Townsville City Council v Workers' Compensation Regulator
[2015] QIRC 19
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- Townsville City Council v Workers' Compensation Regulator[2015] QIRC 19
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Townsville City Council v Workers' Compensation Regulator[2015] QIRC 19
Townsville City Council v Workers' Compensation Regulator[2015] QIRC 19
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Townsville City Council v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 019 |
PARTIES: | Townsville City Council (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) |
CASE NO: | WC/2012/359 |
PROCEEDING: | Appeal against decision of Simon Blackwood (Workers' Compensation Regulator) |
DELIVERED ON: | 27 January 2015 |
HEARING DATES: | 17 - 20 June 2013 19 August 2013 (Respondent's written submissions) 3 October 2013 (Appellant's written submissions) 21 October 2013 (Respondent's written reply to the Appellant's Submissions) |
MEMBER: | Industrial Commissioner Knight |
ORDERS: |
|
CATCHWORDS: | WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF REGULATOR – A SIGNIFICANT CONTRIBUTING FACTOR – REASONABLE MANAGEMENT ACTION – Where the worker sought workers' compensation for a psychiatric injury – Whether employment is a significant contributing factor – Intellectual disability – Use of mobile phone whilst at work – issues of conduct – meetings to discuss strategies to improve conduct – Where the actions of the employer constitute reasonable management action. |
CASES: | Workers Compensation and Rehabilitation Act 2003 s 550 Aigner v Q-COMP (C/2011/2) - Decision Bowers v Workcover Queensland [2002] 170 QGIG 93 Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100 Davis v Blackwood [2014] ICQ 009 Delaney v Q-Comp [2005] 178 QGIG 197 Dorcy Pacific Pty Ltd AND Q-COMP (WC/2010/14) Decision Lackey v WorkCover Queensland (2000) 165 QGIG 22 Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48 Qantas Airways Ltd v Q-COMP AND Michelle Blanch (C/2009/9) Decision Q-COMP v Hohn (2008) 187 QGIG 139 Q-COMP v Parsons (2007) 185 QGIG 11 Q-COMP v Rowe (2009) 191 QGIG 67 Queensland Airways Limited v Q-COMP WC/2005/13 Sheridan v Q-COMP (2009) 191 QGIG 13 State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447 State of Queensland (Department of Communities Disability Services) AND Q-COMP (First Respondent) and Mrs B (Second Respondent) WC/2011/247 Decision Sutherland v Q-COMP (2009) 190 QGIG 106 WorkCover Queensland v BHP (Qld) Workers' Compensation Unit (2002) 170 QGIG 142 |
APPEARANCES: | Mr P. Rashleigh, Counsel instructed by Purcell Taylor Lawyers for the Appellant. Mr S. Gray, Counsel directly instructed by the Respondent. |
Decision
- [1]This is an appeal by Townsville City Council (the "Appellant"/ the "Council") pursuant to s 550 of the Workers Compensation and Rehabilitation Act 2003 (the "Act") against the decision of Q-COMP's Review Unit dated 21 August 2012, which set aside a decision of self-insurer Townsville City Council dated 5 April 2012 refusing an application for compensation lodged by Mr Campbell. Q-COMP substituted a fresh decision to accept Mr Campbell's application for compensation in respect of a psychiatric or psychological disorder said to have arisen during the course of his employment with Townsville City Council as a Library Assistant.
- [2]Since the hearing of the appeal, the Act has been amended and Q-COMP has since been abolished. As and from 29 October 2013, the Act provides that Q-COMP is replaced by Simon Blackwood (Workers' Compensation Regulator) (the "Regulator"). Thus the Regulator is the Respondent in this appeal.
- [3]The basis for the decision by the Regulator was that the Appellant did sustain an "injury" within the meaning of that term in s 32 of the Act, relying on the determination that Mr Campbell's employment was a significant contributing factor to the injury and the injury did not arise out of or in the course of reasonable management action taken in a reasonable way by the Townsville City Council in connection with his employment.
Grounds of Appeal
- [4]The grounds of appeal upon which the Appellant relies are as follows:
- (a)That the Respondent erred in determining that the meeting on 21 April 2010 between the claimant and management was not convened in a way that was reasonable;
- (b)That the Respondent erred in forming the view that "there is insufficient evidence to indicate that management provide (sic) any kind of support, other than performance meetings and clarifying their performance expectations, to facilitate [the claimant's] improvement or support [the claimant's] limitations on account of the [the claimant's] disability…"
- (c)That the Respondent erred in determining that the actions of the Supervisor, Suzanne Carroll on 25 November 2011 were not carried out in a reasonable manner; and in particular that the Respondent erred in determining that:
- "It was unreasonable for Ms Carroll to have continuously pursued her questioning about the [the claimant's] use of the phone and to have continued the enquiry by escorting [the claimant] while [the claimant] looked for [the claimant's] locker key" and - (d)"[The Respondent does] not consider it was fair to continue to challenge [the claimant] by trying to gain [the claimant] admission that [the claimant] had used [the claimant's] phone, which would have had the effect of an admission that [the claimant] had not been truthful".
Issues for Determination
- [5]The appeal to the Commission is by way of a hearing de novo. In order to succeed in its appeal, Townsville City Council must establish at least one of the following points.[1]
- (a)that at the relevant time Mr Campbell was not a worker within the meaning of the Act (this point is conceded and is not argued);
- (b)that at the relevant time Mr Campbell did not sustain an injury; or
- (c)that if Mr Campbell did sustain an injury that the injury either did not arise out of or in the course of his employment or was one to which the employment was not a significant contributing factor; or
- (d)that any injury alleged (being of a psychiatric or psychological nature) was one which arose out of reasonable management action taken in a reasonable way, or alternatively, occurred as a result of Mr Campbell's expectation or perception of reasonable management action taken against her.
- [6]There is no dispute that Mr Campbell is a worker for the purposes of the Act. Nor is there any issue that he has suffered a personal injury in the form of an Adjustment Disorder and that it more than likely arose out of, or in the course of his employment.[2] What is in dispute between the parties is whether Mr Campbell's employment was a significant contributing factor to his Adjustment Disorder and whether, in all the circumstances, his injury is excluded because it arises out of reasonable management action taking in a reasonable way in connection with Mr Campbell's employment.
- [7]Section 32 of the Act relevantly provides as follows:
"32 Meaning of Injury
An injury is personal injury arising out of, or in the course of, employment if employment is a significant contributing factor to the injury.
…
- (3)Injury includes the following -
- (a)a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;
- (b)an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation -
- a personal injury;
- a disease;
- a medical condition if the condition becomes a personal injury or disease because of the aggravation;
…
- (4)For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.
- (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 –
…
- (c)reasonable management action taken in a reasonable way by the employer in connection with the workers' employment;
- (d)the worker's expectation or perception of reasonable management action being taken against the worker;
- (e)action by the Authority or an insurer in connection with the worker's application for compensation."
