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Henderson v Workers' Compensation Regulator[2015] QIRC 216

Henderson v Workers' Compensation Regulator[2015] QIRC 216

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Henderson v Workers' Compensation Regulator [2015] QIRC 216

PARTIES:

Henderson, Lynley Jan

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2013/216

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

22 December 2015

HEARING DATES:

24-28 March 2014

24-25 June 2014

7 August 2014 (Respondent's submissions)

27 August 2014 (Appellant's submissions)

3 September 2014 (Respondent's submissions in reply)

HEARD AT:

Caloundra

MEMBER:

Industrial Commissioner Neate

ORDERS:

  1. The Appeal is dismissed.
  2. The decision of the Workers' Compensation Regulator is confirmed.
  3. The Appellant is to pay the Respondent's costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL FROM DECISION OF THE WORKERS' COMPENSATION REGULATOR - psychiatric injury - allegation of bullying, intimidation, harassment, victimisation and humiliation in workplace - appellant bears onus to establish that her condition falls within the definition of "injury" in the Workers' Compensation and Rehabilitation Act 2003 - evidence in relation to 26 stressors - whether injury arose out of, or in the course of, reasonable management action taken in a reasonable way - appellant to establish that the elements of s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 are not satisfied

CASES:

Workers' Compensation and Rehabilitation Act 2003 ss 11, 32

Abby Emma Holt (Westpac Bank) v Q-Comp (WC/2012/44) - decision

Alex Sabo v Q-Comp (C2010/46)

Avis v WorkCover Queensland (2000) 165 QGIG 788

Blackwood v Adams [2015] ICQ 001

Bowers v WorkCover Queensland (2002) 170 QGIG 1

Browne v Dunn (1894) 6 R 67 (HL)

Canadian General Electric Company Limited v The Ontario Labour Relations Board (1956) OR 437

Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031

Davis v Blackwood [2014] ICQ 009

Delaney v Q-COMP Review Unit (2005) 178 QGIG 197

Dickinson v The Motor Vehicle Insurance Trust (1987) 163 CLR 500

Hansen v WorkCover Queensland (Unreported, Industrial Magistrates Court, Industrial Magistrate Taylor, 15 November 2001) 16

Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027

Lackey v WorkCover Queensland (2000) 165 QGIG 22

Mayo v Q-COMP (2004) 177 QGIG 667

O'Brien v Q-COMP (2007) 185 QGIG 383

Prizeman v Q-COMP (2005) 180 QGIG 481

Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301

Q-COMP v Foote (2008) 189 QGIG 539

Q-COMP v Glen Rowe (2009) 191 QGIG 67

Q-COMP v Hetherington [2004] 176 QGIG 493

Q-COMP v Hohn (2008) 187 QGIG 139

Re Yu and Comcare [2010] AATA 960

Sheridan v Q-COMP (2009) 191 QGIG 13

State Government Insurance Commission v Stevens Brothers Pty Ltd & Anor (1984) 154 CLR 552

State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447

Svenson v Q-COMP (2006) 181 QGIG 629

Versace v Braun (2005) 178 QGIG 315

WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6

WorkCover Queensland v Kehl (2002) 170 QGIG 93

APPEARANCES:

Mr T. Nielsen, counsel instructed by Butler McDermott Lawyers

Ms D. Callaghan, counsel instructed directly by the Respondent

Decision

  1. [1]
    Lynley Jan Henderson ("the Appellant") claims to have suffered a psychiatric injury as a result of bullying, intimidation, harassment, victimisation and humiliation at her workplace.  Her claim for compensation was dated 9 August 2012.  It was accepted originally by WorkCover Queensland.  The Appellant's employer, Queensland Ambulance Service ("QAS"), applied for a review of that decision.  By decision dated 6 June 2013, the Workers' Compensation Regulator ("the Respondent") substituted a decision to reject the Appellant's application. The Appellant appealed to the Queensland Industrial Relations Commission ("the Commission") against the Respondent's decision. 

 Background

  1. [2]
    Mrs Henderson commenced employment with the QAS in August 2008 as an Emergency Medical Dispatcher ("EMD").  She worked at the Maroochydore Communications Centre, where there were about 50 to 60 staff.  Her work involved taking calls and dispatching ambulance units in response to calls from the public (both emergency and non-emergency). Her role was described in Standard Operating Procedures ("SOPs") including SOP 94 ("Emergency Call Taking") and SOP 407 ("Quality Assurance MPDS").[1]  Her work was highly scripted.  Detailed procedures for dealing with calls were prescribed.  The computer prompted the EMD to ask specified questions at each stage in the conversation with the caller as answers to questions were keyed in by the EMD.  According to the Appellant, "you can't deviate … from policies and procedures."  The Appellant also stated that she was required to comply with SOP 124 ("EMD Live Call Taking Evaluation") and the Code of Conduct.
  1. [3]
    Before working at the QAS, the Appellant was a flight attendant with Air New Zealand for 18 years until 2005.  She also worked at St John's Ambulance in Christchurch, New Zealand, as a trained casual communications emergency medical dispatch officer for some years until 2005.  That work was virtually the same as her work at the QAS.  After finishing work with Air New Zealand, she was employed at the New Zealand Police Service as a communicator taking emergency 111 telephone calls in relation to crime. 
  1. [4]
    After she commenced employment with the QAS, the Appellant was trained and mentored as an EMD.
  1. [5]
    The Appellant's immediate supervisor was the Communications Centre Supervisor ("CCS") who supervised all of the call-taking and dispatching EMDs in the room. 
  1. [6]
    Within the Communications Centre was also a Clinical Deployment Supervisor ("CDS") who had clinical experience and could employ this in making decisions about dispatch and appropriate use of ambulance vehicles and personnel. 
  1. [7]
    The Regional Operations Supervisor ("ROS") oversaw the communications room and the QAS stations, vehicles and personnel in the region.  The only ROS who was nominated in the stressors was Michael Riordan, but Timothy Eva was the ROS from 2009 before acting in other roles.
  1. [8]
    The Regional Manager of Communications ("RMC") was the most senior position overseeing the Communications Centre, including the Patient Transport Services Professional Development Officers ("PDO") and Quality Assurance Officer.  The RMC at the relevant time was Paul Shaw.  Timothy Eva performed a relieving RMC role in Mr Shaw's absence.
  1. [9]
    The RMC answered to the Regional Director of Operations who, at the relevant time, was Craig Emery.  The Sunshine Coast was one of seven QAS, regions in Queensland at the time.

 Injury

  1. [10]
    The issues in this appeal must be resolved by reference to the relevant provisions in s 32 of the Act.  At the relevant time, those provisions stated:

"32Meaning 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. (2)
    Injury includes the following—

…

  1. (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—
  1. (i)
    a personal injury;
  1. (ii)
    a disease;
  1. (iii)
    a medical condition if the condition becomes a personal injury or disease because of the aggravation;

  …

  1. (4)
    For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.
  1. (5)
    Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—
  1. (a)
    reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;
  1. (b)
    the worker’s expectation or perception of reasonable management action being taken against the worker;
  1. (c)
    action by the 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."
  1. [11]
    The appeal is by way of a hearing de novo in which the Appellant bears the onus of proof, on the balance of probabilities, that her condition falls within the definition of "injury" in the Act.[2]
  1. [12]
    In the absence of any concessions by the Respondent, the Appellant would have to prove, on the balance of probabilities, that:
  1. (a)
    she is a "worker" as defined in s 11 of the Act;
  1. (b)
    she suffered a new psychological condition or the aggravation of a pre-existing psychological condition;
  1. (c)
    her injury arose out of, or in the course of, her employment;
  1. (d)
    her employment was a significant contributing factor to that injury; and
  1. (e)
    her injury did not arise out of, or in the course of, reasonable management action taken in a reasonable way by her employer, or the Appellant's expectation or perception of reasonable management action taken against her.

 Issues

  1. [13]
    The Respondent conceded that:
  1. (a)
    the Appellant is a "worker;"
  1. (b)
    the Appellant suffered from a psychiatric injury;
  1. (c)
    the psychiatric injury arose out of, or in the course of, the Appellant's employment.
  1. [14]
    Consequently, the issues to be determined in this case are whether the psychiatric disorder arose out of, or in the course of:
  1. (a)
    reasonable management action taken in a reasonable way by the employer in connection with the Appellant’s employment; and/or
  1. (b)
    the Appellant's perception of reasonable management action being taken against her.

Before assessing the evidence, it is appropriate to set out the relevant legal principles.

 Reasonable management action

  1. [15]
    General principles: The extent and limits of the operation of s 32(5) of the Act have been described in decisions in cases summarised below.
  1. [16]
    The Appellant relies on the following statement adopted by Vice President Linnane in O'Brien v Q-COMP,[3] about what constitutes "management action."

"… managerial means something pertaining to or characteristic of a manger and it is equally obvious that the word 'manager' means one who manages … The word 'manage' is said to be equivalent to conducting or carrying on a business or under-taking or an operation, to conduct affairs.  It is also said to be equivalent to controlling or directing the affairs of a household, institution or state, or as the taking of or attending to a matter.  It apparently includes the action or manner of conducting affairs or administering and directing or controlling any matter.  It is obvious … that the essential meaning of the word is to control and direct and that must obviously include not only administration but direction of planning for any particular enterprise …"

  1. [17]
    The Respondent agrees that, as in that decision, "management action" has been construed broadly in the case law.
  1. [18]
    In Q-COMP v Foote, Hall P wrote that, subject to the "very significant statutory qualifications" contained in s 32(5) of the Act, "an insurer takes a worker with all his faults."[4]  In relation to those statutory qualifications, Hall P wrote:

"Where the psychological disorder develops out of a worker's perception of reasonable management action being taken against the worker, it is withdrawn from the definition of injury (see s 32(5)(b) of the Act).  Where the psychological disorder arises out of or in the course of reasonable management action taken in a reasonable way by an employer in connection with the worker's employment, the psychological injury is withdrawn from the definition of 'injury,' whatever the worker's perceptions may have been (see s 32(5)(a))."[5]

  1. [19]
    In Sheridan v Q-COMP, Hall P referred to "a statutory deviation from the general rule where the psychological disorder arises out of or in the course of a claimant's expectation or perception of reasonable management action being taken against the worker, compare s 32(5)(b) of the Act."[6]
  1. [20]
    In Lackey v WorkCover Queensland,[7] Hall P accepted that:

"the test posited by the words 'arising out of' is wider than that posited by the words 'caused by' and that the former phrase, although it involves some causal or consequential relationship between the employment and injury, does not require the direct or proximate relationship which would be necessary if the phrase used were 'caused by' …"

  1. [21]
    The former President repeated that statement in Avis v WorkCover Queensland ("Avis").[8]
  1. [22]
    In the subsequent decision of WorkCover Queensland v Curragh Queensland Mining Pty Ltd,[9] Hall P stated that the statutory provision:

"does not withdraw from the definition of injury psychological disorders caused by reasonable management action taken in a reasonable way.  It withdraws from the definition of injury psychological disorders arising out of reasonable management action taken in a reasonable way."  (emphasis added)

He continued by reiterating that it was settled by the decision in Avis[10] that the test posited by the words "arising out of" is wider than that provided by the words "caused by."[11]

  1. [23]
    However, there is also authority rejecting the proposition that once an injury was in any way "touched" by reasonable management action reasonably taken it is not compensable.[12]  More recently, Martin J expressed his agreement with the reasoning in Q-Comp v Hohn where Hall P said that the mere occurrence of reasonable management action will not insulate a disorder from characterisation as an “injury.”[13]
  1. [24]
    There is also authority in decisions of Hall P for the proposition that "reasonable" should be treated as meaning "reasonable in all the circumstances of the case," and that such circumstances can include circumstances relating to the psychological make-up of the worker where those circumstances are known to the employer.[14]
  1. [25]
    In Bowers v WorkCover Queensland,[15] Hall P rejected a submission that where the work environment is found to be a significant cause of a depressive illness, the employer's system of work and its implementation cannot be found to be reasonable.
  1. [26]
    There are also decisions to the effect that:
  1. (a)
    what management must do is be reasonable, not perfect, and, although considerations of fairness will always be relevant, "reasonableness" does not always equate with "industrial fairness;"[16]
  1. (b)
    it is not necessary that management action be perfect or above criticism, and the term "reasonable management action" permits "failings, deficiencies and flaws provided the management action was sound, based on reason, was not arbitrary, did not involve any unfairness and did not produce an unfair result."[17]
  1. [27]
    In Prizeman v Q-COMP,[18] Hall P stated that in determining whether action was reasonable management action taken in a reasonable way by the employer in connection with the worker's employment, "it is the reality of the employer's conduct and not the employee's perception of it which must be taken into account."
  1. [28]
    In Svenson v Q-COMP,[19] Hall P found that the appellant had "developed a propensity to perceive 'bullying' in the conduct of others and to react to it."  Hall P continued:

"Perfectly reasonable activity in the workplace may be held to be a significant contributing factor to a psychiatric injury where a claimant's perception of what has occurred is quite different to the reality of that which has occurred.  But an injury which arises out of or in the course of reasonable management action reasonably taken is not removed from the exclusion at s 34(5) because of the claimant's flawed perception, see esp. s 34(5)(b)." 

  1. [29]
    For s 32(5)(a) to operate there must not only be reasonable management action but that action must be "taken in a reasonable way."  The responsibility of management action being taken in a reasonable way lies with the management.  Whether management action was taken in a reasonable way is a question of fact, and reasonable people may differ from time to time about whether a particular management decision was reasonably implemented.[20]
  1. [30]
    The Commission's role is to embark upon the enquiry whether the psychological/psychiatric injury arose out of, or in the course of, reasonable management action taken in a reasonable way.[21]  As Martin J stated:

“The task of the Commission when applying s 32(5) does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances.  There may be any number of actions or combinations of actions which would satisfy s 32(5).  The proper task is to assess the management action which was taken and determine whether it was reasonable and whether it was taken in a reasonable way.  Sometimes, that may involve considerations of what else might have been done but that will only be relevant to whether what was done was, in fact, reasonable.”[22]

 The environment in which Mrs Henderson suffered her injury

  1. [31]
    The Appellant described the role of the Communications Centre as being to accept 000 telephone calls to ensure the safety of the public.  She agreed that the public expect a high standard from the QAS and that people's lives are in their hands.  The people taking calls, assessing the situation and arranging for an appropriate vehicle to be dispatched as soon as possible have a high responsibility.  It is important that advice is given in a timely and appropriate way.  The responsibilities are shared between managers, supervisors and EMDs.
  1. [32]
    The QAS Communications Centre at Maroochydore is a busy workplace with 50 to 60 staff doing important, and at times stressful work.  The Appellant gave evidence that during the day there would be 10 to 12 EMDs plus a supervisor working in communications at any one time.  The day shift for the core roster was between 6.30 am and 6.30 pm, and the night shift was between 6.30 pm and 6.30 am.  The support roster had shifts between 7.00 am and 5.00 pm, 9.30 am and 7.30 pm, 1.00 pm until 11.00 pm, and 2.00 pm and midnight. During the night, there would be four EMDs and one supervisor.  Managers at higher levels (CDS and ROS) would be present during the day shift.
  1. [33]
    The call centre room was approximately 20 metres in diameter. There was an open plan layout.  Desks were joined so that there were two seated positions, with approximately six to eight such workstations or pods.  Each EMD sat at one of the positions.
  1. [34]
    Behind the open plan operations area were offices with glass partitions where supervisors (RMC, ROS and CDSs) worked.  At the other end, was a kitchen/tea room with a security door.  Near to that was the office for the Professional Development Officer (Jenny Kennedy) and the Quality Assurance Officer (Les Colquhoun).
  1. [35]
    Roles of EMDs and their supervisors: Among the EMDs in the Communications Centre with the Appellant were Erica Bolam (who was also an acting CCS during the Appellant's period working as an EMD), Melinda Johnson and Sheryl Beaumont (each of whom had more experience than the Appellant) and Nick Fisher (who the Appellant described as "less senior" than her, although on the same level). 
  1. [36]
    Ms Bolam described some features of call-taking and dispatching undertaken by EMDs in the following terms:
  1. (a)
    call-taking involves following the applicable script;
  1. (b)
    dispatching involves knowing where about 30 cars are (and whether they have single officers or full crews, whether those crews are intensive care paramedics or advanced care paramedics) to ensure that you send the most appropriate response to the job (e.g. a higher priority job will require a quicker response and the closest car is sent) and includes constant monitoring of pending and active cases, and ensuring that paramedics are getting their designated meal breaks. 

When an EMD is doing dispatching, they are supported by their supervisor (a CCS and possibly a CDS) and their buddy EMD. 

  1. [37]
    Supervisors: Ms Kennedy described the role of the CCS as to oversee the room, monitor performance from the call-takers (to ensure that they are complying with the SOPs in taking calls) and dispatchers (to ensure they are despatching the correct ambulances), to ensure that their call-taking and despatching is appropriate and timely, and to ensure that they have enough resources.  They also monitor the mealtimes and other breaks taken by staff, and deal with rosters and people calling in sick.
  1. [38]
    Staff are supervised as they take phone calls and send messages. A supervisor could look into a job at any stage, by putting on headphones and listening to a call.  They could bring up a call at their computer or they could stand behind the EMD. If there was an issue, they could draw it to the attention of the Communications Centre manager to have it referred to the Quality Assurance Officer for him to listen to and assess.  On any day, a call or calls could be monitored at random by Mr Colquhoun as part of his quality assurance.
  1. [39]
    The Appellant described the role of a supervisor as overseeing the running of the Communications Centre, including the EMDs.  That role included ensuring that dispatching was in accordance with the relevant policy and procedure, and that dispatches were done quickly, appropriately and with the correct codes.  They were entitled to monitor the selections being made by an EMD and the level of customer service they were providing, and to comment where they considered that a policy or procedure was not being followed or the conduct of an EMD was below par.  In particular, if a supervisor was aware that an EMD was not following the relevant process in relation to calls (e.g. the correct information was not being conveyed to the caller) that would be a valid reason for a supervisor to try to intervene or to discuss the matter with the EMD afterwards.
  1. [40]
    Ms Bolam gave evidence that in her role as supervisor she was often walking around the communications room, providing assistance when requested and speaking with the EMDs as appropriate.  Given the level of noise in the room, and the need to pick a moment between radio or telephone communications involving a dispatcher, a supervisor would normally stand in front of the dispatcher so that they would be aware that the supervisor was going to speak to them.  On occasions she would come around the desk to look at the console, especially if an EMD was taking a difficult call.  The supervisor might stand behind them to offer them support or assistance with a difficult call.  If an EMD was raising their voice (e.g. because the caller was hearing impaired or frantic) she would stand behind them to actively listen and see if the EMD needed some help.  If a call-taker is not following the script on the screen, she would direct them to follow the script.
  1. [41]
    Mr Colquhoun agreed that supervisors have a responsibility to make sure that calls are answered properly and units are being dispatched in a timely and efficient manner.  It is proper for supervisors to give directions during a 000 call.  They have a role to monitor and improve the performance of people in the communications room. 
  1. [42]
    Each CDS and ROS had clinical experience and operational experience.  By drawing on their clinical experience, a CDS would assess calls to see whether they needed to be upgraded or downgraded, thus providing extra clinical input into decision-making.
  1. [43]
    According to Ms Kennedy, a CDS was not able to give directions to other supervisors.  On occasions when there was no CDS, the ROS would sit in the chair of the CDS and take on the role.  The ROS is at officer-in-charge level and manages the station.  They are senior paramedics, rather than communications staff, and manage resourcing and staffing issues.  That involves supervising workers under SOP 94.  However, according to Ms Kennedy, even though the ROS could make suggestions, it was the CCS who would make a final decision in the room.  Apparently there was some confusion between the roles of the CCS and the ROS.
  1. [44]
    Stewart Merefield gave evidence that the CDS had a role as an oversight person in terms of all dispatches.  They would look at a case that had been dispatched according to process and might decide, after phoning up and obtaining more information from the caller, whether to upgrade to a higher acuity or downgrade to a low acuity or add extra resources or units.  The ROS had an overview of the whole room function in terms of the availability of resources, making sure there were enough trucks and staff to respond to cases.  For example, they would have input into whether another vehicle should be assigned to a case, or swapping a vehicle that was more appropriate in terms of location and shifts.  Mr Merefield described the ROS as the "ceiling decision-maker in the room."  They could override policy and procedure based on their clinical knowledge and their operational knowledge, being officers who have many years of experience and who were usually intensive care paramedics.
  1. [45]
    Ms Johnson gave evidence that the ROS can provide input into despatch decisions, as can a CCS.  The ROS has a "much larger scope" than an EMD, who is governed by operating procedures.  An ROS can deviate from the procedures.  If the decision or directive is outside the protocols, an EMD should document in the computer-aided dispatch system ("CAD") what they have been instructed to do.
  1. [46]
    Mr Emery also stated that when supervisors direct or guide an EMD to do something different from the standard procedure, that is noted in the CAD, usually by the EMD.    Mr Emery described the CAD as the EMD's primary tool.  They do not do anything within the Communications Centre without entering it into the CAD system.  Every action is recorded there.
  1. [47]
    Mr Eva was from 2009 the ROS at the Communications Centre.  From time to time he acted as the Regional Director of Operations and the RMC (from about June 2011 until August 2012).  It is apparent from his evidence that during his period as RMC there was a greater scrutiny of the CCSs in the performance of their role, which had a "knock-on effect" with greater supervision of staff within the Centre.  This was in response to the observations of senior management that there had been an erosion of the Communications Centre's adherence to their responsibilities.  It also followed an organisational restructure a couple of years earlier.
  1. [48]
    The Appellant refers to:
  1. (a)
    evidence about the confusion between management roles including ROSs, CCSs and CDSs, as captured in the report prepared by Roy Waterhouse in 2011 (Exhibit 22), as reflecting the picture in 2010 and 2011;
  1. (b)
    the evidence of managers about change in roles within the management structure at the Communications Centre (which change had "been and gone" when they gave evidence in 2014). 

That topic is considered further in relation to Stressor 13.

  1. [49]
    Compliance with Standard Operating Procedures: The timely delivery of ambulance services depends in large part on Communications Centre staff acting in a timely and efficient manner, following the QAS procedures carefully and completely.  Much of the work is done in a prescribed sequence, with little or no scope for staff to improvise or deviate from the procedure.  Mr Merefield, the Patient Transport Manager for QAS on the Sunshine Coast, described the call-taking process as "a standard question-and-answer process that is very structured and very rigid in terms of its process."
  1. [50]
    At all relevant times, Ms Kennedy, as a Professional Development Officer, acted as a mentoring role model, monitored the skill level of all officers in the communications room (including their call-taking dispatch skills, and their compliance with the relevant SOPs), and organised training and professional development plans for staff.  Previously Ms Kennedy had been an EMD. According to Ms Kennedy, following the script is "probably the most important job [EMDs] have."  If they do not follow the script, they might be put on a development plan to further educate them in the correct procedures.
  1. [51]
    Mr Colquhoun has been a qualified Quality Assurance Officer with the QAS since June 2008. He stated that the QAS takes the issue of adherence to policies and procedures very seriously, and that where a person was required to follow scripts they should not deviate from the script.  Some deviations are considered to be more serious than others.
  1. [52]
    Mr Colquhoun gave evidence that a supervisor does not have the power to deviate from the script or instruct an EMD to deviate from the script.  Where there is a deviation in the case of an emergency (where a number of 000 calls are coming in at about the same time) that is done in accordance with SOP 85 "MPDS Emergency Rule" (Exhibit 35 D151-155).  The supervisor has to make the full room aware of that SOP before the EMDs commence their shift.
  1. [53]
    Another procedure is the "urgent disconnect" which allows that, once an EMD has reached the part of the script dealing with post-dispatch instructions and if the EMD can hear another 000 call ringing, they can advise the caller that the EMD needs to hang up to take another call and advise the caller that if anything changes they can call back on 000.  This procedure is separate from the Emergency Rule procedure. Mr Colquhoun stated that urgent disconnection happens daily as a consequence of the Communications Centre taking hundreds of 000 calls.  A supervisor should not tell an EMD to implement the urgent disconnect unless the supervisor knows how far the EMD is through their current call.  There are some types of calls where it is not appropriate to disconnect.
  1. [54]
    The perceived, and at times actual, tension between strict compliance with standard operating procedures and the variation or overriding of those procedures by supervisors in certain circumstances is at the heart of some of the Stressors on which the Appellant relies in her appeal.  When assessing those Stressors, it is useful to have regard to the roles and powers of the supervisors summarised above and the evidence of Mr Emery about the function of SOPs in the day-to-day work of the Communications Centre.  Mr Emery is the Chief Operations Officer for QAS.  He is responsible for operational planning, operational government and service delivery across the QAS.  He commenced as a paramedic with the QAS in 1990, and in 2009 was the Regional Director of Operations for the North Coast region.
  1. [55]
    Mr Emery referred to the QAS receiving some 900,000 responses each year (including 600,000 of the 000 calls) and said that the QAS is "not naive enough to think that a set of defined SOPs caters for every one of those operational circumstances."  He described SOPs as "a small part, though an important part, of what we do," which is "enriched by jurisdiction decision-making by experienced personnel."  He expected the EMDs to follow "fairly closely" the principles and guidelines to the best of their ability, and that more senior operational staff with oversight would "adjust that as required, resource things differently as required from time to time."  His evidence was that supervisors have "the legitimacy to operate outside of a standard operating procedure for the right reasons," and they "have the ultimate decision, they ultimately wear the responsibility."  (T 6: 19-20)
  1. [56]
    Mr Emery stated that "novice practitioners generally seem to think of [SOPs] as absolute black and whites," and that the "more novice of the EMDs" were probably more confused about the roles of supervisors and the level of protection of  EMDs if a supervisor says they are to do something differently.  (T 6: 33, 35)
  1. [57]
    Justin Cumming who mentored the Appellant when she started with the QAS, confirmed that she was deemed competent to be a qualified EMD.  He recalled that she seemed very focused on following policies to the letter, and resisted deviating from the Standard Operating Procedures.  She also spoke to him about concerns she had about the role that the CCSs and ROSs played in the communications room.  Mr Cumming agreed that if a CDS or ROS asked the Appellant to deviate from the script they should enter in and log on the system and notify the system that they told her to do that.  However, they sometimes asked people to deviate from the SOP.  In an email to Ms Kennedy, Mr Peatey and Mr Cumming dated 28 November 2009, the Appellant wrote, "would you please clarify the role of CDS and ROS."  She gave examples of the CDS making dispatch decisions outside the SOPs, and continued:

"My job is to dispatch as per the SOPs, if the CDS/ROS wishes to change it or sees a better option then he should notify the dispatcher per a notifier so it is in the job."  (Exhibit 18) 

  1. [58]
    Assessment of EMDs: SOP 407 deals with Medical Priority Dispatch System ("MPDS") Quality Assurance. MPDS comprises:
  1. (a)
    Emergency Services Computer Aided Dispatch, also referred to as VisiCAD, which is the primary communications tool for geo-verification of calls and dispatch;
  1. (b)
    ProQA software, which is the primary clinical aid for call taking.

