued to have similar concerns in relation to the missing personnel file.
  1. [25]
    On her employment status in Rockhampton she had remained in a contract role and in about October 2010 was moved from the classification level AO2 to that of an AO3.  There was some apprehension of receiving back-pay at around that time but she missed out due to the lateness of providing a statutory declaration.
  1. [26]
    Under cross‑examination in response to a question around the alleged telephone call in 2011, Hilliar conceded:
  • she did not seek assistance from hospital security;
  • did not immediately contact Queensland Police Service (QPS);
  • did not know what QH could do to track down the caller;
  • QPS advised her to get a new number; and
  • was not thinking logically at the time.  [Transcript pp. 1‑67, 1‑70 and 1‑72]
  1. [27]
    Hilliar acknowledged that in the five months from raising the AVAC issue and receiving the phone call nothing unpleasant had taken place [Transcript p. 1‑72].  After her partner had left she started sleeping outside the house at night with a rifle and dog as a result of fear associated with the phone call [Transcript p. 1‑72].
  1. [28]
    On information provided to Dr Chau about the particular time period she had slept outside it was Hilliar's evidence that she only spent an hour with Dr Chau and could not recall much of that day [Transcript p. 1‑73].  On particulars recorded about sleeping outside the evidence was that Dr Chau "must have misunderstood" what she had been told [Transcript p. 1‑74].  The significance of sleeping outside related to her property being set back from the road and if anyone turned up she could see them from the driveway [Transcript p. 1‑75].  She denied it had anything to do with the severe cough she had at the time [Transcript p. 1‑75].  The period of sleeping outside went from August 2011 until January 2012 however in the months preceding from March 2011 to July 2011 she had felt safe enough to sleep inside the house [Transcript p. 1‑76].  Hilliar denied that her fear related to her partner's behaviour whilst acknowledging in that time period QPS had been called on one occasion [Transcript p. 1‑76].  It was conceded that nothing adverse had occurred in July, August 2011 prior to making the decision to sleep outside [Transcript p. 1‑77].  In the four years since the telephone call nothing of significance had happened but she continued to think about the call and apart from involving the QPS with issues around her partner she had no other need to contact them [Transcript p. 1‑78].
  1. [29]
    On the claim for an increase in her pay increment from AO2.1 to AO2.8 it had been suggested by a Pat Rodgers (Rodgers) in the course of a conversation in October 2010 which resulted in Hilliar completing a statutory declaration but she never received the increase or any back-pay [Transcript p. 1‑80].  She later presented the declaration to Bailey, again without success [Transcript p. 1‑81].  Bailey had never told her the increment application had to be made within 28 days of starting the employment [Transcript p. 1‑82].  No formal complaint was made about not receiving the increment [Transcript p. 1‑83].  Hilliar had no recall of raising the increment payment with Dr Uddin [Transcript p. 1‑84].
  1. [30]
    Sometime in 2013 Hilliar contacted a number of politicians, including the Queensland Premier and the Federal Health Minister about her concerns with QH and the AVAC issue [Transcript p. 1‑86].
  1. [31]
    Note:  In the course of cross‑examination the Commission suspended the cross‑examination to allow for Hilliar to give further evidence‑in‑chief in relation to her offer of employment letter that became available to the Regulator after the hearing had commenced.  Hilliar identified the document as being the contract shown to her at the time of commencing employment, however pages 4, 5, 6 and 7 had not previously been seen by her.  The document was subsequently tendered [Exhibit 14] less pages 4, 5, 6 and 7.
  1. [32]
    Cross‑examination resumed where Hilliar reaffirmed that when the contract was provided to her it only had the first three pages [Transcript p. 1‑93].
  1. [33]
    The statutory declaration regarding the increment prepared by Hilliar was later found by her in early 2012 in documents which were to be filed into personnel files [Transcript p. 1‑96].  She brought the document to the attention of Bailey because it had been lodged in 2010 and she had heard nothing about it since then [Transcript p. 1‑97].  On 19 May 2013 she contacted the Prime Minister of Australia by email (at 4.52 am) about QH payroll employees in 2010 who had issues raised by her with authorities in relation to fraud and misconduct involving "Queensland Taxpayer's money" being stolen [Transcript p. 1‑99].  Hilliar had not named Chidgzey and Walsh in the correspondence but gave evidence it was them to which she referred [Transcript p. 1‑100].
  1. [34]
    Hilliar stood by the content of her email to the Prime Minister on 19 May 2013 [Transcript p. 1‑101].  The AVAC process that was in place when she commenced employment in May 2010 remained unchanged in the period up to September 2010.  At September 2010 the roster plotting team managing the Rockhampton district had responsibility for around 4,500 employees.  All payroll staff worked overtime due to the "debacle" of the new payroll system [Transcript p. 1‑102].  Prior to 5 September 2010 AVAC forms that came across her desk that had not been signed by the correct delegate she had returned then to the delegate for signature.  There were about ten such forms prior to 5 September 2010 and none related to Chidgzey or Walsh [Transcript p. 1‑103].
  1. [35]
    Hilliar had no idea when AVAC forms from other areas arrived that the overtime had been worked and all she required was that they were signed off correctly by the delegate [Transcript p. 1‑104].  On 5 September 2010 in the mid‑morning she saw the AVACS for Chidgzey and Walsh and at around 11.30 am checked to see if each of the women were on site and found that they had left [Transcript p. 1‑104].  Hilliar had decided to check on the two women because she "just suspected that something was happening because this document was not approved properly and they were sitting there outside imputing their own overtime which was not the process" [Transcript p. 1‑108].  Hilliar did not accept that Chidgzey had said words to the effect "I've had enough.  I'm leaving now" or that Walsh had made a similar statement [Transcript p. 1‑109].  Walsh according to Hilliar was not present at 12.00 noon on that day [Transcript p. 1‑110].  Hilliar believed that Litschner gave Chidgzey and Walsh the "heads up" but offered no evidence to support her theory [Transcript p. 1‑112].  Litschner and Phillips had according to Hilliar acted improperly in terms of the changes made to Chidgzey and Walsh's hours [Transcript p. 1‑115].  Hilliar had never previously argued with either of the two women [Transcript p. 1‑115].  The reason she approached Phillips and not the two women was because he was making the entries into the system.  She had not been directed by Smith to approach Phillips [Transcript p. 1‑116].  Phillips was approached because he had made the changes to the system without authority [Transcript p. 1‑117].  Hilliar could not produce any evidence whether Chidgzey or Walsh had made subsequent adjustments to overpayments on or around 5 September 2010.
  1. [36]
    Hilliar confirmed that between August 2011 and December 2011 she went to a General Practitioner (Dr Cooling) on several occasions with regards to a physical medical condition and not on one occasion did she mention any workplace problems although she had informed Dr Cooling of problems with her partner at that time [Transcript p. 2‑2].  On 6 May 2013 she attended Dr Uddin where she mentioned issues regarding a number of family issues but made no mention of any workplace issues and workplace matters were not discussed at another attendance with Dr Uddin on 17 May 2013 [Transcript p. 2‑4].  On 22 May 2013 she discussed QH matters with him but could not recall whether information was provided about the threatening phone call [Transcript p. 2‑5].
  1. [37]
    On a referral from the General Practitioner Hilliar saw a Psychologist on 7 June 2013 giving evidence she discussed everything about QH but could not recall whether she mentioned the phone call, missing personnel file or the increase in increment level [Transcript p. 2‑5].  Hilliar denied that during 2012 she had declined to be interviewed by HR regarding the allegations she had made about the AVAC forms [Transcript p. 2‑7].  She gave evidence that on one occasion Patmore in October 2012 had asked why she had not responded to an email about arranging a meeting but as she had relocated, the email was sent to the wrong address [Transcript p. 2‑8].
  1. [38]
    In re‑examination Hilliar said that in regard of the "phenomenon that documents can be lost" she had not heard of documents going missing prior to or after her personnel file had gone missing.  At no time had anyone informed her of an innocent explanation for the discrepancies she had complained of on 5 September 2010.

Dr Chau

  1. [39]
    Dr Chau a Consultant Psychiatrist provided three Reports that were tendered in the proceedings:
  • Independent Medico‑Legal Report ‑ 2 June 2014 [Exhibit 19];
  • Supplementary Medico‑Legal Report ‑ 6 August 2014 [Exhibit 20]; and
  • Supplementary Medico‑Legal Report ‑ 19 August 2014 [Exhibit 21].
  1. [40]
    In the course of her evidence she confirmed that the contents of the Reports were true and correct and contained opinions held by her.
  1. [41]
    The first Report [Exhibit 19] was issued following an examination of Hilliar on 26 May 2014 where Dr Chau had access to a plethora of material including:
  • Medical Records;
  • Hospital Medical Records; and
  • General
  • Hilliar's statement dated 1 November 2010;
  • emails;
  • photographs of the office;
  • Q‑COMP Worker Claim History;
  • bare Notice of Claim for Damages dated 20 August 2013;
  • Q‑COMP Grounds for Review; and
  • Workers' Compensation Notice of Appeal dated 24 April 2014.
  1. [42]
    Dr Chau's Report contained significant references to issues including:
  • history of incident;
  • mental health symptoms;
  • other stressors;
  • current medications;
  • psychiatric history;
  • medical and surgical history;
  • family psychiatric history;
  • substance use history;
  • current level of functioning;
  • social and development history;
  • mental state examination;
  • investigations; and
  • collateral history from documentation provided.
  1. [43]
    In summary, Dr Chau recorded that Hilliar had developed adjustment disorder with mixed anxiety and depressed mood as a result of long‑standing investigations into whistleblowing regarding alleged fraud in QH since 5 September 2010.

ist-style-position:inside; -aw-list-padding-sml:2.01pt; list-style-type: none !important">[44]

Dr Chau also provided the following diagnosis:

"DSM IV DIAGNOSIS:

Axis I Adjustment Disorder with Mixed Anxiety and Depressed Mood;

Axis II Avoidant to perfectionistic personality traits;

Axis III Nil;

Axis IV Limited social support, concerns about finances and employment;

Axis V Moderate degree of symptoms."