Relevant Evidence
- [8]Robert Campbell, aged 33, was employed by Townsville City Council as a casual shelver in the council's library services from July 2000. Mr Campbell, obtained the role with the assistance of a disability employment agency. In 2009, following an amalgamation between Townsville City Council and the Thuringowa City Council, Mr Campbell was offered a part-time role with the amalgamated library services. Mr Campbell continued his employment with the council as a shelver until he ceased work on 25 November 2011. He has not worked for the council since this time.
- [9]In February 2012, Mr Campbell applied for compensation in respect of a psychological injury, Chronic Adjustment Disorder with anxiety, which he claims arose as a result of increased management scrutiny in combination with attempts by his supervisors to address his limited concentration, poor impulse control and disorganisation at work.
- [10]The evidence of Mrs Elizabeth Campbell in respect of her son's intellectual disability was that he was born with a hernia at the back of his brain which subsequently required further medical treatment. Mr Campbell was also involved in a car accident at a young age which led to further brain injuries all of which may have contributed to the developmental challenges Mr Campbell experienced over the years.
- [11]Mrs Campbell's evidence was that her son was able to finish school, achieving sound achievements, but was put in touch with Capabilities Employment agency ("Capabilities") at the conclusion of his studies which subsequently led to his employment with the Council. Capabilities supported Mr Campbell in his role as a shelver for a number of years until he became confident in undertaking his duties after which the support was gradually withdrawn. At some point the arrangement ceased entirely for reasons that were not entirely clear from the evidence. In early 2011, additional support from Capabilities was re-instated for Mr Campbell following a series of meetings between Ms Campbell, his mother and various library supervisors who had determined he required further support to carry out his role.
- [12]Mr Campbell worked an average of three shifts per week between the three main libraries operated by Townsville City Council. The duration of the shifts were generally between three and four hours. Depending on the length of the shift Mr Campbell would receive a break varying between half an hour and an hour. Mr Campbell’s evidence with respect to his disability was that he experienced difficulties with his concentration whilst working. There is no argument that during the course of Mr Campbell's employment and certainly from April 2010 he was observed wondering around the library, using his mobile phone in public areas of the library whilst working, departing the building for extended periods without permission or accessing his personal or work emails when he should have been performing other duties.
- [13]From a productivity perspective it is clear the council accepted Mr Campbell was not able to work as quickly as some of his other colleagues due to his intellectual disability. In this respect, the council provided Mr Campbell with alternative benchmarks or outcomes in association with the performance of his tasks to accommodate his disability.
- [14]From at least April 2010 until November 2011 the Council took steps to engage with Mr Campbell and at various times his mother (as his support person) in meetings and through emails and phone calls to communicate its concerns and expectations with respect to Mr Campbell's behaviour at work. The claimant's mother, Mrs Campbell also actively and valiantly attempted to identify solutions that could better address the needs of both the library and her son. Likewise, various representatives of TCC library services organised or participated in meetings and attempted to identify ways to assist Mr Campbell to improve his conduct whilst working.
Engagement between Mr Campbell, his mother and library staff
- [15]Ms Robin Lee's evidence is that she made a decision in April 2010 to take a more formal approach to addressing concerns about Mr Campbell's conduct at work to the extent that she arranged a meeting between herself and Mr Campbell on Wednesday 21 April 2010 (see Exhibit 11). From the commencement of the appeal proceedings there appears to have been some confusion, from both parties as to whether Ms Gray, Ms Coker and Ms McHugh also attended this meeting. However I think it is reasonably clear after reviewing all the evidence before the Commission relating to this matter, particularly the evidence of Ms Lee that the 21 April 2010 meeting was only attended by Mr Campbell and Ms Lee. Subsequent to this meeting, Ms Lee sent Mr Campbell an email confirming their discussions. Ms Gray, Ms Coker and Ms McHugh, all of whom held supervisory roles within the combined TCC libraries were included on the email.
- [16]Amongst other matters, the email highlighted Mr Campbell's agreement during the meeting to follow the directions of particular supervisors, leave his mobile phone in his locker, seek permission before leaving the building or ceasing his duties and not take personal calls or send texts in work time. Ms Lee sought a review meeting with Mr Campbell in a month's time confirming he was able to bring a support person to the meeting if this was his preference.
- [17]On 12 May 2010, Ms Lee forwarded an email to her supervisor and the library co-ordinator, Mei Lin Gray confirming Mr Campbell's performance had generally improved but that he was continuing to take unauthorised breaks, logging into computers when he was supposed to be working and 'wandering' when he was assigned a task.
- [18]Mei Lin Gray organised a follow-up review meeting with Mr Campbell and his mother on Wednesday 26 May 2010. When recalling what the meeting was about Ms Gray noted:
"The meeting was not so much looking at performance issues, I'd spoken with Ann [Campbell] and she was very strong on that it not be - not go down the path of performance, and that HR and Susan Coker not be involved.
So - she said that she - that could - because she was a union representative, that she'd seen what outcome that had been and so that was something that we, as much as possible, tried to keep to so that it wouldn't go - so what we tried to do was to more get Robert back on track and see if there was anything the library could do at out end so that he could perform his position to his particular capabilities."
And later:
"…And throughout the whole process, we deliberately tried, as much as possible, not to – to manage ourselves and – at Robert and her request, and not involve HR as suitable to keep that, because I – I'd that to her, so I tried to keep that out as much as possible. And at one stage, she said to me, much further down the piece, she said look, thankyou so much. I know that you are trying to do everything that you can that it does not go down that path."
- [19]In a separate follow-up email dated 6 June 2010 (Exhibit 14) Ms Gray summarised the matters which were discussed during the meeting highlighting a general improvement in Mr Campbell's performance, but identifying areas that still required some attention such as Mr Campbell taking unauthorised breaks, personal use of his mobile phone whilst he was meant to be working and the impact of his actions on other staff. The email contained a number of solutions with respect to how these areas of concern could be addressed by Mr Campbell including placing his phone in a locker.
- [20]The document also recorded Ms Gray and another supervisor, Ms McHugh undertaking to address the following matters for Mr Campbell:
- Review of Mr Campbell's schedule to ensure Mr Campbell had ready access to his Supervisors;
- Consideration of how Mr Campbell's skills and duties could be expanded in anticipation of the transfer of the Home Library Service into Aitkenvale;
- Obtain information relating to external studies for a Certificate II/III in Library and Information Science.
- [21]In her evidence to the Commission, Ms Gray suggested she and her colleagues attempted to tailor Mr Campbell's role and duties to meet various needs he had raised during the meeting. This included designing a work program which provided a broader variety of tasks for Mr Campbell beyond the shelving duties that were normally undertaken by a library assistant. Examples of these tasks included craft activities, packing boxes and preparation of materials for library events.