Advanced Quality Assurance ("AQUA") provides the template for case evaluation (or audit) and is used to calculate a percentage compliance score for each section of ProQA.

  1. [59]
    SOP 407 states:

"Communications quality assurance takes into account the entire caller-calltaker-dispatch-response continuum.  Whilst callers to the QAS are seeking assistance in often emotionally charged and tragic circumstances, QAS staff interaction must reflect compassion for the caller, professionalism in call management, act in the best interests of the patient and optimise scene safety.  (Exhibit 35 D 138)

 SOP 407 emphasises the importance of customer service.  It states:

"QAS requires of its EMDs, particularly Calltakers, that they provide a high degree of patient focused customer service.  Customer service is broadly defined as 'a series of activities designed to enhance the level of customer satisfaction-that is, the feeling that the service has met customer expectation'."  (Exhibit 35 D 139, 142)

  1. [60]
    The performance of an EMD was assessed by reference to compliance with policy and procedures.  According to the Appellant, an EMD would be "penalised very heavily" for "deviating from the script" when responding to a call.  (T 1:52-53, 56-57)
  1. [61]
    There is a system for supervisors to conduct six live audits of EMDs each day and hence to assess their own team and have some input. 
  1. [62]
    Ms Kennedy gave evidence that non-compliance with the relevant script is carried out by the Quality Assurance Officer, Mr Colquhoun, selecting cases randomly, listening to them and reviewing and assessing them by reference to a standard set of professional questions, and providing a compliance score and comments. The audit process is comprehensive and is done for the purpose of ensuring that each EMD followed the correct line of questioning.  An average compliance score of 90 per cent meets the requirements of SOP 407.  However, an EMD could have a satisfactory overall compliance score but perform so badly on one of the matters (particularly customer service) that it is treated as a compliance issue.
  1. [63]
    If the EMD:
  1. (a)
    meets the criteria, a copy is sent to the EMD and to the Professional Development Officer for filing;
  1. (b)
    has a compliance score between 75 and 90 per cent, the audit is referred to the Professional Development Officer and he or she provides feedback to the EMD;
  1. (c)
    has a compliance score between 50 and 74 per cent, the EMD is brought into the Professional Development Unit's room and is given feedback by both the Professional Development Officer and Mr Colquhoun;
  1. (d)
    scores below 50%, the audit is forwarded to the operations manager who is meant to consult with the Professional Development Officer. 
  1. [64]
    Ms Kennedy agreed that the RMC has a role to deal with critical non-compliance in call-taking and that if a call had a compliance rate of zero, it would be reasonable for the RMC to deal with that directly. 
  1. [65]
    In some circumstances the EMD can be put on a Diminished Performance Plan or a Performance Improvement Plan, or they might be mentored by another EMD until their compliance score has improved. 
  1. [66]
    As noted earlier, EMDs have two roles: call-taking and dispatching.  The ProQA and the AQUA quality assurance assessment relate to call-taking. Hence, the compliance rates referred to call-taking only. 
  1. [67]
    Various witnesses described the "tick and flick" live audits of calls undertaken by the supervisor of the EMD. SOP 124 "EMD Live Call Taking Evaluation" (Exhibit 35 D126-129) provides Communications Centre team leaders with "a tool to evaluate and provide feedback on the performance demonstrated during a live call witnessed by the Team Leader to call takers."  The procedure is to be used to "evaluate and provide constructive feedback to EMDs performing call taking roles in the live operational environment."  As part of their routine duties, team leaders are instructed to undertake evaluations of EMDs on each shift while the EMDs are processing requests for ambulance services.  Each team leader is to monitor 4-10 calls on each shift selecting a different EMD for each call.  If there is a limited number of call takers on a shift, then more than one call on the same call taker may be evaluated at different time intervals.  Evaluation forms are to be completed during or immediately after monitoring each call.  Depending on the evaluation, matters might be raised with an EMD.  For example, if the team leader answers "No" to specified items, the team leader might arrange for the Professional Development Officer to discuss the performance with the call taker and provide them with options on behavioural changes to increase the call taker's skill levels when dealing with similar situations in the future.
  1. [68]
    The tick and flick sheets give an overall idea of what is happening in a centre and are used to manage standards. 
  1. [69]
    According to Ms Kennedy, the only supervisors who were trained to do the "tick and flick" process while the Appellant was working at the Communications Centre were Mr Cumming and Ms Johnson.  Ms Kennedy received no tick and flick forms in relation to the Appellant before February 2012 (when Ms Kennedy went on long leave).  So far as she was aware, the Appellant was competent.  Each year Ms Kennedy would also conduct an assessment of the EMDs' call-taking and dispatch. 
  1. [70]
    Mr Eva described AQUAs as indicators of compliance more than competence.   Although a combination of those scores and tick and flick sheets are two components of performance from a "hard data point of view," the organisation relies "very heavily on supervisor feedback" when assessing the performance of EMDs.  The nature of non-compliance is more important than the percentage on the score.  (T 7: 99, 102)
  1. [71]
    Sally Bloomfield acknowledged that AQUA audits only covered a small percentage of any EMD's call-taking, and that the "tick and flick" covered a small part of their work.  The assessment of an EMD was principally undertaken by the direct day-to-day observation of the supervisors, whose role included directing and correcting EMD is as necessary.   
  1. [72]
    Mr Emery gave evidence that only three per cent of calls are audited for compliance against the call-taking prescription.  The audit process and percentage score was a very important measure of an EMD's call-taking ability.  However it is not an overall assessment of the EMD's performance.  Indeed, Mr Emery agreed that the AQUA percentage results are very small part of the assessment of an EMD.  In relation to operational efficiency, the supervision is more important.  (T 6: 3 30-31, 39-40)
  1. [73]
    The social context: The Appellant and some of her co-workers gave evidence about the nature of their interactions with each other. As will become apparent, there were personality differences and instances of conflict and slighting or other behaviour which the Appellant characterised as evidence of bullying, intimidation, harassment, victimisation and humiliation of her.
  1. [74]
    Ms Bloomfield, who worked for the QAS from February 2008 until September 2013, (including as a CCS at the Communications Centre from July 2011 until February 2012) described "quite a dysfunctional culture" there, and referred to it as "toxic."  There were separate cliques around Mr Shaw (e.g. Ms Kennedy and Mr Colquhoun) and Mr Eva (e.g. Mr Riordan, Rick Tenthy).  When Mr Shaw was away on secondment, the supervisor under Mr Eva felt that they were in charge of the call centre and could run the room, telling EMDs what to do even if that was outside a protocol or procedure.
  1. [75]
    Although the evidence before the Commission does not establish that there was a "toxic" or "dysfunctional" social environment, it provides examples of the difficulties alluded to by Ms Bloomfield and asserted by the Appellant.
  1. [76]
    Language in the workplace: Some stressors involve the alleged use of coarse language in both written and oral communications at the Communication Centre.  To put those stressors in context, I note that Ms Bolam gave evidence that the word "fuck" is used "all the time" by people in the communications room, apparently in frustration because they deal with "a lot of dodgy radios."  However, it is not directed towards other people. 
  1. [77]
    More specifically, Ms Bolam gave evidence that she had heard Mr Eva use the word "fuck" in the workplace but not towards, or about, a person.  Mr Eva was happy to give evidence that there have been times when he had sworn in the course of conversations in the workplace, but stated that he had "never sworn at an employee." 

Mrs Henderson's personality

  1. [78]
    The Appellant's evidence is critical to the outcome of her appeal.  Her behaviour in either prompting actions by others or responding to what others said and did in relation to her is central to any assessment of the Stressors.  Accordingly, it is appropriate to make some observations about the way she approached her work at the QAS, and her interactions with her work colleagues, before considering each Stressor or group of Stressors.  The following observations are relevant to an assessment of whether and why some events occurred, as well as of the Appellant's recollection or perception of events and her credibility as a witness.
  1. [79]
    There was no issue that the Appellant is generally competent and trained to do the work for which she was employed.  Indeed, there was evidence from work colleagues that she was a diligent capable officer, competent in her role. As will be seen in the discussion of Stressors 1, 3, 15 and 24, her supervisors recognised and confirmed her competence.  It is appropriate to note statistical data in support of that assessment.
  1. [80]
    SOP 407 lists the compliance scores required in relation to the following items:

Case Entry      95%

Chief Complaint Selection    95%

Key Questions      90%

Dispatch Life Support, and separately assessed as:

  • Pre-Arrival Instructions, and  95%
  • Post-Dispatch Instructions  90%

Final Coding      90%

Total Compliance Score    90%

Customer Service     95%

The Total Compliance Score is the average score in relation to those items (other than Customer Service). 

  1. [81]
    A Communications Centre Protocol Compliance Report in relation to the Appellant dated 26 April 2012 (for the period 2 October 2008 until 26 April 2012) recorded her average compliance rate over that period at 91.98 per cent (Exhibit 1).  Her compliance scores (including for Customer Service) were above the required percentage for each item other than Pre-Arrival Instructions, where the score was 56.25%. According to the Appellant, she was only aware of two occasions in that four year period where her calls had lower scores than the required compliance score. Those calls are significant for some Stressors and considered later in these reasons.
  1. [82]
    The Appellant's perception of her own competence and how she went about her work (including dealing with disagreement or directions) is reflected in her evidence and the evidence of others, and in submissions made on her behalf, that describe her as a "literal person."  For example:
  1. (a)
    Mr Cumming, the Appellant's mentor when she was first trained at QAS, said that she was good at following procedures;
  1. (b)
    the Appellant said that she understood that she would be "penalised very heavily" if she departed from the script;
  1. (c)
    Mark Temple, an EMD with 17 years' experience with the QAS, described the Appellant as a "diligent, capable officer" who followed policies and procedures "to the letter of the law, and she doesn't like being questioned when it's - when something is told to her to do something differently, she'll always do it the way it's meant to be done."
  1. (d)
    Ms Kennedy described the Appellant as "very focused on her performance."  She complied with the SOPs, and when asked to deviate from policy, "would question it, or comply with the policy" rather than comply with the direction.  The Appellant could be "very direct," which could be interpreted as rude, and was "very much to the point."  Ms Kennedy recalled counselling the Appellant about her being direct.
  1. (e)
    Mr Merefield, who described his relationship with the Appellant as "good," described her as "fairly black and white about process, in terms of, this is policy, this is not the policy."  From that point of view, if she was criticised, the Appellant "would usually challenge."  On occasions, she "took it personally."
  1. (f)
    Ms Bloomfield described the Appellant as "a strong character in she was very black and white and she would follow protocol and procedure, which is the correct thing to do when you're an EMD, and if she was asked to step outside that procedure of protocol … It would make her very uncomfortable and she would verbalise that and she would say 'That's not what I am supposed to do'."
  1. [83]
    Mr Colquhoun observed the Appellant's approach to her work to be "good." Although he had no issue with her interpersonal skills, he noticed "friction" in her interaction with other employees in the workplace (such as office gossip and people talking about her behind her back). 
  1. [84]
    The Appellant stated that during her work at the QAS "I believe that people were making complaints all the time about me being rude to people."  She confirmed that she had been advised that "there have been a number of complaints" about her by clients of the Patient Transport Service when she was working in that role, and that Ms Bolam often spoke to her and said that she was raising her voice.  The Appellant acknowledged that the nurse unit manager at Caloundra General Hospital had complained about her manner in relation to a transfer between hospitals (See Stressor 16).
  1. [85]
    The Appellant also agreed that, during her time at QAS, she made numerous written complaints about people.  In May 2009, approximately three months after she had been certified as an EMD; she made a complaint because she was unhappy with the supervisor's directions in relation to where she was sitting on a shift and her perception that she should be getting more dispatch work.  In September 2009, she made a complaint in writing to Graham Peatey about Ms Johnson, which complaint was investigated and resolved.  In October 2010, she complained to Mr Shaw in relation to Ms Beaumont.  In April 2011, she made a complaint to Mr Shaw about Di Cross.  In August 2011, she made a complaint about Ms Bolam and Mr Riordan.  In September 2011, she complained about Shane Kropp.  On 7 June 2012, she made a complaint about Mr Cumming. In July/August 2012 she complained about Mr Eva, Ms Bolam and numerous other personnel.  The Appellant involved people other than her line managers in relation to some complaints, in particular the Professional Development Officers, Ms Kennedy and Mr Colquhoun. She also spoke to a number of managers about the behaviour of others.
  1. [86]
    The Respondent relies on evidence from Ms Beaumont and cross-examination of the Appellant to illustrate what the Respondent describes as a "consistent pattern" with the Appellant:
  1. (a)
    being adamant that she was correct;
  1. (b)
    not acknowledging the role and responsibility of the supervisor in making quick operational decisions with contrary information from two sources;
  1. (c)
    arguing with a supervisor when the supervisor is attempting to facilitate emergency care;
  1. (d)
    using QAS facilities to prove supervisor is incorrect, rather than for her own learning and development; and
  1. (e)
    making a written complaint by email about the supervisor.
  1. [87]
    Ms Beaumont stated that it was not unusual for the Appellant to be "in the face" of supervisors.  She gave examples, some of which were documented (see Exhibit 20 dated 21 April 2012, and Exhibit 21 dated 3 May 2012), of:
  1. (a)
    delays or errors in dispatching by the Appellant;
  1. (b)
    a few issues which she had raised with the Appellant concerning her behaviour including the use of the work telephone for personal purposes; and
  1. (c)
    the reluctance of the Appellant to admit errors on her part unless they have clearly demonstrated to her and then her willingness to apologise (sometimes profusely), although similar issues subsequently arose.
  1. [88]
    Dr Susan Pavey, a consultant psychiatrist who treated the Appellant between 24 October 2012 and 12 June 2013, gave evidence of the Appellant's perception of being unjustifiably criticised and of her sense that her employment might be at risk was "compounded … because she felt she was excellent at her job.  She repeated that several times, that she was excellent, that she had excelled as a trainer.  She wondered whether she was picked on because she was so good at her job and there was jealousy."  (T 1: 30) In a report dated 30 October 2012, Dr Pavey wrote that the Appellant "describes being exceptionally good at her job and had excelled in the training stages with early certification achieved.  She wonders whether this provoked jealousy in the workplace and lead to the attempts to undermine her" (Exhibit 35 C140).
  1. [89]
    The submissions made on the Appellant's behalf state that:
  1. (a)
    she gave strong and forthright evidence of the events that occurred in the workplace between early 2009 and August 2012;
  1. (b)
    it was apparent from her presentation that she had a good command of the facts; and
  1. (c)
    at times she was upset and angry and bewildered by what had occurred to her.

Generally speaking, that much can be accepted.  But, as will be seen, her evidence was not beyond criticism.

  1. [90]
    The Respondent submits, by reference to evidence of some co-workers of the Appellant (and the Appellant herself), that among other things, the Appellant:
  1. (a)
    believed that she was very good or even excellent at her job and that once she had qualified as an EMD she was competent to perform her job and should be allowed to do so without interference from more senior and/or experienced colleagues;
  1. (b)
    did not appreciate being advised or directed to do anything by someone who she perceived to be not better qualified than she was (particularly as she had been signed off as competent and when she considered herself to be correct);
  1. (c)
    responded poorly to direction by supervisors; and
  1. (d)
    presented as a person who is very "black and white" in her views and perceptions (including about aspects of the supervisors' role, such as to add clinical knowledge and at times override her actions based on the scripted instructions for EMDs, and to monitor calls and dispatches in real-time and intervene as necessary).
  1. [91]
    Indeed, the Respondent submits that the Appellant was not a reliable witness, and gives examples said to support findings that, among other things, the Appellant:
  1. (a)
    was evasive in cross-examination and did not answer the questions put to her, but made self-serving statements and accusations;
  1. (b)
    was inconsistent with her alleged recollections and inability to recollect;
  1. (c)
    was prone to embellishment to the point of rather paranoid ideation about innocuous occurrences;
  1. (d)
    contradicted herself;
  1. (e)
    invented versions of events despite also giving evidence that she would not recall some events; and
  1. (f)
    gave evidence that was, in some respects, incredible.
  1. [92]
    I do not adopt that submission in those global terms as the basis for deciding this appeal. Rather, the assessments of the Appellant's personality and behaviour in the workplace summarised above provide background to the case. It remains necessary to consider the Appellant's evidence in relation to specific Stressors in light of any particular criticism of her evidence on those points.

Stressors

  1. [93]
    In her application for compensation dated 9 August 2012 and lodged with WorkCover Queensland, the Appellant:
  1. (a)
    described her injury as "Psychological system in general, Anxiety/stress disorder;"
  1. (b)
    stated that the injury happened as a result of "Bullying, intimidation Harassment Victimisation Humiliation;"
  1. (c)
    stated that the injury happened at "Other private workplace" 1 Claremont Street, Buderim, QLD 4556;
  1. (d)
    stated that the injury did not happen over a period of time; and
  1. (e)
    specified that the injury happened on 6 July 2012 at 12.00 am.

However, her appeal was conducted on a different basis from that specified in items (d) and (e).  The case as argued relied on a series of events and interactions over a period of three and a half years.

  1. [94]
    In accordance with the Further Directions Order of the Vice President made on 25 July 2013, the Appellant provided a Statement of Stressors dated 16 August 2013, together with a document "Further & Better Particulars to Statement of Stressors" of 7 November 2013.
  1. [95]
    As Justice Martin, the President of the Commission, has stated in recent decisions:
  1. (a)
    the process of filing and serving a list of stressors is used to identify those events or matters which an Appellant says caused the psychiatric or psychological injury;[23]
  1. (b)
    the list of stressors must be confined to matters that are relevant to the injury - it is not to be a list of grievances;[24]
  1. (c)
    the list of stressors is not, by itself, evidence;[25]
  1. (d)
    mere provision of such a list does no more than alert the Respondent of the case to be advanced by the Appellant;[26]
  1. (e)
    however the Respondent is entitled to engage in the proceedings on the basis that statement of stressors comprises the matters which constituted the entirety of an appellant's claim;[27] and
  1. (f)
    the Commission must decide the appeal by reference to the list of stressors and may not go beyond them when making findings.[28]
  1. [96]
    The Appellant originally nominated 30 Stressors over the period from February 2009 until August 2012. Some were specific events said to have occurred at nominated dates and times.  Others were descriptions of repeated conduct of the same type alleged to have occurred over a period.
  1. [97]
    Some of the Stressors were described in the original statement provided to WorkCover or in the review process, and the Notice of Appeal.  Others were first mentioned in the Statement of Stressors.  At the commencement of the hearing, the Appellant advised that she would not proceed with Stressors 8, 9 and 11.  Stressor 27 was also not pursued. 
  1. [98]
    Because evidence was given and submissions were made about most of the Stressors, it is necessary to consider each of them.  As will become apparent, some are more significant than others and hence are discussed in more detail.
  1. [99]
    Although each Stressor is described separately, some should be considered together.  Stressors 1 to 3, for example, deal with related issues.  There was some overlap in the evidence and submissions in relation to them.  Similarly, it is appropriate consider together Stressors 6 and 15, Stressors 18 and 21, and Stressors 17, 19 and 22.

Stressor 1 - Appellant being consistently belittled, backstabbed, undermined, isolated, humiliated and excluded by Melinda Johnson, who manipulated to have her removed from duties (in period February to May 2009)

  1. [100]
    Evidence:  The Appellant finished her EMD training in February 2009.  She gave evidence that from about then she had issues with Melinda Johnson, another more experienced EMD. On one occasion soon after February 2009, the Appellant was dispatching two ambulances, one as a Code 1 Bravo (closest available immediate ambulance, lights and sirens) and the other as a Code 2.  Ms Johnson wanted the Appellant to upgrade the second ambulance to Code 1.  The Appellant considered that to be against the SOP and was not the way she had been trained.  Shane Kropp, the CDS at that time, asked the Appellant what was happening, and then backed her in relation to the Code 2.  According to the Appellant, Ms Johnson was not happy with that outcome, and made a comment and rolled her eyes.  She had a conversation with a couple of other people in the room that day.  The Appellant could not recall Ms Johnson's comment but characterised it as negative.
  1. [101]
    The Appellant also gave evidence that, one day subsequently (apparently in May 2009), she was dispatching while sitting beside Scott Bennett, another EMD.  He spent the day "questioning everything [the Appellant] was doing."  The next day, she was dispatching. When she returned from a break, Ms Johnson was in her seat.  The Appellant was told by the CCS that she was no longer dispatching for that day and that Mr Bennett had refused to work with her.  She formed the view that Ms Johnson had "manipulated" that decision.  The Appellant said that subsequently she was "frequently" taken off dispatching.  
  1. [102]
    The Appellant did not recall Bernie Moran, the CCS, telling her that Ms Johnson would be sitting with her to assist, and she denied that in response she told Mr Moran that she would not dispatch.  She did recall being directed by Mr Moran to sit in the Sunshine Coast "buddy seat" next to Ms Johnson, and that she was told she was not dispatching but that Ms Johnson was dispatching that night and the Appellant may be dispatching later in the evening.  However, the Appellant denied that this was as a consequence of her discussion with Mr Moran and was an attempt to assist her with dispatching.
  1. [103]
    Ms Johnson gave evidence in relation to this Stressor.  She has been an EMD at the QAS since 2007, and from time to time has acted as a PDO. By Ms Johnson's account, she was dispatching and the crew for a matter she had dispatched responded asking her a question about the case because it has been upgraded.  Ms Johnson had not noticed that at the time.  The Appellant had taken a call in relation to it.  Ms Johnson yelled and asked the Appellant why it had been upgraded.  According to Ms Johnson, the Appellant "snapped" at her and said something along the lines of that it was upgraded to a Code 2 response (which is not lights and sirens) which it already was.  However the patient was not alert.  The case could have been upgraded to Code 1 in one of three ways.  Ms Johnson said she did not understand what was happening and asked the Appellant why it was upgraded (which is the question the crew had asked her).
  1. [104]
    Ms Johnson's evidence about the May 2009 incident was that she was asked by Mr Moran to work with the Appellant because the Appellant had apparently expressed concerns about her dispatching, after completing her period of mentoring by Mr Cumming.  Mr Moran asked Ms Johnson to sit with the Appellant for a shift and "walk her through things, anything that she had an issue with that we could just talk through it all go through with her."  She described this "shadowing" as "helping someone build their confidence."  It was, in her experience in Cairns, a common practice in relation to an EMD who was recently signed off.  The new EMD could draw from the support of an experienced EMD. Ms Johnson gave evidence that she did not know whether Mr Moran informed the Appellant that he was going to have someone shadow her.
  1. [105]
    According to Ms Johnson, when Mr Moran asked the Appellant to do dispatching she refused.  He then politely told the Appellant she would be doing it.  The Appellant put in a complaint.
  1. [106]
    Ms Johnson said that she "got on quite well" with the Appellant while she was being mentored, and did not have any issue with her between May 2009 and receiving a complaint made by the Appellant about her.  Ms Johnson rejected the suggestion that she rolled her eyes and pulled faces when the Appellant spoke. She denied making negative comments or describing the Appellant as incompetent.
  1. [107]
    On Saturday 23 May 2009, the Appellant sent the following two emails to Ms Kennedy:
  1. (a)
    at 12.39 am concerning issues with seating (that they had apparently discussed the previous day), in particular that she was on the roster to do the Wide Bay dispatch at a specific location but another person (Chris Dawe) was dispatching there.  The Appellant said that she needed to dispatch and was not getting enough experience, and was told by Mr Moran she might get some during the night.  Ms Johnson offered the Appellant training but, she wrote: "as much as it was very gracious of Mel, I don't need training, I just need exposure.  …  I am not getting the exposure or the practise and it is really affecting my confidence and ability with dispatching.  It is important to me to know and do my job competently and when I know I am underperforming, it just adds to the mix.  Not funny any longer.  It is my responsibility to make sure I get the exposure but it is not my place to jump up and down when I come to work."  (Exhibit 3)
  1. (b)
    at 7.59 am stating that she was "very angry, hurt and very embarrassed."  The Appellant had dispatched on Sunshine Coast the previous night although, according to the roster, she was supposed to be dispatching on Wide Bay.  She stated "I need the exposure."  Mel was "managing the board" and the Appellant overheard her telling a road crew by telephone that she had been told to watch the Appellant.  The Appellant wrote: "If there is a problem it would not only be courteous but an obligation to advise me and it certainly isn't something to be discussed with on road crew."  She then described the events on the day when she was dispatching with Scott Bennett beside her (when he got angry if she questioned what he was doing, the Appellant had to remind him that she was dispatcher, and she was later replaced as dispatcher by Ms Johnson).  The Appellant continued: "Jenny I have every right to be given the opportunity to build on my skills with the appropriate exposure and I am not being given this opportunity.  I have a lot to learn, but I don't think I am doing too badly. …  So if there is an issue with my dispatching I would like to know."  (Exhibit 3)

 At 8.53 am, Ms Kennedy forwarded the Appellant's second email to Mr Peatey.