  1. [45]
    Dr Chau in her second Report [Exhibit 20] recorded that having considered the "Chronology of Events" between 6 December 2006 and 14 July 2014 along with the Statement of Stressors relied upon by Hilliar opined that:

"It appears to me that she developed a mild anxiety and depressive symptoms since 5 September 2010 as this was when a Q‑COMP claim was lodged.  The precipitant was discovering overtime discrepancies and reporting it to Ms Julie Smith.  She was still able to work though."

Dr Chau went on to opine:

"I believe that there was a significant aggravation of the adjustment disorder after she received a threatening telephone call on 28 February 2011.  This was further aggravated when she discovered that her personnel file was missing on 2 March 2011 and she perceived that her employer was unsupportive of her concerns."

  1. [46]
    The third Report [Exhibit 21] generally reaffirmed the content of the second Report.
  1. [47]
    In her evidence‑in‑chief Dr Chau (based on what Hilliar had informed her) believed it was the threatening phone call that was the major precipitant to her condition and her missing personnel file.  The behaviour of Hilliar with regards to sending of letters to various politicians was consistent with someone with an adjustment disorder.
  1. [48]
    Under cross‑examination Dr Chau indicated that Hilliar's behaviour in sleeping outside with a gun and a dog was consistent with the result of receiving a threatening phone call from a stranger.  Dr Chau said she had not clarified the actual time period Hilliar had slept outside, "it was more a stage after she received the phone call" [Transcript p. 4‑5].  Her reference to the word "initially" regarding Hilliar sleeping outside was said to be as a result of an impression she had formed [Transcript p. 4‑6].  On Hilliar writing to prominent politicians, according to Dr Chau that in itself did not mean it was a personality disorder but because of other symptoms that existed, the behaviour was more in keeping with a disorder [Transcript p. 4‑6].  Dr Chau had in reaching her opinions relied upon what Hilliar had told her and the documentation provided to her [Transcript p. 4‑7].

Cook

  1. [49]
    Cook, the Managing Director and Principal Investigator of Ashdale Workplace Solutions (Ashdale) had signed off on a report titled "Interim Investigation Report Queensland Health, September 2013".

Note:  The Report [Exhibit 25] was tendered in the proceedings by consent following substantial argument regarding the content that ought to be considered by the Commission and of certain content that lacked probative value [Transcript pp. 4‑10 to 4‑17].  The Commission accepted the position ultimately arrived at by the parties in terms of the Report as being reasonable in the circumstances.

  1. [50]
    Cook's signature on the Report was on his evidence part of a "quality assurance process" whereby he reads reports and signs off as having read and checked the report.  Cook acknowledged that a document regarding Chidgzey provided to Cook (on the morning he gave evidence) was unable to be located in Ashdale's possession but he did recall the investigator did at the time visit QH to review documentation on site.  Cook had not been involved firsthand in relation to the Report nor did he carry out any of the investigations.
  1. [51]
    Under cross‑examination Cook, whilst acknowledging he did not investigate the matter personally, understood that the Chronology of Events (on pages 2 to 7 of the Report) came from documentation provided by QH.  On his review of the Report he came across material which described attempts to interview Smith and Hilliar.  Cook, speaking generally, believed that the importance of interviewing a complainant was a "10" meaning vitally important [Transcript p. 4‑20].
  1. [52]
    Note:  A number of documents were tendered in the proceedings on behalf of the Appellant with the Regulator's consent and no requirement for witness evidence regarding these documents:
  • File Note ‑ 12 August 2014 ‑ signed by R.J. Stone ‑ 14 August 2014;
  • Patient Health Summary ‑ Burpengary Morayfield Hub Medical Centre; and
  • Patient Health Summary ‑ Yeppoon Family Practice.

Regulator

Chidgzey

  1. [53]
    Chidgzey is currently a QH employee in payroll at Townsville previously having worked in Rockhampton in the same section and was there at the time a new payroll system was introduced at QH in 2010.  There had been a requirement at the time to work 13 day fortnights and 12 hour days.  Their place of work required swipe card entry with each employee having a computer with individual passwords.
  1. [54]
    The overtime arrangements were that when such overtime was approved the hours would be entered into WorkBrain.  Due to access availability of the system in the case of Sunday overtime it was at times entered prior to the work being undertaken so that an employee would not have to wait for payment for those shifts.  An AVAC was required and would on occasion be amended if there were any changes to the shifts so that any overpayment could be recovered from an employee's next pay.  The AVAC would be created by the person who approved the overtime and amendments could only be made in WorkBrain only if accompanied by paperwork.
  1. [55]
    Chidgzey was shown an AVAC form relating to her employment in the period from 23 August 2010 to 5 September 2010 indicating that she:
  • had probably seen this form previously;
  • had not signed it;
  • processors signature was that of Walsh who may have been her team leader at the time; and
  • showed a finish time of 1400 hours.
  1. [56]
    In terms of the WorkBrain print out [Exhibit 3] for the same period she confirmed it showed her work hours for 5 September 2010 as 6.15 am to 11.30 am but she had no recall of that particular day.  The print out recorded that the finish times were changed on 7 September 2010.  Being the second weekend of the pay period WorkBrain was unable to be accessed after the Friday as the system was closed off and only became accessible on either the Monday or the Tuesday.  The changes indicated that she had gone home earlier than 1400 hours as shown on the AVAC and she would have advised someone in a higher position that she had finished prior to 1400 hours.
  1. [57]
    Chidgzey had no recall of ever asking Phillips to amend WorkBrain or Litschner to suggest to her to amend the entry in WorkBrain.  Chidgzey had not on 5 September 2010 set out to defraud QH and had not previously spoken to QH or the CMC about the allegation.
  1. [58]
    Under cross‑examination Chidgzey did not consider the changes to her hours in WorkBrain as a discrepancy as this type of activity would happen fortnight to fortnight [Transcript p. 2‑22].  On training given around AVACs she had been instructed that you would never enter anything into the system if it had not been signed off by a delegate [Transcript p. 2‑23].  At the time of 5 September 2010 Halliday was the delegate at her work but was not sure if he was the only one with that delegation [Transcript p. 2‑23].
  1. [59]
    Pre‑approved overtime for permanent employees would be signed off by the delegate and if for some reason the hours were amended it would require the money to be repaid out of the next pay [Transcript p. 2‑24].  The system relied upon the person working overtime advising of the change in hours [Transcript p. 2‑24].  Chidgzey did not especially remember 5 September 2010 but had she left early on the Sunday it would have been her responsibility to tell someone the next week [Transcript p. 2‑35].  Overtime was available to all employees but not everyone in payroll chose to work overtime [Transcript p. 2‑35].  If on any given day she had the responsibility she would double check to make sure an AVAC had been done correctly [Transcript p. 2‑26].  It was important for AVACs to be completed correctly and they were important documents that had to be securely kept [Transcript p. 2‑27].
  1. [60]
    In relation to the WorkBrain print out [Exhibit 3] Chidgzey accepted that:
  • the system had been accessed on 7 September 2010;
  • Phillips' payroll number was shown on the right hand side accessing the system on 7 September 2010; and
  • Walsh's payroll number was shown and that Walsh had accessed WorkBrain on 5 September 2010 [Transcript p. 2‑27].
  1. [61]
    Chidgzey accepted she had made entries to WorkBrain on 5 September 2010 and that an AVAC form recorded her hours for that day as 6.15 am to 1400 hours but according to the document had not been approved [Transcript p. 2‑28].  The AVAC should have been approved by the appropriate delegate prior to the entry to the system being made [Transcript p. 2‑29].  In the case of Walsh it was possible that Chidgzey had an AVAC for her entry that had not been approved [Transcript p. 2‑29].  On Phillips changing the entries Chidgzey had not approached him to make change as it was "not something" she would do [Transcript p. 2‑30].  Chidgzey agreed that regarding the AVAC on 5 September 2010 it had not been signed and policy had not been followed [Transcript p. 2‑30].
  1. [62]
    In re‑examination Chidgzey gave evidence that around September 2010 the payroll system was very unstable and information was entered at times without signatures if the person was not in the office to sign it but such entry would only be entered if directed by the management team.
  1. [63]
    Further cross‑examination of Chidgzey occurred where she was unable to provide the identity of the person who told her should could enter an AVAC into the system that had not been signed off [Transcript p. 2‑34].  At the time in question Halliday was the delegate responsible for signing off the AVAC forms with Chidgzey not knowing the process when he was away [Transcript p. 2‑35].

Bailey

  1. [64]
    Bailey an employee of QH for in excess of eight years, currently held the position of Senior Manager for Service Delivery at the Rockhampton Service Centre having previously held the position of Business Outcomes Officer in 2010 for which he had the responsibility of delivering the training and associated communications to internal payroll staff for the implementation of SAP and WorkBrain.
  1. [65]
    Bailey knew Hilliar as an employee of QH and that she was offered a contract as an AO3 Client Service Officer in late 2010.  Hilliar in the early part of 2012 following her return from sick leave provided him with a statutory declaration said to have been submitted to the former service manager relating to an increase in increment payments.  The declaration appeared to have been signed after she had commenced in the AO3 position and following enquiries he informed her that she was well and truly outside the "28 day grace period" under the terms of her contract and he was unable to backdate any payment.  Further given she was an AO3 at the time of the discussion nothing further could happen unless she returned to the AO2 classification.  The custom and practice for the past eight years had been to present all new employees with a letter of offer and a copy of the general terms and conditions attached to their position.
  1. [66]
    Hilliar at the time of the discussion with him advised she was not aware of having only one month to seek recognition and for prior service to be backdated.  On indicating she intended to take the matter to someone higher than him he gave her the name of his manager.  At around the same time she raised with him that her personnel file was missing and informed him that she had also rasied the matter with a previous manager.  He personally conducted a physical and electronic check but was unable to locate the file.
  1. [67]
    Under cross‑examination he conceded that personnel files should not go missing and he found it concerning that might occur [Transcript p. 2‑41].  The area where the files were kept could only be accessed by QH staff and he was aware of no other files going missing.  The electronic component of a personnel file does not contain all that is kept in file [Transcript p. 2‑42].  On review of the statutory declaration provided by Hilliar there was no scope for him to go outside the policy [Transcript p. 2‑42].  The AO3 position she held at the time was marginally higher than she would have been paid at the AO2.8 level [Transcript p. 2‑43].  In 2010 he had provided training to Hilliar about how to be a payroll officer and made her aware of the different policies [Transcript p. 2‑43].  The training included AVAC forms and the requirement for an AVAC to be completed correctly before it was entered into WorkBrain.  AVAC forms are retained for seven years under State archiving requirements [Transcript p. 2‑44].  Hilliar would have been entitled to refuse to enter an incorrect AVAC into the system and her training would have alerted her to raise it with her immediate supervisor as one of her options [Transcript p. 2‑44].
  1. [68]
    In re‑examination Bailey identified the AVAC options available for an incorrectly completed form as either to escalate the matter with her immediate supervisor or return it to the person that sent it in without the appropriate authorisation.