- [22]The following day Ms Lee, in an email to Ms Gray and Ms McHugh (Exhibit 15), expressed concerns that the undertakings provided to Mr Campbell and his mother could create a perception that Mr Campbell was being rewarded for his poor behaviour. In particular, she asked if Mr Campbell would be eligible for Study Assistance and the other benefits that came with this entitlement. Ms Gray responded, acknowledging her concerns, but advising any support would be dependent on the existing TCC industrial agreement. In the same email she noted Mrs Campbell had requested TCC consider how expectations in relation to her son's performance needed to consider his disability. Ms Lee responded by email (Exhibit 16) confirming that it was a 'difficult situation' and also raising issues of equity in relation to the distribution of hours to other staff in circumstances where Mrs Campbell had requested more hours for Robert in previous meetings notwithstanding the challenges he was already experiencing.
- [23]On 17 August 2010 Mr Campbell and his mother met with Ms Lee to discuss his revised duties, hours, work locations, study and career aspirations. In an email to Ms Gray (Exhibit 6), Ms Lee confirmed the agreed daily tasks, the times and locations for his work and other discussion items such as an agreement for Mr Campbell to go out on a half day orientation to learn how to undertake tasks in the mobile library. In an email dated 16 September 2010 (Exhibit 18) Ms Gray received confirmation from 'Ms Jensen' that she had arranged for Mr Campbell to spend a half day learning the home library service.
- [24]A week later Ms Lee sent an email to Mr Campbell (Exhibit 7) highlighting she had observed him on his mobile phone on the library floor and reminding him that it was not good for the public to see Council staff using their phone or sending texts when they are meant to be working. He was asked to put his phone away whilst working.
- [25]On or around 6 October, Ms Lee emailed Mr Campbell (Exhibit 8) noting she had received a report he had complained to another library worker about losing his phone. Ms Lee noted that his colleague had advised her that he had been using the phone on the floor of the library in work hours. Again, he was reminded about the instructions given to him about using his mobile phone.
- [26]On 15 December Ms Gray sent an email (Exhibit 9) to various library supervisors requesting that Robert should not be asked to hand in his mobile phone to library staff during work hours. Ms Gray told the Commission she sent the email after receiving a phone call from Mrs Campbell who expressed concern her son had been asked to hand in his phone when at work by particular supervisors. After some discussion between the pair about where the phone should be kept, Ms Gray's evidence is that she told Mr Campbell she didn't think her son should have it on his person because it was too much of a temptation. Subsequent to this Ms Gray's evidence is that she gave up her locker so that Mr Campbell had somewhere to put his phone whilst at work.
- [27]On the same day, Ms Gray sent a separate email (Exhibit 10) to both Mr Campbell and his mother in response to the earlier phone discussion she had held with Mrs Campbell. In response to a request from Mrs Campbell to discuss her son's disability in more detail, the email proposed a further catch-up in early November 2010 and also requested further information about Mr Campbell's disability with the objective of tailoring a more rewarding work program for Mr Campbell. Mr Campbell responded to the email on 21 December 2010 (Exhibit 26), noting he had trouble staying on one task for too long and struggled with his hand-eye coordination at various times. He indicated he found the customer service area of the library quite rewarding and had a preference for a broader variety of tasks.
- [28]A follow-up meeting was subsequently held between Mr Campbell, his mother, Ms Grey and a number of other library supervisors on 18 January 2011. Ms Grey recalled Mr Campbell explained to the group that he had a problem with his concentration and hand-eye co-ordination. He also explained how he would have good and bad days with his disability. Ms Grey said the meeting also covered off on the library's expectations of Mr Campbell in terms of work output, explaining:
"…that currently we expect Robert to fulfil a quarter, or a third, of the usual outcomes that we have in place with shelving, or putting – or stacking things and that."
- [29]Ms Grey's evidence was that the Council's expectations were greatly reduced in relation to Mr Campbell and his output, providing examples of where the number of books he was required to shelve or boxes he was requested to pack would be significantly less in comparison to other library assistants. According to Ms Grey, Mrs Campbell was also asked to come into the library to observe her son whilst he worked so she had a better understanding of his role, however this offer was declined.
- [30]At some point between January and February 2011 Mr Campbell, Mrs Campbell and the TCC library agreed it would be helpful to retain Capabilities to provide Mr Campbell with further assistance in carrying out his tasks. Ms Grey's evidence was that prior to making this decision the library determined it was not in a position to release a person to supervise Mr Campbell one hundred percent of the time, so steps were taken to determine if Capabilities had some available funding to assist and provide Mr Campbell with further support to carry out his duties. A disability support worker – 'Emi' from Capabilities who was already supporting another worker within the combined libraries was asked to provide Mr Campbell with support.
- [31]Mr Campbell's hours continued to be the same in number (24 each fortnight) but a new three day per week schedule working up to a maximum of 4.5 hours per day with appropriate breaks was proposed (Exhibit 19). A letter setting out Mr Campbell's change of days was prepared and approved on or around 14 February 2011.
- [32]Mr Campbell's conduct at the library was monitored by various library supervisors, depending on which area he was working, from mid-March 2011 until 25 November 2011. During this time it was necessary for representatives of the library to speak to Mr Campbell on a number of occasions about the use of his personal mobile phone in public areas of the library and the requirement to seek permission when he wanted to cease his duties and leave the building (Exhibit 27).
- [33]On 22 March 2011 Ms Gray contacted Mr Campbell and his mother by email (Exhibit 20) stating:
"Hi Robert and Anne,
Following the conversation between Anne and myself this morning, it would be beneficial to come together for a review and discussion of how the new model of Emi supporting Robert in his library work is progressing. It will be an opportunity to hear feedback from Robert, Emi and other attendees and be proactive in regards to any resulting recommendations.
Anne, please let me know if you are free for a Wednesday meeting at Aitkenvale Library for either of the following dates:
13April, an hour between 10am to 12pm
20 April, an hour between 10am to 12pm
Once you've advised of suitable dates then we'll check with Ruth re: her availability.
Regards,
Mei Lin
Mei Lin Gray
Coordinator - Customer Service and Operations, Library Services
Community and Environmental Services".
- [34]Separate to this, in April 2011, Ms Lee took up a new role in Brisbane and Ms Carroll took over her position or certainly elements of her position in the city library. In response to observations from Capabilities that Mr Campbell's focus continued to deteriorate notwithstanding the support from the organisation, Ms Gray recalled a further meeting was held with Mr Campbell, his mother, Ms Carroll and a representative from Capabilities on or around 20 April 2011 to discuss funding arrangements which could be put in place to provide Mr Campbell with ongoing support across his entire shift. Mr Gray's evidence is that there was a recognition in the meeting that the challenges with Mr Campbell were not something that could be easily fixed.