  1. [108]
    Ms Kennedy sent an email to Ms Johnson at 1.06 pm asking her to advise "if there were any issues that involved you with respect to Jan dispatching on Friday night"  (Exhibit 10). Ms Johnson replied at 8.46 pm to the effect that:
  1. (a)
    Mr Moran, the CCS, asked Ms Johnson to "shadow" the Appellant while Ms Johnson was dispatching;
  1. (b)
    when he told the Appellant what would be happening, she said that she would not dispatch, but after he explained that she would be dispatching, Ms Johnson gave her a handover and "shadowed" her;
  1. (c)
    the Appellant can do the principles and VisiCAD functions for dispatch "without any problem;"
  1. (d)
    her personal opinion was that the Appellant "suffers greatly from not being able to follow instructions immediately and does not listen well," including "not listening to what else is going on in the room and jumping in when she does not fully understand."  Ms Johnson stated that the Appellant "does not continually review her board and the status of vehicles, update quick notes and does not monitor her map at all."  Ms Johnson tried to explain the importance to her but was "not sure that it was taken on board."  In relation to monitoring, Ms Johnson felt that the Appellant was "easily distracted by personal phone calls, the Internet, local talk as we all are at times but dispatch should take priority;"
  1. (e)
    the Appellant seems to want to "blame everyone else and everything else for any shortcomings that she thinks that she may have (she herself admits she is insecure) and she had an excellent mentor and if she could attempt to learn and draw from the experience around her instead of being so abrupt she would better serve herself.  She really is a lovely person;"
  1. (f)
    if it is deemed that the Appellant needs any retraining, Ms Johnson was "not volunteering and would prefer not to be involved any further due to the above statement."  (Exhibit 10)
  1. [109]
    Erica Bolam has worked as an EMD for the QAS at the Maroochydore Communications Centre since 2007.  On occasions since 2009 she has acted as a CCS.  She has worked alongside the Appellant and has been her acting supervisor.  She described their working relationship as "just a professional relationship."  At times she thought the Appellant found in the role "a bit challenging" and "found it hard to follow directives."
  1. [110]
    Ms Bolam gave oral evidence that at the end of May 2009 she returned from an overseas trip.  She and the Appellant and were doubled up on a roster.  The Appellant approached Ms Bolam when Ms Bolam first arrived at work, and asked her to despatch.  Ms Bolam's preference was not to because she had been on holiday and "dispatching can be a little bit horrendous" and she had locked herself out of the corporate computer so did not have access to the mapping information required for the Wide Bay Burnett region ("where the cars don't track").  However Ms Bolam did the dispatching because the Appellant insisted that she did not want to despatch.  On the following day they were due to do relief dispatching for the Sunshine Coast when others went on breaks.  Again the Appellant did not want to do dispatching.  The supervisor, Mr Moran, asked Ms Bolam to despatch and she replied that the Appellant and she were on the same line and so the Appellant could do it.  But the Appellant did not want to do it, and Ms Bolam apologised to Mr Moran because she thought she was "a bit out of line for doing that."  Ms Bolam said that it seemed that the Appellant had "lost her nerve to do it, because it can be quite stressful," and Mr Moran asked her to relay that information to the Professional Development Officer, Ms Kennedy.
  1. [111]
    According to Ms Bolam, Ms Kennedy "seemed to recoil a bit" when she relayed that information.  Ms Kennedy said that it was very different to what the Appellant had told her, that Ms Bolam "kept jumping into despatch."  Ms Bolam was asked by email to write a report of what had happened, which she did on 23 May 2009 (Exhibit 11).
  1. [112]
    By the time Ms Bolam arrived at work the following day, Ms Johnson was shadowing the Appellant "to get her back up to speed with the being able to despatch." 
  1. [113]
    When asked about her email complaint in May 2009, the Appellant said that from 2009 she was aware of a grievance procedure at QAS.  Although she contacted the relevant phone number for complaints about bullying or harassment, she did not go any further because, she said, she was "a little bit intimidated" by the process.  She felt it was better to go through her manager, and did so in relation to the complaint on 2 September 2009 (see Stressor 3).  She acknowledged that in her communications with Ms Kennedy as Professional Development Officer in May 2009, she complained about Ms Johnson and Mr Bennett.
  1. [114]
    Ms Kennedy gave evidence that she and Mr Peatey addressed the Appellant's complaint in May 2009 that CCS Moran told EMD Johnson to shadow the Appellant.  There was no issue about the Appellant's dispatching competency.  Ms Kennedy was unaware of anyone telling the Appellant she was incompetent.  According to Ms Kennedy, it was not the practice not to advise EMDs if they were being shadowed.  Rather, once EMDs were signed off as competent, they should have been advised they were being shadowed.  In these circumstances, it would not have been Ms Johnson's decision and, there was nothing in the subsequent emails (Exhibit 10) to indicate that Ms Johnson or Ms Bolam behaved unreasonably toward the Appellant. 
  1. [115]
    A meeting was held on 29 May 2009 involving the Appellant, Mr Peatey, Mr Moran and Ms Kennedy.  Ms Kennedy took notes of the meeting at which there was some discussion about the Appellant's concerns about dispatching.  Ms Kennedy recalled Mr Peatey advising the Appellant that the CCS had authority to move staff around in the room at his discretion, and that at the end of the meeting the Appellant advised that when she returned to her console she felt much better having had the discussion.
  1. [116]
    The Appellant recalled telling others at the meeting that she felt she was being watched the whole time and if there were issues with her competency then there were avenues to address that, rather than having a peer ("who was my equal") to be sitting beside her and shadowing her.  There should have been some sort of mentoring program if she was having competency issues.
  1. [117]
    The Appellant recalled being told that there was not an issue with her competence.  She was offered assistance and support with dispatching if she needed it, and an opportunity to sit with Ms Kennedy that day and go through any problems or issues that the Appellant had.  The Appellant declined that offer, said she was confident in her role and did not have any problems.  She advised the meeting that any allegation that she was trying to get out of dispatching was wrong, and any comment to the contrary was a misinterpretation.  The Appellant agreed, however, that as at the end of May 2009 she lacked confidence in dispatching.  She said that was because she was not getting sufficient exposure. The Appellant also recalled that, at that meeting she was advised that Mr Moran had authority to move staff at any time in his role as supervisor.  In her view, if people such as Mr Moran and Ms Johnson were trying to assist her to achieve confidence and experience, "I should have been left to dispatch as I was rostered."
  1. [118]
    The Appellant agreed that the complaint arose because she was not happy with how Mr Moran allocated duties to her.  When it was put to her that it was reasonable that people with more experience would try to assist her by advising how things should be done better, the Appellant replied:

 "I'm signed off as competent.  No, I didn't expect that to happen."

 and

"My understanding is that I was signed off as competent.  I'm on the same level as them.  If there was an issue with my competency, then the professional development officers should have addressed it with me."  (T 3: 7)

  1. [119]
    The Appellant agreed that she had a discussion in May 2009 with Mr Moran to the effect that she lacked confidence because she was not getting sufficient exposure in relation to dispatching.  She said she was unaware that, in assisting her with dispatching (including by shadowing her), Ms Johnson was doing what Mr Moran had told her to do.  The Appellant stated:

"She wasn't supposed to be assisting me….  I am a competent - I was signed off competent EMD.  …  If there were issues with my dispatch, I should have been spoken to by the professional development officer.  That, I believe, is the protocol.  Nobody had advised me that there were any issues with my competency in dispatch."  (T 3: 11-12)

  1. [120]
    The Appellant raised her grievance, and other issues were discussed.  According to the Appellant the outcome of the meeting was that there would be changes in the communications room, there would be definite dispatching and call taking roles with people allocated to a particular seat, the roster would be changed, and the CCS could choose to move people for good reason.  The Appellant recalled that after the meeting she advised that she was feeling much better having had the discussion.
  1. [121]
    Although change to the roster arrangements was implemented after the meeting on 29 May 2009, the Appellant seemed to suggest that it did not apply to her and that Ms Johnson continued to harass her.  She gave an example of coming to work one night in September to dispatch on Wide Bay.  Someone was sitting on her seat, and Mr Moran said she would not be dispatching that night but would be on call taking.  By the Appellant's account:

"I said to him, 'Well, I'm not getting enough exposure.  I want to dispatch.'  Anyway I just went and sat in a seat.  I just said, 'Don't worry.', Went and sat in a seat.  I went on my meal break and I came back and Mel said to me, 'You can dispatch.', And the rest of the night was - I may as well not have been dispatching.  She was changing decisions, overriding my decisions, then at quarter past 5 in the morning I had a job for a Kawana crew and it was not normal to ring the station, but she rang the station and I overheard her saying, 'I'm not dispatching, but I've been told to watch Jan.'" (T 1: 74)

  1. [122]
    According to Ms Johnson, she could not recall having any issues with the Appellant between May 2009 and a complaint against her in September 2009.  In her assessment, the two women were "completely professional" during the period after the shadowing incident.
  1. [123]
    On 2 September 2009, the Appellant sent a written complaint about bullying to Mr Peatey, and a copy to Ms Kennedy.  The Appellant thanked both of them for meeting with her that morning regarding "my being bullied by Mel Johnson."  The Appellant referred to a "horrible few months" and stated that she should have raised the issue sooner but had hoped it would resolve itself.  According to the complaint, the bullying became obvious not long after the Appellant was signed off as a dispatcher when they argued about Ms Johnson telling the Appellant to upgrade a dispatch and the Appellant refused. Mr Kropp became involved and apparently confirmed the Appellant's assessment.  The Appellant wrote:

"From then on it has been constant belittling, talking behind my back and even in front of me which I just tried to ignore.  It got to the stage I doubted my ability to dispatch and trust myself; I didn't trust my training and really felt I couldn't do the job.  Mel has since isolated, humiliating, tormented, excluded, undermined and ridiculed me in the Comms Centre and outside." (Exhibit 35 E9)

  1. [124]
    The Appellant asserted that Ms Johnson manipulated and encouraged the situation to have her removed from despatching one day and took over the role, and then told people that Scott had refused to work with her.  She referred to another dispatch incident (described above), and continued.

"Over the last few weeks she has got really nasty, making comments to others in the centre talking behind my back, rolling her eyes or pulling faces if I talk.  In the last few weeks I noticed when I was dispatching on Sunshine Coast she didn't pass information or messages onto me." (Exhibit 35 E9)

  1. [125]
    The Appellant described Ms Johnson's behaviour as potentially "dangerous and compromising to me, my work colleagues and QAS and could have a serious impact on both patient and crew safety."  She suggested that Ms Johnson did not realise the seriousness of her behaviour.  However, it was affecting the Appellant personally, her home environment, and her relationship with her daughter.  She referred to having "sleepless nights stressing" and getting "terrible headaches and backaches due to the stress.  I felt worthless, depressed and incompetent and wondered when I would be getting a tap on the shoulder to say you are out."  She had no energy and had taken sick days to avoid the conflict. 
  1. [126]
    Having realised that the situation could not continue, but would not go away on its own, the Appellant spoke with Mr Peatey and Ms Kennedy.  The Appellant concluded:

"Already after speaking with you and Jenny this morning, I feel so much better.  I am a good EMD, although there is always room for improvement and learning, and I believe that if there was an issue, I would certainly hear from either you or Jenny.  Putting aside all of this, I love my job and achieve a high level of satisfaction.  I will no longer waste time worrying about or tolerating Mel doing what she is doing and I will now stand up for myself and knock it down straight away.  I know that as a result of this complaint, it will probably be worse, but at least it is out in the open and maybe it will also help others who are subjected to this appalling behaviour. Thank you again."  (Exhibit 35 E10)

  1. [127]
    When giving oral evidence and asked to provide examples of how Ms Johnson was "really nasty" to her, the Appellant said that:
  1. (a)
    Ms Johnson would "frequently" make negative comments about the Appellant to the person sitting next to her when the Appellant walked past them (although she could not recall details about the comments other than that one included "incompetent");
  1. (b)
    when the Appellant joined in a conversation at the Communications Centre, Ms Johnson would either roll her eyes or change the subject, or talk over her and turn to talk to her people so that the conversation moved away from what they were talking about;
  1. (c)
    Ms Johnson was not abiding by the policy about bullying issued by the Director-General of Emergency Services (Exhibit 2).  (T 1:74-77)
  1. [128]
    According to the Appellant, what was occurring at work was affecting her, her home environment and her family, her ability at work to trust herself and her decisions.  She was not sleeping.  At work she felt isolated from everybody within the room.
  1. [129]
    Ms Johnson gave evidence that she had never used the word "incompetent" in relation to the Appellant.  She did not recall rolling her eyes or pulling faces when the Appellant spoke, as that was not something she thought she would normally do.
  1. [130]
    Appellant's submissions: In the Appellant's submission, it is clear that Ms Johnson and the Appellant were led into conflict by the fact that Ms Johnson was "shadowing" the Appellant without her knowledge.  Ms Johnson seemed oblivious to the fact that the Appellant was unaware that she was trying to perform a role.  On that basis, the Stressor is made out.
  1. [131]
    Respondent's submissions: The Respondent submits that the evidence given about Ms Johnson's allegedly constant belittling, backstabbing, undermining, isolating, humiliating, tormenting and exclusionary behaviour was, at best, sparse.  In its submission, the evidence of Ms Johnson should be preferred because she presented as a credible witness (as opposed to the Appellant) and there was little or no independent evidence of any behaviour by Ms Johnson which could be described in the words used by the Appellant.
  1. [132]
    In relation to the events in May 2009, the Respondent submits that the emails from the Appellant to Ms Kennedy, and the responses from Ms Johnson and Ms Bolam, are informative of the Appellant's interpretation and attitude.  Although the Appellant made some concessions that she was inexperienced and underperforming, she was adamant that she did not want the assistance of more experienced officers, resented their attempts to assist her, and quickly blamed and complained about a number of her colleagues.
  1. [133]
    The Respondent also submits that there was no evidence that Ms Johnson changed or overrode any decisions after the meeting on 29 May 2009.  The Appellant made an error in her oral evidence in saying the date of the incident was September 2009, when in fact it was in May 2009, as is evident from paragraph 2 of her written complaint sent by email to Mr Peatey and Ms Kennedy on 2 September 2009 (see Exhibit 35 E9).
  1. [134]
    Consideration and findings: There is little evidence to support the Appellant's claims that she was consistently belittled, backstabbed, undermined, isolated, humiliated and excluded by Ms Johnson.  It would appear that Ms Johnson and the Appellant were not friendly toward each other (although Ms Johnson said they were professional in their relationship and she described the Appellant as a "lovely person" in an email to Ms Kennedy on 23 May 2009).  I accept that there were probably instances when Ms Johnson appeared to be disparaging or slighting about the Appellant.  It seems clear that the Appellant took them to heart and they are affected her perception of herself and her capacity to do her EMD work well.  However, the nature and frequency of such instances has not been proven, at least not sufficiently to provide a foundation for the Appellant's injury.
  1. [135]
    The significant part of this Stressor relates to the "shadowing" of the Appellant by Ms Johnson.  I am satisfied that:
  1. (a)
    such shadowing was an accepted informal practice in the QAS;
  1. (b)
    in the circumstances, it was appropriate for the CCS to arrange for the Appellant to be "shadowed" for a limited period in order to assist her improve, and become more confident in, her dispatching practice; and
  1. (c)
    Ms Johnson was sufficiently qualified and experienced to provide shadowing assistance to the Appellant. 
  1. [136]
    Ms Johnson was acting on the instructions of her supervisor.  It was not her role to inform the Appellant that she was being shadowed, and Ms Johnson was unaware of whether Mr Moran informed her of that. To the extent that the Appellant was not told she was being shadowed, and hence may not have been aware of the rationale for and benefits of that practice (and instead developed concerns about Ms Johnson's behaviour towards her), that was a blemish on otherwise reasonable management practice. 

Stressor 2 - Melinda Johnson says she is unhappy with the Appellant's dispatch decisions on 10 September 2009

  1. [137]
    Evidence: On 10 September 2009, Ms Johnson was relief dispatch officer on the Sunshine Coast dispatch board, when the Appellant was dispatching on the Wide Bay dispatch board.  According to the Appellant, Ms Johnson queried her dispatch decision and a senior officer (the CPS) looked into it and deemed that she had been correct in her dispatch assessment.
  1. [138]
    Appellant's submission: In the Appellant's submission (as for Stressor 1), it is clear that Ms Johnson and the Appellant were led into conflict by the fact that Ms Johnson was "shadowing" the Appellant without her knowledge.  Ms Johnson seemed oblivious to the fact that the Appellant was unaware that she was trying to perform a role.  On that basis, the Stressor is made out.
  1. [139]
    Respondent's submission: The Respondent notes that the Stressor was raised for the first time in the Statement of Stressors in August 2013, and the allegation was not put to Ms Johnson in cross-examination.  It submits that there is insufficient evidence to support the allegation and, as the evidence was not put to Ms Johnson, it should be given no weight.[29]
  1. [140]
    Consideration and findings: Given the sparsity of the evidence in relation to this matter, and the absence of cross examination of Ms Johnson in relation to it, I am not satisfied that Stressor 2 has been proved.  In any case, even if the evidence of the Appellant is accepted, it would not seem to establish a stressor that caused the Appellant's injury. 

Stressor 3 - Melinda Johnson said threateningly at a meeting that if issues were raised again there would be a problem

  1. [141]
    Evidence - the meeting: Following her complaint to Mr Peatey on 2 September 2009  (Exhibit 35 E8-10),  the Appellant was interviewed at her home Mr Eva (who was asked to assist Mr Peatey in the investigation) and Ms Kennedy.  According to the Appellant, she gave Mr Eva a list of things that had occurred (including the dispatch) and a list of people who had witnessed incidents, but he did not interview them. 
  1. [142]
    Ms Kennedy gave evidence that she was involved in the investigation of the complaint.   She had not observed any of the complaints in relation to Ms Johnson that were included in the email.  Mr Eva investigated with Ms Kennedy (for some aspects only).  Ms Johnson denied allegations of bullying and said she could take it to a different forum if the matter was raised again.  The meeting was confidential. 
  1. [143]
    On 30 October 2009, there was a meeting between the Appellant (with her support person Ms Kennedy), Ms Johnson (with her support person Barry Wood), Mr Eva and Mr Moran.  There was a discussion about the complaint that the Appellant made against Ms Johnson.  Ms Johnson read the following pre-prepared note to the meeting:

"I am sorry if you feel unhappy at work or worse still that you feel under pressure.

However, targeting me with accusations of bullying is not fair.

The allegations you have made are highly defamatory and without foundation.

Further, they were made without you having raised any concerns with me and are unsupported by any evidence.

If similar allegations are repeated in future I reserve my right to take appropriate action.

For now, the only other thing I wish to say is that I am willing to let matters rest in the interest of maintaining a professional relationship as work collegues.  [sic]" (Exhibit 23)

  1. [144]
    The Appellant recalled (apparently by reference to the penultimate paragraph of Ms Johnson's statement) that Ms Johnson said that if the Appellant "brought this up again that she would take further action."  In cross-examination the Appellant said she was "only going from my memory and how I perceived it at the time," and that was "how it come across to me."  But she acknowledged that Mr Johnson read from a written statement.  The Appellant said that, although she probably had an opportunity to respond, she did not respond but "just felt really intimidated and upset by that."  She was "pretty upset at the time."  However, the Appellant recalled saying "That is not fair" in response to Ms Johnson's statement.  Her evidence continued:

"It's not fair that she can sit there and say that when this is happening - all this is happened to me, and she sitting there and she's saying that - like, if I bring it up again, if there is ongoing behaviour, then I'm going to end up with - in trouble, basically, because I actually had strength to stand up and say that this is not acceptable behaviour within the com centre …" (T 3: 28)

The Appellant agreed, however, that having regard to the words actually read, Ms Johnson had a right to take action through appropriate channels if she felt that a colleague in the Communications Centre was making defamatory and untrue statements about her.

  1. [145]
    The Appellant agreed that Ms Johnson absolutely denied the alleged behaviour, Mr Eva said there had been insufficient evidence to substantiate the allegations, and both women were reminded about the Code of Conduct which required colleagues to respect each other. 
  1. [146]
    The participants in the meeting were instructed, in effect, to keep the matters discussed in the meeting confidential.  As an outcome of the meeting, and about 10 days later, she and Ms Johnson were issued with a written Code of Conduct warning, which had been mentioned in the meeting.
  1. [147]
    After the meeting, Mr Eva asked the Appellant to remain in the room, and everyone else left.  He said to the Appellant words to the effect that "If you repeat this I will emphatically deny it, but I have no doubt this bullying went on, but I couldn't substantiate it."
  1. [148]
    For completeness, I note that the Appellant also gave evidence that she spoke with Mr Eva on 1 August 2011 before making a written complaint to him in his role as Acting Communications Manager on 4 August 2011 about "bullying and harassment of myself within my work environment at Maroochydore Communications Centre."  (Exhibit 35A E11-12)  That complaint included:

"In around May 2009 you investigated another bullying complaint I made, and although after the meeting you spoke with me and told me that you "were in no doubt that bullying had occurred", I was 'okay' with the outcome."

The Appellant said that Mr Eva denied the accuracy of that statement, in particular stating in subsequent conversations that he did not say that.

  1. [149]
    The Appellant stated that she "was happy with the outcome of the meeting" on 30 October 2009 and believed that "that was the end of it and we'd all move on." By her account, she and Ms Johnson worked together and had a working relationship.  From 2011 onwards, Ms Johnson sometimes relieved as the PDO and gave her some training which proceeded well and without problems.
  1. [150]
    In her evidence, Ms Johnson recalled receiving the letter of complaint in a meeting with Mr Eva and Barry Wood (as ROS), her support person.[30]  She said that she felt "pretty devastated" by the complaint which she said she "couldn't even really understand."  She was not quite sure "what it was all about" as the complaint was not specific.  The mediation meeting was held after Ms Johnson returned from prearranged leave.  She had prepared a written statement (Exhibit 23) before the meeting because she was "extremely nervous" and "quite upset about it."  Ms Johnson did not recall saying anything other than what was in the statement, and said there was no threat to the Appellant and she did not speak to the Appellant in a threatening way.  Apart from reading that statement, Ms Johnson said that she "just listened."  
  1. [151]
    After the mediation on 30 October 2009, Ms Johnson was still "pretty upset" and she spoke to Ms Bolam, a friend and peer support officer.  Ms Johnson remembered something being said about that mediation meeting being confidential, but did not recall warning Ms Bolam that what she said to her was to be kept confidential. 
  1. [152]
    Mr Eva agreed that the effects on the Appellant's health, self-perception, and family, and her taking days off work to avoid the conflict, as identified in her email of 2 September 2009 raised concerns for management.  At that time, Mr Peatey was the Appellant's immediate managing supervisor.  Mr Eva was acting Regional Director of Operations, and was Mr Peatey's supervisor. 
  1. [153]
    According to Mr Eva, Ms Kennedy was involved as Professional Development Officer in Mr Eva's interview with the Appellant, but not in the interview with Ms Johnson because, according to Mr Eva, Ms Johnson said she did not have any confidence in Ms Kennedy at that time.  Mr Eva was not aware that part of the issue between the Appellant and Ms Johnson was that, unbeknown to the Appellant, Ms Johnson had been asked to shadow the Appellant in her work.  Although there is nothing in policies and procedures about such shadowing, Mr Eva said there was an expectation that more experienced or capable staff will align themselves with a less experienced person (including a qualified EMD who needs some support) and mentor or coach them.  In the case of an EMD, that is not about reassessing them because they have already been assessed as competent. 
  1. [154]
    According to Mr Eva, a supervisor could reallocate staff from their rostered duties on a shift.  The supervisor's role is to coordinate their workforce to achieve the best results. 
  1. [155]
    Mr Eva recalled Ms Johnson reading from prepared notes, but did not recall her saying anything else in the meeting.  Specifically, he did not recall her making any comments that could be construed as bullying or threatening. 
  1. [156]
    Mr Eva gave evidence that the letters sent to the Appellant and Ms Johnson after the 30 October 2009 meeting reminded them of their obligations under the Code of Conduct but did not constitute a warning.  The letters would remain on their files for 12 months.  He gave evidence that the repercussions of such a letter being in a personnel file were "inconsequential." 
  1. [157]
    When it was put to Mr Eva that after the meeting he had asked the Appellant to stay so that he could talk with her privately, Mr Eva said he not recall that.  However, it would not be unusual for him to speak to the complainant after the fact, thank them for bringing the matter to the attention of management, and reaffirm that there was some closure process.  He stated that it would be very emotionally challenging to bring the level of complaint against a work colleague.  So, as a matter of duty care, it would not surprise him that he had a private meeting and talked about the outcome. 
  1. [158]
    When it was put to him that he said to the Appellant "If you repeat this I will emphatically deny I said this but I have no doubt that this behaviour[31] occurred," Mr Eva replied:

"Well, I challenge you.  ….  I think it would be unusual for my practice to have - pass a finding down formally and then have another private meeting after the fact and say look, I know what I said but I've actually - my personal opinion is different; because that is in conflict to the previous meeting.  …  I would never have said that despite the outcome that was presented that I am of the opinion it's different because that's in conflict."  (T 7: 80)

  1. [159]
    Evidence - ongoing issues between Appellant and Ms Johnson: Ms Johnson described her relationship with the Appellant immediately after the mediation in the following terms:

"There didn't seem to be any other issues.  I was a little bit wary of - of interacting with Jan, obviously, because I didn't really know what the issue was.  So we just remained professional.  I didn't believe there was any other issues after that point."  (T 6: 56, see also 6:65)

  1. [160]
    Ms Johnson said that, about a year after the mediation and when she was acting as Professional Development Officer, she did some training with the Appellant about manual call taking and dispatch (which is necessary when the systems go down).  She described the relationship during the training as "fine."  That is consistent with the Appellant's evidence (noted above) that they had a working relationship after the meeting and that Ms Johnson gave her training that proceeded well and without problems.
  1. [161]
    Although the issues with Ms Johnson were apparently dealt with at the meeting on 30 October 2009, the Appellant said that Ms Johnson's behaviour continued.  The Appellant said that she continued being "isolated, not spoken to" and that if she involved herself in a conversation she was excluded.  To illustrate her feelings of exclusion, the Appellant said that on night shift there were pot-luck dinners where each person would bring a dish and they would have a communal meal.  These were mainly organised by Ms Johnson, who was present with Ms Bolam and sometimes Lyndall Robinson.  However the Appellant was not involved or included or told that such things were happening.  She also experienced "the general feeling in the room" and said that Ms Bolam was "antagonistic" towards her.  According to the Appellant:

"Mel would often make dinner or bring deserts or things like that and I would never be included.  I'd be left out.  Often there used to be bring a plate at night.  I was never asked or - not never asked, but it would depend on who was in the room, and if it was a certain bunch of people, I wasn't included."  (T 2: 10)

 Those people were "basically" Ms Bolam and Ms Johnson.

  1. [162]
    The effect of the Appellant's evidence in cross-examination was that:
  1. (a)
    there would be four people on night shift, plus the supervisor;
  1. (b)
    on most night Ms Johnson would bring food "to basically feed everybody;"
  1. (c)
    Ms Johnson gave food to two or three people;
  1. (d)
    because people were busy and took breaks at different times, people went and grabbed food when they could;
  1. (e)
    there was no group of people in the kitchen sharing food and leaving her on her own; and
  1. (f)
    the Appellant felt excluded.