Litschner

  1. [69]
    Litschner, the Business Change and Training Officer at Rockhampton Base Hospital, had in 2010 held the position of Service Co‑ordinator for the payroll hub.  Hilliar was known to her as a Client Service Officer who commenced in 2010 as agency staff to initially answer phone enquiries later progressing to a Processing Officer employed by QH.  In 2010 due to the introduction of a new QH payroll system it was a "very, very busy, stressful, overwhelming time where staff were required to work overtime which included weekends".  At that time the pay shut off point was a Sunday for payments to be made the following Wednesday which meant that everything up to Sunday was entered for the processing fortnight.  If an employee was told during the week to work on a Sunday they would have an AVAC completed and entered on the Sunday before the pay cut off point.  At that time depending on who was entering overtime they would do a "bulk AVAC" entry.
  1. [70]
    At the time Hilliar commenced employment her team leader was an employee named Smith in the roster processing/AVAC team.  Litschner know Chidgzey, Walsh and Phillips, all of whom were employed in the payroll section in 2010.  She had no recall of having a conversation with Smith about an AVAC form on a certain day but it was possible Smith may have come to her about an AVAC for her staff.  Litschner had no recall of being approached by Smith in relation to discrepancies that had been discovered for Chidgzey and Walsh nor did she at any time in 2010 advise either of those employees to amend finish or overtime finishing times.  No one had ever suggested that a fellow employee had engaged in fraud.  The first time she heard about such allegations was in the last year.
  1. [71]
    Under cross‑examination Litschner confirmed last year was the first time she became aware of the allegations of fraud.  In September 2010 Halliday was the Service Manager to whom she reported and overtime "sign offs" on AVACs was his responsibility and would then be entered by someone else.  Litschner and no authorisation to "sign off" on AVAC forms [Transcript p. 2‑51].  An AVAC had to be completed correctly before it could be entered into the system and to enter an unauthorised form by a delegate would be against policy [Transcript p. 2‑52].  AVACs could be pre‑approved for work on certain Sundays, approved by Halliday in advance [Transcript p. 2‑52].  Litschner gave further evidence around the AVAC process confirming policy arrangements regarding the authorised signature [Transcript p. 2‑53].  Staff were not entitled to turn up on a Sunday and have a colleague who was working "sign off" an AVAC form [Transcript p. 2‑53].  If an employee found a discrepancy with an AVAC form it was quite reasonable for them to raise that with their team leader and the team leader would then raise it with her [Transcript p. 2‑54].  Litschner had no recollection of Smith approaching her on 6 September 2010 about AVACs nor any recollection of a conversation with Chidgzey or Walsh (at the same time) about AVAC entries [Transcript p. 2‑55].
  1. [72]
    In re‑examination Litschner described "open overtime" as staff being pretty much able to work what they could as there was so much work that needed to be done from about 8 March 2010 onwards.  At that time it would be decided on the Friday how much overtime was needed, dependent upon the workload.

Walsh

  1. [73]
    Walsh, a QH employee in the payroll section at the Rockhampton Base Hospital worked with Hilliar in 2010 at the time of the introduction of a new payroll system.  She was familiar with the operation of AVAC forms which were filled in generally by team leaders or service co‑ordinators and then authorised prior to being entered into the system through WorkBrain.  At times staff would complete their own AVACs and get them authorised.
  1. [74]
    In 2010 following the commencement of the new payroll system she was working a lot of overtime often over 13 days a fortnight.  Walsh was unable to recall if she had entered information about Chidgzey into the WorkBrain system but it was normal practice to process other people's timesheets.  The timesheets had to contain the signature of an authorised person.  Walsh said that if the payroll system was closed and particular hours were not worked then they would be corrected in the following pay.  Walsh herself had no recall of having left work early nor had she ever falsified her overtime hours.  She had no recall of a particular occasion when she was listed to finish at 2.00 pm and left at 1.15 pm however if there was an under or overpayment it would have been corrected in the following pay.  Walsh had no recall of Litschner suggesting she have a WorkBrain entry amended in relation to overtime hours or asking Phillips to change a WorkBrain entry.  Until this matter came about she was unaware of any allegation that she had tried to obtain a payment for hours she had not worked.  She denied that in 2010 or at any other time helping Chidgzey obtain payment for time not worked.
  1. [75]
    Under cross‑examination Walsh gave evidence that in 2010 the pay arrangements for employees in payroll was a fortnightly pay period with WorkBrain shutting down at 12.00 noon on the second Sunday in the pay fortnight and it would not open again until the following Tuesday [Transcript p. 2‑59].  Before an AVAC could be entered into the system it needed the approver's signature.  She was uncertain whether a team leader could sign off an AVAC on a weekend when Halliday was usually absent [Transcript p. 2‑60].  In 2010 they were working 13 day fortnights, doing overtime every week as it was "such a mess" at the time [Transcript p. 2‑60].
  1. [76]
    Walsh was shown an AVAC form [Exhibit 1] for Chidgzey which had been processed on 5 September 2010 by her.  There was a concession that she had processed the entry into WorkBrain but could not recall doing it.  It was accepted that it had been entered despite not being approved [Transcript p. 2‑61].  Walsh could not remember if she was given the authority to approve AVACs indicating it was "just a horrible time" and they were all under "the pump" [Transcript p. 2‑62].
  1. [77]
    If overtime was pre‑approved, signed off by a delegate and there were changes on the last weekend of the fortnight it would be corrected in the following pay with an AVAC form correctly approved [Transcript p. 2‑62].  The WorkBrain entry of 5 September 2010 [Exhibit 3] was shown to Walsh which she accepted recorded her making an entry in respect of Chidgzey and showed her working 8.30 am to 2.00 pm and as it was a Sunday the entry would have been made prior to midday [Transcript p. 2‑65].  The entry on 7 September 2010 showed an amendment to her working hours on 5 September 2010 to reflect 6.15 am to 1.15 pm but she had not processed that amendment [Transcript p. 2‑65].  At that time if you left early it was your responsibility to inform someone and an AVAC would have to be completed so the correct payment could be made or a correction to the original AVAC [Transcript p. 2‑66].  Walsh did not recall participating in a meeting regarding a threatening phone call made to Hilliar but recalled her calling her at home [Transcript p. 2‑67].
  1. [78]
    In re‑examination Walsh recalled the phone call at home from Hilliar was about someone gossiping at work.

Phillips

  1. [79]
    Phillips, currently a Client Service Officer for QH at Rockhampton Base Hospital, commenced his employment in 2007.  The role involves the processing of movements of employees from one area to another and virtually all matters associated with their employment.  In 2010 he worked in payroll with Hilliar, Chidgzey, Litschner and Walsh and as such was familiar with the use of AVAC forms in connection with staff employment.  Phillips was taken to a WorkBrain entry for Chidgzey (dated 5 September 2010) and confirmed he amended an entry that was already in the system which recorded her hours on that day as 6.15 am to 11.30 am.  All he could remember about the change was that he would have had an AVAC form as that was the only way such an amendment could be made.  He had never received an approach from either Chidgzey or Walsh to amend entries in the WorkBrain system and he would never fiddle with the entries because it was "not worth" his job.  Whilst his practice was "no form, no amendment", he had heard rumours that he had amended entries on behalf of Walsh and Chidgzey and was approached by QH about six months earlier.
  1. [80]
    Under cross‑examination Phillips' evidence was that before an entry could be made into WorkBrain there had to be an AVAC form approved and signed by the approver.  He had never been told to make an entry without a signed AVAC [Transcript p. 2‑72].  Phillips was unable to recall events from 7 September 2010 which included Chidgzey and Walsh asking him to amend entries in WorkBrain [Transcript p. 2‑73].  He had made entries into WorkBrain on 7 September 2010 because he had been locked out of the system from midday on 5 September and 6 September 2010 [Transcript p. 2‑73].  AVAC forms were required to be archived after an entry was made into the system but after he had finished with it he had no idea where it went [Transcript p. 2‑73].  AVACs were sent electronically to him once they had been signed and entered into a computer.  There was no capacity for him to retrieve an AVAC once it had been sent off [Transcript p. 2‑74].  On occasions he would be handed a "physical copy" of an AVAC and once he had finished with them they would be sent off on the computer to the archiving system [Transcript p. 2‑74].  On 7 September 2010 he would have scanned the AVAC if it was in a physical form or if it was in the system he would have archived it straight away [Transcript p. 2‑75].