- [35]According to Ms Gray a range of options were considered and discussed. She recalled discussing with her Manager whether or not the library would be able to accept a situation where Mr Campbell just didn't do any work when he didn't want to, however this wasn't an acceptable solution for the Council. Her evidence was that steps were also taken to look at various funding and supervisory options for Mr Campbell. A suggestion was also made to ask HR to look into other options but this was resisted by Mrs Campbell, who according to Ms Gray was of the view that there was never a good outcome once it went to HR.
- [36]At some point in late April 2011 a 'check chart' was designed for Mr Campbell. In an email to Ms Grey dated 27 July 2011 (Exhibit 21) one of the library supervisors, Ms Zacchei, a Team Leader highlighted that the chart was designed as a tool to prioritise Ms Campbell's work flow and to assist him to keep on task. The check chart contained seven key task areas with tick boxes listed under each area. The accompanying roster also contained a detailed breakdown of the required tasks, the amount of time dedicated to each task and the location of where those tasks were to be undertaken. In the same email, Ms Zacchei noted that additional efforts were being taken to assist Mr Campbell to stay on task. These included verbal suggestions of redirection back to whatever task he was performing at the time.
- [37]Mr Campbell took a period of leave in late July/August 2011 subsequently returning in September 2011. A return to work meeting was arranged between the library, Mr Campbell and his mother on 14 September 2011. A number of matters were canvassed in the meeting with respect to Mr Campbell's duties and conduct. In an email dated 14 September (Exhibit 22) and sent to Ms Grey and a number of other library supervisors, Ms Suzanne Carroll who had taken on an operations role across the combined libraries recounted the details of a meeting held between herself, Mr Campbell and his mother to discuss Robert's role and his engagement with 'Emi' the support worker from Capabilities who was assisting Mr Campbell to perform his duties. Ms Carroll noted that she had spent time explaining Emi's role to Mr Campbell. During the meeting, he and his mother requested Emi give Mr Campbell a little more space. Mr Campbell indicated he thought Emi might have been used to working with someone with a greater disability than his.
- [38]Areas touched on the meeting included the process for reviewing Ms Campbell's checklist and his tasks. According to Ms Carroll's notes, Robert, in the presence of his mother agreed to not bring his mobile phone into the workplace. He was also requested to use the work phone if he needed to make a call and to not disappear to his car and use the phone.
- [39]Ms Carroll's notes indicated Mrs Campbell had confirmed during the meeting that her son was aware his mobile phone was a distraction and that he knew not to bring it into work. At some point during the conversation Mr Campbell was advised by Ms Carroll that if he was found using his mobile phone on three occasions it would result in disciplinary action being taken. Further, that continued use of his phone after this time could result in him being dismissed from work.
- [40]According to Ms Carroll, Mrs Campbell advised her son at the meeting that he needed to be aware there would be consequences for his actions. Ms Carroll subsequently sent an email to Mr Campbell and his mother confirming the discussions in the following terms:
"Hi Robert and Anne, thanks for meeting with me last week (14/09/11). Following is an outline of Roberts's duties and our expectations as per this discussion.
Robert's duties:
Robert will report to his supervisor at the start of each shift (Julie or Lorraine at Thuringowa, Simone, Natalie, Mei Lin or myself at Aitkenvale) and collect a checklist.
- Robert to work through the tasks on the checklist and tick them off when complete.
- Emi will check he has completed the tasks prior to Robert returning the checklist to the supervisor.
- Robert will have a 15 minute tea break at 10.15.
- Robert will have 15 minutes to check his emails at 10.30.
- Robert will report back to his supervisor at 10.45 (in case there are other duties not on his checklist to do).
- Robert will hand in the checklist at the end of his shift.
It was agreed that Robert will not bring his mobile phone during his shift.
- If Robert is found using his mobile phone on more than 3 occasions a disciplinary action will be started.
- Robert is aware he needs to stay on task and be productive for his shift and to stay in the building for his entire shift.
Robert, I hope you agree this is what was decided, please let me know if you have any questions or concerns.
Thanks
Suzanne”.
- [41]Ms Gray's evidence was that an agreement was made that Mr Campbell would not keep his phone on his person. Further, that Mrs Campbell had said to her on the phone that "if she heard Robert has been (using his phone at work) again and not doing any work, that she will kill him". In a further email sent to Mr Campbell on 31 October 2011 (Exhibit 24), Ms Carroll sent a reminder about his obligations with respect to his mobile phone. He was advised other team leaders had been included on the same email so that they could pay more attention to his supervision.
- [42]Around this time Ms Gray also recalled having a meeting with Ruth Barker from Capabilities. Her evidence was that Ms Barker advised her Mr Campbell's conduct had continued to deteriorate and was of the view the library need to have someone supporting him with this duties in the library one hundred percent of the time. Ms Gray also recalled being told around this time that Mr Campbell had been observed sitting in his car and talking on his mobile phone for 20 minutes whilst he was meant to be working.
- [43]Finally, on 25 November 2011 Mr Campbell was approached by Ms Carroll in the library after ‘Emi’ his disability support worker had informed her he had been using his phone in the junior fiction area. In her notes about the incident (Exhibit 25), Ms Carroll reported Mr Campbell was not using his phone at the time she approached him however she asked him where it was and he advised her it was in his locker. Having previously come to an agreement with Mr Campbell and his mother that he would place his phone in his locker, Ms Carroll asked to check his locker to ensure it was there. Ms Carroll accompanied Mr Campbell to his bag where he kept his locker key but he was unable to find the key. He then suggested the key might be in the toilets and when he came out he advised Ms Carroll that he had found his phone in the toilet where he had dropped it earlier.
- [44]Ms Carroll subsequently advised Mr Campbell that she did not believe he had dropped the phone in the toilet and then asked him to admit to using his phone in the library. At this stage Mr Campbell burst into tears and left the building. In response, Ms Carroll contacted Ms Barker from Capabilities. Ms Carroll’s evidence is that she raised concerns about Mr Campbell driving a car given he was upset. In the meantime Mr Campbell returned to the library. Ms Carroll’s evidence is she asked him if he was comfortable speaking to her after which they returned to her office. She explained to Mr Campbell that she considered the situation quite serious because he had already received an informal warning about the use of his mobile phone at work on 31 October 2011. At this point, Ms Carroll reported he had responded by advising he had not been well lately and went on to say he had been thinking about committing suicide. According to Ms Carroll she asked Mr Campbell if his mother was aware of his thoughts and he said that she was. In the same conversation Ms Carroll reported he told her he had crashed his car and was in a dispute with Telstra over a $3000 phone bill.
- [45]Ms Carroll’s notes about the incident indicate she sympathised with Mr Campbell but then went on to say that it they still needed to address the issue of using his mobile phone in the library and his dishonesty about this.matter At this point, he reportedly agreed he had done the wrong thing. They both waited for Mrs Campbell to arrive to pick him up but when she didn’t arrive by 12.30pm, Mr Campbell told Ms Carroll he was fine to go and shelve. Later, Ms Carroll’s notes indicate Mr Campbell indicated he was fine to continue to shelve to the completion of his shift. Ms Carroll advised Mr Campbell that she would like to speak to his mother when she came to pick him up, however Mr Campbell left the building without speaking to her. At 3.25pm Ms Carroll contacted Mr Campbell’s home and left a message with his father for Mrs Campbell to contact her either on that day (Friday) or over the weekend.