On one occasion the Appellant baked a pavlova which she brought to work and shared with everybody in the Communications Centre.

  1. [163]
    According to the Appellant, Ms Johnson seemed to interact with most people in the communications room and was particularly friendly with certain supervisors (Mr Moran, Ms Beaumont, Kate Taylor or Kate Temple, and Ms Bolam).
  1. [164]
    As a result of these ongoing issues, the Appellant requested to work during the day and not during the nights.  She did so in order "to remove myself from the situation, from the ongoing problems that had been happening during the night" when only the EMDs and the supervisor or present in the room.  In an email dated 9 December 2009 to Mr Peatey, the Appellant asked if it would be possible to move to the support roster for approximately six months from the end of February or, if she was sharing a line with someone, whether she could do so in afternoons rather than nights (Exhibit 35 E34). The Appellant said that she spoke to Mr Peatey about her request, referring to problems that she was having with certain people.  Her request was granted. 
  1. [165]
    Ms Johnson gave evidence to the effect that when she first came to the Communications Centre, they were short staffed.  People brought their own food and often ate at their consoles.  Sometimes people cooked in the kitchen.  There were at least five people on night duty[32] and sometimes they would all agree to bring different components of a meal to share.  There were no set meal breaks, each had an individual meal, and people would "just grab something when they could."  Sometimes pizzas were ordered.  It was not a highly organised arrangement, given that officers worked on different rosters and there was not contact between everyone.  For example, two people who found they are on the same shift might agree to bring some food and make enough for everyone.  According to Ms Johnson, "there was no exclusion for anyone.  If anyone wanted to eat it, it was generally there.  There was plenty, if we all cooked."  Ms Johnson said she did not remember any occasion where the Appellant was excluded from arrangements to bring or order food.  However, it was not necessary for someone to bring food before they could participate.  It was "just a free-for-all."  She recalled the Appellant bringing a pavlova one night. 
  1. [166]
    Ms Bolam denied speaking to people in the workplace other than the Appellant to take an order for takeaway pizza.  She recalled only one occasion when she ordered pizza from the Communications Centre as a favour to another member who wanted to collect pizza for her family on the way home. 
  1. [167]
    Ms Bolam agreed that on occasions she and others, including Ms Johnson, would bring different meals to work but denied that everyone except the Appellant was involved in that process. 
  1. [168]
    Appellant's submission:  The Appellant submits that, although it appears that any overt behaviour towards the Appellant ceased after the meeting in October 2009, the preponderance of the evidence suggests that the Appellant was made to feel excluded during her work at the night shift.  Ms Johnson did not seems to appreciate the difference between a person being able to eat food that had been brought in and being invited to participate in a process that was fun for those concerned. Ms Johnson's assertions that it was implied that the Appellant was allowed to eat the food completely ignores the reality of the situation.  In a small crew (of five or six people) working the night shift, where there was some collusion between people in advance about bringing in different meals to share, not involving one person (i.e. the Appellant) in such a small team would have a direct effect in making that person feel isolated.  That is exactly the type of behaviour referred to in the policies and procedures. In particular, the directive about workplace bullying and harassment issued by the Director-General (Exhibit 2) states that every employee is entitled to a workplace free from behaviour which "intimidates, offends, degrades or humiliates them" including "excluding or isolating employees."
  1. [169]
    In the Appellant's submission, it is open to the Commission to find that the words used by Ms Johnson (particularly given what has been said about Stressors 1 and 2) as captured in  Ms Johnson's statement (Exhibit 23) was a Stressor.  This takes into account the fact that it is not necessary for the purposes of this decision for the Commission to make any finding about fault. 
  1. [170]
    The Appellant also submits that during and after these matters there was ongoing behaviour where the Appellant was isolated, put down and otherwise bullied as that term is defined in the employer's Guidelines (see Exhibit 2). 
  1. [171]
    The Appellant also submits that Mr Eva had not followed the procedure referred to in Managing unsatisfactory performance and conduct: A guide for supervisors (Exhibit 35 D 22-52) and that he failed to concede that there was something unreasonable about a person making a bullying complaint but subsequently receiving a Code of Conduct warning despite acknowledging the bullying procedures in Exhibit 2 seemed to be the appropriate procedure.  The Appellant also notes that Ms Kennedy was surprised that a Code of Conduct warning was issued to the Appellant, and there was no mention of that happening during the meeting. 
  1. [172]
    Respondent's submissions: The Respondent refers to the pre-prepared note and the accounts of that meeting.  It states that the allegation against Ms Johnson was first raised late in 2013 and for that reason, and the respective degrees of reliability of the witnesses, Ms Johnson's evidence should be accepted in relation to the comment allegedly made in a threatening tone by her.
  1. [173]
    In relation to the comments attributed to Mr Eva, the Respondent submits that the Appellant has not proven on the balance of probabilities that this statement was made.  Mr Eva did not recall having a meeting with the Appellant separately after the meeting including Ms Johnson, but agreed it was not unusual that he would speak to the original complainant to reaffirm that there was closure.  His evidence was that he would never have said that he was of an opinion different from the outcome was presented.  Mr Eva is a senior QAS officer and was a credible witness.
  1. [174]
    Consideration and findings: The range of matters and evidence in relation to them summarised above goes well beyond the express terms of Stressor 3.  On the basis of the various accounts of the meeting on 30 October 2009, I am satisfied that Ms Johnson read her pre-prepared note which included the statement that "If similar allegations are repeated in future I reserve my right to take appropriate action."  I also find that she did not say anything else to that effect, and that her statement was not threatening to the Appellant.  However, I can understand that, in the context of a meeting where both women were feeling tense and anxious, the Appellant perceived that Ms Johnson would take further action if she persisted with complaints that Ms Johnson considered highly defamatory and without foundation.
  1. [175]
    Any ambiguity or misconception arising from witnesses memories about the reference to the Code of Conduct can be resolved by reference to the letter dated 6 November 2009 from Mr Eva to the Appellant (Exhibit 30).  It included the following passages in relation to the allegation of workplace bullying:

"I considered all the material supplied to me concerning this matter and the contents of the interviews previously held between the parties and make the findings that the allegations cannot be substantiated beyond any reasonable doubt.

At the meeting, you will recall, that despite the allegation is not being substantiated I made findings that there was sufficient evidence that a breach of the QAS Code of Conduct occurred in regard to respect for the person.  I clearly outlined, and all parties agreed with my counsel, in relation to Queensland Ambulance Service (QAS) expectations of conduct commensurate with the position you hold.  I am of the opinion that I expressed the position of the QAS clearly in respect to the conduct of behaviour consistent with the QAS Code of Conduct."

  1. [176]
    Mr Eva advised that the letter would remain on the Appellant's file for a period of up to 12 months and that the Regional Director Operations would consult with her manager when three months had elapsed and enquire about her performance and circumstance.  He enclosed a copy of the Code of Conduct.
  1. [177]
    In relation to other matters raised under the rubric of Stressor 3:
  1. (a)
    I am satisfied that during the meeting there was a reference to the Code of Conduct and after the meeting the Appellant and Ms Johnson each received a letter which referred to their breach of the obligation under the Code of Conduct in regard to respect for the person;
  1. (b)
    I am not satisfied that Mr Eva made the alleged statement to the Appellant after the meeting;
  1. (c)
    to the extent that the Appellant perceived that she was made to feel excluded by some of her work colleagues during the night shift because she was not involved in their arrangements for bringing in food to share during night shifts, I am satisfied that she was not actively included in or excluded from those arrangements.  In other words, although she might not have been directly involved in ad hoc arrangements for food sharing, she was able to participate if she chose to do so either by sharing food that was brought or contributing herself (as she did by bringing a pavlova on one occasion).  I am not satisfied, on the evidence before the Commission, that the behaviour complained of constituted "excluding or isolating" the Appellant in a way that breached the directive about workplace bullying and harassment.

Stressor 4 - Nick Fisher was rude and unreasonably took over the Appellant's work, and said rude and unprofessional treatment was based on discussions about the Appellant's work by Erica Bolam

  1. [178]
    Evidence: The Appellant recalled that on 29 January 2010 she offered to help Nick Fisher, a newly signed off dispatcher.  He refused her offer, telling her to mind her own business and that he did not want her help.  When Mr Fisher went on his break, the Appellant took over the board.  There were issues, apparently caused by Mr Fisher, that needed to be resolved and the Appellant set about fixing them up over the next 20 to 25 minutes.  When Mr Fisher returned, he took over dispatching without waiting for a handover from the Appellant.  He spoke on the radio and came across the top of an emergency call.  The Appellant asked him to wait.  He said "I don't need a handover" and carried on.  The Appellant said, "You need to wait because there's some things I need to tell you."  Mr Fisher got up, spoke with the CCS (Michael Byrnes), then returned and "did the same thing again."  This time, the Appellant said to him very firmly, "You need to wait.  I will give you a handover once I finish dispatching this case."  She attempted to give him a handover and he refused, so she left for her break.  The Appellant spoke with Mr Byrnes about the matter, and he advised the Appellant that Mr Fisher had made a complaint about her. 
  1. [179]
    The Appellant said they needed to talk about the matter and Mr Byrnes organised a meeting with Ms Kennedy, which was attended by Mr Byrnes, Ms Kennedy, Mr Colquhoun, Mr Fisher and the Appellant.  It was held in the office shared by Ms Kennedy and Mr Colquhoun.  The Appellant recalled that, at that meeting, Mr Fisher said that she had been rude and aggressive towards him.  But she denied that she was rude to him, stating that she "asked him specifically to wait for a handover, which is policy and procedure."
  1. [180]
    According to the Appellant, she asked Mr Fisher why he was rude and dismissive towards her and whether it was a result of any conversations in the Communication Centre.  He replied that Ms Bolam, while mentoring him, had told him about a previous meeting between the Appellant, Ms Johnson and others (i.e. their meeting on 30 October 2009).  Ms Kennedy informed him that he had been given the wrong information and then told him what had happened in the previous meeting.  Mr Fisher then apologised to the Appellant, and said that his assessment had been based on rumours that had been going on and the conversation he had with Ms Bolam.
  1. [181]
    Ms Kennedy gave evidence that complaints from the Appellant and Mr Fisher led to a meeting involving them, Mr Byrnes, Ms Kennedy and Mr Colquhoun in the PDO office.  Mr Fisher repeated rumours about the Appellant, which Mr Kennedy assumed came from the confidential previous meeting.  There was an improvement in his behaviour after the meeting in January 2010.
  1. [182]
    There was no issue that Ms Bolam was aware of the contents of the mediation meeting on 30 October 2009.  As noted earlier, Ms Johnson gave evidence that after that mediation she was still upset and she spoke to Ms Bolam, a friend and peer support officer. Ms Johnson remembered something being said about that mediation meeting being confidential, but did not recall warning Ms Bolam that what she said to her was to be kept confidential.
  1. [183]
    Ms Bolam gave evidence to the effect that she became aware of a complaint by the Appellant about Ms Johnson in late 2009 when, as a Priority One peer support officer,[33] she spoke with Ms Johnson who was "fairly rattled" about having a complaint made against her.  The discussion was more about Ms Johnson's feelings than the substance of the complaint.  Ms Bolam said that she did not talk to anyone else about that conversation, and that she was "bound by confidentiality" as a peer support officer.   Ms Bolam did not recall Ms Johnson telling her of a meeting with Mr Eva.
  1. [184]
    Ms Bolam, who mentored Mr Fisher in the dispatch role, said that she did not speak to him about her conversation with Ms Johnson.  Nor did she make disparaging comments about the Appellant to him.  She also said she did not hear any such thing from Ms Johnson. Ms Bolam described her working relationship with the Appellant as "just a professional relationship."
  1. [185]
    Appellant's submission:  The Appellant submits that, on the balance of probabilities, the Commission can have no hesitation in finding that Nick Fisher was rude and acted poorly towards the Appellant because of things he had heard from Erica Bolam in the workplace whilst she was mentoring him.
  1. [186]
    Respondent's submissions: The Respondent notes that Mr Fisher was not called to give evidence, and any evidence about what he said was hearsay.  Although Mr Colquhoun was allegedly at the meeting, he did not give any evidence about it.  The Respondent points to different accounts of the exchange given by the Appellant and Ms Kennedy.  The Respondent also highlights that the conversation arose after Mr Fisher had complained about the Appellant being rude and aggressive towards him (which may have affected his response to her) and, in cross-examination, Ms Bolam stated that Mr Fisher did not hear anything from her about the previous complaint against Ms Johnson.
  1. [187]
    In the Respondent's submission, the balance of the evidence (particularly in the absence of any evidence from Mr Fisher) would not allow a conclusion that Ms Bolam or Ms Johnson told Mr Fisher about the previous complaint, let alone that this influenced Mr Fisher's behaviour towards the Appellant.
  1. [188]
    Consideration and findings: On the basis of the evidence from the Appellant and Ms Kennedy, I find that Mr Fisher reacted dismissively and probably behaved rudely towards the Appellant on 29 January 2010, and that his behaviour was in reaction to exchanges with the Appellant on that day but was influenced by rumours in the workplace about bullying and harassment in relation to the Appellant.  In the absence of evidence from Mr Fisher, and in the face of denial by Ms Bolam, I am unable to find that the Appellant has proved that the information on which Mr Fisher based his behaviour toward the Appellant was provided to him by Ms Bolam and, in particular, that it included information about the meeting on 30 October 2009 involving Ms Johnson and the Appellant.

Stressor 5 - Justin Cumming interrogated the Appellant regarding a direction the Appellant received and gave to an ambulance crew; Michael Riordan aggressively questioned and swore at the Appellant

  1. [189]
    Evidence: The Appellant described an incident on 31 July 2011 when she returned from an afternoon break.  She was dispatching on the Sunshine Coast and noticed that a crew had been dispatched to a patient known to hide razors on her person.  Consequently the crew were at risk from the patient.  The Queensland Police Service ("QPS") had advised the QAS not to attend without their presence.  The Appellant immediately told the crew to standby off scene and wait for QPS to be called and to attend.  A male voice on the radio (which the Appellant did not recognise, and who was not identified and who had not logged on) asked whether "this [i.e., the patient] is who I am thinking about?"  The Appellant confirmed that she believed so.  She said to him that if he wished to know anything further he would need to call the CCS.  She was not willing to ask who was calling because she said that would be incorrect radio protocol.
  1. [190]
    A few minutes later, Mr Cumming, the CCS, came over to the Appellant, stood behind her, and asked her why she asked Mr Riordon to give him a call.  She replied "Oh, so that's who it was."  In her list of Stressors, the Appellant described Mr Cumming's questioning of her as an interrogation.  Although that allegation was not repeated in her evidence in chief, the Appellant said in cross-examination that "It felt like it … Probably the way it was delivered."
  1. [191]
    The Appellant had been unaware that it was Mr Riordan to whom she had been speaking, even though she had asked others (the supervisor and the CDS sitting at the seat) for his identity by reference to Sierra Oscar 3, the ambulance number call sign.  By the time she was talking to Mr Cumming, the crew had arrived on the scene and approached the patient. 
  1. [192]
    At that stage, the Appellant was very busy and Mr Riordan then came into the Communication Centre.  He asked the Appellant why she asked him to give the CCS a call.  The Appellant replied that she did not know to whom she was speaking, and added that he did not like things being said over the radio that "are not appropriate".  She was not going to give information to someone who did not identify themselves when she did not know to whom she was speaking.  She then said "I'll need to talk to you about this later, because I'm really busy."  He was a few metres away and replied in a loud voice, "No, you're fucking not."  Some of the other people in the room turned around and asked if the Appellant was okay.
  1. [193]
    The Appellant claims that this incident was witnessed by several other people in the room at the time. They were not called to give evidence.
  1. [194]
    The Appellant reported the incident to Mr Eva.  According to the Appellant, Mr Eva explained that it was difficult for him to investigate Mr Riordan because they are on the same seniority level.  However Mr Eva said he would speak to Mr Riordan when he returned from leave.
  1. [195]
    Mr Riordan, who was the ROS at all relevant times, was a qualified paramedic with substantial clinical and operational experience.  His evidence in relation to the incident on 31 July 2011 was, in summary, that he was driving when a call came over the radio from the Communications Centre for a job involving a lady who was having a psychiatric episode.  The Appellant and he both thought that it was a different woman of the same name, who secreted weapons.  The paramedic on the scene said they were going into the scene.  The Appellant was trying to say they should not do so because the lady is dangerous.  The paramedic indicated that he could see the lady, she was not the person they were talking about, and the paramedic was going in anyway.  Mr Riordan said over the air, "The matter's closed."  About five minutes later, after the crew had gone in and assessed the lady, he received a message over the radio from the Appellant to ring the CCS.  Mr Riordan rang the CCS and asked if the CCS had called him.  He said no.  Mr Riordan spoke to the CDS who also said he had not called him. 
  1. [196]
    In cross-examination, Mr Riordan agreed that the Appellant said there was a stand-off recommendation for the address.  However he stated that the lady in question lived in another location.  Mr Riordan also agreed that he said on the radio "Is this who I think it is?"  But he could not recall how he identified himself.
  1. [197]
    Mr Riordan stated that he returned to the Communications Centre and tried to ask the Appellant why she told him to call the CCS.  The Appellant "put her hand up to me and basically tried to ignore me."  Mr Riordan asked her again and pressed the matter, but could not recall what he said or whether he swore at the Appellant.  However he confirmed that, after the Appellant had ignored him twice, he spoke to her in a loud voice because she was some distance away. He agreed that he was angry at the Appellant because she asked him to do something unnecessary.  However, he did not agree that, as a supervisor, he should have dealt with the matter differently.
  1. [198]
    Mr Cumming's evidence was relatively brief. He described "interrogate" as a "very strong word."  He said that he "would never actually interrogate someone" and had never interrogated the Appellant.
  1. [199]
    Mr Cumming had a "very vague recollection" of a disagreement between Mr Riordan and the Appellant but did not know what it was about.  He recalled Mr Riordan talking to the Appellant in a raised voice and angry manner in the communications room.  He had a "vague recollection" about a possibly "heated" discussion, but he did not recall Mr Riordan swearing.
  1. [200]
    Appellant's submission:  The Appellant submits that she was following Policy and Procedure and Mr Riordan was not.  The criticism she received from Mr Riordan and Mr Cumming about the matter was likely to cause her stress. 
  1. [201]
    In her submission Mr Riordan was a particularly intimidating witness and appeared to be angry and impatient given about giving evidence.  She notes that, although he admitted speaking to her in a very loud voice, he said that he did not recall using the offensive words.  In the Appellant's submission, the Commission could have no doubt that her evidence regarding that aspect of the Stressor is completely accurate. 
  1. [202]
    Respondent's submissions: The Respondent points out that, in her evidence in chief, the Appellant made no allegation of an "interrogation" and admitted in cross-examination that she had only recently described Mr Cumming's approach as an interrogation, despite the incident with Mr Riordan having been raised in her original complaint.  She also did not specify what Policy and Procedure she was following and Mr Riordan was not.
  1. [203]
    The Respondent submits that the balance of the evidence is that Mr Cumming, who presented as a quietly spoken person who made concessions in his evidence, was an honest man who took his role as supervisor seriously, was highly unlikely to "interrogate" the Appellant and did not do so.
  1. [204]
    In relation to the allegation about Mr Riordan, the Respondent refers to the different accounts of the conversation between him and the Appellant to submit that the precise circumstances of the conversation are not clear.  At its highest, Mr Riordan acted in a heated manner with a loud voice and may have sworn when, without the knowledge or authorisation of her supervisor, the Appellant directed him to phone her supervisor (either because she questioned his intervention in the call or because she was allegedly not able to provide information or identify him as a QAS officer).  The Appellant then refused to speak with him because she was "too busy."
  1. [205]
    The Respondent submits that this was quite astounding conduct from an employee, although it was compatible with the Appellant's view of her position in the QAS.  It would hardly be surprising that Mr Riordan reacted with surprise and anger at such blatant insubordination and disrespect.  It was perfectly reasonable for him to request an explanation from the Appellant for her conduct.  If he responded in a less than perfect manner, this must be considered to be a blemish.  It is relevant that Mr Riordan did not feature in any of the other Stressors nominated by the Appellant.
  1. [206]
    Consideration and findings: I am satisfied that Mr Cumming asked the Appellant why she asked Mr Riordan to give him a call.  He was entitled, and it was appropriate for him, to do so.  Although the Appellant may have felt affronted by being asked by her supervisor why she did something which, on her understanding, was in conformity with the relevant policy and procedure, I do not find that Mr Cumming "interrogated" her.
  1. [207]
    I find that Mr Riordan was angry with the Appellant for asking him to do something that was unnecessary, and that he spoke loudly to the Appellant when he asked her for an explanation and she indicated to him she was busy.  In the circumstances, it is probable that Mr Riordan swore at the Appellant.  The exchange between the ROS and the EMD was relatively brief.  The ROS was understandably annoyed, but could have dealt with the situation more appropriately.  It was a blemish in relation to how otherwise reasonable management action was taken.

Stressor 6 - Mr Eva lied to the Appellant regarding a formal complaint made about Erica Bolam

  1. [208]
    Evidence: The Appellant gave evidence that she spoke with Mr Eva on Monday 1 August 2011 and complained about:
  1. (a)
    the behaviour of Ms Bolam as acting supervisor (sitting on the Appellant's desk, standing over her, viewing all other cases, talking about the Appellant behind her back and in her presence, and challenging the Appellant "the whole time");
  1. (b)
    the "general feeling within the room," and
  1. (c)
    the actions of management (in particular Mr Riordan and Rick Tenthy). 
  1. [209]
    She had spoken to Mr Eva previously about Ms Bolam.  On this occasion, although entitled to do so, she did not have a support person present as her nominee (Di Cross) could not stay for the meeting. The Appellant could not recall much of what was said at the meeting.  However, the Appellant gave evidence that she told him that, in light of what had gone on, she needed a few days' leave.  In particular, she did not want to be on night shift where there was no management present as she was being targeted.  She was also tired, stressed and very upset.  These factors were affecting her health (e.g. she was not sleeping), her family life and her daughter. 
  1. [210]
    According to the Appellant, Mr Eva said he could not stop Ms Bolam's behaviour and asked the Appellant to formalise her complaint.  She did that in a document on 4 August 2011 (Exhibit 35 E11) to Mr Eva in which the Appellant wrote:

"At the meeting with you on Monday 01 August 2011, I advised you that I would be taking immediate leave because of the intolerable environment.  We agreed that I would take the next two night shifts off and I would advise you further after meeting with my GP and Celia Dixon, Priority One.[34]  At no stage did I say that I was stressed.  I advised you that I was concerned about the effect the bullying was having on my work performance, and that as a result, I had some bad AQUA's. I also advised you as a result of the bullying I was very tired and it was affecting my private life.

I will no longer tolerate this bullying behaviour, even as you put it 'because of previous incidents, it seems to make you a target'.  It is unacceptable behaviour and adds to the poor morale in the room.  Tim, I am sure in your role as the Acting Communications Manager, you are able to manage this, but if you feel that I need to take this matter further, then I will."  (Exhibit 35 E11-12)

  1. [211]
    According to the Appellant, Mr Eva told her "on a number of occasions" that he sent her complaint to the Ethical Standards Unit ("ESU") of the Department of Community Services and was waiting for a decision about "how long it was going to be addressed."  Although she followed him up about the matter a "number of times," he did not provide a substantive response. 
  1. [212]
    As noted in relation to Stressor 15, the Appellant gave evidence that at a meeting with Mr Eva and Ms Bolam on 19 October 2011 Mr Eva said that he had the go-ahead from the ESU to resolve the matter within the region.
  1. [213]
    According to the particulars of this Stressor, and her oral evidence, the Appellant contacted the ESU on 6 August 2012.  She was told by the ESU that they had never received the 2011 complaint.  At their request she forwarded a copy of that complaint to them.  The Appellant therefore felt lied to and betrayed by Mr Eva regarding her complaint to management.
  1. [214]
    Mr Eva referred to a conversation with the Appellant in late July or early August about the type of exchanges with Ms Bolam that the Appellant was complaining of which culminated in an event over a weekend.  He told the Appellant that if she would like to formally complain she would need to do so in writing, which she did by letter dated 4 August 2011. (Mr Eva explained that he did so because it was the Appellant's right to make a written complaint.  He disagreed, in cross-examination, that it was inconsistent of him to tell the Appellant to lodge an appeal when the behaviour complained of was what management had asked of the supervisors (see Stressor 29.)) 
  1. [215]
    With reference to their email exchange on 2, 3 and 4 August 2011 (Exhibit 7), Mr Eva agreed that it was a serious issue that the Appellant complained about bullying behaviour in the workplace and stated that it was affecting her private life and work performance (including as reflected in her AQUAs).
  1. [216]
    According to Mr Eva, immediately after receiving the complaint from the Appellant he spoke to his immediate supervisor, the Director of Operations, Neil Reid.  Mr Eva said he understood the process at that time was for him to report bullying to his supervisor who would process it from there and generally report that to the ESU.  He also understood from conversations with senior officers that there would be a "managerial resolution" and that he was to commence that process.  More specifically, in cross-examination, Mr Eva said that Mr Reid told him that (similarly to the feedback into 2009) these processes normally come back with a recommendation for local management resolution, so Mr Eva was instructed to proceed down that line.  It was not his role to refer the matter to the ESU and he did not tell the Appellant that he would do so.  He would talk to the Appellant about what would otherwise be accepted practice.  In cross-examination, Mr Eva agreed that when he spoke to the Appellant he gave her some indication that the matter would most likely go to the ESU.  However, it was not his responsibility to forward to the ESU, he did not do so, and he would not have known whether it had been referred. 
  1. [217]
    Appellant's submission: The Appellant submits that, when asked whether he had told or represented to the Appellant that the matter had gone to the ESU when she followed him up, Mr Eva's replies did not contain a strong denial.  In her submission, the Commission can have no hesitation in concluding that Mr Eva initially indicated to the Appellant that the matter would be sent to the ESU and then changed his mind after speaking to his direct manager.  At no stage did he make this clear to the Appellant.  Indeed, the Commission may make the finding that he deliberately misled the Appellant into thinking that it had been sent to the ESU when it had not.  At its lowest, it can be suggested that having represented that the matter would go to the ESU, Mr Eva had an obligation to convey to the Appellant that he had changed his mind.  The failure to do so was a misrepresentation.
  1. [218]
    Respondent's submissions: The Respondent compares the evidence that the Appellant had little memory of what had transpired between making the complaint and the meeting on 19 October 2011, with the evidence of Mr Eva that he spoke about the written complaint to the regional Director of Operations and was directed to attempt managerial resolution.  He made a file note supporting his evidence (Exhibit 32) and also referred to two emails (one from Ms Bolam and one to the Appellant) in relation to the complaint.
  1. [219]
    The Respondent submits that, for those reasons, the evidence Mr Eva should be accepted and a finding made that the events in Stressor 6 either did not happen or were an inaccurate perception of the Appellant.
  1. [220]
    Consideration and findings: Having considered the evidence of both the Appellant and Mr Eva, I find that:
  1. (a)
    Mr Eva indicated to the Appellant that in her complaint would probably go to the ESU;
  1. (b)
    it was Mr Reid's role, not Mr Eva's, to decide whether to forward it to the ESU;
  1. (c)
    after Mr Reid had instructed Mr Eva to proceed with a local management resolution of the issues, Mr Eva did not indicate to the Appellant either that it was not his decision whether to refer the matter to the ESU or that he was unaware whether it had been referred to the ESU.