Submissions

Regulator

  1. [81]
    The submission firstly dealt with Hilliar's employment with QH which commenced on 19 April 2010 and of the circumstances relating to the work undertaken by her during 2010.  References were made to:
  • roster planning team;
  • work times;
  • overtime;
  • training;
  • methods of work;
  • AVACs; and
  • workload.
  1. [82]
    There was no date identified through direct evidence of Hilliar's decompensation but it was appropriate to accept decompensation took place in May 2013 based on Hilliar's position and there was no mention of any earlier decompensation.
  1. [83]
    Elements not in question were:
  • Hilliar was a worker;
  • in May 2013 she was found to be suffering from an Adjustment Disorder; and
  • Dr Chau diagnosed an Adjustment Disorder in May 2014.
  1. [84]
    The elements in issue were identified as:
  • Regulator's position that Hilliar's stressors arose out of management action which was both reasonable and taken in a reasonable way;
  • if the Commission accepts all stressors resulted from management action then the Regulator concedes employment was a significant contributing factor; and
  • should the Commission conclude any of the accepted stressors did not result from management action, then the Regulator's submission is that any stressor was a product not of employment but Hilliar's misunderstanding of the factual situation.
  1. [85]
    The stressors were summarised as:
  • receipt of a phone call that contained an implied threat on 28 February 2011;
  • discovery that her personnel file (paper copy) was missing from the office filing cabinet in March 2011 and the inability of the employer to locate the file;
  • employers failure to conduct an adequate investigation into her allegations of fraud; and
  • employer's failure to process an application for a pay increase in 2010 and subsequent refusal to pay the increase.
  1. [86]
    Dr Chau's opinion regarding the causation of injury changed over time in that on 2 June 2014 Hilliar's disorder was only attributed to the one factor being the long‑standing investigation into QH fraud on 5 September 2010 and after having been supplied additional information prepared by Hilliar's Lawyers, Dr Chau decided in a supplementary report (dated 6 August 2014) that the disorder was aggravated by the receipt of the phone call on 28 February 2011.  Further in her third Report (dated 19 August 2014) Dr Chau had now decided the disorder did not start in September 2010 but after the phone call in February 2011 and then aggravated by the discovery that the personnel file was missing and the failure of the employer to support her in relation to the missing file.
  1. [87]
    The Regulator submitted it was difficult to discern with precision what truly led to the disorder from the psychiatric evidence or to establish the weight that can be safely given to the doctor's opinions.
  1. [88]
    The submission dealt in some depth with the allegations of fraud against Chidgzey and Walsh, making the point that Hilliar had in processing AVAC forms previously seen a number of AVAC forms that had not been signed by the Manager and on each occasion emailed the AVAC form to the relevant unit for signature but on this occasion acted completely differently.
  1. [89]
    The theory adopted by Hilliar was that Chidgzey and Walsh had attempted to defraud QH and Litschner when becoming aware of the alleged fraud warned the would‑be fraudsters to engage Phillips to alter the records.  At no time did Hilliar speak to Chidgzey, Walsh and Litschner, preferring only to speak to Phillips.  There was other evidence available to challenge her conclusion of deliberate fraud as was there a lack of evidence that Litschner had warned Chidgzey and Walsh.
  1. [90]
    Hilliar had a propensity to exaggerate which was demonstrated by the terms of her allegations to Human Resources and the Internal Witness Support Unit which were made in the following terms:
  • "Ms Chidgzey since on or about April 2010 falsely/dishonestly obtained financial benefit by inappropriately claiming and entering unauthorised work hours for hours not worked into a payroll system;
  • Ms Walsh had been doing the same as Ms Chidgzey also since about April 2010;
  • Mr Phillips improperly altered times in the payroll system for Ms Chidgzey and Ms Walsh;
  • Unidentified officer had destroyed AVAC forms; and
  • On 13th October 2010 Mr Phillips falsely/dishonestly obtained financial benefit by inappropriately claiming and entering unauthorised work hours for hours not worked into a payroll system."
  1. [91]
    The allegations around dishonestly obtaining financial benefit before 5 September 2010 was not supported by any evidence and in fact Hilliar had conceded that she had not previously seen an AVAC in either Chidgzey or Walsh's name that had not been approved correctly.  There was also an absence of evidence relating to the claim Phillip's had falsely claimed overtime for himself on 13 October 2010.  The submission was that the complaint made by Hilliar when compared with the evidence demonstrated an alarming propensity to either deliberately fabricate serious allegations or convince herself of quite absurd propositions.
  1. [92]
    The evidence of Chidgzey, Walsh, Litschner and Phillips was the subject of scrutiny with the Regulator making the argument that there was nothing in the demeanour of any of these witnesses or their evidence that would cause the Commission to pause before accepting their evidence.  When the environment at the time was taken into account there was clearly an innocent explanation for the appearance of the unsigned AVAC form.  The likelihood of two experienced staff members already working an extra four hours a day and most weekends setting out to falsely claim an extra couple of hours was said to be remote.  The witnesses appeared to be decent and honest and not a small clutch of conspirators involved in a plot to defraud QH.
  1. [93]
    Whilst there is not evidence of the precise date Hilliar lodged her complaints it is clear that it had been received by Human Resources by 20 October 2010.  In the four months that followed there was no evidence of either a threatened reprisal or adverse words against her which leads to the questioning of whether the alleged threatening telephone call was ever received.  At the time of the alleged call Hilliar gave evidence of running to her car and locking herself in the vehicle because of being scared and not being able to drive because she was shaking so much.  It is of note that Hilliar did not return to the safety of her office, attempt to contact QH security staff or the QPS at the time of the alleged call.  This was not conduct that could reasonably be expected from a person who was genuinely frightened by a phone call.  Her fear continued to the extent she started sleeping outside with a gun and a dog however the evidence was that did not commence until some five months after the call was allegedly received.  Coincidentally this was the period when Hilliar was off work due to a physical injury and it is of more than passing interest that in several consultations in that time period she made no mention to Dr Cooling, her treating General Practitioner of her extreme fear, the phone call or work issues.  The first time the alleged phone call was raised with a medical practitioner was during a consultation with Dr Uddin in June 2013 more than two years after the alleged call was said to have been received.  Some four years later the only police assistance she sought related to problems she was having with her partner in 2011.
  1. [94]
    There were a number of contradictions in Hilliar's evidence about sleeping outside and this assisted in the damaging of her credibility to the extent it was submitted that the Commission could not properly conclude that Hilliar did receive the threatening phone call as alleged.  Hilliar in evidence had questioned the management action of the employer in responding to the phone call but in fact there was little the employer could do when the advice of the Police Officer was limited to have her change her phone number.  The allegation regarding the employer's dealings about the alleged telephone call does not identify any unreasonable management action.
  1. [95]
    The claim by Hilliar was that a week or two after the alleged threatening phone call her paper personnel file had gone missing causing her concern as it had details about her children and she was worried about someone having possession of those details.  The personnel file had been stored in an area that could only be entered by using a swipe card and occupied by payroll staff and visited by building maintenance staff.  Oddly despite her concerns there was no suggestion that she had ever reported the theft of the personnel file to Police to whom she eventually reported the phone call.  There was no mention of Smith's personnel file missing yet she had jointly with Hilliar made allegations of fraud.
  1. [96]
    Having regard for all the circumstances including the failure of Bailey and another manager to find the file it was submitted that the Commission might properly have difficulty in deciding that the file was taken by someone other than Hilliar.  There was also an electronic file on the payroll system that contained information including her home address and mobile phone number which could be accessed by all QH payroll employees throughout the State.  There was room for substantial doubt as to whether somebody besides Hilliar had removed the paper file and in any event Hilliar had acknowledged maintaining her correct address on the electoral role making it easy for anybody to locate her.
  1. [97]
    The employer's inability to find the file was not something that amounted to unreasonable management action that became a stressor contributing to Hilliar's condition.  Phillips' evidence was he and another staff member conducted a search of the filing cabinet and also conducted an electronic file search to find out whether any person had recorded taking the file.  Phillips took the issue up with his manager and was subsequently told by the Executive Director of Human Resources that the file incident "would be looked at in conjunction with some other things that were being looked at with Jo Hilliar".  Short of interrogating every person who had access to the building, management could have not done anything more to find the file.
  1. [98]
    The employer's investigation was said not to have been a proper investigation with the Statement of Stressors particularising what were said to be inadequacies.  It was submitted that each of those particulars be struck out as a matter of law, or alternatively discarded as they had not been made out.  The particulars were identified as the following points contained in the Statement of Stressors at paragraphs:
  • 3(b)(iv)A;
  • 3(b)(iv)B;
  • 3(b)(iii); and
  • 3(b)(iv) C.
  1. [99]
    There was no evidence called from any of those involved in the investigation of the fraud allegation which included both the ESU and CMC.
  1. [100]
    The difficulty the investigators had in trying to interview Hilliar must be kept in mind particularly when considering the evidence of Cook from Ashdale on the importance of interviewing a complainant which was said to be of vital importance.  Over the period of time from September 2010 until March 2011 Hilliar continued to provide information to Human Resources however the chronology contained in the Ashdale Report noted the attempts that had been made to interview both Hilliar and Smith were unsuccessful.
  1. [101]
    The investigation it was conceded had extended over a lengthy period and in some circumstances such a long delay in finalising a matter can amount to unreasonable management action.  That was not the case on this occasion with the delay caused by Hilliar's ongoing presentation of information, six months absence on sick leave and then the inability to take up the vitally important step to interview her in 2012/2013.  It could be argued that in the case of Hilliar the investigators could have been more rigorous and assertive in trying to arrange an interview but that tactic may well have produced its own set of problems.  Underlying all of that was the fact that her allegations were not of much substance.  Hilliar's evidence did not identify an adverse impact on her as a result of the investigation stretching out and was informed as early as 20 October 2010 that:

"Depending on what occurs you may or may not be provided with advice regarding exactly how the matter was dealt with.  You will however be advised when it has been dealt with."

  1. [102]
    On the issue of the AO2 incremental payment Hilliar claimed to have provided a Statutory Declaration supporting an increase in October 2010 but received no response nor in fact did she not raise the topic again.  In October 2010 she had been promoted from the AO2 classification to that of an AO3.  Sometime in 2012 Hilliar came across the Statutory Declaration and raised the matter with Bailey who gave evidence he told her it had been submitted outside the time period allowed to apply for such an increase.  Hilliar denied Bailey had told her about the 28 day time frame.
  1. [103]
    Bailey had made further enquiries about her eligibility to get the incremental income and found nothing more could be done whilst she continued to be an AO3.  The QH terms and conditions clearly identified that an incremental increase application must be made within 28 days of commencing employment.  Whilst there is no direct evidence that Hilliar was given this document an inference can be made on Bailey's evidence she was given the terms and conditions like all other new employees.
  1. [104]
    There was some doubt about whether the Statutory Declaration was lodged in 2010 and if it was it would appear Hilliar had quite an astonishing run of bad luck with documents in that:
  • she was not given the terms and conditions of employment;
  • her personnel file was stolen; and
  • her Statutory Declaration was lost and then found by her.

The loss of the Statutory Declaration cannot, it was submitted, amount to being a stressor particularly at the time it was lodged she was not entitled to the pay increase.

  1. [105]
    There were a number of issues identified that brought into question Hilliar's credibility and reliability which became evident in the course of the proceedings where her evidence at times departed from the documentary evidence available to the Commission.  Some of her correspondence to various politicians exhibited behaviour that was not the hallmark of reliability.
  1. [106]
    The Regulator submitted the Appeal be dismissed.