- [46]That afternoon, a record retained by Ms Carroll (Exhibit 29) noted Mrs Campbell as returning Ms Carroll’s phone call at 4.20pm. The notes indicate Mrs Campbell was advised by Ms Carroll of her son’s comments with respect to committing suicide. Mrs Campbell advised she was unaware of his thoughts, but that her son had found the library to be quite stressful, that she was disappointed in the library and that Mr Campbell would not be in at work next week as she was taking him to the doctor.
- [47]Mr Campbell subsequently lodged a claim for compensation on 14 February 2012.
Did injury either did not arise out of or in the course of employment or was one to which the employment was not a significant contributing factor?
- [48]In this matter the Appellant is required to demonstrate on the balance of probabilities that Mr Campbell's employment did not contribute in some significant way to his psychological injury.
- [49]The Appellant has submitted that even allowing for Mr Campbell's intellectual challenges, there is ample evidence from Dr Jetnikoff about the willfulness of his conduct, in respect of the mobile phone, to show on the balance of probabilities that employment was not a significant contributing factor to Mr Campbell's Adjustment Disorder. Counsel for the Appellant, Mr Rashleigh argued that Mr Campbell's employment was merely a setting in which Mr Campbell's injury occurred and that he decompensated when he could not do as he wished.
- [50]In support of this submission, Mr Rashleigh pointed to the decision in Croning v Workers' Compensation Board of Queensland [3]where de Jersey P said:
"Now but for those work conditions, this particular appellant's problem would not have arisen. That does not however necessarily mean that the work conditions were a significant contributing cause of the condition. Compare the distinction between a causa sine qua non and a causa causans or proximate cause (see Tophams Ltd v Sefton (1966) 1 All E.R. 1039, 1044 and Stapley v Gypsum Mines Ltd (1953) A.C. 663, 687). The necessity for the former does not mean that on an ultimate assessment, it must be regarded as a significant cause. As said in Tophams, the latter is the "real effective cause", the former "merely an incident which precedes in the history or narrative of events". There may of course be two or more factors which might each be regarded as "significant" contributors to the development of a condition. The determination of which of a number of contributing causes is or are significant, involves a factual exercise. Unless, here, the circumstance of the employment, being necessary background at least, must, because an essential prerequisite to what occurred, be regarded as a significant contributor, I should in principle respect the Magistrate's factual conclusion as reasonably open and dismiss the appeal."
- [51]Counsel for the Respondent, Mr Gray submitted the fact that Mr Campbell has an underlying intellectual disability that may have contributed in some way to the development of his injury also supports a finding that Mr Campbell's employment has been a significant contributing factor to the injury.
- [52]
"…In respect to psychological injury, there is an 'egg-shell psyche' principle which is the equivalent of the 'egg-shell skull' principle: compare State Transit Authority of New South Wales v Chelmer [2007] NSWCA 249 [40] Spigelman CJ. So long as the events within the workplace are real rather than imaginary, it matters not that they impact upon the claimant's psyche because of a flawed perception of events attributable to a disordered mind,… The inability of a worker to psychologically cope with an attitude or manner of another worker is analogous to a worker being unable to cope with any other feature, including a physical feature, or aspect of the work environment, Flinders Power Operating Services Pty Ltd (formerly NRG Flinders Operating Services Pty Ltd) v Amato [2007] SAWCT 33 at paragraph 125.…"
And later;
In Q-COMP v Rowe (2009) 191 QGIG 67 at page 70 where President Hall said:
"…but for s. 32(5) of the Act, at least at a conceptual level, a psychological injury arising out of interaction between a worker's personality and the work environment would be compensable, compare Flinders Power Operating Services Pty Ltd (formerly NRG Flinders Operating Services Pty Ltd) v Amato [2007] SAWCT 33 at paras 125 and 126."
Specialist Medical Evidence
- [53]Section 32(1) of the Act requires that for an injury to be compensable, employment must be a significant contributing factor to the injury. Whether or not work is a significant contributing factor to an injury is a question of mixed law and fact for the Commission; however the Commission can be and often is guided by the medical evidence.[5]
- [54]Mr Campbell was referred by Dr Elizabeth Nicholls, his General Practitioner, to Dr Karunakaran a neuropsychiatrist. In his report dated 9 February 2013 (Exhibit 28), Dr Karunakaran diagnosed Mr Campbell as having an adjustment disorder with depression and anxiety noting:
"Robert presented with symptoms of anxiety and depression that commenced in late 2010. He was working as a part-time library assistant at the time. Symptoms arose on the background of workplace stressors. Robert became very anxious and stressed when his work was scrutinised and criticised by the head librarian. Robert developed symptoms of depression and anxiety and soon work became of place of 'dread' for him. In March 2011 he had a 'melt down' in front of the librarian and had to leave the premises. Since then he has been anxious and avoidant of the library."
- [55]In a separate report, dated 19 November 2012 (Exhibit 5), a Dr Jetnikoff diagnosed Mr Campbell as having a chronic adjustment disorder with anxiety. His reported history of the injury as related to him by Mr Campbell (Exhibit 5, p7) noted:
"Particularly, Mr Campbell seems to have struggled with increased management scrutiny following a change to the employment structure… The attempts to address his limited concentration, poor impulse control and his disorganisation in the absence of intensive support failed and he has interpreted this as being both treated like a child and being unfairly treated in general.
When it was addressed in 2010 there was some improvement which apparently related to the ongoing support. However, he was able to continue working overall but the problems seemed to escalate after he was given three strikes warning regarding use of his mobile phone in the workplace which ultimately led to him becoming very anxious when he was most likely caught once again leading to the encounter with Ms Carroll.
He seemed to have an intransigent problem with the use of his mobile phone amongst other things in the workplace... His subsequent development of anxiety seemed to be in relation to a conflict between his desire to continue to do what he wished in the workplace without limits and the restrictions that were being imposed on him, ultimately leading him to feeling very desperate and leaving the workplace when he was confronted."
- [56]When requested to provide further comment on other contributing factors to his injury, Dr Jetnikoff noted:
"A major significant factor [that] has to [be] mentioned [is] that he is a very limited young man with respect to coping autonomously which is certainly related to his learning disorder. I would suspect that he would cope very poorly in communication which was not broken down into small steps and simple sentences. Mr Campbell simply cannot retain complex information delivered verbally. It is very likely as well that the information he does retain is also selective. Written information seems to work better but again communication and retention of the instructions in the workplace have been hampered significantly by cognitive deficits that he has suffered since childhood.