I am not satisfied that Mr Eva lied or deliberately misled the Appellant into thinking that her complaint had been sent to the ESU. His failure to inform her of that matter was a blemish on otherwise reasonable management action in responding to her complaint.

Stressor 7 - Erica Bolam yelled at the Appellant "Don't touch my fucking board!"

  1. [221]
    Evidence:  The Appellant gave evidence that, on 5 August 2010, she was taking telephone calls at work while Ms Bolam was dispatching on Wide Bay, sitting about two metres from her.  The Appellant took a call from a crew who said they had been unable to speak with the dispatcher.  They asked the Appellant to clear them from the case.  According to the Appellant, it is standard procedure to clear them from the case, give them their times, and then notify the dispatcher.  She did so.  Within seconds, Ms Bolam yelled "Don't touch my fucking board" so that everyone in the room heard it.  At that time, it was "quite busy."  Every console was full and there were people standing and walking around.  Supervisors, including the CCS for that day (Mr Dawe), were present.  The Appellant did not see the CCS do anything about the comment.
  1. [222]
    In cross-examination, the Appellant agreed that dispatching work is quite difficult.  When a person is dispatching they have to keep a close eye on all of the cars, incidents and calls in the area to ensure that the appropriate car goes to the appropriate place in the appropriate time.  At busy times, a dispatcher has to keep a lot of information in their head. However, she described what she did on this occasion (i.e. clearing a car and passing the information to the dispatcher) as "normal practice."  As she turned to tell Ms Bolam that she had cleared the vehicle and that the crew was returning to the station, Ms Bolam yelled and swore at her.
  1. [223]
    According to Ms Bolam, she did not swear or yell at the Appellant (although she might have said something in that vein to someone else).  On that occasion, Ms Bolam was the dispatcher (and hence responsible for cars in her area) and the Appellant was the call-taker.  The Appellant had cleared a Maryborough car off the case.  Ms Bolam reacted by saying "Don't touch my board."  The statement was directed at the Appellant and to the supervisor (Mr Dawe), who was passing in the vicinity of them.  Ms Bolam wanted to make him aware that her board was being interfered with.  The Appellant replied "Noted, Erica," and told Ms Bolam the reason that she had cleared the car.  However, according to Ms Bolam, when the Appellant cleared them off the job Ms Bolam was in the middle of sending the crew a page message with regard to their times.  In the interim, the crew had rung up as they were unsure whether Ms Bolam had heard them.  Ms Bolam stated that it is not the responsibility of someone else to clear the cars and her response was appropriate.  In her opinion, although it was appropriate for someone to communicate with the crew where the other person is otherwise engaged, it was not appropriate to clear them from the board.
  1. [224]
    Appellant's submissions: In her submission the Appellant notes that the evidence points to the uncontroverted fact that Ms Bolam did say something to the Appellant, and submits that the finding should be made that the words "Don't touch my fucking board!" were used. 
  1. [225]
    Respondent's submissions: The Respondent notes that this stressor was first identified in late 2013.  Although the Appellant specifically named Mr Dawe as hearing what Ms Bolam yelled, he was not called to give evidence and no other witnesses gave evidence of this occurring.  The Respondent described the Appellant as being evasive about such matters as the difficulties arising from a colleague interfering with the cars on a dispatcher's board and the reasonableness of a dispatcher asking that colleagues not to interfere with the board.  Furthermore, Ms Bolam gave evidence that she said loudly that the Appellant should not touch her board as it was important for a dispatcher to be up-to-date and in control of the cars on the board.  She described her response as appropriate, and denied that she swore at the Appellant.
  1. [226]
    The Respondent submits that Ms Bolam's actions in speaking to the Appellant were reasonable and, on the balance of evidence, it was done in a reasonable manner.
  1. [227]
    Consideration and findings: I find that, there was an exchange between the Appellant and Ms Bolam in relation to the Appellant's actions following a call from a crew with whom Ms Bolam was also in the process of communicating.  It is not necessary to decide which of them was operating more strictly in compliance with the relevant procedure.  It is sufficient to find that, in the circumstances of a busy environment when a dispatcher has to retain and analyse a significant volume of changing information, the combination of circumstances that gave rise to this exchange could provoke annoyance or exasperation on the part of the dispatcher or the call taker.  It was reasonable for Ms Bolam as the dispatcher to explain to the Appellant and the CCS what was happening and that it was Ms Bolam's responsibility to clear the car from her board.  The potential for a brief heated exchange in such circumstances was exacerbated by the strain in relationship between the Appellant and Ms Bolam.
  1. [228]
    As noted earlier, Ms Bolam gave evidence that the word "fuck" is used "all the time" by people in the communications room, apparently in frustration because they deal with "a lot of dodgy radios."  However, it is not directed towards other people.  In light of that evidence, it is likely that Ms Bolam swore at the Appellant in momentary exasperation.  Her reaction was a blemish in relation to her otherwise reasonable action.
  1. [229]
    Appellant expresses further concerns to management: Before considering the next stressor, I note that the Appellant used another incident (no longer a Stressor in these proceedings) as the impetus for sending an email dated 23 October 2010 to Paul Shaw, the RMC.  In that email, the Appellant requested a review in relation to a call she had taken that morning, and set out her concerns about how another officer had queried her and interacted with her in relation to that call.  The email continued:

 "The point of this e-mail, Paul, is that this has gone way beyond a joke, it is impacting and one day soon either I am going to make a mistake or information …  is going to be disregarded that could result in a devastating outcome for both the patient and QAS. …  I have put up with this rubbish of the constant picking, undermining, treating me like a child, yelling at me the other night … It is just ridiculous and incredibly unprofessional and I have had enough. …  When I am wrong or have done something wrong, I expect to be told appropriately and treated with same respect as others are privy to.

 It is wearing me down.  I am constantly tired and very stressed.  You told me the other day that I looked really tired, I am.  I have a right to come to my workplace, to be able to do my job without being harassed, bullied (because that is what it is) and being constantly belittled and undermined.  I don't have to be liked, but I have a right to be respected and to be allowed to do my job.  I like my job and I do my job well.  I have the right to go home at the end of the day and enjoy my days off.

 I have no wish to seek legal advice as I don't believe that is the way to handle it, but maybe this is what I need to do now.  Because this is going to stop either from it being handled by you or through the appropriate legal channels.

 Kind regards

 Jan Henderson" (Exhibit 35 E12)

The Appellant said that the issues in the communications room in 2009 to 2010 involved a number of incidents and people including Ms Bolam, Ms Johnson, Sheryl Beaumont (a CCS), Mr Riordan and Mr Tenthy.

  1. [230]
    According to the Appellant, on one occasion she had her hair coloured and that did not go "quite to plan."  It was blonde, white.  Ms Bolam made fun of it, referring to each as "oats mop" and referring to her as a "wannabe."
  1. [231]
    Mr Colquhoun said he recalled a conversation between Ms Bolam (when she was acting CCS) and Ms Johnson in which Ms Bolam said words to the effect that "It looks like Oates has got a new mophead out" and, when asked what she meant, said "It must be because Jan's modelling it."  Ms Bolam "did a little giggle and they walked away."  According to Mr Colquhoun, the conversation took place at a time when the Appellant had her hair permed or "done up."  Ms Johnson denied that conversation. So did Ms Bolam, who said that she would never comment on the Appellant's appearance and that she did not know what the alleged comment meant. 
  1. [232]
    Ms Kennedy said she had one informal discussion with acting supervisor, Ms Bolam, who made a comment when the Appellant rang in sick in about December 2010 to the effect that it was "magnificent" that the Appellant was not coming in to work. Ms Bolam denied that she had expressed pleasure on an occasion when the Appellant called in sick.   Ms Johnson said she did not remember an occasion when Ms Bolam commented that people were saying how happy it made them feel let the Appellant had called in sick.

Stressor 10 - Erica Bolam came close to the Appellant's face and said "You fucking Kiwi bitch"

  1. [233]
    Evidence: According to the Appellant, on around 11 November 2010, she was washing up her lunch dishes when Ms Bolam came into the crew kitchen.  She shut the kitchen door and came right up close to the Appellant's face and said to her "You fucking Kiwi bitch."  No one else was in the room at that time, and it seems that the door was closed. 
  1. [234]
    In cross-examination, the Appellant said that she spoke to Paul Shaw (the Regional Communications Manager) about the incident and that he said "to take a teaspoon of concrete and harden up." When asked why she did not complain, the Appellant said that:
  1. (a)
    Mr Shaw was very supportive towards her;
  1. (b)
    it would look ridiculous that Ms Bolam came into the kitchen and said that; and
  1. (c)
    the Appellant "just actually felt very sorry for her and I just laughed and walked away.  End of story."
  1. [235]
    Ms Bolam gave evidence that this exchange did not occur and that, because she is less than five feet tall and the Appellant is much taller, "There's no way I could scream that in her face."  Ms Bolam also noted that she always has holidays in November.
  1. [236]
    Ms Kennedy gave evidence that she was shown Ms Bolam's phone on which was the message "fucking kiwi bitch" from Ms Bolam's partner Karen.  There was another person with a Kiwi accent in the Communications Centre at that time.  Ms Kennedy said that she thought the message referred to the Appellant, but in cross-examination conceded that she had no idea what it was about. Ms Kennedy said that she "may have" told the Appellant about the text message, but did not recall.  She agreed that such a communication could be viewed as being not likely to improve relations in the communications room.
  1. [237]
    Ms Bolam gave evidence that she had no recollection of such a text message on her telephone and she had neither sent nor received such message. Hence she did not display it to Ms Kennedy or others in the workplace.  Ms Bolam accepted that it would be entirely inappropriate to send text messages in the work environment about co-workers.
  1. [238]
    Another EMD, Mark Temple, recalled observing Ms Bolam, as an acting supervisor, speaking to the Appellant in the Communications Centre.  The Appellant was "trying to put her point across" and Ms Bolam "wasn't happy with that" and Mr Temple formed the impression that she was "being dismissive and she just walked away."
  1. [239]
    Appellant's submission:  The Appellant acknowledges that the outcome in relation to Stressor 10 depends on whether the Commission accepts the word of the Appellant or that of Ms Bolam.  Having regard to all the surrounding information, including that of Ms Kennedy and the observations of Mr Colquhoun and Mr Temple of Ms Bolam's openly hostile and dismissive attitude towards the Appellant, the Appellant's version should be accepted.
  1. [240]
    Respondent's submissions: The Respondent notes that this allegation was first made in late 2013 and was not mentioned in the notice of appeal.  It appears to have evolved from an allegation made earlier[35] that Ms Bolam sent a text message with words to the effect "Fucking Kiwi bitch."  Although the Appellant insisted that the event in the kitchen occurred, and that she reported that, Ms Bolam was adamant that the event in the kitchen did not occur.  She also gave evidence that she had no recollection of sending a text message on her phone or of sending or receiving a text message using the words alleged.
  1. [241]
    In relation to Ms Bolam's response to the investigator for QAS about texts she had received, the Respondent notes that the investigator was not called, there was no evidence about whether Ms Bolam had seen and adopted the transcript or the process by which the transcript was checked and edited.  The Respondent submits that the Commission should not accept any nuance that the transcript of the investigator provides any probative evidence that Ms Bolam accepted that such message may have been on her phone at work, was directed at the Appellant and was shown to Ms Kennedy.
  1. [242]
    The Respondent submits that, on the balance of the evidence (including an assessment of the reliability of the Appellant and Ms Bolam), this alleged event did not occur.
  1. [243]
    Consideration and findings: It is difficult to make a clear finding of fact in relation to this Stressor.  The relationship between the Appellant and Ms Bolam was strained, if not difficult.  As is apparent from the evidence in relation to Stressor 15, it is clear that a year later Ms Bolam was willing to admit that she did not like working with the Appellant, but robustly rejected what she saw as "vexatious allegations" against her about bullying, intimidation and harassment. 
  1. [244]
    Although it is possible that an exchange of the type alleged took place on 11 November 2010, there is not sufficient evidence to make a positive finding that it did.  In any case, if it did occur, it would appear that, at that time, the Appellant was willing to consider it a relatively minor event.

Stressor 12 - Timothy Eva removed the Appellant from a Frontline Management course and denied further training

  1. [245]
    Evidence: The Appellant gave evidence that, in May 2011, Mr Shaw nominated her to do Certificate IV Frontline Management training, the completion of which would have provided an opportunity for her to operate in a supervisor position.  Other people in the Communications Centre (including all the supervisors and anyone with potential interest in becoming a supervisor) were offered the training.  However, the Appellant's training did not proceed.  She was advised by email from Mr Eva (who was acting RMC in place of Mr Shaw) dated 24 June 2011 (the blind copy of an email addressed to Ms Johnson) that she had been removed from the course because she did not fit the criteria (Exhibit 35 E5-6).  The email referred to the "availability of course numbers and a rationalising of our target group" as the basis for not being able to proceed "with your placement on the immediate course at this time."  It apologised "for any disappointment this may cause," and stated that "hopefully on the future courses your participation will be considered" and that Mr Eva was "happy to discuss this with you at a future time."
  1. [246]
    The Appellant felt "gutted" by the decision.  She considered the way by which she was advised to be "annoying, upsetting, discourteous."  She stated in her email in reply to Mr Eva on 24 June 2011 "I have been advised that I am doing at as part of my CCS application could you please advise??."
  1. [247]
    The Appellant agreed that Mr Eva indicated he was happy to see her to discuss the matter, and that she discussed it with him.  Mr Eva told her that the Frontline Management course had been changed.  Some people (Ms Johnson, Mr Dawe, Richard Raymond and the Appellant) had been taken off the course and others had been put on it.  She agreed that it was reasonable for a manger to do that. Ms Johnson and Mr Raymond were subsequently offered and completed a training and evaluation course, so they could do relief PDO work.  The Appellant did not express interest in doing that course. 
  1. [248]
    The Appellant contacted Ballingers, a training organisation which offered a frontline management course which would not cost her or the QAS any money.  She did that of her own initiative and without first speaking with Mr Eva or another manager about possibly doing an alternative course.  At this stage she was not aware that the QAS had worked with the Frontline Management course to make it ambulance specific.  She agreed that it was reasonable for the QAS to prefer that course because it had input into its contents. 
  1. [249]
    Having been accepted by Ballingers, she went to Mr Eva for his signature on the documents (to indicate that he allowed her to do the course and that government funding could be approved).  Mr Eva declined to sign the documents.  It seems from her evidence, that the Appellant was surprised by this response because:
  1. (a)
    anybody could do that course;
  1. (b)
    she sourced the course on her own;
  1. (c)
    she wanted to do the frontline management course and that was the one that was available to her; and
  1. (d)
    she did not realise that she needed government approval to do it. 

However, by her account, Mr Eva said that the course was not approved for QAS and they would not allow her to do a course that was different from the one they were doing.  It would not be approved or recognised by QAS. 

  1. [250]
    Ms Kennedy gave evidence about liaising with Queensland TAFE about the development of a course to improve the management skills of people in, or acting in, CCS positions.  Because of the limits to the number of people who could do the course, some people who had been offered a place were taken off the list (Mr Dawe, the Appellant, Mr Raymond, Ms Johnson).  Ms Kennedy sourced another TAFE training and assessment course, which Mr Raymond and Ms Johnson were given after formally expressing an interest in it.  Mr Dawe had taken another position at another operations centre, so was not offered a position.  Nor was the Appellant, who had not formally expressed an interest in pursuing it.  However, the Appellant sought her own training from Ballinger Training.
  1. [251]
    Mr Emery gave evidence that he initiated and oversaw the development of the Frontline Management course, in recognition that the QAS was developing an operational supervisory model within the region that involved the allocation of additional positions.[36]  Some of the supervisors needed additional skills.  A generic TAFE Certificate IV course was not suitable, and TAFE Queensland developed a course tailored to the needs of QAS supervisors.
  1. [252]
    Mr Emery had a role in the selection of people to participate in the course in 2011.  The development of the program coincided with the selection process for the CCS positions at that time.  The current supervisors were put through the program, and other people identified as having potential to take on supervisory roles in the near future were allocated to the limited number of remaining positions.  The Appellant was not one of those people.  According to Mr Emery, he provided clear feedback to her that she needed to consolidate her role as an EMD before focusing attention on front-line supervisory positions, and that they were "not seeking to invest in her at that point in time."
  1. [253]
    Mr Emery became aware that the Appellant had sought to attend another course through Ballinger.  The Appellant and one or two others sought endorsement, through their manager (Mr Eva) to do the course.  Mr Emery was involved in the decision that the Appellant not do the course, in the sense that he looked at the course content, did not endorse the course and did not think it was the best use of public money.  Management had already made a conscious decision not to endorse a generic front-line supervisory course and spent considerable months developing a course that was useful for the QAS.  However, Mr Emery agreed in cross-examination that there was no harm in other staff doing the Ballinger course.
  1. [254]
    Mr Eva described the training program as part of the journey to re-legitimise the authority of the Communications Centre, and to deal with a perceived erosion of the Centre's adherence to their responsibilities.  The training was to "grow the targeted supervisory group in frontline management skills." The group that management wanted to participate in the course comprised substantive supervisors and supervisors in training.  Before Mr Eva became the RMC, the then manager (Mr Shaw) had nominated people to participate in the course.  When Mr Eva came into the role, it was apparent to him that some people who had been nominated were not part of the target group.  They included the Appellant and three others.  He was responsible for realigning the target group, and put existing and relieving supervisors into the group to be sponsored.  The latter category comprised people who were already participating in relieving as supervisors and people who were to be developed in the immediate term.
  1. [255]
    Mr Eva described as a "clerical error" and "very poor practice on my behalf" the fact that the Appellant was told by way of a blind copy of an email to Ms Johnson that she had not been accepted for the Frontline Management course.  However, he suggested that the correct process would have been to blind copy everyone into it, then it would have appeared that the generically worded correspondence was meant for them.
  1. [256]
    Mr Eva noted that the Appellant found another course through Ballingers and asked him to sign an endorsement.  He said that the course might have appeared to offer the same qualifications as the approved course.  However, management had put considerable time and effort into developing, through Maroochydore TAFE, a course around the roles that their supervisors were undertaking with "focused learnings and some operational relevance."  None of that existed with regard to the Ballinger course.  Management had no input into, or governance over, that course.  Ballinger could obtain government funding for participants in the course, and the Appellant needed endorsement from her employer to gain acceptance into the course and obtain it for free.  Mr Eva stated that, as an employer, he could not support the Ballinger course when they[37] were already supporting the other course.
  1. [257]
    Mr Eva acknowledged that Assistant Commissioner Chris Broomfield described his decision not to approve the training of the Appellant on a leadership course as "unreasonable."  However, he reiterated that to support someone to attend a course that had no QAS input would send the wrong message to other employees (i.e., that they could simply broker a deal and they would be "good to go").
  1. [258]
    Mr Eva stated that two of those who he decided were not part of the target group were subsequently offered alternative TAFE courses for Certificate IV (though for different reasons and for training and support, not management) and one was promoted to another centre.
  1. [259]
    Appellant's submission: The Appellant concedes that there was some force behind the assertion from management that the Frontline Management course may not have been able to be offered to the Appellant.  Indeed she concedes that the evidence was to the effect that this was a managerial decision.  She submits that the issue about whether she was wrongly refused further training is "reasonably minor in the mix of the case" and notes that her treating psychiatrist was not aware of it.  It is, by her own admission, something that the Appellant did not feel was as important as other stressors. 
  1. [260]
    Although she cannot press that issue, she points to the "shockingly indelicate way that this was conveyed to the Appellant" which, in itself, is more likely to be the causative factor in respect to the onset of her condition. This, the Appellant submits, is the crux of the Stressor.  Having been told by Mr Shaw that she was going to be referred for training, she later found out (by way of an email to Ms Johnson copied to the Appellant) that she was not to do the course.  In her submission, reading the emails highlights the "severe insensitivity of the way in which this was conveyed" to her.  Having described it as "annoying, upsetting, discourteous," the Appellant submits that it was far from reasonable management action taken in a reasonable way, and that the way in which the message was conveyed to the Appellant was a Stressor in the workplace injury. 
  1. [261]
    The Appellant refers to Mr Eva's evidence that conveying the decision in that way was "a very poor practice" on his behalf, and that Mr Broomfield had expressed the view that it was unreasonable to deny the training even though, at the time of the hearing, Mr Eva maintained that he did not agree.
  1. [262]
    Respondent's submission: The Respondent submits that this stressor illustrates the Appellant's pervasive mindset that, despite being counselled to focus on her current duties and responsibilities and being advised that she had not developed in that role sufficiently to be ready for supervisory duties, she ignored the constructive advice and sought out an alternative course with no QAS input.  The Appellant insisted that she is "entitled" to government funding to undertake the course, and made a complaint about a much more senior employee exercising reasonable management action not to endorse the course.
  1. [263]
    Consideration and findings: It is clear from the evidence in relation to the Frontline Management Course that:
  1. (a)
    the course had been developed to meet the specific needs of the QAS;
  1. (b)
    the course was targeted to employees with particular skills or experience;
  1. (c)
    although the Appellant had been nominated previously to participate in the course, the target group did not include the Appellant and three other employees;
  1. (d)
    it was appropriate that the Appellant not be offered a position in that course at that time;
  1. (e)
    it was poor management practice to advise her by way of a blind copy to an email addressed to another employee that she had been removed from the course because she did not fit the criteria;
  1. (f)
    although the method by which the Appellant became aware that she had been removed from the course was unsatisfactory, Mr Eva offered to discuss the matter with her and they had such a discussion;
  1. (g)
    in light of the discussion, the Appellant agreed that it was reasonable for a manager to remove her and others from the course
  1. [264]
    Although it was open to the Appellant to take the initiative to identify another course, it is clear that she did so without being aware that the QAS had worked to make the Frontline Management course specific to its needs.  In all the circumstances, it was reasonable for Mr Eva and Mr Emery not to endorse the other generic course, and (despite the apparently differing views of two other managers) for Mr Eva to withhold his approval of the Appellant attending the alternative course. 
  1. [265]
    Accordingly I find that:
  1. (a)
    the removal of the Appellant from the group of employees nominated to attend the Frontline Management course was reasonable management action although one aspect of its implementation was taken in an unsatisfactory way; and
  1. (b)
    the refusal to approve the Appellant attending an alternative generic management course was reasonable management action taken in a reasonable way.

Stressor 13 - Craig Emery questioned the Appellant's mental health in a condescending tone in a meeting in front of colleagues

  1. [266]
    Evidence: In September 2011, the Appellant met with Roy and Jo Mulvaney in relation to the yearly review of the Communications Centre.  The Appellant had responded to an invitation to speak with the review officers about issues.  According to the Appellant, she told them about the "bullying and harassment," "intimidation," "the yelling across from their desk and not getting up and passing information on to us, all sorts of issues," and about the CDSs and ROSs "making us go outside our" standard operating procedures.
  1. [267]
    On 14 September 2011, the Appellant met with Mr Emery, Mr Eva and Mr Shaw to debrief on an interview about her unsuccessful application for a CCS position.  Mr Emery was on the interview panel.  The Appellant had no professional interaction with him before then.  The Appellant recalled that he spoke to her about the interview and the process and why she was not successful.  Although he said she had done very well in the interview, there were other people who were more qualified for the position.  At some point the Appellant told him that she was surprised that she was offered an interview, given her limited experience with QAS.  He was "very pleasant."  The debrief went for about 20 to 25 minutes.
  1. [268]
    According to the Appellant, Mr Emery then said that he had some concerns her mental health and that she was the only person that complained, and that she had spoken to Mr Waterhouse about issues going on within the Communications Centre.  Mr Emery said that he was concerned that perhaps the Appellant was in the wrong job.  He asked whether the Appellant was saying that the problems only occur when Mr Eva is in the room.  By her account, "I had no option but to say well, yes, with Tim sitting right beside me," and that made her feel "awful."  The Appellant said that she had been given no notice before the meeting that they would discuss anything other than her application for a promotion.  She told Mr Emery that she was told that her conversation with Mr Waterhouse was going to be confidential between the Appellant, Mr Waterhouse and Ms Mulvaney and hence she believed she could speak freely about occurrences in the Communications Centre.  The Appellant told Mr Emery that this was not about her mental health but about issues going on within the Communications Centre which were not being addressed.  The meeting came to an end.
  1. [269]
    Mr Emery's evidence was that he met the Appellant when she was one of nine or 10 people who applied for a CCS position at Maroochydore, and he was a member of the selection panel.  He described the selection process as coinciding with succession planning staff development activities, and providing an opportunity to identify talent within the group.  Although some of the applicants would not normally have been afforded an interview, they were included and all of the unsuccessful candidates were provided with feedback.  He described the applicants as being in three distinct cohorts: those who were successful and were appointed to positions, a smaller group of people who had some prospect of ongoing development in those roles, and others who were not meritorious and were provided feedback to the effect that they needed to consolidate their performance and skills at the EMD role before progressing to other positions.
  1. [270]
    Mr Emery gave evidence that the Appellant was one of the people that they probably would not have interviewed given her limited experience at that time and the seniority and responsibilities of the supervisory position.  He discussed that with the Appellant, and recalled that she told him she was surprised she had been interviewed.  Mr Emery recalled little of the specific detail of the feedback session, other than it was similar in format to sessions provided to the other unsuccessful applicants, and included discussion about the annual Communications Centre review which was conducted just before the selection process. 
  1. [271]
    The annual Communications Centre performance evaluation process had been performed by technical experts including Mr Waterhouse (a Senior Project Officer who was the generalist of the team and compiled the report).  The team was given autonomy and full access to staff including formal and informal interviews, and plugging into call taking and dispatch calls.  The new supervisory structure included Clinical Deployment Supervisors who were trained clinicians to be in the operation centre to augment the decisions that came out of standard communications procedures.  The role of Regional Operation Supervisor was also implemented (to supervise supervisors), and used the most highly experienced operational staff. 
  1. [272]
    One of the outcomes of the Communications Centre review was that about three EMDs (including the Appellant)[38] expressed concern and were uncertain about the role of the ROS and CCS, in particular what was the level of protection of EMDs if a supervisor wanted them to do something differently. 
  1. [273]
    I note that the report on the Communications Centre Review 2011 (Exhibit 22) stated that attention was required in relation to aspects of consistency in relation to processes and procedures.  The report stated, among other things:

"Development needs to occur with the EMD's in relation to the legitimate authority that senior staff have within the region and the decisions that they make.