Appellant

  1. [107]
    There was no dispute that Hilliar was at the relevant time a worker when she suffered an injury with the onus being on her to satisfy the Commission, on the balance of probabilities that her employment was a significant contributing factor to the injury pursuant to s 32 of the Act.
  1. [108]
    The submission provided background prior to the alleged stressors which included:
  • Hilliar commenced employment with QH at Rockhampton in April 2010 in the payroll office initially through an agency and then directly employed;
  • trained in the WorkBrain system which included the operation of AVAC forms for employees working overtime;
  • on 5 September 2010 Hilliar was working in the payroll office when she came across AVAC forms for Walsh and Chidgzey that were completed incorrectly, not authorised and were for four hours that had not been worked.
  1. [109]
    Hilliar gave evidence which detailed her actions on 5 September 2010 and of what she observed in the days immediately following including amendments made to the time records of Walsh and Chidgzey by Phillips on 7 September 2010.  Hilliar apart from raising the matter with Smith at that time later contacted O'Connor to inform her of what had occurred and continued over time to provide information to O'Connor.
  1. [110]
    The Nominated Stressors were identified as being:
  • the abusive and threatening phone call of 28 February 2011 (the Abusive Phone Call);
  • the fact that her personnel file was missing (the Missing Personnel File);
  • the failure of her employer to conduct or undertake any adequate investigation into the allegations of misconduct in relation to the 5 and 7 September 2010 WorkBrain entries and amendments (the Inadequate Investigation); and
  • her employers losing of her statutory declaration relating to her employment position and payment (the Lost Statutory Declaration).
  1. [111]
    The submission then went on to provide commentary in respect of the witness evidence before the proceedings.

Hilliar

  1. [112]
    Having suffered a psychiatric injury she was at times emotional and had difficultly giving evidence often requiring time to compose herself.  She gave evidence that was entirely in keeping with the documents surrounding the entries on 5 and 7 September 2010, her complaints and conduct.
  1. [113]
    Large portions of her evidence was confirmed by other witnesses and documentation or otherwise was unchallenged.  She was an honest witness who gave evidence under difficult circumstances and the Commission ought to find her evidence credible.  Questions were raised about her credibility with references to correspondence sent to a range of politicians suggesting that such behaviour was not a hallmark of credibility.  That submission ought to be ignored by the Commission as there were obvious explanations for her conduct that included being at "wits end" after two and a half years of an investigation that was incomplete and Dr Chau's evidence that in terms of an adjustment disorder people sometimes ruminate about an issue and they either get sick or tired of hearing about it or write letters or emails of this type.  The reliability of Hilliar's evidence should not be questioned on a manifestation of her symptoms and there was no evidence led by the Regulator that her recollections were unreliable by virtue of the impugned conduct.
  1. [114]
    Hilliar had reacted differently to the situation regarding the AVAC forms for Walsh and Chidgzey than previous occasions because they had processed entries for each other and there was nothing shocking about her suspicion or her wanting to see if in fact they worked those hours.

Phillips

  1. [115]
    Phillips' evidence was that he was authorised to make entries into WorkBrain and the changes he had made in the amending of Walsh and Chidgzey's records on 7 September 2010 would have been only made if he had an AVAC form.  The first time he had been approached about the entry was around November/December 2014.
  1. [116]
    Phillips ought to be found to be a genuine witness who sought to give honest evidence and without being critical he was first approached about his recollections in late 2014 by the Regulator so when it comes to precise details or conversations that contradict Hilliar she ought to be preferred.

Chidgzey

  1. [117]
    The Commission ought to have concerns with parts of Chidgzey's evidence where she had contradicted her own evidence about the practice relating to AVAC forms and that her evidence was not supported by Phillips who was a more impressive witness.  Her evidence in relation to AVACs, in some respects was unsupported by Walsh and Litschner's evidence particularly about disregarding the documented process.

Walsh

  1. [118]
    Walsh had admitted she had limited recollection of the events of September 2010 and like other witnesses had not been approached for her recollections until late 2014 by the Regulator.  When it comes to precise details or conversations that contradict Hilliar it was Hilliar who ought to be referred.

Litschner

  1. [119]
    Litschner's evidence was brief and suggested she had very little recall of the time period but recalled the first time the September 2010 allegations were raised was by the Regulator in 2014.  She had no recollection whether Smith had approached her on 6 September 2010 about some issue with entries made on 5 September 2010 or of having discussions with Chidgzey or Walsh.  There was no contradiction of any of Hilliar's evidence and at best she was unable to recall if she had conversations with people.

Bailey

  1. [120]
    Bailey's evidence went to his role in the training of employees in the proper procedures and protocols of their employment and of how the AVAC process operated.  He confirmed that Hilliar complained to him that her personnel file was missing and he was not aware of the file having been located or of any other personnel files going missing.
  1. [121]
    The submission dealt with each of the stressors in some detail.

Stressor Number 1 - The Abusive Phone Call

  1. [122]
    The call occurred on 28 February 2011 as Hilliar was about to leave work for the day and came in on her mobile phone.  The call had the effect of scaring her to the point where she ran to her vehicle and sat for a while unable to drive.  She called her supervisor immediately and made a further report the next day to management and was allowed to go home early that day.  There was no allegation that Hilliar had not reported the phone call nor was it not put to her that she had not received the call and the submission of the Regulator that she had contradicted her evidence around the reporting of the phone call was explained by the fact that in the course of giving her evidence she had got confused at times about precise times. 
  1. [123]
    The phone call cannot be exempt from or considered as being touched by management action.  There was no submission that the event was not in the course of her employment having been received at work with the subject matter entirely employment related.
  1. [124]
    The Commission should find that the abusive phone call received by Hilliar occurred as per her evidence.

Stressor Number 2 - The Missing Personnel File

  1. [125]
    Hilliar had become concerned for her safety after receiving the threatening phone call and became curious as to how the caller had obtained her mobile number, leading her to see what was in her personnel file.  The file according to Hilliar's evidence had been removed.  The submission of the Regulator suggests that Hilliar had taken her own personnel file, lied to her employer and then perjured herself in the proceedings.  At the very least Hilliar should have been asked whether she took the file so she could defend herself against the allegation (see Browne v Dunn[1]) before the Commission could be invited to consider the perjury allegation.  The suggestion around Hilliar taking the file ought to be rejected outright.
  1. [126]
    The approach taken by Hilliar to see what was contained in her personnel file was entirely reasonable as she wanted to know what the file contained with regards to her personal circumstances and whether the person who made the threatening call may have had access to those details.  The file was never recovered and this was confirmed by Bailey in his evidence.
  1. [127]
    The personnel file incident could not be exempt or even considered as being touched by management action.  That the file was missing is a fact and the cause of the event is irrelevant to the proceedings.  The stressor is that after the abusive phone call Hilliar was afraid the perpetrator might have been able to access her personal information in the file and when she realised the file was missing this had caused her great stress.  The issue is not whether the employer took adequate steps to secure or find the file but the fact the file was missing on top of her concerns about the phone call.
  2. [128]
    Any attempt to assess the matter under the reasonable management action, mistakenly looks at the issues of causation of the event as opposed to the event itself being a stressor.  It cannot be excluded as a stressor under reasonable management action and ought to be accepted as a stressor given that the file was missing and unable to be found.

Stressor Number 3 - The Inadequate Investigation

  1. [129]
    The major stressor for consideration was the investigation which caused Hilliar distress and contributed to her adjustment disorder.  The investigation was lengthy and inadequate and was clearly a matter touched by reasonable management action.  The reasonableness of the management action must therefore be assessed.
  1. [130]
    The Regulator had run a case relying on witnesses that were the subject of the complaint with their evidence denying they had committed a fraud along with denials that there had been amended transactions.  Whether Walsh or Chidgzey in fact set out to commit a fraud is irrelevant as the issue is the investigation that was undertaken and why it took so long.  The only admissible evidence in respect of the investigation was that given by Hilliar.
  1. [131]
    The Regulator's submission that Hilliar was not aware that Walsh and Chidgzey had not been interviewed and that a finding none of the allegations could be substantiated could not be a stressor as that occurred after decompensation and Hilliar did not know what had been given to the investigators.  The failure was to conduct an inadequate investigation which left the matter ongoing and unresolved after three years.  The stressor in respect of the investigation was that after making the complaint in September 2010 the matter had still not been properly investigated or resolved as at May 2013 when Hilliar decompensated.  The Commission cannot "strike out" and effectively ignore factual matters that must be considered when determining the reasonableness of the management action.
  1. [132]
    The history of the investigation covered the events from 5 September 2010 and the evidence before the Commission around the allegations of fraud which was set out in some detail in the submission.  The factual circumstances that existed as at September 2010 were identified as:
  • Walsh and Chidgzey breached the procedures in respect of overtime by entering each other's overtime into the WorkBrain system without approved AVAC forms;
  • Walsh and Chidgzey did not work the hours that they entered - evidenced by the fact that they were amended and reduced;
  • Hilliar complained to her supervisor about the conduct;
  • Hilliar was informed that her supervisor reported the conduct to Litschner; and
  • after the complaint, Phillips amended the entries in the system.
  1. [133]
    Once the complaints were made by Hilliar the employer was required to investigate the matter.  The starting point is to consider what is a reasonable investigation with the Regulator submitting "It is only common sense that there is no need to interview an alleged offender unless there is evidence of wrong doing".  That proposition is adopted by the Appellant and in this case the evidence before the employer was overwhelming comprising of:
  • a clear breach of policy by Walsh and Chidgzey;
  • breaches of AVAC forms process where they were processed without approval; and
  • evidence of not working the hours by the subsequent amendment of the hours after the complaint was made.
  1. [134]
    The factual circumstances led to a number of questions being identified as:
  • Why were AVACs processed that were not authorised?
  • Why were Walsh and Chidgzey processing each other's amended hours when the proper process was to wait and have them authorised?
  • Where is the AVAC for the Walsh's amended hours?
  • Why did Phillips change the entries on 7 September 2010?
  • Who told him to?
  • Where are the AVACs for his amendments and who authorised them?
  • If Chidgzey and Walsh only worked to 1.15 pm and 11.30 am respectively (which is the only obvious explanation for the subsequent amendment), why did they process entries for each other showing that they worked until 2.00 pm?
  1. [135]
    It is these reasonable questions upon which the conduct of the employer's actions must be judged.  It was difficult to see how any reasonable employer undertaking a reasonable investigation could not identify the appropriate course to take in an investigation however the employer in this case failed to take the most obvious and most reasonable steps.  There were unfathomable moments in the process that included:
  • the first person to speak to the witnesses was the Regulator in 2014 when preparing for these proceedings; and
  • the failure of the employer to access the AVAC forms for 5 September 2010 and 7 September 2010 to confirm whether in respect of 7 September 2010 entries authorised AVACs were completed.
  1. [136]
    It cannot be reasonable in the circumstances for an investigation to remain ongoing for three years after complaints were made particularly when factual evidence of the conduct was available from day one.  While the events post May 2013 cannot be said to be a stressor they can be evidence on the conduct of the employer with it being noted that as late as July 2013 the employer retained an external investigator who provided an interim investigation report three years after the first complaint.
  1. [137]
    The Regulator had the responsibility to identify why the conduct and delay in the investigation should be found to be reasonable.  The submission relied upon the matter of Cumming v Simon Blackwood (Workers' Compensation Regulator)[2] as providing assistance where it was stated:

"In terms of the disciplinary investigation the time period from the time of the allegations being lodged against Cumming and advice of the outcome to her was a period of 19 months which on the face a significant period of time for such an investigation.  Therefore it is necessary to forensically examine the investigative process to establish whether there were flaws in the management of the said process that attributed to this timeline."

  1. [138]
    In that case the 19 month period was found to be a "significant period of time" and the Regulator had called the relevant witnesses involved in the investigation which enabled the Commission to dissect the investigation and assess whether the day in completing the investigation was reasonable.  The same process ought to have occurred in this matter if the Regulator was to establish that the steps taken by the employer were reasonable management action.
  1. [139]
    The Regulator led no evidence of the investigation or that the investigation was ever completed.  The Appellant called evidence from Cook for the purposes of demonstrating that even as at September 2013 the employer was still conducting investigations but failing to provide the evidence of any reasonable investigation occurring.  No evidence was called by the Regulator to explain the conduct of the investigations and what transpired between September 2010 and May 2013.  There was legal argument about the tendering of the report around the issue of "documentary hearsay" with the Commission admitting the Report subject to the objection taken by the Appellant.
  1. [140]
    The Regulator made reference to the Report in their submissions which were addressed by the Appellant who continued to maintain the objections to the Report being admitted.  It was argued that the Report was largely inadmissible and the position of the Regulator to lay the blame for the investigation taking so long on Hilliar was something that could not stand.
  1. [141]
    In absence of the inadmissible evidence the other evidence confirmed the employer failed to take any reasonable steps to investigate the matter.  The conduct of the employer cannot be reasonable management action taken in a reasonable way.
  1. [142]
    In summarising the investigation, it was the case that two years and eight months after the initial complaints were made the investigation was still ongoing which was evidence of an unreasonable investigation.  There was no evidence led to explain the delay to the investigation was caused by Hilliar and this claim was not supported by any cogent evidence.  The stressor cannot be exempted by reasonable management action in the circumstances.

Stressor Number 4 - The Lost Statutory Declaration

  1. [143]
    Prior to being promoted to the AO3 level in October 2010 Hilliar had been an AO2.1 and had been told due to her experience she would be entitled to be classified as an AO2.8 and if she completed a statutory declaration she may be entitled to back-pay.  A declaration was completed by her in October 2010 and nothing further was heard by her which led her to presume she had not been approved for back-pay.  In 2012 Hilliar discovered that her statutory declaration was unprocessed, having been found in a stack of paperwork in the office.  She approached Bailey who had not previously seen the statutory declaration only to be informed she was outside the time frame for claiming the increased level and later in 2013 complained to Patmore about the issue.
  1. [144]
    In reality this stressor was of little consequence and had not been mentioned to Dr Uddin or Dr Chau in May 2013 when she was experiencing symptoms and decompensated.  The medical evidence and the evidence of Hilliar was to the effect it was Stressors 1, 2 and 3 that had caused her decompensation.  Accordingly as submitted by the Regulator that the loss of the statutory declaration should not be considered as a stressor that position was acknowledged by the Appellant.

Injury

  1. [145]
    The medical evidence before the Commission comprised of:
  • Expert Reports from Dr Chau;
  • Records of treating Psychologist Rosemary Stone (Stone) (who was not available for cross-examination);
  • records and certificates completed by Dr Uddin of the Burpengary Medical Practice;
  • records and certificates completed by Dr Cooling of the Yeppoon Family Practice.
  1. [146]
    The appropriate date of decompensation was May 2013 with Dr Uddin issuing a workers' compensation medical certificate (dated 22 May 2013) diagnosing an adjustment disorder with depressed mood.
  1. [147]
    The Regulator did not lead any evidence in respect of the cause of the injury.
  1. [148]
    Hilliar's evidence was that after receiving the threatening telephone call and the missing personnel file she had engaged in "strange behaviour" and by July 2011 was having difficulty sleeping.  She did not relay the incidents in the workplace to her doctor as she had been told not to talk to anyone about the matters.  She had a period away from the workplace returning to work in January 2012.  Feeling uncomfortable in the workplace she began applying for other positions eventually obtaining a position in Nambour giving evidence of enjoying the new role.
  1. [149]
    When she received a call from Patmore "out of the blue" about the investigations of the September 2010 matters it was her evidence that she started again suffering symptoms and commenced seeking medical assistance in May 2013.  On the first couple of occasions she did not confide in Dr Uddin about the work issues but eventually told him "everything".
  1. [150]
    Dr Uddin in diagnosing an adjustment disorder with depressed mood stated the cause of injury as being work stress commencing 5 September 2010.  Stone recorded the onset of Hilliar's problems being linked to speaking up about apparent corrupt practices of certain fellow workers and suffering repercussions as a whistle blower.  Further the incident had dragged on for some three years unresolved.
  1. [151]
    Dr Chau in her First Report provided a detailed assessment of the relevant stressors in which she opined Hilliar had developed an adjustment disorder with mixed anxiety and depressed mood as a result of long-standing investigations into whistleblowing, regarding alleged fraud in QH since 5 September 2010.
  1. [152]
    In the absence of any medical evidence to the contrary it must be accepted that Hilliar suffered an injury for which her work was a significant contributing factor.  The evidence of Dr Uddin and Stone (who were not required for cross-examination) ought to be accepted unchallenged.  In the case of Dr Chau the Regulator made a scathing attack on her integrity as an independent medico-legal expert with the accusation contained in submissions having not been put to her in the proceedings and must be disregarded.
  1. [153]
    In the absence of evidence that there were other factors or "stressors" that caused or contributed to Hilliar's injury the Commission ought to be satisfied with the unchallenged medical opinion that her injury was caused by workplace stressors.

Orders

  1. [154]
    As a consequence of the threatening phone call, missing personnel file and the failure of the employer to conduct a reasonable investigation into the allegations made by Hilliar in September 2010, it was submitted that the Commission ought order that:
  • the Appeal be allowed;
  • the decision of the Regulator of 5 November 2014 be set aside and substituted with a decision that Hilliar's application be one for acceptance; and
  • the Regulator pay the Appellant's costs of the Appeal.

Conclusion

  1. [155]
    There was no disputation between the parties that at all relevant times Hilliar was for all intents and purposes a "worker" pursuant to s 11 of the Act.

Matters for determination

  1. [156]
    Given that the status of Hilliar as a "worker" was uncontested the matters that remain for determination are:
  • whether Hilliar suffered a personal injury pursuant to s 32(1) of the Act;
  • whether the personal injury (if suffered) arose out of, or in the course of, employment pursuant to s 32(1) of the Act;
  • whether the employment was a significant contributing factor to the injury pursuant to s 32(1) of the Act; and
  • if Hilliar is found to have suffered a personal injury that arose out of or in the course of her employment with the employment being the significant contributing factor to the injury was the injury excluded from compensation through the operation of s 32(5)(a) or (b) of the Act.

Whether Hilliar suffered a personal injury

  1. [157]
    In the course of the proceedings there was a range of medical evidence presented in various forms on behalf of Hilliar with the Regulator choosing not to adduce evidence of a medical nature.
  1. [158]
    Dr Chau was the only medical practitioner to give direct evidence and in doing so provided the following reports:
  • Independent Medico‑Legal Report ‑ 2 June 2014;
  • Supplementary Medico‑Legal Report ‑ 6 August 2014; and
  • Supplementary Medico‑Legal Report ‑ 19 August 2014.
  1. [159]
    Dr Chau was of the opinion that Hilliar had developed a mild anxiety and depressive symptoms on 5 September 2010 as well as going on to opine that there was a significant aggravation of the adjustment disorder in February 2011.
  1. [160]
    Medical records from the Burpengary Morayfield-Hub Medical Centre [Exhibit 23] recorded a consultation between Hilliar and Dr Uddin where on 6 May 2013 he diagnosed her as having an adjustment disorder with depressed mood.  In a further consultation on 22 May 2013 he reaffirmed the diagnosis and on 31 May 2013 authored a referral to a Psychologist (Stone).  In correspondence to Shine Lawyers (dated 1 August 2013) Stone who was Hilliar's treating Psychologist at the time stated that Hilliar's current diagnosis was that of a Major Depressive Disorder.
  1. [161]
    The medical evidence is sufficient to establish that Hilliar sustained a personal injury of a psychiatric/psychological nature with the date of decomposition being 22 May 2013.