Definitely contributing to some degree was his perception that he did not need the support that he obviously required and at times withdrew from this level of support to his own detriment. I suspect also that for a period of time after the support systems were removed he was given quite a bit of accommodation by the employer and this was tightened after there was an amalgamation of Councils. Subsequently Mr Campbell was treated like anyone else and did not cope well with the rules and the restrictions."
- [57]When asked to provide an opinion as to whether Mr Campbell's disorder developed over a period of time, Dr Jetnikoff noted:
"...he had an increasing sense of disquiet or possibly resentment over perhaps 18 months" and "...the main history simply suggests that the worsening really was quite singularly related to the last incident. Whether it be because of discovery of something he'd done wrong or – an interaction or confrontation, I couldn't say."
- [58]When it was suggested to Dr Jetnikoff under-cross examination that Mr Campbell resented supervision, Dr Jetnikoff opined:
"Well this is the problem, I suspect. He had a fairly poor understanding of - or, if you like, a denial of what he needed and a fairly typical desire to be seen as independent, given his age. And I think that that combination is really rather dangerous for somebody like him, because he will refuse help that he really needs. And he'll ask for certain things, whereas he might need a full gamut of support and assistance. He might only ask for things that he feels are - that will make him look better."
- [59]Both Dr Jetnikoff and Dr Karunakaran diagnosed Mr Campbell as having an adjustment disorder with anxiety. Whilst there were some minor variations in the history of the injury as reported, both specialists noted that his symptoms arose as a result of events that occurred in his workplace based on the history reported by Mr Campbell and his mother.
- [60]In my view, the events of 25 November 2011 and Mr Campbell's interaction with Ms Carroll as they were reported to Dr Jetnikoff were a reasonably accurate reflection of what actually transpired on the day.
- [61]In his report of 19 November 2012 (Exhibit 5), Dr Jetnikoff was of the opinion that Mr Campbell's 'entire problem' was as a result of the events of 25 November 2011 and his view that he was badgered and treated unfairly. Other contributing factors noted in the report included his opinion that Mr Campbell experienced great difficulties coping autonomously which he linked to his intellectual disorder and to a lesser extent his perception that he did not need the support he obviously required.
- [62]
"It is important to bear in mind also that the adjective 'significant' qualifies the expression 'contributing factor'. The notion of 'contribution' in itself requires some linkage between employment and the injury…"
- [63]The crucial issue in this matter is whether or not the facts of this case give rise to a set of employment related circumstances which have contributed in a significant way to the occurrence of Mr Campbell's injury.[7] When considering the circumstances in the library on 25 November and the evidence of Dr Jetnikoff, I am unable to be convinced on the balance of probabilities that Mr Campbell's employment did not contribute in a significant way to his psychological injury. Whilst I accept that Mr Campbell's intellectual disability has contributed to the development of his injury, in my view there is also a significant connection between Mr Campbell's engagement with Ms Carroll in relation to his mobile phone on 25 November 2011 and the onset of his injury.
Is the injury removed from the definition of injury by virtue of section 32(5) of the Act?
- [64]Whilst the mere occurrence of reasonable management action does not necessarily insulate a disorder from characterisation as an ‘injury’,[8] the Commission’s role is to embark upon an enquiry as to whether or not the psychological/psychiatric injury arose out of, or in the course of, reasonable management action taken in a reasonable way.
As recently noted by the Hon. Martin J, President of the Industrial Court:
“The task of the Commission when applying s 32(5) does not involve setting out what it regards as the type of actions which would satisfy s 32(5). The proper task is to assess the management action which was taken and determine whether it was taken in a reasonable way. Sometimes that may involve considerations of what else might have been done but that will only be relevant to whether what was done, was, in fact reasonable.”[9]
- [65]Mr Rashleigh, on behalf of the Appellant submitted ‘reasonable’ means reasonable in all the circumstances of the case including anything peculiar to the worker that is known to the employer.[10] Further, management action needs only to be reasonable, as opposed to perfect.[11] In this matter, the Appellant also argued a global assessment of reasonable management action needs to be made[12] in circumstances where the issues said to be management action arose over an extended period of time.
- [66]Mr Gray, on behalf of the Respondent contends the Council implemented a performance management regime that was not reasonable management action, undertaken in a reasonable way. In particular, the Respondent argues Council’s management action failed to properly or fairly take into account Mr Campbell’s disability, treating him instead as if he were an underperforming worker rather than taking his intellectual disability and related challenges into consideration.
Mr Campbell’s employment with the Council
- [67]Mr Campbell initially commenced employment with the library in July 2000 as a casual shelver through disability employment agency, Capabilities. The employment agency provided Mr Campbell with support in terms of understanding and carrying out his tasks for a number of years. It’s unclear exactly when, but at some point, possibly around 2004 or 2005 the support was withdrawn to allow Mr Campbell to conduct his duties in a more independent manner.[13] In or around 2009, following an amalgamation between Townsville City Council and the Thuringowa City Council, Mr Campbell was offered a part-time role with the amalgamated libraries. The amalgamation resulted in Mr Campbell undertaking his duties across the combined libraries.
- [68]On the materials before the Commission there appears to have been no issue with respect to Mr Campbell’s performance or conduct up until early 2010. Whilst it’s clear on the evidence before the Commission that Ms Lee and Ms Gray’s knowledge in relation to the exact nature of Mr Campbell’s disability was somewhat limited prior to May 2010, Ms Lee at least was aware Mr Campbell had a disability which led to him experiencing difficulties with his concentration.
- [69]Ms Lee, who had held three separate periods of employment with TCC and supervised more than one hundred and fifty employees over the period she had worked for the Council, noted that the difficulties with Mr Campbell commenced around 2009/2010. She recalled having a number of informal discussions with him about his conduct and use of his mobile phone but did not put into place any formal performance management processes during this period.
The Meeting of 21 April 2010
- [70]Whilst at times there was some question amongst both the parties involved in this appeal as to if this meeting was held and how many people attended, I have previously found in this matter that a meeting did in fact take place between Ms Lee and Mr Campbell on 21 April 2010.
- [71]Ms Lee’s evidence was that the purpose of the meeting was to address a number of behavioural concerns she had with Mr Campbell and was not intended nor was it a performance management type meeting. Her concerns arose in response to Mr Campbell not putting books away, using his mobile phone, meeting with his friends whilst he was at work and accessing his personal email when he should have been working. Ms Lee told the Commission the purpose of the meeting was to clarify with Mr Campbell what the library expected in terms of conduct and likewise, to obtain an understanding of Mr Campbell’s expectations about his role so they could arrive at some form of agreement about how he would conduct himself in the workplace in the future.
- [72]Subsequent to the meeting Ms Lee sent an email to Mr Campbell on which she copied three other supervisors within the library network, setting out the matters they had discussed and a series of actions on which they had agreed which included leaving his mobile phone in his locker, not going into the librarian’s officers to use their computer or to use his phone and focussing on his assigned tasks (Exhibit 11).