EMD need to document in CAD advice/instructions given by senior staff in CAD comments field.

Certificate 4 being undertaken will also improve consistency within the room with a shared knowledge and way forward."

The report suggested that there be continued education of all staff regarding the supervisory model, and that emphasis be placed on "developing understanding and acceptance of the roles of the various supervisors."  The positions assigned to deal with this issue were the RDO and RMC.

  1. [274]
    Mr Emery recalled the Appellant telling him that she had spoken to the review team about some concern she had regarding the application of SOPs, and she was disconcerted that the information had not been kept confidential.  She said that she believed that Mr Emery was aware that she had spoken to Mr Waterhouse (although he was not).  He was aware that the review had identified some lack of understanding about the roles and supervisory positions and the application of procedures within the Centre.  He recalled explaining to the Appellant the "more sort of intuitive and broader supervisory skills that are required, that fall above and beyond the mechanics of a standard operating procedure." He also recalled telling the Appellant what his expectations of supervisors, including ROSs, were.
  1. [275]
    Mr Emery did not recall, and denied, making a comment about the Appellant's mental health.
  1. [276]
    Appellant's submission: The Appellant submits that it is "largely uncontroverted" that Mr Emery did, in effect, question the Appellant's mental health and capacity for doing her job.
  1. [277]
    Respondent's submissions: The Respondent notes that, although the Appellant advised that Mr Eva and Mr Shaw were present at the meeting, Mr Eva was not asked in cross-examination whether Mr Emery had made such a comment.  Mr Shaw was not called to give evidence.  Mr Waterhouse was not called to give evidence about the confidentiality or otherwise of the meeting with the Appellant and whether he had mentioned the names of specific EMDs who raised concerns.  Mr Emery did not recall making any comment about the Appellant's mental health and said it was not something he would say or think he did say.
  1. [278]
    The Respondent submits that, although Mr Emery's recollection was limited, considering:
  1. (a)
    the purpose and intent of his attending both the interview and debriefing;
  1. (b)
    the organisational change and initiatives he was developing;
  1. (c)
    his position within QAS and previous lack of interaction with the Appellant;
  1. (d)
    absence of any conceivable motive to make a comment about the Appellant's mental health; and
  1. (e)
    the lack of any context in which the comment was allegedly made,

the Commission should find that the Appellant's allegation consists of a misrepresentation of reasonable counselling given in a reasonable way in circumstances where the Appellant was looking to lay blame elsewhere and make complaint when she was unsuccessful in securing a supervisor's position and was given proper advice to focus on developing her skills as an EMD.

  1. [279]
    Consideration and findings:  Far from being "largely uncontroverted," there is a real issue about whether Mr Emery questioned the Appellant's mental health and capacity for doing her job.  It is clear that the discussion between Mr Emery and the Appellant concerned the extent of her experience as an EMD at that time, the nature of roles and supervisory positions at the Communications Centre, and her concerns about the application of SOPs.
  1. [280]
    Having regard to the evidence of the Appellant and Mr Emery about the matters covered in the conversation, and the absence of evidence from Mr Eva (who may have been in a position to identify what was said at the meeting), I am not satisfied that Mr Emery questioned the Appellant's mental health in front of colleagues.

Stressor 14 - The Appellant developed chest pain, pounding headache and back pain as a result of Erica Bolam's negative behaviour towards her

  1. [281]
    Evidence:  On about 23 September 2011, the Appellant experienced chest pain at work.  By her account it was a "terrible day" during the whole of which Ms Bolam was "absolutely awful" to her.  The Appellant left work at 7.30 at the end of her shift but, having driven out the gate, returned because she had severe chest pain, backache and headache from most of the afternoon.  She spoke to Mr Kropp, who is an intensive care paramedic and was the CDS that night.  He told her to go home and have a hot shower, but she refused stating that she thought she needed to be seen by someone.  He contacted the intensive care paramedic at the Maroochydore Station. The paramedic sat the Appellant in an ambulance and administered various tests, following which she was transported to Nambour Hospital where she stayed overnight.
  1. [282]
    It was put to Ms Bolam in cross-examination that in September 2011 the Appellant was mentoring or buddying a new worker, and that Ms Bolam said to her "Don't take any notice of what Jan says," and that Ms Bolam repeatedly undermined the Appellant in her dealings with the new worker.  Ms Bolam gave evidence that she did not recall any association with the Appellant and the new worker, or that incident.  However she did recall the Appellant going to hospital for stress-related chest pain.
  1. [283]
    Mr Eva said that he understood that the Appellant was taken to hospital for chest pain.  He accepted that occurred in 23 September 2011 and that the Appellant attributed the need to go to hospital to stress in the workplace.  An incident investigation report was prepared on 25 April 2012 (Exhibit 34), some seven months after the incident, despite a requirement that incidents be recorded within 24 hours or as soon as possible.  Even then, Mr Eva had to be reminded on 26 July 2012 the incident report had to be reviewed and closed. 
  1. [284]
    The Incident Investigation Report records the "gradual onset of central chest and upper back pain" at work in the course of call taking.  It appears that treatment was given by an ambulance officer and a cardiologist. The Report includes the following statements:

"On the 23/9/11 Officer Henderson was working a shift in the communication centre.  She suffered a chest pain episode and was transported by ambulance to Hospital and admitted for treatment and investigation.  After tests it was established that the pain was stress related.

 Causes and Contributing Factors  Job demand mentally too great

Other Causes and Contributing Factors  Officer Henderson stated that she has been under pressure from supervisors in the communications room and that she was stressed and anxious at the time of the incident

Describe any other circumstances leading to the incident: Since this episode Officer Henderson stated she has suffered further episodes of the same symptoms." (Exhibit 34)

  1. [285]
    The Appellant and ROS Kropp were interviewed in relation to the investigation.  The reason for the delay in preparing Incident Investigation Report was said to be that the Appellant "did not know or was not given any advice to submit one."  The Report continued:

"She also stated that she was under pressure in the communications centre at the time of the incident when a chest pain occurred.  She was admitted to NGH and tests were carried out which ruled out a cardiac condition.

 She was release with a diagnosis of stress related chest pains.

She also stated to me that since the initial diagnosis she has suffered further episodes.

Perhaps an investigation and interview be carried out to determine any valid reason why this officer is suffering these attacks and what can be done to help eliminate or reduce this condition.

It is further suggested that the interview be conducted by an investigator not connected with the communications centre to ensure no bias is seen to be present."  (Exhibit 34)

  1. [286]
    Appellant's submission: The Appellant submits that the Commission can accept that she had physical symptoms relating to a stress reaction which required her to be hospitalised.  She further submits that this was in the context of Ms Bolam's behaviour, although Ms Bolam was unable to recall when asked about that in cross-examination. 
  1. [287]
    Respondent's submissions: The Respondent notes that there was no evidence about what Ms Bolam was supposed to have done on that day, and no medical evidence that any physical complaints of the Appellant on that day were related to work.  The Respondent submits that the allegation appeared to be the basis for the Appellant to complain about another supervisor (Mr Kropp) not giving the Appellant what she considered to be appropriate clinical advice.
  1. [288]
    Consideration and findings:  Having regard to all the evidence, including the Incident Investigation Report (Exhibit 34), I am satisfied that the Appellant developed symptoms in the workplace in relation to her work and that the symptoms were brought on by the demands of work, including the requirements of supervisors.  However, in the absence of any specific allegations of behaviour on about 23 September 2011 and evidence in relation to them, I am unable to find that the symptoms were a result of Ms Bolam's behaviour.  Also, in the absence of such evidence, it is not possible to say whether that behaviour constituted reasonable management action and, if so, whether it was management action taken in a reasonable way.

Stressor 15 - The Appellant was denied a support person in meeting with Timothy Eva and Erica Bolam, and Mr Eva disparaged her after the meeting

  1. [289]
    Evidence - background to the meeting: The events that preceded this Stressor are described in Stressor 6.
  1. [290]
    On 25 August 2011, Mr Eva sent the Appellant an email, "Update re-claim" (Exhibit 31).  He advised that he had interviewed Ms Bolam and was awaiting a reply as she was on leave.  He had not had an opportunity to interview Mr Riordan, who was also on leave.  Mr Eva would proceed with both interviews once they had returned from leave, and would keep the Appellant "informed as we progress."
  1. [291]
    The Appellant had little recollection of an email from Mr Eva or discussions with him about arranging a meeting between her, Ms Bolam and Mr Riordan,[39] including about whether the Appellant would have been happy if the outcome of that meeting was to have a facilitated discussion with Ms Bolam. 
  1. [292]
    Mr Eva gave evidence that he sent the letter of allegations to Ms Bolam and Mr Riordan, requiring their feedback for the purpose of the review process.  After some delay in receiving responses, due in part to leave arrangements (and possibly the Appellant being taken to hospital on 23 September 2011), Mr Eva contacted the Appellant who instructed that the issue with Mr Riordan had been resolved but the allegation in relation to Ms Bolam was live.  Ms Bolam wrote to him on 30 August 2011 rejecting the "vexatious allegations… regarding bullying, intimidation & harassment" (see Exhibit 25).  Mr Eva advised the Appellant that the allegations were refuted.  The Appellant asked him to hold a facilitated conversation so that she could express to Ms Bolam how her presence, actions and activities made her feel. 
  1. [293]
    That facilitated discussion was held in Mr Eva's office at the Communications Centre on 19 October 2011.  Mr Eva agreed that he asked Ms Bolam to bring the Appellant to his office, and that the Appellant might not have known that the meeting was occurring that day.  However, the meeting was at her request and, given the amount of coordination in regard to leave, there was an awareness that the meeting was going to happen.  He thought that the timing would have been by agreement.
  1. [294]
    Evidence - support person denied: The Appellant gave evidence that she was taking a 000 call on 19 October 2011 when Ms Bolam came to where she was located, stood in front of her console and said that when the Appellant finished the call she needed to go into Mr Eva's office.  The Appellant did so (between approximately 9.00 am and 9.15 am), with no other indication there was going to be a meeting that morning.  Ms Bolam was sitting in the room with Mr Eva.  He said that they only had a certain amount of time because he had a meeting at Caloundra at 10.00 am, and that the meeting was to talk about issues that the Appellant had raised with Ms Bolam.  The Appellant said the time allotted for the meeting was a very short amount of time because it would take about 20 or 25 minutes to drive from the Maroochydore Communications Centre and the office in Caloundra. Mr Eva said that he had the go-ahead from the Ethical Standards Unit to resolve the matter within the region. 
  1. [295]
    The Appellant said that she would prefer to have a support person present.  Mr Eva said there was no need for that and that it creates or shows a level of distrust in him.  When the Appellant started to speak about her concerns, Ms Bolam "immediately… spoke over me."  The Appellant repeated her request for a support person.  Mr Eva said that showed a level of distrust, they only had a short time for the meeting, and suggested that they see if they could discuss and resolve the matters. 
  1. [296]
    Ms Bolam said she did not recall the circumstances in which she and the Appellant entered the meeting, or that the Appellant expressed some surprise that the meeting was taking place said she would like to have a support person present.  Nor did she recall Mr Eva stating in effect that her request for a support person showed a level of distrust in him and that she did not need a support person.  Neither the Appellant nor Ms Bolam had a support person at that meeting.
  1. [297]
    Mr Eva gave evidence that there was no discussion at the meeting on 19 October 2011 about any party having a support person.  In particular, he did not agree that the Appellant asked for a support person and that he said words to the effect: "Jan, I find that when someone wants a support person displays a level of trust in me."  He insisted that he did not and would not use those words. However he stated that the opportunity to bring a support person along is always open and if a person does not feel comfortable having the conversation in the absence of a support person they merely need to state that and the process stops until such time as it can be facilitated.  He noted that there was "some time" before there was an opportunity to have the meeting, and refuted any conjecture that he may not have offered or in fact rejected the opportunity to have a support person present on this occasion.  That was not something that he would do and, in any case, people have and know their rights. In this case, both parties are "very familiar with the system." 
  1. [298]
    Evidence - the meeting: The Appellant gave evidence that, at Mr Eva's invitation, she started to say what her concerns about Ms Bolam were.  Ms Bolam immediately stated that what the Appellant said was not true.  The Appellant asked Mr Eva to ask Ms Bolam to wait and let her talk.  He just looked at the Appellant, and Ms Bolam "carried on talking." By the Appellant's account:

"And then I said to Erica, I get the impression that you feel like I'm incompetent.  She said - she didn't say anything.  She just looked at me and went, well.  And then she said to me, how do you think you're perceived in the region?  And I said, I don't know.  Why don't you tell me?  And then she didn't answer me.  And then she said to me that I'm viewed as difficult, incompetent, have to be supervised and someone that makes numerous complaints.  So by that stage I was pretty upset.  …  I was crying at that stage."  (T 2: 25)

Apparently Mr Eva said nothing at that time but let Ms Bolam continue to talk. 

  1. [299]
    The Appellant said that she got upset at that meeting and said to Ms Bolam that she would like Ms Bolam to treat her with respect and like she treats everybody else.  The Appellant said she did not recall Ms Bolam's response, but acknowledged that she had complained about Ms Bolam previously and Ms Bolam said that the Appellant was a person that was seen to be a trouble maker. Ms Bolam said that the Appellant had a history of making complaints, and also mentioned having difficulty giving directions to the Appellant because of her unwillingness to take direction. 
  1. [300]
    In cross-examination, the Appellant recalled Ms Bolam saying that she "needed to be watched," but did not recall the reason why Ms Bolam said that.
  1. [301]
    The Appellant agreed that, at the meeting, Mr Eva reminded her and Ms Bolam that it was their responsibility to work together and treat each other with respect.  The Appellant believed that they were going to go out of the room and basically start again and move on.
  1. [302]
    There were no breaks in the meeting.  Mr Eva said he had to go to another meeting and that he thought the discussion was that Ms Bolam would treat the Appellant "like she treats everyone else, and that we would just basically see how things went and try to work together, and then the meeting was concluded, I believe." 
  1. [303]
    Ms Bolam described the meeting as a mediation and recalled Mr Eva saying that he was there to mediate.  According to Ms Bolam, the Appellant said that she felt that she was over-supervised.  Ms Bolam asked her how she felt she was perceived by her peers and by other people in the region, but the Appellant did not respond.  The Appellant then got "quite upset" and said she was going to take legal action. Ms Bolam's evidence continued:

"I said, I don't understand.  I thought the whole idea of this was to clear the air that - so we could just get on and do our job.  I remember Jan asking me why I don't treat her like everyone else, and I said - because I treat her with nothing but professionalism.  And she said, well, why don't you treat me like everyone else, and I said because you have a reputation of complaining about people.  And she said that was unfair, and I said to her, no, this is unfair, that I am put in this predicament for doing my job.  And once again she threatened legal action, and I said, well, you do what you need to do.  My idea was that we were supposed to clear the air.  Just get on and work.  That's what we are here to do.  I also explained to her that I didn't get any perverse pleasure out of her being so distressed with working with me.  I admitted that I didn't like working with her because it provided not a very nice atmosphere to work in because she obviously felt so uptight with me.  And we kind of agreed that we would just get on with it.  And I thought that was it.  I thought that was over."  (T 7: 12) 

  1. [304]
    When asked why she did not treat the Appellant like everyone else, Ms Bolam said she was not as "playful" with the Appellant.  She would always approach the Appellant with professionalism rather than having banter with her.  Ms Bolam denied being dismissive of the Appellant when talking to other people, and making it obvious who her friends were and that the Appellant was not one of them. 
  1. [305]
    Ms Bolam said that the Appellant asked whether she trusted her as a dispatcher, and Ms Bolam said that she did not and gave examples of decisions which the Appellant made "which may not have been the best decision to make." Ms Bolam did not believe she used the word "incompetent" in that meeting.  Ms Bolam explained that the issue was not confined to the Appellant, and that some EMDs "cope better with certain things than others" and some people "just need a bit more support."  Ms Bolam saw her role as helping people if they needed it. 
  1. [306]
    Mr Eva said that the meeting with the Appellant and Ms Bolam was "highly emotionally charged."  Both the Appellant and Ms Bolam were crying because they were "very physically upset by having to have the exchange."  The Appellant candidly informed Ms Bolam about how upset she became as a result of how Ms Bolam conducted herself as a supervisor, Ms Bolam indicated that she was aware that her presence created certain feelings in the Appellant.  The Appellant asked that Ms Bolam treat her "the same as everybody else."  According to Mr Eva, Ms Bolam then expressed "almost a resistance to be able to do that, because she understood that altered perceptions of her in her role."  She would not be able to treat the Appellant like she treats everybody else "for fear of it being misconstrued as something that it was not." 
  1. [307]
    Mr Eva recalled Ms Bolam making a comment to the Appellant in relation to her decision-making, which the Appellant misconstrued to be about competence.  However, the word "competence" was not used.  The discussion was more about capability and adaptability in an event or circumstance.  As Mr Eva put it:

"Competency is an assessment about whether you can or whether you can't do the job.  That was never in question, because we always knew Jan could do the job.  But from Erica's point of view, as a supervisor, she was bringing into question some of the decision-making at times Jan might have exhibited whilst Erica was the supervisor." 

It became apparent subsequently that the Appellant had misconstrued the comments made by Ms Bolam as challenging her competency to do the role.  That resulted in correspondence with Ms Kennedy and Mr Eva (Exhibit 33)

  1. [308]
    Mr Eva gave evidence that, at the end of the conversation, it became clear to him that:

"there was probably going to be no resolution.  They weren't going to come away from that meeting being the best of friends and buddies.  But they did come away with it very clearly stated from myself that with regards to their like, dislike, perception or otherwise of one another, the organisation had a very clear expectation under the … umbrella of code of conduct, that they were to act in a very professional way.  And if there were personal issues or personal, I suppose, misconstruances between the two, that they had to put those aside and act professionally."  (T 7: 60-61)

His assessment was that, in the short term, that was the end of the matter.  Both parties left with "very clear expectations of them in their professional role," and he did not expect to see a "re-representation of the same behaviour that had got us to that particular point at the outset."

  1. [309]
    Evidence - follow up from the meeting: The Appellant gave evidence that, after the meeting, she spoke to Ms Kennedy and asked why, if there were issues with her competency and if she is not doing her job, she had not been advised.  Ms Kennedy said there were no issues, and the Appellant explained what had happened in the meeting.  Ms Kennedy asked why she went into the meeting without a support person, and said that they knew there was going to be a meeting pertaining to the Appellant that morning.  The Appellant told Ms Kennedy that she was angry.  If there is an issue with her competence and then she should be made aware of her in competencies and be given the opportunity to be educated.  Ms Kennedy said there were no issues.  She asked the Appellant to put her issues in an email, and said that she could address those issues.  The Appellant did that. 
  1. [310]
    The Appellant did not concede that she should not have involved a person outside the meeting in how the dispute between her and Ms Bolam was being dealt with by Mr Eva.  She stated repeatedly that her competency was questioned in the meeting and "I wanted to check my competency."
  1. [311]
    In her email to Ms Kennedy on 19 October 2011 headed "My Competency," the Appellant referred to a conversation that morning in which it was brought to her attention "that I am thought of as an incompetent dispatcher, that I have to be closely monitored."  She sought clarification from the PDO and asked that "the areas I lack in be brought to my attention so that I may rectify them."  Ms Kennedy replied by email later that day, confirming that the Appellant's previous dispatch assessments "have been marked competent with no issues" (and had things been otherwise they would have proceeded with required further development), that Ms Kennedy had never received any concerns or issues with respect to their regional dispatch live time checklist, and she had no feedback from EMD/Team Leader or Management personnel regarding any dispatch protocols or discrepancies that may have occurred since the Appellant's employment.  She continued:

"I find your question concerning, as in that of the role of the Professional Development Officer, I can assure you that when issues are identified I will follow current policies and procedures and immediately identify them with you, if this process is not happening I may need to discuss this further with the Communications Manager to avoid further undue perceptions being made." (Exhibit 33)

  1. [312]
    Subsequently on 19 October 2011, the Appellant sent the following email to Mr Eva:

"Hi Tim

After the meeting this morning and being told that I am considered incompetent, I sent an e-mail to the PDO, requesting why from an educational perspective that this hadn't been raised before and this is the response I received.

I would like some clarification regarding the statement made this morning please.

Regards

Jan Henderson" (Exhibit 33)

  1. [313]
    Mr Eva replied by email to the Appellant (cc Ms Kennedy) on 21 October 2011.  He wrote, in part:

"I am happy to clarify again for you and am somewhat surprised by your confusion.  The statement of competence or rather incompetence was words you used and not something shared.  This fact was clarified at the meeting and I believed to be understood.  The comment exercised by the A/CCS in the meeting was some concerns concerning some cognitive aspects of what you do and some concerns she has/had more generally about the way business is conducted.  As such she felt like she needed to keep a watchful brief at the times you both are working.  The issues were not about competence which is a far more fundamental aspect of what we do and measured in a very objective way.  The issues were more subjective and not hard and fast and more about critical decision making. 

To add to that I added that it is my expectation that all supervisors, notwithstanding those present, keep a watchful brief on all EMDs as a matter of supervision and expectation against their own Role Description and would hope that the CCS' watchful brief would not be limited to just keeping an eye on you.  The words of competence were not raised as that would speak more to the fundamentals of the role which as discussed were not brought into question.

I note the correspondence from the PDO would attest to your fundamental competency and knowing that, that is why clarity was added at the time.  I recognise your perception of the conversation but can I say I feel you have misinterpreted the intent of the CSS' comment and or certainly not understood my points of supervision.

You would recall at the conclusion of our meeting of earlier this week I said that we would need to meet after the fact so we could finalise this issue and I would like to reinforce the imperative to do so to ensure greater confusion does not prevail.

In short there was not and is not, as supported by the PDO correspondence, a question of your fundamental competencies to perform the role you are employed to do.  Some supervision concerns were raised, and as supervisors it is that observing supervisors role to address this.  Should that not be able to be met by the Supervisor then they should seek out and use support services like the PDO to remedy any outstanding issue.  That is the correct process against role descriptions and one I would support, endorse and enforce for NCRCC.