Whether the personal injury suffered by Hilliar arose out of, or in the course of employment

  1. [162]
    The evidence of Hilliar was that she had sustained an injury of a psychiatric/psychological nature as a result of events that had their origins on 5 September 2010 when she observed in the course of her employment behaviour of a fraudulent nature, in that Walsh and Chidgzey were seeking to be paid for work they were not intending to perform.  Hilliar had instigated a complaint in respect of the conduct and in the period between September 2010 and 28 February 2011 had continued to provide information to a QH representative (O'Connor).  It was her evidence that in this period she had spoken to only one other person but gave no specific details to that person in terms of her complaint.
  1. [163]
    On 29 November 2010 Hilliar received correspondence from the Internal Witness Support Unit with regards information they had received from the ESU in relation to the disclosure of information by Hilliar on 1 and 16 November 2010 in which she made the following allegations:
  • "It is alleged that Ms Karen Chidgzey since on or about April 2010, has falsely or dishonestly obtained financial benefit, by way of inappropriately claiming and entering unauthorised work hours for hours not worked into a payroll system.
  • It is alleged that Ms Joanne Walsh since or about April 2010, has falsely or dishonestly obtained financial benefit, by way of inappropriately claiming and entering authorised work hours for hours not worked into a payroll system.
  • It is alleged that Mr Greg Phillips improperly altered times in the payroll system for Ms Chidgzey and Ms Walsh without an authorised AVAC form.
  • That officer's not identified have destroyed AVAC forms and have not retained the same pursuant to State Archiving requirements.
  • It is alleged that on 13 October 2010, Mr Greg Phillips falsely or dishonestly obtained financial benefit, by way of inappropriately claiming and entering unauthorised work hours for hours not worked into a payroll system."
  1. [164]
    Hilliar's correspondence had been assessed as constituting a Public Interest Disclosure pursuant to the Whistleblowers Protection Act 1994 and she was advised she had been afforded Whistleblowers protection.
  1. [165]
    The Internal Witness Support Unit correspondence further went on to inform Hilliar that:
  • that she had a legal responsibility to maintain confidentiality;
  • information about her identity and subject matter of the disclosure must be treated as confidential and should not be disclosed unless it "becomes necessary for the purpose of appropriately dealing with the disclosure and ensuring procedural fairness to any person/s subject or involved in the disclosure/s";
  • protection against reprisals; and
  • as part of the investigation or review process she may be contacted to provide further details or clarification of the material provided in the disclosure.
  1. [166]
    On 28 February 2011 whilst in the process of leaving her place of work Hilliar alleged she received a threatening phone call from an unknown male caller who asked her if she was "the nosy cunt that was snooping in the payroll business".  Hilliar when informed by the caller that he could get her private number and address told him to "fuck off" and hung up.  The evidence before the proceedings from Hilliar was that she reported the call to HR the next day and later contacted the police.  Hilliar had the rest of the week off as a result of her reaction to the telephone call and on her return sought to locate her personnel file which was found to be missing.
  1. [167]
    Hilliar had a significant period of time in 2011 off work due to illness giving evidence she could not get her head around "the fact that her personnel file was missing".  On her return to work in January 2012 Hilliar continued to have difficulty sleeping due to concerns about the earlier threatening phone call and at that point commenced applying for employment outside of Rockhampton eventually obtaining a position with QH in Nambour which she commenced on 6 April 2012.
  1. [168]
    In late 2012 Hilliar made contact with QH about her complaint regarding "fraud and misconduct" and was contacted by Patmore in January 2013 where he advised she had been sent an email in October 2012 with a request for a meeting but Hilliar had not received the email due to her relocation to Nambour.  Hilliar continued to have communication with Patmore until April 2013 about her complaint.
  1. [169]
    In or around May 2013 she became ill with symptoms similar to those she had experienced in Rockhampton and again sought medical intervention eventually informing Dr Uddin of the work issues alleged to have been causative of her condition.
  1. [170]
    On consideration of the evidence and material before the proceeding I am satisfied that the personal injury suffered by Hilliar arose out of or in the course of her employment.

Whether the employment was a significant contributing factor to the injury

  1. [171]
    Hilliar's case was the work-related events which had their origins in September 2010 and onwards were causative of the psychiatric/psychological injury however before that scenario can be accepted there is a requirement to examine the evidence supporting the claim Hilliar sometime after February 2011 was absent from work on sick leave for reasons said to include her reaction to the threatening phone call of 28 February 2011.  The medical records from the Yeppoon Family Practice show either consultations or other forms of interaction with Dr Cooling on at least 20 occasions between 11 August 2011 and 6 December 2011 and at no time is there any record of Hilliar providing information regarding issues in the workplace contributing to her condition.
  1. [172]
    Hilliar returned to work in January 2012 and continued to work initially at Rockhampton and later in Nambour without the need to access medical treatment for a condition or injury said to have arisen as a consequence of the work-related events.
  1. [173]
    On 6 May 2013 she had a consultation with Dr Uddin where the Patient Health Summary recorded:

"Can no sleep for more than 3 hrs x 2 months.  Headaches, face paion.  Nil fever.  Lost lot of weight about 8 kg in 6 weeks, not hungry.  Wants general check up.  Moved house, split with partner.  Separated from son's dad 18 years ago.  he was an alcoholic…"

  1. [174]
    On examination she presented as:

"Undistressed, nil SOB, teary though smiles when appropriate.  No ideas of self harm."

  1. [175]
    Dr Uddin diagnosed an adjustment disorder with depressed mood.
  1. [176]
    On 17 May 2013 in a visit to Dr Uddin he recorded on examination "Undistressed, nil SOB".
  1. [177]
    Hilliar next consulted with Dr Uddin on 22 May 2013 where the Patient Health Summary recorded:

"In September 2010, was working Rockhampton payroll for Qld Health.  Found that 4 staff members were falsifying record system and getting paid self for overtime, where they were not doing overtime.  Worried about the fact it is taxpayers money going into the wrong hands.

They were reported and case is still going on…"

  1. [178]
    On examination Hilliar was recorded as:

"Looks sad, depressed and teary, no ideas of self harm but wants to stay in room and scream."

  1. [179]
    The diagnosis was as previous, being adjustment disorder with depressed mood.
  1. [180]
    Hilliar at this point had made no mention to Dr Uddin of the stressors relating to:
  • the abusive and threatening phone call;
  • the fact her personnel file was missing;
  • the failure of the employer to conduct or undertake any adequate investigation into her allegations of misconduct in relation to 5 and 7 September 2010; and
  • the employer losing her statutory declaration relating to the employment position and payment.
  1. [181]
    On a referral from Dr Uddin a number of visits to a Psychologist (Stone) ensured in the period from 7 June 2013 to 2 August 2013.  In notes provided by Stone [Exhibit 22] of the five consultations in that period the following information was recorded:
  • 7 June 2013

"Used to work in payroll Dept of Health, in Rockhampton.  She and another woman became Whistleblowers when they found (September 2010) that certain staff were falsifying records and getting themselves paid money they were not entitled to.  Nothing was done or has been done.  The alleged culprits are still working in the same capacities.  Joanne was bullied so she left and moved down here…"; and

"There is a court hearing pending re 'culprits'."

  • 14 June 2013

"…adopted the attitude that if the alleged culprits are not punished, the disclosure will have been in vain, she can't understand why/how they are still working in the same roles…"; and

"…interviewed this morning in regards to her disclosure - in great detail exhausted by the end".

  1. [182]
    The consultations with Stone occurred after the decompensation of Hilliar on 22 May 2013 and are useful to the extent to identify that again the failure to mention the four stressors relied upon in the Appeal as causative of her condition.
  1. [183]
    Dr Chau provided three Reports in the proceedings and recorded the following information:
  • 2 June 2014 - In providing a history to Dr Chau two issues were identified by Hilliar about her work stress being:

"She discovered employees had fraudulently entered the wrong time into the timesheet.  On 5 September she reported it to her team leader".

"In February 2011 an unknown male called her on her mobile as she was leaving work and threatened her".

  • 6 August 2014 - In the supplementary Report Dr Chau believed there was a significant aggravation of the adjustment disorder after the threatening phone call in February 2011.  Dr Chau in this report mentioned other stressors in play as including:
  • missing personnel file;
  • employer unsupportive of her concerns; and
  • lost statutory declaration regarding incremental increase.
  • 19 August 2014 - The third of the Reports responded to information provided to Dr Chau which had her record:

"Given the above information, I believe that the adjustment disorder developed after she received a threatening telephone call on 28 February 2011.  This was further aggravated when she discovered that her personnel file was missing on 2 March 2011 and she perceived her employer as unsupportive of her concerns."

  1. [184]
    Dr Chau first saw Hilliar on 26 May 2014 some three years and nine months after September 2010 and in terms of her three reports appeared to be provided with additional material including information not disclosed contemporaneously to either Dr Uddin or Stone in mid-2013.
  1. [185]
    The medical opinions which support the conclusion that the psychiatric/psychological injury suffered by Hilliar developed on the basis of her employment being a significant contributing factor are reliant totally on the history given by Hilliar at times significantly beyond when any of the alleged events are said to have occurred.  On their own, the medical opinions would in my view be unsafe to accept as satisfying on the balance of probabilities that Hilliar's personal injury was as a result of her employment being a significant contributing factor due to the level of inconsistency in the various history's provided by her, particularly on the omission of references to certain of the stressors to all of the practitioners at various times.
  1. [186]
    A Statement of Stressors was filed with the Industrial Registrar (dated 19 January 2015) that identified the stressors as:
  • abusive and threatening phone call,
  • missing personnel file;
  • conduct of the employer and failing to undertake any or adequate investigation; and
  • lost statutory declaration, wage and position.
  1. [187]
    It is now necessary to determine whether all or any of the stressors are able to be substantiated to find in the first instance whether Hilliar's employment was a significant contributing factor to her injury.

Abusive and threatening phone call

  1. [188]
    The only evidence relating to the alleged telephone call was advanced by Hilliar who claimed to have received the call as she was leaving work on the afternoon of 28 February 2011.  Her own version had the alleged caller asking if she was "the nosy cunt that was snooping in payroll business" and alleging he could find her private number and her address, but there was no direct threat and after telling the caller to "fuck off" Hilliar left the employment precinct choosing not to report the matter contemporaneously to either management or security on site.  There was evidence of reporting the matter to her supervisor (Smith) by telephone and later to police none of which was the subject of corroborative evidence in the proceedings.  On arrival to work the following day it does appear the incident was reported to management.
  1. [189]
    An anonymous call received by an employee as they are leaving the workplace on their own private mobile phone is not in any form an event for which management could be held responsible and incidentally received some months after her complaint against Walsh, Chidgzey and Phillips had been lodged.  Hilliar's own evidence was that in the period between 5 September 2010 and 28 February 2011 nothing unpleasant had taken place towards her in the workplace.  I am inclined to accept the submission of the Regulator that there exists real doubt over whether there was in fact a call but nevertheless the call if it was received is not a management action responsibility and could not be substantiated as a workplace stressor as a result of unreasonable management action.