- [73]The Respondent contends the actions taken by Ms Lee as they relate to the meeting of 21 April 2010 were unreasonable management action, taken in an unreasonable way, particularly in circumstances where Mr Campbell had limited capacity to understand instructions given to him and Ms Lee also held a limited understanding of the nature of his disability.
- [74]The difficulty I have with this submission is that having identified emerging difficulties with Mr Campbell’s conduct at work, particularly where it was impacting others, Ms Lee, as one of his supervisors had a responsibility to take steps to engage with Mr Campbell to firstly raise her concerns and secondly, identify how the difficulties could be resolved.
- [75]In his report of 19 November 2012 (Exhibit 5), Dr Jetnikoff noted Mr Campbell would not cope well with communication that was not broken down into small steps and simple sentences. He also noted that written information seemed to work better for Mr Campbell. In my view, even without the benefit of Dr Jetnikoff’s advice, it would appear Ms Lee, certainly in her written communication with Mr Campbell following the meeting, broke down the agreement reached between the pair into eight dot points with short, simple sentences. The words were non-threatening and straightforward.
- [76]In those circumstances, I’m satisfied Ms Lee acted responsibly and appropriately for a person in her position and in this respect the meeting of 21 April was reasonable management action taken in a reasonable way.
Ongoing meetings to address and resolve issues associated with Mr Campbell’s conduct
- [77]Mr Rashleigh, on behalf of the Appellant submitted that in all the circumstances the action taken by the Council could only be viewed as reasonable management action taken in a reasonable way, bearing in mind the knowledge the Council was provided with about Mr Campbell’s condition, and his recalcitrant behaviour with respect to the mobile phone. He also argued that each time issues arose with Mr Campbell, there were processes put in place by the Council to attempt to assist him in his employment.
- [78]Whilst the Respondent acknowledged attempts were made by the Council to implement steps to accommodate Mr Campbell’s impairment, Mr Gray, Counsel for the Respondent submitted the fundamental failure of the Council’s management action was that the attempts that were made were only part of the overall management of Mr Campbell as a person who was not performing, rather than as a disabled worker performing in accordance with his capabilities.
- [79]In support of this submission Mr Gray pointed to the evidence of Dr Jetnikoff who explained Mr Campbell would have experienced problems with his working memory and difficulties staying on task. Dr Jetnikoff agreed that Mr Campbell’s condition led to him presenting as someone who might have some level of understanding and functioning, but that his presentation belied his actual abilities. Further, that he lacked the capacity to fully comprehend instructions and could not be treated like everyone else. Notwithstanding these comments, Dr Jetnikoff was also of the view that Mr Campbell was able to exercise control in circumstances where he took an interest in something. Dr Karunakaren indicated that although Mr Campbell’s verbal abilities were reasonably well preserved in comparison to his other abilities, any instructions given to him would need to be kept reasonably simple.
- [80]The Respondent also argued there were no efforts undertaken by the Council to gain a proper appreciation of Mr Campbell’s disabilities and that circumstances relating to his disability were not properly taken into account.[14]
- [81]However, having considered the evidence before the Commission, I am satisfied for the following reasons that the various measures taken by the Council to address and resolve concerns associated with Mr Campbell’s conduct, when considered in their entirety were reasonable management actions taken in a reasonable way.
- [82]At or around the time the library first noticed some difficulties with Mr Campbell’s conduct and in particular the inappropriate use of his mobile phone whilst at work, representatives of the library took steps to engage with he and his mother to discuss what other measures could be put in place to resolve some of the behavioural issues. In my view, the interactions between the library, Mr Campbell and his mother were far from a one-sided affair where the library stepped through its expectations but gave little in terms of considering what else could be put in place to assist Mr Campbell.
- [83]For example, following a meeting on 26 May between the library, Mr Campbell and his mother, Ms Gray undertook to investigate opportunities to broaden his skills and experience in response to a request for more variety in his work. Mr Campbell was later provided with an opportunity to undertake training in the Home Library Service. Mr Campbell’s schedule was also revisited with the objective of ensuring it was easier for him to consult and access supervisors and he had a broader variety of tasks to undertake.
- [84]It is the case that Ms Lee expressed some concerns that there would be a perception from other library staff that Mr Campbell was being rewarded for poor behaviour. However whilst potentially a little insensitive to the reality that Mr Campbell did indeed require some additional attention and support this is not an unreasonable observation in an environment where the needs and interests of other workers also had to be balanced against the requests of Mr Campbell and his mother.[15]
- [85]Later, in August of the same year a further meeting was held where Mr Campbell’s daily tasks were discussed and broken down. Again, the subsequent written communication to Mr Campbell was simple and easy to understand. In a continuing theme, Ms Lee attempted to develop a work program which contained greater task variety, breaks and importantly listed where Mr Campbell needed to be and who he was required to report to. In the period between May and August 2010 Mr Campbell’s conduct slightly improved and he was provided with feedback and encouragement to this effect in the August meeting.
- [86]In December Ms Gray took steps in response to a complaint from Mr Campbell’s mother to ensure library supervisors did not insist he hand over his mobile phone at the beginning of his shift. In the same month the library requested further information from Mr Campbell in relation to his disability with the goal of better tailoring his work program. In response, Mr Campbell advised the library of the challenges he experienced maintaining his focus for long periods of time and also highlighted aspects of his role that he enjoyed. Ms Gray also took notice of Mrs Campbell’s requests that the challenges with her son be resolved at a local level and not elevated to a more formal process with HR.
- [87]In early 2011, the library arranged for Capabilities, a disability support agency to provide additional support to Mr Campbell following a determination that his focus had continued to decline. His days of work were altered to ensure a disability support worker was available to provide guidance and supervision throughout his shifts with the library. In March 2011 the library took steps to arrange a meeting with Mr Campbell and his mother to review the arrangements with Capabilities and obtain feedback as to how the arrangement was progressing. The feedback from Mr Campbell and his mother was relayed to the support worker and as a result she was requested to take more of a coaching rather than a supervisory approach.
- [88]Notwithstanding the measures which were put in place Mr Campbell continued to access his mobile phone during work hours and go missing for periods of time. In response, a daily check list and schedule was developed to help Mr Campbell with his understanding of his tasks and to help him with his focus. Again, the document contained short, simple sentences with check boxes. Mr Campbell’s shifts were generally restricted from three to four hours long. The relevant supervisor for his shift was clearly noted on his roster. A supervisor or support worker was also on hand to re-direct Mr Campbell’s focus back to a task when he lost concentration.