I hope this clarifies the situation for you

Regards Tim" (Exhibit 33)

  1. [314]
    According to the Appellant, she was not clear about what Mr Eva was telling her in that email.
  1. [315]
    Evidence - Mr Eva's disparaging statement: The Appellant gave evidence that, on Friday 21 October 2011 when Mr Eva found out that she had sent an email to Ms Kennedy, he told her that if she continued to question or raise the issues again he would issue her with a Code of Conduct and a Performance Improvement Plan ("PIP").  Mr Eva was "really angry" and spoke to her loudly with an "aggressive nature."  Later, in his office and in the presence of Ms Kennedy, Mr Eva referred to a "fucking lying cunt."  He used that expression within the hearing of the Appellant who was some five to six metres away in the communications room.  Although she inferred that Mr Eva was describing her, the Appellant could not be sure to whom he was referring.
  1. [316]
    In cross-examination, the Appellant confirmed that she heard the statement and although, at that time, she did not know that it was directed at her, she later found out that it was in relation to her.  She could not recall how or when she found out, but denied that she invented it, or that she had heard about the comment from Ms Kennedy or had read it in documents, or that she had never previously claimed that she heard Mr Eva say that about her. 
  1. [317]
    Ms Kennedy gave evidence that Mr Eva said to her, in relation to the Appellant, that he was going to "burn the fucking lying cunt."  He made that statement quite forcefully while seated and grimacing, within a couple of days after his meeting with the Appellant and Ms Bolam in October 2011 which, according to the Appellant, included discussions about her competency.  Ms Kennedy told the Appellant about Mr Eva's statement as "a true account of what was said," but was reluctant to accept that doing so would cause more dissent in the room and would not endear, or improve the relationship between Mr Eva and the Appellant.
  1. [318]
    Mr Eva also suggested to Ms Kennedy that the Appellant was seeking attention and that Ms Kennedy had been "suckered into" the Appellant's request in relation to her competencies.  Ms Kennedy replied that she had not been, and that if any EMD had requested confirmation of their competencies, she would have provided that.  Mr Eva said that he did not believe that. 
  1. [319]
    Ms Kennedy told Mr Eva that it would have been wise to have a support person in the meeting, given the interaction between Ms Bolam and the Appellant. Ms Kennedy agreed that she probably had a discussion with the Appellant after that meeting advising her that she should have had a support person present.
  1. [320]
    Ms Kennedy observed that, on an occasion when she was brought in as a support person for another EMD who was having a meeting with Mr Eva, he questioned why she was present and said he believed that highlighted a level of distrust.
  1. [321]
    Mr Eva recalled speaking with Ms Kennedy, as the PDO, after the meeting with the Appellant and Ms Bolam on 19 October 2011 to clarify the comment about competence versus capability or decision-making.  He denied saying to Ms Kennedy that the Appellant was a "fucking, lying cunt."  According to Mr Eva:
  1. (a)
    that was "quite a harsh comment" and was not something that he had ever said about another work person;
  1. (b)
    that was not a comment that he would have shared with Ms Kennedy given his role and where he and Ms Kennedy had "grown to, or not, over the course of our relationship;"
  1. (c)
    he would not have any confidence in that relationship that if something of that magnitude was mentioned it would be kept in confidence;
  1. (d)
    he "wouldn't say it" and "didn't say it." 
  1. [322]
    Mr Eva's evidence in relation to that alleged statement should be considered in the context of other evidence about his propensity to swear in the workplace.
  1. [323]
    According to Ms Kennedy, Mr Eva liked to use "fuck" a lot and referred to many staff as "cunts."  For example, he used that word in reference to a male colleague in a jokey, laughing way. She also stated that "everyone does use the [word] 'fuck' in the room" and she had heard the Appellant use the word in the workplace. 
  1. [324]
    Mr Eva was happy to give evidence that there have been times when he had sworn in the course of conversations in the workplace, but stated that he had "never sworn at an employee."  He could not recall using "cunt" in the workplace, but said he had used it in conversations with colleagues and friends.  However he said "absolutely" that he had not referred to a male colleague in that way in the workplace.  Indeed, Mr Eva professed to be offended by that comment.
  1. [325]
    Ms Bloomfield had many interactions with Mr Eva when he was the acting RMC.  She described those interactions as "at times, difficult." She described him as "quite two-faced" in the sense that he would say inappropriate things about other workers when they were not present.
  1. [326]
    The Appellant described Mr Eva's behaviour towards her as "despicable."  She alleged that he used the words "fuck", "fucking" and "cunt" towards her, but said that it was "a frequent common use of language," within the Communications Centre and that "he used it everywhere."
  1. [327]
    Mr Temple gave evidence that, on one occasion when he was returning from a meal area outside the communications centre, he heard Mr Eva in the nearby lounge room said words to the effect that "she is nothing but a fat Kiwi cunt."  According to Mr Temple, Mr Eva "emphasised every word and he had venom in his voice." Although Mr Temple speculated that he "was talking about Jan," in cross-examination, Mr Temple conceded that he did not know that Mr Eva was talking about the Appellant. 
  1. [328]
    Appellant's submission - support person denied:  In the part of her submission dealing with the start of the meeting, the Appellant reiterates that she was taken into a room for an impromptu meeting at about 9.00 to 9.15 am with Mr Eva and Ms Bolam, and she had no idea that meeting was going to be held that day. Mr Eva started by saying that he had to be at a meeting at Caloundra at 10.00 am (about 20 to 25 minutes away in travelling time).  When she said that she would like a support person, Mr Eva said that was not necessary and that "it creates a level of distrust in me."  She reiterated that she wanted a support person and he repeated his position.  The Appellant proceeded without a support person. 
  1. [329]
    The Appellant submits that, having regard to the corroborating evidence of Ms Kennedy about the use by Mr Eva on occasion of the word "distrust" when convincing people not to have a support person, it can be accepted that the Appellant did ask for the support person and was refused.
  1. [330]
    Mr Eva's disparaging statement: In that part of her submission dealing with the comments that Mr Eva was alleged to have made about the Appellant to Ms Kennedy, the Appellant refers to Ms Kennedy's evidence about what was said and her own observations.
  1. [331]
    In her submissions, the Appellant refers to evidence from Mr Eva about swearing in the workplace, and to numerous witnesses about Mr Eva's swearing loudly in the workplace "almost certainly about the Appellant."  She submits that it was clear that she made Mr Eva angry and he was not afraid to express that to others in the workplace in colourful language. There is significant support for the fact that Mr Eva swore loudly and angrily about the Appellant after the meeting. 
  1. [332]
    Respondent's submissions: The Respondent submits that this allegation has morphed over time from Mr Eva perhaps using swear words in the meeting with Ms Kennedy to a forceful slur directed at the Appellant and overheard by her.  An attempt to entrap Mr Eva into using bad language in the meeting on 28 March 2012 (see Stressor 18) was not successful.
  1. [333]
    The Respondent submits that, if the Commission accepts that Mr Eva use the alleged expression in relation to the Appellant when speaking to Ms Kennedy (which is denied), it was a blemish because it was said out of anger or exasperation that the Appellant had once again gone from a meeting with him, her line manager, to discuss her misconceptions of the meeting with Ms Kennedy.  The only reason that the Appellant knew about this alleged comment was because Ms Kennedy told her, when it was clear that this was not conducive to improving the Appellant's confidence in Mr Eva.  Any alleged ill-effect on the Appellant was as a result of a discussion with Ms Kennedy.  Where, why and in what capacity that occurred is unknown on the evidence.
  1. [334]
    Consideration and findings:  I am satisfied that, although the meeting which occurred on 19 October 2011 had been planned for some time, the Appellant was not aware that it would occur on that date before she was asked to meet with Ms Bolam in Mr Eva's office.  She did not have a support person and was not given the opportunity in advance of the meeting to arrange for a support person to be present.  Although she was aware of a practice (if not strictly an entitlement) to allow her to be accompanied at a meeting of this type, and Mr Eva was aware of that practice, the absence of such a person did not delay or caused the postponement of the meeting.  I find that the Appellant expressed her desire to have a support person present but did not press the point.  She participated fully in the meeting.  I also find that Mr Eva was not keen for arrangements to be made to have a support person present at that stage, perhaps because of his pending commitment at Caloundra and his confidence in his own abilities as a mediator to conduct a mediation conference in which both participants would be treated fairly.  In other words, whether or not he felt that there would be an element of distrust him having a support person present, he saw no need to delay that meeting with those particular participants.  However, I do not find that he denied the Appellant an opportunity to have a support person present.
  1. [335]
    I am also satisfied that, when speaking to Ms Kennedy on 21 October 2011, Mr Eva referred to the Appellant in disparaging terms to the effect that she was a "fucking lying cunt."  He used that expression in anger or exasperation, and he did not direct those words to the Appellant or intend her to hear them.  However, she became aware of them and was understandably offended by them.

Stressor 16 - Michael Byrnes came to the Appellant and told her that he was removing her from duties. She was told that she was a risk and she generated complaints but unable to substantiate

  1. [336]
    Evidence:  The Appellant gave evidence that, on the morning of 24 February 2012, she had finished dealing with a crew who had caused an issue.  Michael Byrnes told the Appellant that he was removing her from the position.  She asked why and he replied that he had just received a telephone call from Mr Eva who asked Mr Byrnes to replace her.  According to the Appellant:

"I said well, why.  He said he didn't say, he just asked me to replace you.  And I said well, no.  You need to give me a reason.  And then Mac said well, you - you don't argue.  You need to be - you need to go.  I said well, no.  You need to give me a reason as to why you're removing … me from this position.  Mac said I don't know.  He said you'll need to talk to Tim.  I got very upset and I left.  Richard Raymond came to me and asked me what was wrong, and I just said to him I've just been told that I'm being removed from this position."  (T 2: 42-43)

  1. [337]
    The Appellant confirmed that, at the time Mr Byrnes told her he was removing her from her duties, she was doing patient transport as requested to fill-in for three days.  She agreed that it was within Mr Byrnes' role as supervisor to do that.  However she refused to move and questioned why she was being removed, and said that "he couldn't give me a satisfactory answer.…  I think I deserved an explanation and natural justice." When Mr Raymond came along and asked why she was upset, she left and spoke with him requesting a meeting with Mr Eva and Mr Merefield (the Patient Transport Manager).
  1. [338]
    Later that day, Mr Eva came into the Communications Centre and told the Appellant that Mr Merefield had asked to have her removed and that she would need to meet with him.  According to the Appellant, "I said, no, you're the Communications Manager, it you need to organise a meeting, you need to explain to me why I've been removed."  About an hour and a half or two hours later she met with Mr Eva, Mr Merefield and Mr Byrnes.  Although the Appellant asked for an explanation as to why she had been removed, they refused to give one. Mr Byrnes said that she should not argue with the manager's decision.  The Appellant said that she had a right to know why she had been removed.  Mr Merefield said that the process was long and they did not need to substantiate why she had been removed.  Mr Eva agreed, and there was no explanation.  Eventually Mr Merefield said something about the Appellant generating too many complaints with Queensland Health and the crew.  She replied that he needed to substantiate that and if there was an issue she had a right to be educated or at least given a chance to explain.
  1. [339]
    The Appellant said that she was not given information about a complaint leading to that meeting.  Subsequently there was a complaint from a patient transport person that she had not done a job.  The Appellant gave her version of events to Mr Peatey, Ms Kennedy and Ms Beaumont.  Apparently Ms Beaumont listened to the call and ascertained that the Appellant was correct, and told her that.  It seems that the complaint arose because crew wanted to have their lunch at a particular time and the Appellant was dispatching patient transport as an EMD.  Consequently, "because I was making them do the work," Mr Merefield was getting complaints from the crew.  The Appellant heard of those complaints from Ms Kennedy and Mr Peatey.  However she was unaware what, if any, complaints the men were aware of, or were basing the meeting on.
  1. [340]
    The Appellant confirmed that she was aware of a number of problems that arose while she worked for patient transport, although she contended that they had been proven to be incorrect or unsubstantiated.  However, she agreed that she made a mistake in relation to a patient transport vehicle on 22 February 2012 and that as a result there was an altercation between a paramedic and supervisors in the communications room. She stated that, although it was quite reasonable to give a crew a job at 1522 before the 1600 finish, she should have rung and asked the crew if it was okay with them to extend their shift. In an email to Mr Merefield on 23 February 2012, the Appellant explained that she had given a case at 1522 thinking it was from Nambour General Hospital to Nambour Private Hospital when in fact it was for Nambour District Hospital.  Because the paramedic "had things planned after 1600 and was unable to do it" there was an altercation between her and the CDS/ROS.  The Appellant wrote "I made a mistake and should have consulted with the crew prior to dispatching the case and therefore avoided the conflict."  She had spoken with the paramedic and had cleared the air but "just wanted to reiterate to you that the mistake was mine."  (Exhibit 4)
  1. [341]
    Although that incident immediately preceded the action on 24 February 2012, it was not unique. Concerns of a different nature had been expressed previously by a person at Hervey Bay Hospital about the practices followed by the Appellant.  These were recorded in an email from Mr Merefield to Mr Shaw on 10 May 2011.  Mr Merefield noted:

"Jan needs to stop second calling the facility to get the 'true' time, as I have explained the reasons why with her directly and I have said I am happy to work this way.  And yes I can make this call as the manager."  (Exhibit 19)

The Appellant agreed that when she was working in patient transport on 10 May 2011, there was an issue with a staff member at the Hervey Bay Hospital in relation to patient transfer.  According to the Appellant, although there was a complaint about her, it was deemed that she was correct and polite and that the policy she had spoken about to the staff member was correct.

  1. [342]
    The Appellant stated that there were issues because she refused to have appointments moved or cancelled or changed to suit the crews' meals, on the basis that they could do the job and have their lunch half an hour later.  She explained, "I was in the position, put there to dispatch and how I dispatched is how they're dispatching now."
  1. [343]
    That was consistent with Mr Merefield's evidence that there had been some complaints from hospitals about a perceived lack of flexibility by the Appellant in terms of after lunchtime bookings to transport patients.  Although there were service level agreements with particular hospitals in relation to such matters as shifting patients, the Appellant was apparently concerned that a local arrangement to take discharges after noon (entered into for practical reasons and to service the clients' needs for flexibility) was inconsistent with the Queensland Health policy.  In his evidence, the Appellant was not comfortable with that arrangement because she was "pretty focused on" the policy.  Coordinators rang him directly to say they needed to have patients shifted during an afternoon and they were not getting an outcome when the Appellant was looking after the patient transfer.  Mr Merefield raised the issue with Mr Eva and suggested that the Appellant be replaced in that position.  He was present at the meeting with the Appellant on 24 February 2012 and explained that the reason they were doing this was because there had been "complaints from hospital coordinators about the fact that they couldn't get bookings done, and there was a lack of flexibility." Mr Merefield recalled that the Appellant's response was to say that she was a good EMD (which he didn't question) and to ask for evidence of the complaints in writing.  He noted that almost all of the complaints had been by telephone.
  1. [344]
    As Mr Merefield stated, the Appellant acted in the patient transport role on a relieving basis from time to time. He described the Appellant as "fairly black and white about process, in terms of, this is policy, this is not policy."  As he put it, there tends to be a "number of grey areas operating" in patient transport.  So from that point of view, the Appellant would usually challenge any criticism.  "She did challenge directly when things were brought up," but did not do so aggressively. Mr Merefield was not aware of any specific training in relation to patient transport, and acknowledged that the Appellant might not have been aware of agreements with hospitals at variance with the policy before he raised them with her.  However his evidence was that the Appellant was advised early in the process of her being in patient transport, and there were still problems after that.
  1. [345]
    Mr Eva gave evidence that the decision in February 2012 to remove the Appellant from patient transport duties was a collaborative decision between the Patient Transport Manager and himself.  Mr Merefield had advised Mr Eva that he had received complaints and some challenges about whether there was a change to their practice.  Those complaints and challenges referred to the interaction between the Appellant and other facilities or allied stakeholders, including non-accepting of any particular late bookings, and the interpersonal exchanges and abruptness.  Mr Merefield asked Mr Eva to have the Appellant taken out of the relevant desk for her rostered shifts and returned to the core roster.
  1. [346]
    It was put to Mr Eva in cross-examination that:
  1. (a)
    the first the Appellant knew of the decision to remove her was when Mr Byrnes told her, after she had taken a seat at work and immediately before the meeting; and
  1. (b)
    it might have been more appropriate to do that in private.

His response was that there is "always going to [be] a more appropriate place," and that "there are alternatives to having it done."

  1. [347]
    Speaking more generally, by reference to the various complaints made about her, the Appellant agreed that a manager in the position of Mr Eva had responsibility to provide a service to the community but said "I would like to have been educated and advised where the issues were."  When asked what education would have assisted her, she nominated "common sense."
  1. [348]
    Appellant's submission:  The Appellant concedes that her removal from the patient transport area at the behest of Mr Merefield may not be seen as unreasonable in all the circumstances, however it was "handled terribly indelicately" by Mr Eva and was done "in an insensitive way."
  1. [349]
    In particular:
  1. (a)
    Mr Merefield confirmed that there was no training for when the Appellant was working in the patient transport area.  He conceded that, at least in the initial stages, some of the agreements between the employer and various entities vary from Standard Operating Procedures and would have caused the Appellant some concern because she was a person who liked to adhere to policies;
  1. (b)
    Mr Eva's evidence about this matter showed "clear insensitivity," and it was only after a number of questions that he accepted that it may have been alternative ways of going about it.
  1. [350]
    Respondent's submissions: The Respondent submits that this alleged Stressor is far from evidence that the Appellant was the target of bullying but is probative evidence of the Appellant's inappropriate attitude and response to authority within the workplace, and her inflexibility, evasive approach to the truth when facing justified criticism, deflecting of blame and refusing to take responsibility.
  1. [351]
    Consideration and findings: The evidence in relation to this Stressor establishes that the approach taken by the Appellant to her patient transport work caused some difficulties with crews and gave rise to complaints from hospitals with whom there were service level agreements that required a degree of flexibility about such matters as shifting patients.
  1. [352]
    I find that the decision to remove the Appellant from her short-term patient transport role was justified and appropriate in the circumstances, and constituted reasonable management action.  It might have been appropriate for management to have given the Appellant a clear indication of the degree of flexibility required of her in that role.  However, the apparent absence of such instruction or training and the way in which the Appellant was informed that she was being replaced in that role, could at most be considered blemishes in relation to that management action.  They could not constitute bullying or harassment.

Stressor 17 - The Appellant was confronted by Justin Cumming regarding tardiness; Mr Cumming and Lorenz subsequently continually interrupted call

  1. [353]
    Evidence - tardiness: The Appellant gave evidence that on 4 March 2012, she arrived at work before her start time of 1300.  She was immediately met by Mr Cumming, the acting CCS, who confronted her about being late.
  1. [354]
    Mr Cumming gave evidence to the effect that he recalled approaching, but not confronting, the Appellant about tardiness.  He recalled that she arrived with "only a few seconds left prior to her shift start," and stated that staff are required to be present and to log in and be operationally ready at the start of a shift.  He recalled that the Appellant responded "with sarcasm and raised hand, as if to indicate whatever."
  1. [355]
    Mr Cumming agreed that around that time there were difficulties logging onto computers, and said that it sometimes took five or six minutes (but not 15 minutes) to restart.  There were occasions when an EMD who was at their desk at or before their appointed time might be delayed getting the computer to work. 
  1. [356]
    Evidence - interrupted call: At 1811, after her meal break, the Appellant received a 000 telephone call.  By the Appellant's account, "within moments" Mr Kropp was trying to attract her attention and then someone was tugging on her shirt.  The call was "very difficult" and related to a person who was found deceased in a bath.  Mr Kropp walked away and Mr Cumming came and stood behind her, beside her and in front of her.  The Appellant was trying to keep the call under control, and there was "a lot of activity in the background going on."  At that stage, the Appellant was "very distracted" and was "already upset" and "not my usual self" because Mr Cumming had earlier "got into" her and said that she was late back in to the room.  This was not the first occasion Mr Cumming did that. He had done so on three or four occasions previously.
  1. [357]
    As soon as the call was completed, the Appellant went to the back of the Communications Centre and asked Mr Cumming why everyone was panicking about the call, why he was tugging at her shirt and why he was distracting her.  Either Mr Cumming or Mr Kropp said that they had been to that location that day and a patient had been left behind rather than being transported.  The Appellant thought they were concerned that it was the same patient.
  1. [358]
    The Appellant said that she did not recall Mr Cumming trying to whisper to her during the call, or saying to her after the call, that she should follow the script.
  1. [359]
    The Appellant described it as a difficult call.  Although, in cross-examination, she referred to it as a "pretty poor call" and a "boo-boo" and stated that she "didn't do a good job," there was evidence that she had used coarse language when describing it to Mr Eva.[40]  The call went for approximately 12 minutes and there was some suggestion that it took approximately 10 minutes before CPR instructions were given.  However, there was documentary evidence (Exhibit 9) to suggest that the issue of CPR was raised not later than about six minutes after the call commenced. An AQUA assessment of her call ranked various components from on a scale of 100 per cent, recording 0 per cent on a key question.  The Appellant said "I'm puzzled why I scored a zero compliance on there." The total compliance score was 40, against an acceptable score of 90.  This was the first call subsequently considered in relation to her PIP (see Stressor 18). 
  1. [360]
    Mr Cumming recalled a 000 call which seemed was "going bad," in the sense that there seemed to be different people at the end of the phone, "there didn't seem to be any progress through the script.  It wasn't being followed.  The call just sounded bad."  According to Mr Cumming, his role as supervisor was to ensure that the EMDs follow the script so that they got the best care to the patient or person in need and could assist others at the scene to help that person.  He recalled standing near the Appellant and saying "Stick to the script, follow the script."  He did not remember making any other comments.  He remembered another supervisor (possibly Lorenz Kleinberg, rather than Mr Kropp) being in the vicinity, but did not recall them tugging at the Appellant's shirt, or that she found his conduct distracting. Immediately after the call, and, at the supervisor's desk, he advised the Appellant to stick to the script in future because that was their requirement and it would save them and perhaps even a patient down the track.  He described the Appellant's response to him wishing to discuss the matter as "Again, sort of resistance."
  1. [361]
    When he listened to the recording later, he was concerned that it took seven to nine minutes to initiate CPR instructions.  This was not a concern that he had at the time when he was standing next to the Appellant. Mr Cumming was also concerned about another call that evening in relation to an uncontrollable scene at Inskip.  Mr Cumming said that he sought advice from the Professional Development Officer at that time (Ms Johnson) and asked her to listen to both calls to see whether to pursue any further action. He indicated that the Appellant had not been following the script. He asked Ms Johnson to see "how far from the script" the Appellant was.
  1. [362]
    The extent of Mr Cumming's concern is reflected in the following passage from his email to Ms Johnson on 4 March 2012:

"I know these calls are emotionally charged and sticking to the script is a hard thing to do but it honestly appears there was no attempt even made to stick to the script.  I'm sure if an AQUA was done they would score very poorly.

On both occasions Jan did not ask if there was a defibrillator available which is a scripted question stating she didn't think she had to in certain circumstances.  I certainly did not teach her that.

I have discussed these two cases with Jan trying to establish whether or not she actually understands the script and the pathways and she has stated she does and it wont happen again.  We have discussed the importance of flowing into the proper instructions without any delays.  We need to note this somewhere that this conversation has taken place so that if it happens again we can take some action to fix it."  (Exhibit 17)

  1. [363]
    Ms Johnson gave evidence that in early 2012, while acting PDO, she conducted scheduled training with the Appellant in relation to aspects of call taking.  During that training the Appellant said that she had a small problem with, and appeared a little bit confused about what she should have done in relation to, some calls.  Mr Cumming also sent Ms Johnson an email expressing some concern with the same two calls and had asked her to listen to them.  Having listened to the calls, Ms Johnson considered one of them (in relation to a cardiac arrest where CPR instructions were not commenced for quite a long time) to be "quite distressing." She considered that it was reasonable that a PIP was commenced in relation to the Appellant.  Ms Johnson spoke to the acting RMC, Mr Eva, about the calls and, as a result, sent an email to Mr Colquhoun requesting that he audit the calls.  Having completed her two week period as PDO, she handed over the role to Mr Raymond. 
  1. [364]
    Mr Colquhoun gave evidence in relation to his AQUA report on the Appellant's call on 4 March 2012 at 1811.  That audit was requested by Mr Eva as the acting RMC.  The compliance score for a question in relation to customer service was zero. He thought that the Appellant "must have been rude and abrupt," otherwise he would not have given her a score of zero.  The other zero score related to dispatch life-support instructions.  The overall compliance was 40 per cent. He agreed that zero scores on important matters would be of concern to the RMC.
  1. [365]
    In his report (Exhibit 5), Mr Colquhoun:
  1. (a)
    recorded that there were "numerous and unacceptable freelance questions[41] asked" (many more than the maximum five in Aqua for score compliance) and the asking of these freelance questions may have delayed the response;
  1. (b)
    stated that the call-taker "may not use freelance questions or instructions at any time;"
  1. (c)
    expressed his opinion as a Quality Assurance Officer that the Appellant had failed to meet the Customer Service Standard by "repeatedly berating the callers" (and recorded examples of that) and that she "over-spoke the callers on numerous occasions with no noticeable listening skills portrayed;" and
  1. (d)
    stated that the Total Customer Service Score of zero was of "real concern" from a QAS Quality Improvement perspective.
  1. [366]
    It is paradoxical that the Appellant, who was reputed to be a stickler for adhering to policies and procedures (and who resisted or queried directions to act contrary to what she understood the applicable policies and procedures to require) should have performed her call-taker role in such a way on that occasion.
  1. [367]
    In his oral evidence, Mr Colquhoun noted that, although sometimes supervisors might be heard giving directions to the EMD (because that sound is recorded by the microphone on the EMD's headset), he did not recognise any supervisor's voice on the recording of this call.  In terms of assessing the Appellant's compliance with procedures, there was no way of factoring in any distractions that might have occurred in the communications room at the time she was taking the call.
  1. [368]
    In accordance with the usual policies and procedures, Mr Eva also asked Mr Colquhoun to audit five or six other calls on a day, selected at random.  It was for one of those calls (also on 4 March 2012 at 1848) that the Appellant had a compliance score of 71 per cent.  He stated that there was no capacity within the assessment matrix to take into account the EMD's emotions, only the emotions of the caller.  "The rest of the call is black and white."  None of the other calls was non-compliant.
  1. [369]
    Appellant's submission: The Appellant's submission in relation to tardiness recounts the events surrounding the 000 call on 4 March 2012 and states that she was upset before the call because Mr Cumming had unfairly accused her of being late, and he had said to her that her work ethic was in question. The Appellant notes that Mr Cumming accepted that it took some time for people to log on to their computers even if they were at their desks on time.  She submits that he did not strongly stand by his assertion that the Appellant was tardy.
  1. [370]
    As to the interruptions during the 000 call on 4 March 2012, the Appellant submits that that may have related to the "bad call" and nothing further is said about that. 
  1. [371]
    Respondent's submissions: In relation to Mr Cumming addressing the Appellant in relation to her tardiness, the Respondent submits that is a reasonable and expected part of a supervisor's role to ensure that the communications room is operationally ready to accept 000 calls.  There is no evidence independent of the Appellant that Mr Cumming did this without cause or in an unreasonable manner.
  1. [372]
    The Respondent's submission contains a detailed critique of how the Appellant responded in relation to the first of the difficult calls on 4 March 2012, and that she refused to admit that she had made a critical error and continued to blame distraction by persons around her (see also the evidence in relation to Stressor 18).  It also refers to the appropriate steps taken by Mr Cumming during and immediately after the call, and to the evidence of Ms Johnson and Mr Colquhoun in relation to that and other calls taken by the Appellant.
  1. [373]
    Consideration and findings: This Stressor and Stressor 19 are considered together with Stressor 22 at Stressor 22.

Stressor 18 - The Appellant was told she was being placed on a Performance Improvement Plan and, after querying, was told it would be a Learning Support Plan

  1. [374]
    Evidence: On 23 March 2012, Mr Raymond sent the Appellant an email advising her that she had a poor call and that he would be organising a meeting for her to discuss the matter with Mr Eva.  Before the meeting, the Appellant was provided with a copy of the AQUA in relation to the 000 call summarised above with a score of 40 per cent. She had an opportunity to consider the AQUA and prepare for the meeting.  The Appellant did not seek any assistance in relation to the forthcoming meeting but did not realise that she was to be put on a PIP.
  1. [375]
    The meeting with both men took place on 28 March 2012.  The Appellant told Mr Eva that she had made an error, and he said that she would be placed on a PIP for three months. Halfway through that period there would be a meeting to discuss progress.  Mr Eva indicated that because the Appellant was doing support roster that would make it easier for them to monitor her calls.
  1. [376]
    The Appellant gave evidence that Mr Eva said that a PIP is not a punitive measure but is designed to support and improve performance.  Mr Eva emphasised that the PIP would have been put in place because of two calls not one.  The meeting went for 37 minutes.  During their discussion, the Appellant said that she understood there had to be four non-compliant calls to receive a PIP.  She had that understanding from what she was told later by the union and by Mr Colquhoun. When it was put to the Appellant that it was reasonable for a manager who identified an issue of critical non-compliance to put her on a PIP, the Appellant said "I would expect that I would have an opportunity to discuss it first before it went any further.  …  I was entitled to an informal interview first to discuss what had gone on with the call and I wasn't afforded that opportunity."
  1. [377]
    In the Appellant's view, by moving from informal to formal processes, Mr Eva gave her no opportunity to explain what was going on around her and what had happened before the call.  The Appellant queried the PIP because she felt that she was being singled out, and because she knew there were other people in the room who had lower compliance scores then she or "consistently below the line" that had not been treated in the same manner.  (Indeed, she said that she understood it was normally after four consecutive calls that the process became formal.)  Mr Eva replied that it was his discretion to do so.
  1. [378]
    At that meeting the Appellant was handed another document in relation to another call on the same night for which she received a 75 per cent compliance score.  Mr Eva said that, as a result of the first call he had instructed the Quality Assurance Officer to look at the Appellant's other calls.  However, the Appellant had received no documents before the meeting in relation to that second call. The Appellant remembered the second call and considered that she:

"did a really good job because it was a very difficult call.  The call kept dropping out.  They were at Inskip Point, so the reception was really, really bad.  They were in a - a camping site.  There was a lot of panic and confusion the caller was a very pleasant, compliant person.  I had to call back numerous times because the call kept dropping out."  (T 2: 48)

Although she outlined the extenuating circumstances (including the behaviour of other workers), she considered that was not taken into account.  She considered that as manager Mr Eva was in a position to do something about the behaviour including rumours in the room.  He responded that he could not control what came out of people's mouths.