Missing personnel file

  1. [190]
    The personnel file was unable to be located by Hilliar at or around 2 March 2011 when she returned to work following time off after allegedly receiving a threatening phone call.  Hilliar gave evidence of the file containing her address, private telephone number, information about her children and this caused her concerns.  There was evidence that Hilliar reported the personnel file missing to Bailey who had personally conducted a physical and electronic search but was unable to locate the file.  Bailey gave evidence that personnel files were kept in an area where only QH staff had access and he was not aware of other personnel files having gone missing.
  1. [191]
    Hilliar alleged concerns about her private information being in the hands of the person who had made the alleged telephone call in February 2011 had made it difficult for her to get her head around her personnel file having gone missing and this had been part of the reason she had been unable to sleep and contributed to her having six months off work with an illness in 2011 although choosing not to inform her treating doctor of this at that time.
  1. [192]
    In the immediate period following the personnel file going missing and as was the case in the longer term nothing significant had occurred to her although she had taken to sleeping outside accompanied by a dog and with a rifle although this did not commence until July/August 2011 some four to five months after the personnel file had gone missing.
  1. [193]
    In consideration of whether the missing personnel file was a workplace stressor or otherwise I have found that on the face if a personnel file in the custody of the employer, containing information of a private and personal nature relating to an employee was to go missing then that would give cause to a work-related stressor being substantiated.

Conduct of employer and failing to undertake any or adequate investigation

  1. [194]
    There can be little disputation that the investigation process was lengthy beyond what would be considered in normal circumstances as reasonable.  There was a concession made by the Regulator that an investigation over a lengthy period with long delays in finalising a matter could amount to unreasonable management action.  In this particular case however it was argued that the delay was caused by the actions of Hilliar who had:
  • continued to provide information to QH well after making the complaint;
  • six months' absence on sick leave in 2011; and
  • not made by herself available to be interviewed in 2012/2013.
  1. [195]
    The allegations made by Hilliar were said by the Regulator to not have much substance in any event and underlying was the absence of evidence from Hilliar identifying any adverse impact on her as a result of the investigation stretching out.  The Regulator quoted advice given to Hilliar on 20 October 2010 which stated:

"Depending on what occurs you may or may not be provided with advice regarding exactly how the matter was dealt with.  You will however be advised when it has been dealt with".

  1. [196]
    Hilliar lodged a complaint with the (then) CMC on 15 October 2011 in which she made the following comments:

"I URGENTLY wish to discuss a matter which has been brought to the attention of the CMC by Queensland Health Payroll with regard to possible fraudulent activities of currently employed Queensland Health Shared Service Partner Payroll & Establishment staff.  I received a phone call from the above and am concerned that I have been given deliberate misleading information with regard to the stage at which this investigation is at at present.  I wish to be given the opportunity to provide further documentary evidence in relation to this matter and a complaint will also be lodged by another Queensland health Colleague who also reported the above misconduct to the appropriate Departments of Queensland health, with myself, initially back in September/October of 2010."

  1. [197]
    These comments confirm that a year beyond making the initial complaint Hilliar was still seeking to provide further documentary evidence.
  1. [198]
    There was a Report from Ashdale Workplace Solutions [Exhibit 25] tendered in the proceedings by consent, after lengthy argument by both Counsel.  The Commission acknowledged on transcript that certain material contained in the Report would not be relied upon in the determination of the Appeal particularly where the material could be described as "documentary hearsay".  The person (Michelle Gaffrey) who had carriage of the investigation for Ashdale was not a witness in the proceedings and the Commission has not considered the content regarding the investigation or subsequent findings.  The only section of the Report perused by the Commission related to the Chronology of Events on pages 2, 3, 4, 5, 6 and 7 which confirmed amongst other things that Hilliar had lodged the initial complaint with QH and over the course of time had been in contact with both the ESU and CMC.  The Report also identified that the date when Ashdale was appointed to conduct an investigation on behalf of QH as 16 July 2013.
  1. [199]
    The Appellant in submissions questioned the conduct of the investigation, highlighting the failure to raise the complaint made by Hilliar with those subject to the complaint and the failure to access the AVAC forms for the period 5 to 7 September 2010 to confirm whether authorised entries were made.  Reliance was placed on a finding in the matter of Cumming v Simon Blackwood (Workers' Compensation Regulator)[3] where the Commission (as constituted) had found that an investigation taking some 19 months was "a significant period of time for such an investigation."
  1. [200]
    In the case of Cumming she unlike Hilliar had been the subject of allegations and had to endure a 19 month investigation period before becoming aware of an outcome which had the potential to have an adverse impact upon her employment.  The length of the investigation in this case or its adequacy were never going to have a similar impact upon Hilliar.
  1. [201]
    On the evidence of Hilliar alone it was evident that QH had communicated with her regarding the complaint she had made concerning the events of 5 and 7 September 2010 and she was afforded every opportunity to present documentation in support of the allegations levelled against other payroll employees.  There is every indication her complaint had been treated in a serious fashion which is supported by the factual position of the appointment of an external organisation to undertake an investigation of the complaints.
  1. [202]
    The Commission accepts that the period from the lodgement of the complaint until the appointment of the external investigator was an excessive period of time when viewed in isolation however upon closer examination of all relevant material which includes Hilliar's conduct as well as the involvement of the ESU and the difficulties that QH were experiencing at the time in question following the introduction of a new payroll system that brought with it an abundance of work-related issues then there exists reasonable grounds for the time taken.
  1. [203]
    In any event there was no evidence before the proceedings that established the conduct of the investigation or its inadequacy contributed to Hilliar's psychiatric or psychological condition and therefore is unsubstantiated as a stressor.

The lost Statutory Declaration

  1. [204]
    In the case of the stressor said to have arisen from the lost statutory declaration that is in effect a non-issue for these proceedings, conceded by the Appellant in submissions as being of little consequence.
  1. [205]
    On consideration of the evidence and material before the proceedings I am satisfied it has been established that Hilliar's employment was a significant contributing factor to her injury as a result of her personnel file going missing in March 2011.

Whether the operation of s 32(5) of the Act excludes Hilliar's injury from compensation

  1. [206]
    The only stressor to be considered in terms of s 32(5) of the Act relates to Hilliar's missing personnel file.  The evidence of Hilliar was that following a threatening call received on her mobile on 28 February 2011 she decided to access her personnel file to see what information with regards to her private details was contained within the file.  She had concerns that her private telephone number, address and child support information may be in the file.  In the course of the proceedings it was established that certain details relating to Hilliar were at the time on the QH payroll online site which could be accessed through payroll facilities Statewide and at all times she was on the electoral roll which meant her residential address was not difficult to obtain should a person wish to made such inquiries.  Hilliar claimed to have had genuine concerns regarding the safety of herself and family as a result of the personnel file going missing in circumstances where prior to the phone call on 28 February 2011 she had not been the subject of adverse behaviour nor in the four years since.
  1. [207]
    In terms of the management response to the missing personnel file there was evidence from Bailey that he had been approached by Hilliar who had a belief that the file had been stolen by someone from the billing and maintenance department.  He was concerned at the time because Hilliar had conveyed to him she had been investigating some fraudulent overtime claims and he was aware the personnel file contained personal information in addition to what was stored electronically online.
  1. [208]
    Bailey conducted along with another employee a physical check of the area where the personnel files were kept checking not only the "alpha" order but also an electronic search regarding any movement of the file.  At the conclusion of both searches the file was unable to be located with Bailey reporting to HR who advised they would continue to look for the file.
  1. [209]
    There was no conclusive evidence regarding how the personnel file ended up missing but in taking on board the submission of the Regulator, short of interrogating every person who had access to the building where the file was stored the management could not have done anymore to find the file.  The file had been kept in a secure area that required a QH issued swipe card to access the building.
  1. [210]
    The fact that there was an immediate response by Bailey in the form of both a physical and electronic search for the missing personnel file, as unsuccessful as it was, I am satisfied the actions of the employer were in the circumstances reasonable management action taken in a reasonable way.

Finding

  1. [211]
    Having considered the evidence, material and submissions before the proceeding I make the following findings:
  • Hilliar was a the relevant time a "worker" pursuant to s 11 of the Act;
  • Hilliar sustained a personal injury of a psychiatric/psychological nature pursuant to s 32 of the Act;
  • the personal injury sustained by Hilliar arose out of or in the course of her employment with QH pursuant to s 32 of the Act;
  • Hilliar's employment was a significant contributing factor to the injury pursuant to s 32 of the Act; and
  • the injury suffered by Hilliar is not compensatable pursuant to s 32(5)(a) of the Act in that the management action said to be causative of the injury was found to be reasonable management action taken in a reasonable way therefore the injury is excluded.
  1. [212]
    The Appeal is dismissed and the decision of Simon Blackwood (Workers' Compensation Regulator) of 13 November 2014 to reject Hilliar's application for workers' compensation stands.  The claim is not one for acceptance.

Costs

  1. [213]
    The Appellant is to pay the Regulator's costs of and incidental to this Appeal.
  1. [214]
    I order accordingly.

Footnotes

[1] Browne v Dunn (1893) 6 R. 67 (H.L.)

[2] Cumming v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 168

[3] Cumming v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 168

Close

Editorial Notes

  • Published Case Name:

    Hilliar v Simon Blackwood (Workers' Compensation Regulator)

  • Shortened Case Name:

    Hilliar v Simon Blackwood (Workers' Compensation Regulator)

  • MNC:

    [2015] QIRC 157

  • Court:

    QIRC

  • Judge(s):

    Member Thompson IC

  • Date:

    21 Aug 2015

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
Browne v Dunn (1893) 6 R 67
2 citations
Jump To
Cite 1 - (1893) 6 R 67
Cite 2 - (1893) 6 R 67
Cumming v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 168
3 citations
Jump To
Cite 1 - [2014] QIRC 168
Cite 2 - [2014] QIRC 168
Cite 3 - [2014] QIRC 168

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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