- [89]In my view, even without the benefit of Dr Jetnikoff and Dr Karunakaran’s insight into Mr Campbell’s disability, the library not only took steps to better understand Mr Campbell’s disability but also designed a work program which attempted to accommodate his disability and address a number of the issues or requests he and his mother had raised. Mr Campbell was afforded extra attention, coaching and assistance. Over a period of time library management consistently reviewed and tweaked Mr Campbell’s work program after seeking feedback from himself and his mother. I also accept that Ms Gray took further steps to seek feedback from Mr Campbell and his mother following the re-introduction of Capabilities support into the workplace and also sought to change the manner in which Mr Campbell was being ‘supervised’ following feedback from him that he didn’t need to be so closely monitored by ‘Emi’.
- [90]Further it is clear from the evidence that library representatives canvassed a variety of options when attempted to identify solutions to the challenges arising out of Mr Campbell’s conduct such as considering whether or not the library would be able to accept a situation where Mr Campbell just didn't do any work when he didn't want to and whether to ask HR to look into other options notwithstanding resistance from Mrs Campbell, who had expressed concerns about the matter being escalated to HR.
- [91]When it came to managing Mr Campbell, his disability and his conduct in the workplace, Ms Gray and her fellow librarian supervisors were involved in a difficult balancing act which also required them to consider and weigh up a multiple of interests including:
- Mrs Campbell understandably wanting the best for her son and for him to be treated, as much as possible, like everyone else;
- Mr Campbell’s resistance to being closely supervised, in an environment where he struggled to complete his work tasks without support or direction;
- The ongoing decline in Mr Campbell’s focus and capacity to perform his task;
- Mr Campbell’s continual use of his personal mobile phone to the extent that it detracted from his capacity to perform work and impacted others around him, notwithstanding multiple attempts by both the library and his mother to contain the problem;
- Mrs Campbell’s resistance to the issue being escalated to HR due to concerns about how the matter would be handled at that level;
- Funding challenges and the operational requirements of the combined libraries;
- The obligation on library supervisors to take steps to resolve concerns arising out of Mr Campbell’s conduct;
- The requirement for the senior librarians to balance Mr Campbell’s requirements against the interests and needs of the library, its customers and other staff.
- [92]This was clearly a challenging environment. Whilst in hindsight there may have been some additional benefit in engaging the HR Department at an earlier stage to obtain additional advice in relation to managing Mr Campbell’s disability, the fact is that Capabilities, a specialist provider in this area, was also involved and provided support and advice to the library with respect to Mr Campbell’s disability, at least from January 2011 onwards.
- [93]In my view, the behaviour of library management and its handling of Mr Campbell’s disability and his conduct from May 2010 until November 2011 in all the circumstances equates to reasonable management action taken in a reasonable way.
Events of 25 November 2011 – regarding Mr Campbell’s alleged use of a personal mobile phone during work hours
- [94]The evidence before the Commission, including the content of Ms Carroll’s notes (Exhibit 25) as to how the events of 25 November 2011 unfolded do not appear to be in dispute.
- [95]The Respondent’s position is that whilst it was reasonable management action for Ms Carroll to have addressed Ms Carroll about the alleged use of his mobile phone with him after being advised by Ms Hawkins (Emi), it was not reasonable for her to escort him to his locker and continue to question him with the object of gaining an admission.
- [96]Instead, Counsel for the Respondent, Mr Gray pointed to the comments of the Q‑COMP review officer who indicated that reasonable management action would have been to reinforce that the use of a mobile phone was not permitted during working time and that the locker was to be used for storage of the phone.
- [97]Further, that Ms Carroll’s unreasonable management was compounded when she continued to discuss his use of the mobile phone after Mr Campbell advised her he had had thoughts of suicide.
- [98]Conversely, the Appellant submitted there is little doubt that by this stage Ms Carroll had to be firm in respect of what was occurring, suggesting that whilst being firm she may well have been understanding and compassionate just as she had been in other exchanges with Mr Campbell and his mother (Exhibit 29). The Appellant further submitted the problems with Mr Campbell had been an ongoing issue for some time and he had been put on notice about the consequences of further use on 19 September 2011 (Exhibit 23). Further, that the situation had become intolerable such that something needed to be done.
- [99]Perhaps Ms Carroll could have waited an hour or half an hour before continuing her discussions. Perhaps she could have also asked Ms Barker to come into the library for a further meeting to discuss Mr Campbell’s usage of his mobile phone in circumstances where she was concerned about his dishonesty, but ultimately the same or similar issues would have been canvassed.
- [100]It is clear the concept of re-inforcing the importance of not using his mobile phone was simply not working. The option of simply leaving Mr Campbell to his own devices had been considered and rejected for obvious reasons. Notwithstanding multiple attempts by the library to communicate via email, in writing, verbally, through his mother and through other supervisors and support workers Mr Campbell steadfastly refused to leave his mobile phone in his locker and continued to use his personal mobile phone whilst at work. This was impacting his capacity to perform his work and other staff around him. Previous attempts had been made to ask him to hand it in at the commencement of his shift, but at the request of his mother, the library had brought this practice to an end and he had been trusted to place the phone in his locker.
- [101]Having considered all the circumstances leading up to the events of 25 November 2011, including the numerous meetings, mechanisms, processes, supervision and coaching that had been put in place to assist Mr Campbell as well as Dr Jetnikoff’s evidence that Mr Campbell was able to exercise control in particular circumstances, I am satisfied the action of the Appellant, whilst not perfect was reasonable management action taken in a reasonable way particularly given the knowledge Ms Carroll held with respect to Mr Campbell’s disability and his ongoing behaviour with his mobile phone.
- [102]For all of the foregoing reasons the appeal is upheld and the decision of the Regulator is overturned.
- [103]The Respondent is to pay the Appellant's costs of and incidental to the appeal to be agreed. In the event agreement cannot be reached between the parties with respect to the costs the Appellant has the liberty to apply.
- [104]The Commission orders accordingly.
Footnotes
[1] State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447; Queensland Airways Limited v Q-COMP WC/2005/13; Dorcy Pacific Pty Ltd AND Q-COMP (WC/2010/14) Decision
[2] Lackey v WorkCover Queensland (2000) 165 QGIG 22.
[3] (1997) 156 QGIG 100.
[4] (2009) 191 QGIG 13 at page 16.
[5] WorkCover Queensland v BHP (Qld) Workers' Compensation Unit (2002) 170 QGIG 142.
[6] (C/2009/9) Decision
[7] Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48.
[8] Davis v Blackwood [2014] ICQ 009; Q-COMP v Hohn (2008) 187 QGIG 139.
[9] Davis v Blackwood [2014] ICQ 009.
[10] Workcover Queensland v Kell [2002]160 QGIG 93.
[11] Bowers v Workcover Queensland [2002] 170 QGIG 93.
[12] Delaney v Q-Comp [2005] 178 QGIG 197.
[13]Transcript of Proceedings, Townsville City Council v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2012/359, Industrial Commissioner Knight, 19 June 2013) 4.
[14] Aigner v Q-COMP (C/2011/2) - Decision
[15] Delaney v Q-Comp [2005] 178 QGIG 197.