  1. [379]
    In cross-examination, the Appellant acknowledged that she had made a sound recording of that meeting without the knowledge of others present at the meeting. She agreed that there was generally quite a pleasant tone to the meeting, with some laughter.  Mr Eva sometimes spoke to the Appellant with a kindly and supportive manner.  The Appellant conceded that she swore more often than Mr Eva during that meeting.  She also conceded that the first mentioned call was the worst call she had ever done, and acknowledged that Mr Raymond had described it as the worst call he had ever heard and that if it had involved a member of his family he would have been devastated.  However, she referred to the activity going on around her and the interruptions which distracted her.
  1. [380]
    At the hearing, the Appellant contended that the term of the PIP was "unreasonable because my - the behaviour that I displayed in the call was not consistent and had extenuating circumstances, and I believe that they hadn't been addressed."
  1. [381]
    It is clear from her own evidence that the Appellant was told about, and the purpose of, the meeting some five days in advance of it being held and was given an AQUA or AQUAs before the meeting with sufficient time to make her preparations.  By her account she "believed it was going to be an informal discussion, so I was waiting for the meeting" and did not think she could have done any further preparation to assist her.  She did not provide any substantive information to Mr Eva in relation to the call after the meeting. 
  1. [382]
    The Appellant gave evidence that on 2 April 2012, Mr Raymond provided her with a completed PIP document (Exhibit 8).  She took the package but told him that she would not be signing it.  She was apparently advised by the union not to sign it.  There was a subsequent meeting about the PIP and she refused to sign it.  About the end of April, she received an email from Mr Raymond stating that as a result of her refusal to sign the PIP, Mr Eva was going to escalate the matter.  She understood that to mean it would be escalated to a Learning Support Plan, but she was not presented with any such documentation.
  1. [383]
    The Appellant acknowledged that had she gone onto a PIP she would have continued to in the same job, the only difference being an increased audit of her work. However, she only accepted that it was reasonable if "it was being fairly done across the board."  Although she described the PIP as a process to improve performance, she refused to participate in it. However, following another meeting and email correspondence with Mr Shaw, the Appellant signed a PIP in late June 2012.[42] 
  1. [384]
    Mr Eva recalled the 000 call because the acting Professional Development Officer, Mr Raymond, drew it to his attention as the scoring rate for that call was "considered to be well outside of accepted parameters."  The call had been assessed by the Quality Assurance Officer, Mr Colquhoun.  The usual practice is for the Quality Assurance Officer and/or the Professional Development Officer to have a preliminary discussion with the EMD and provide Mr Eva with feedback with regard to the outcome of the preliminary investigation and discussion.  It was for him to assess the risk created by the aberrant behaviour and whether it needs to be followed up in some way.  In this instance, he asked for an investigation to see whether the poor performance was replicated.  The investigation identified some issues that needed to be addressed but nothing that required taking the Appellant out of the environment and retraining her.  Mr Eva had an informal conversation about the matter with the Appellant and she was to be put on a PIP to provide some "further learning support."  Mr Eva said that, although a PIP can be "misconstrued as a punitive process" it is a process that "actually supports and protects the individual." (See Exhibit 8)
  1. [385]
    Mr Colquhoun confirmed that the purpose of a PIP is to "improve the individual … To help them maintain a standard."  It is not a punitive action.
  1. [386]
    Ms Kennedy agreed that a PIP is not a punitive measure (although they are sometimes perceived to be so, depending on how they are delivered), but is a way of educating and improving the performance of a person who has demonstrated low compliance.  If a manager fails to do that, they would be failing in their responsibility in that position. 
  1. [387]
    Mr Emery described PIPs as "not unusual."  They are an opportunity for a supervisor to engage with staff and identify operational matters that need to be changed, and can be described as a "safety measure that we'd employ." Someone could be placed on a PIP if there was an aberrant clinical matter or an aberrant operational matter that resulted in potential harm.  While accepting that such aberrant reasons happen in an emergency service, he said that management cannot "sit on our hands and just allow these things to occur without some structure."
  1. [388]
    Appellant's submission:  The submission is considered at the related Stressor 21.
  1. [389]
    Respondent's submissions: This submission is considered at the related Stressor 21.
  1. [390]
    Consideration and findings: This Stressor is linked to Stressor 21 and is considered in relation to that Stressor.

Stressor 19 - Justin Cumming confronted the Appellant stating that she had taken too long on her break on 26 April 2012

  1. [391]
    Evidence: The Appellant confirmed that Mr Cumming told her she had taken too long for her break, but did not accept that she had come back too late.  She agreed that it is perfectly reasonable for a supervisor to raise that issue, particularly as the need to be people at communications consoles every minute of every day.  Consequently, people need to be back promptly so the next person can have their break.
  1. [392]
    In cross-examination the Appellant stated that, although she was "frequently spoken to" about late logging on and late return from meal breaks, she could "actually say that I was never late to work."
  1. [393]
    Appellant's submission:  The Appellant submits that the matters in Stressor 19 are dealt with under Stressor 17.
  1. [394]
    Respondent's submissions: The Respondent noted that, in cross-examination, the Appellant denied that she was late back from her break but agreed that it is reasonable for a supervisor to raise that issue as the communications consoles need to be manned every minute of the day.
  1. [395]
    Consideration and findings: This Stressor and Stressor 17 are considered together with Stressor 22 at Stressor 22.

Stressor 20 - Erica Bolam approached the Appellant on call, yelling and stabbing at screen to "Disconnect!" and continued to abuse and berate the Appellant unreasonably

  1. [396]
    Evidence:  The Appellant gave evidence that, on 20 May 2012, she took a 000 call in relation to a distressed elderly person with severe breathing difficulties.  Midway through (or toward the end of) the call another 000 call started ringing.  Ms Bolam came running up behind the Appellant and said, "Disconnect, disconnect, disconnect.  Urgent, disconnect."  The Appellant put up a hand to stop her because the Appellant was continuing with her call.  Ms Bolam did it again and the Appellant put up her hand to stop again.  Ms Bolam said "Don't put your hand up," and then started stabbing at the Appellant's screen saying "Disconnect, disconnect, disconnect."  The Appellant "just ignored it, carried on with the call."  According to the Appellant, consistently with the standard operating procedure, she should have stayed on the call because the patient was sick and some distance from help.  However she disconnected the call and picked up the next 000 call.  Ms Bolam continued to talk to the Appellant about the first incident.  Apparently, the audio recording of the calls captured Ms Bolam at the end of the first call and on the beginning of the second call "going at" the Appellant. The Appellant referred to SOP 85 concerning the procedure for multiple 000 calls and the procedure for urgent disconnections (Exhibit 35 D151-155).  In those situations, the computer prompts the call taker as to what to tell the patient or the caller as to how the call taker will complete the call.
  1. [397]
    According to the Appellant, two other call takers were in the room at that time.  They were taking less urgent, non-emergency calls while she was dealing with the two 000 calls and Ms Bolam was asking her to disconnect from the first of those calls. In the Appellant's opinion it was unreasonable, in those circumstances, for Ms Bolam to ask her to disconnect to take a 000 call.
  1. [398]
    The Appellant said that, after she concluded the second call, she logged off and went to leave the room.  The Appellant did not attempt to have a conversation with Ms Bolam as "we were both heated."  She said that she was not going to argue, but might have told Ms Bolam the nature of the call as she walked from the console to the kitchen.  Ms Bolam followed her to the door "continuing about not putting my hand up and about emergency disconnect."  The Appellant continued to the kitchen and shut the door.  She said that, in response to the way Ms Bolam and spoken to her, she was "very embarrassed.  Upset.  It was very antagonistic.…  Very stressed." In her view, it is reasonable for an EMD to walk away from their supervisor who is trying to talk to them "when they're being unreasonable." 
  1. [399]
    The Appellant said that she sent an email to the Quality Assurance Officer, Mr Colquhoun, asking him to listen to the calls.  She said that she did so for educational purposes (to ensure that she was following process and policy) and not to prove herself right and Ms Bolam wrong.   He agreed to do so and said that Ms Bolam could be heard on both calls, and that an incorrect process was followed.  That should not have happened.  The process for dealing with multiple calls should be identified at the beginning of the shift, consistently with SOP 85, and that had not been followed.
  1. [400]
    Ms Bolam gave evidence that she was the acting CCS on that day and was in the lunchroom when she heard phones ringing.  There were five call takers on duty.  She could see from the light beside each console that everyone was on a call.  Ms Bolam could see from each call taker's screen the nature of their call.  The first person she approached was in the middle of taking an address.  The second person was trying to obtain the chief complaint.  The Appellant was the next person and she was "at the end stage" of her call as her car had been dispatched.  Ms Bolam pointed to the screen and said "Do an urgent disconnect," and the Appellant said that she was nearly finished.  Ms Bolam said to do an urgent disconnect.  Ms Bolam was concerned that there was an unanswered emergency call, and that there were not enough people to take the calls coming in at that time.  As the supervisor in those circumstances, it was her prerogative to instruct the Appellant to do an urgent disconnect.  A car was already on the way, and Ms Bolam considered her role as supervisor was to do the best thing for the community.  However the Appellant "wouldn't do it.  She wouldn't follow the directive." 
  1. [401]
    Ms Bolam explained that there is an icon on the screen that populates the audit trail of what the person has done, and provides the EMD with a script to the effect that they have to hang up now to take another urgent call and that, if anything changes, the person should call back on 000. Ms Bolam agreed that:
  1. (a)
    an unanswered call would be redirected eventually to another call-taker in Brisbane;
  1. (b)
    she did not appreciate at the time the Appellant was taking a Code 1 breathing difficulties call, which the relevant guidelines asked to be taken into account.

However, she was concerned that an urgent call be answered "as immediately as you can."  As a supervisor she had to make a decision, she could give that directive, and standard operating procedures "sometimes don't fall into every situation that we have." 

  1. [402]
    Ms Bolam explained that the other two cases were still being processed at that time.  Although the jobs were lower acuity cases, that had not been established at that time and they had not been put in the pending queue. 
  1. [403]
    Ms Bolam sent an email to Mr Eva, the acting manager, that day (Sunday 20 May 2012) (Exhibit 27 headed "Refused to take instruction") as a record of the Appellant's "inability to follow instructions," which was the challenge Ms Bolam faced.  The email set out an account of the incident and following discussion about when Urgent Disconnect can be used.

"She [the Appellant] assured me that she knew this.  I advised her once again that it needed to be utilised to which she replied she was not going to argue with me about it & I assured her that there was no need for any argument, it just need to be done." (Exhibit 27)

  1. [404]
    Mr Colquhoun recalled an occasion where the Appellant approached him, in the presence of Ms Kennedy, to express concern that the previous day she was on a 000 call and Ms Bolam pointed at the Appellant's console telling her to get off the call.  The Appellant believed that she was right to stay on the call and asked Mr Colquhoun to find and audit the call and to check what other EMDs in the room were on at that time.  He found that the Appellant was correct to remain on the call, and that two other EMDs who were on 000 calls at the time had a "lower response matrix."  If anyone should have been asked to get off a call, it was someone whose call did not have a Code 1 (lights and sirens) response. 
  1. [405]
    According to Mr Colquhoun, EMDs sometimes ask for calls to be reviewed to see whether they followed the correct pathway.  In his experience, the Appellant's request to review a call for the purpose of showing that her supervisor, Ms Bolam, had done the wrong thing was an isolated event.
  1. [406]
    Appellant's submission: The Appellant submits that Stressor 20 is made out.  Ms Bolam unreasonably acted contrary to the SOP and disclosed inherent bias when treating the Appellant differently from others.
  1. [407]
    The Appellant submits that Ms Bolam's conduct (in asking the Appellant to disconnect urgently part-way through a call) was clearly outside SOP 85.  That Procedure provides that, where there was a likelihood of urgently disconnecting, she would be told at the beginning of the shift.  The Appellant immediately took another 000 call (even though she was aware that other operators were on less urgent calls), and Ms Bolam continued to remonstrate with her.
  1. [408]
    Furthermore, the Appellant submits, Ms Bolam:
  1. (a)
    admitted that there was not a major incident in progress, and therefore the emergency rule is under SOP 85 did not apply;
  1. (b)
    accepted that the Appellant was on a Code 1 case and that if the call is not taken it would be redirected to Brisbane;
  1. (c)
    refused to concede that she had singled out the Appellant when there were less serious calls being taken by other operators;
  1. (d)
    accepted that she did not follow standard operating procedures in respect of that incident, but said that standard operating procedures sometimes do not cover every situation and, as a supervisor, she had to make decisions.
  1. [409]
    Mr Colquhoun audited the call and noted that the Appellant was correct to remain on it.  Two other EMDs who were on calls that had a lower response matrix should have been asked to get off their calls.  EMDs are only allowed to deviate from the ProQA script when there is an emergency rule in place under SOP 85 (Exhibit 35, D151).  If that occurred, it would show up on the daily log. 
  1. [410]
    Respondent's submissions: The Respondent notes that no independent witnesses were called to give evidence of Ms Bolam's alleged tirade.  The Respondent also notes that, although the Appellant claimed that SOP 85 was the correct process and that Ms Bolam had not followed it, SOP 85 is not concerned with urgent disconnections, which are required on a daily basis due to the need to urgently respond to hundreds of 000 calls.
  1. [411]
    The Respondent submits that Ms Bolam was reasonably performing her role as the supervisor.  At the time she made her decision, Ms Bolam did not have the retrospective knowledge of Mr Colquhoun that the nature of the other two calls was of lower urgency.  It was a decision undertaken every day and inevitably a supervisor may not have made the best decision when reviewed in retrospect.
  1. [412]
    The Respondent also submits that one of the most striking features of this stressor is the Appellant's blatant and contemptuous disregard for directions by her supervisor, and her single-minded need to prove that she is correct and competent without any demonstration of insight into the primary responsibility of QAS for community safety.
  1. [413]
    Consideration and findings: This incident, and particularly the behaviour of Ms Bolam, need to be assessed in light of the circumstances at the time as observed by Ms Bolam, rather than by reference to information available to participants and Mr Colquhoun after the event.  Although it appears that, had she known all the circumstances at the relevant time (including the nature of the calls being taken by other call takers, and the nature of the call being taken by the Appellant), Ms Bolam might have allocated the incoming call to another person, I accept that her direction to the Appellant was reasonable.  The Appellant could not have known at that stage everything that was happening in the room.  She was focused on the call she was taking.  Her reaction in trying to halt the interruption was understandable, but not necessarily correct.
  1. [414]
    I am satisfied that, although in retrospect the incoming 000 call could (and perhaps should) have been handled differently, the circumstances were such that Ms Bolam's direction to the Appellant constituted reasonable management action taken in a reasonable way.

Stressor 21 - Meeting regarding the Appellant's Performance Improvement Plan, Timothy Eva stated unreasonably that she would be disciplined and Learning Support Plan would stand

  1. [415]
    Evidence: The Appellant gave evidence that, after various scheduled dates, a meeting was eventually organised for 22 May 2012.  It involved the Appellant, John Webb (from United Voice as her support person), Mr Raymond and Mr Eva (who chaired the meeting).  The meeting was to discuss the Appellant's refusal to sign the PIP.  Apparently there was a heated discussion between Mr Webb and Mr Eva about whether Mr Eva had followed the relevant policy and procedure or whether he had a discretion to choose who he put on a PIP.  The meeting resumed after a break of approximately half an hour.  The Appellant noticed a total change of attitude on the part of Mr Eva, and she was not given a PIP and there was no more discussion as to how things were going to be addressed.  Mr Eva said that the PIP was off the table and a Learning Support Plan ("LSP") would be put in place, and the Appellant would be issued with a Code of Conduct warning. 
  1. [416]
    Mr Eva agreed he asked the Appellant to sign a PIP during the first meeting on 28 March 2012, which he described as an "informal preliminary discussion" or a continuation of Stage I.  However, his evidence was that she met previously with other people (such as the Professional Development Officer) who were responsible for monitoring the Appellant's performance prior to that.  He also stated that Managing unsatisfactory performance and conduct: A guide for supervisors ("the Guide") (Exhibit 35, D 22) was not an "absolute guide" in circumstances such as these.  Indeed he gave evidence that:

"from a management point of view, these are to be read as procedural and guidance on how to do business.  And there are some manipulation.  The closer you get back to the point of lack of experience or lack of seniority … then there's expected, from an organisational point of view, to be more absolute adherence to the written word.  But there's some flexibility in it, given the nature and dynamics of our environment."  (T 7: 94-95)

  1. [417]
    Mr Eva acknowledged that the Appellant did not agree to sign the PIP initially, and that at a subsequent meeting he asked her again to sign the PIP and she refused.  Mr Eva did not recall saying that if she did not sign the PIP he would issue her with the Code of Conduct warning, however he seemed to accept that he indicated to the Appellant that she would be placed on a Learning Support Program (the next step in managing diminished performance).  The practical reality of her refusal to sign the PIP meant that she had "refused to participate in the level of her improvement process."  Mr Eva recalled the meeting "quite vividly" and said that he became angry with Mr Webb (who suggested that every case of performance that did not meet the standard should be treated in isolation from another one), but not with the Appellant. 
  1. [418]
    Mr Eva's opinion was that, as the manager of the organisation, he had to accept some level of risk.  Part of his role was to ensure that all people in the Communications Centre were functioning at the required level.  It wasn't sufficient to identify one issue in isolation.  It became an "accumulation of issues" and they wanted to put the Appellant on a PIP.  Mr Eva said that the difficulty he had at a personal level was that the PIP was only asking the Appellant to do her job.  She was to sit with the Quality Assurance Officer so that their requirements of call taking procedure would be very clearly explained, and she would be notified that the manager was going to place greater scrutiny over her calls.  There would be a mid-cycle review to "see how she was tracking" and consider whether they needed to give her an additional support.  As he put it, "the onus on the individual in this instance wasn't huge, in fact, no more than it would be by turning up.  The greater onus on this particular plan was going to be on the investigators." 
  1. [419]
    There was a break in the meeting as it had become "quite heated."  After the meeting resumed, he did not put the Appellant on an LSP.  Soon afterwards, Mr Eva ceased acting as RMC when the substantive occupant of the position (Mr Shaw) returned.  (As noted in Stressor 18, the Appellant eventually signed a PIP after consultation with Mr Shaw.)
  1. [420]
    Mr Eva acknowledged that, at the time he was making decisions about PIPs, he received email messages about the Appellant from Ms Bolam and other supervisors. The Appellant was not privy to (and hence could not respond to) that information.  He would have taken that information into account.  Mr Eva noted that the allegations of bullying by Ms Bolam against the Appellant were not substantiated, and there was no reason to discount the feedback given by Ms Bolam about the Appellant's performance.  In addition there were no less than four or five other supervisors who gave written feedback about the Appellant at that time, and others "often" gave oral feedback.
  1. [421]
    He gave evidence that, at the time he had the meeting with the Appellant about the PIP, there was more than one call in contention.  A number of calls demonstrated lesser compliance, but at least one was "mission critical" in the sense that some of the advice that the Appellant would or would not have given would have influenced whether the person survived. 
  1. [422]
    Mr Eva conceded that the Appellant was regularly achieving compliance in her AQUAs, obtaining a general compliance rate of 93 per cent when the QAS policy was to achieve 90 per cent or more. 
  1. [423]
    Mr Eva gave evidence that other EMDs received low compliance scores in AQUAs at that time, and that at least two of them were put on PIPs. However, that had no relevance to the action he took in relation to the Appellant. 
  1. [424]
    Appellant's submission: In her submission, the Appellant refers to:
  1. (a)
    the meeting on 28 March 2012:
  1. which she understood was an informal meeting to discuss the 4 March 2012 call that she had rated 40 per cent, but at which she was presented with another report showing that she had another call that evening with a 71 per cent compliance rate;
  1. at which Mr Eva told her that he would be implementing a PIP, and she said that she felt she was being singled out, and he responded that it was within his discretion;
  1. (b)
    2 April 2012, when Mr Raymond gave her a PIP document, which she refused to sign then and at another meeting;
  1. (c)
    Mr Eva saying he was going to "escalate the matter" (which she took to mean he would put her on a LSP;
  1. (d)
    Mr Eva's evidence that he was aware that her general compliance rate was 93 per cent but that there was a "bad call;"
  1. (e)
    evidence that Mr Eva had not followed the PIP process in the Guide even though there is nothing in the Policy and Procedure Guidelines which allows  the "flexibility" of which he spoke, and the Procedures for Managing Diminished Performance (Educational) advise managers to avoid inventing their "own unique process for Managing DP;"
  1. (f)
    Mr Eva's evidence that, when the Appellant did not agree to sign the PIP, he told her that he would put her on a LSP and that, at the meeting, he became quite angry with Mr Webb;
  1. (g)
    the meeting on 22 May 2012 when Mr Webb told Mr Eva that Mr Eva had not followed the Policy in respect of the PIP and LSP and, after a break, the meeting resumed.  The Appellant was not put on a PIP or LSP, but Mr Eva told her that she would be issued with a Code of Conduct warning because she had not signed the PIP;
  1. (h)
    statements from Mr Raymond, Ms Bloomfield and Ms Bolam which suggested that the Appellant was being targeted unfairly.
  1. [425]
    The Appellant submits that Stressor 18 is borne out.  Mr Eva "demonstrated a shocking disregard for the Policies and Procedures."  There were others who, on his view of the audit process, may also have warranted similar treatment but were not subject to it.
  1. [426]
    Respondent's submissions: The Respondent submits that the actions of Mr Eva to request or direct the Appellant to enter into a PIP were non-punitive, indicated in the circumstances, and completely reasonable.  If the Appellant considered the manner in which she was treated in the meeting was unreasonable, she could have tendered the recording which she made (and about which she was cross-examined).
  1. [427]
    The Respondent acknowledges that counsel for the Appellant put to Mr Eva that the letter of policy and procedure had not been followed in relation to the PIP.  However the Respondent submits that there was no evidence to the effect that the errors made by the Appellant were not serious or critical and should be ignored by management.  Further, the Respondent submits the failure of QAS to give pre-arrival instructions is extremely serious and needs to be addressed.  As Mr Eva stated, there needs to be flexibility in approach given the nature and dynamic of the environment.
  1. [428]
    The Respondent also states that other attempts by supervisors to have informal discussions with the Appellant (see e.g. Exhibit 17) had been met with sarcasm, a raised hand, arguments and complaints.
  1. [429]
    The Respondent notes that the email that the Appellant said she received from Mr Raymond stating that Mr Eva was going to escalate the process was not disclosed or attended.  Mr Raymond did not give any evidence.
  1. [430]
    However, Mr Eva gave evidence that, as the Appellant had refused to participate in the performance review process, the next step was a Learning Support Program.  He accepted that that would have been discussed at the meeting on 22 May 2012 with the Appellant and Mr Webb.  Mr Eva was not asked about any events around 25 April or any email.
  1. [431]
    The Respondent submits that, for similar reasons as in relation to Stressor 2, there is insufficient evidence with weight to find that the allegation is true.
  1. [432]
    The Respondent does not dispute that, at the meeting on 22 May 2012, an LSP was discussed as an alternative to the Appellant agreeing to go on a PIP.  The Respondent submits that this was not only reasonable but responsible management action in the circumstances of the Appellant's proven performance gaps and recalcitrant response.
  1. [433]
    Consideration and findings: The PIP provided to the Appellant on to 2 April 2012 (Exhibit 8):
  1. (a)
    stated that its objective was to assist the Appellant meet the organisational requirements for call taking with audited cases to meet compliance of greater than 90 per cent and enable her call taking currency to be revalidated;
  1. (b)
    stated that the Appellant had not maintained the expected compliance (and referred to "cases attached") and was unable to have her call taking currency revalidated at that time;
  1. (c)
    provided for the Appellant to be placed initially with the Quality Assurance Officer (Mr Colquhoun) to go over the expectations in relation to the audit process and for Mr Colquhoun to audit two calls each day, and that the audited calls would be reviewed with the Appellant to provide relevant feedback and discuss any areas of concern to ultimately achieve the required compliance of greater than 90 per cent in relation to SOP 407;
  1. (d)
    provided for a call taking assessment to be carried out with the Appellant in June and, if the Appellant was successful, her currency would be revalidated accordingly;
  1. (e)
    stated that the Professional Development Officer was to provide ongoing support (via the review process of audited calls and relevant feedback), assist the Appellant with any training needs identified by all parties, and implement relevant plans to assist the Appellant;
  1. (f)
    was to be reviewed on 14 May 2012 and completed on 30 June 2012 (i.e. within three months of commencing).The PIP included a statement that it had been developed as an adjunct to the DCS Managing Unsatisfactory Performance and Conduct - A Guide for Supervisors ("the Guide").  The aim of the PIP was to provide "a non-punitive approach to improve the Qualified Officer's performance where particular issues have been identified."
  1. [434]
    The purpose of the Guide was to assist supervisors to understand, among other things, the processes of managing unsatisfactory performance and unsatisfactory conduct, and the key stages in each of the processes.  The Overview to the Guide includes the following statements:

"[S]upervisors are responsible for ensuring that employees are provided with ongoing guidance or coaching to assist them in performing their role is to a satisfactory standard, as well as ensuring the completion of the performance and development planning process.  …

Supervisors are required to manage each conduct issue on a case-by-case basis to determine the most appropriate course of action having regard for the legislation, policy, industrial instruments and other resources relevant to their work."

  1. [435]
    The four key stages in the Managing Unsatisfactory Performance Process are:
  1. (a)
    Stage 1 – informal preliminary discussion
  1. (b)
    Stage 2 – initiating the performance improvement process
  1. (c)
    Stage 3 - performance improvement period
  1. (d)
    Stage 4 - performance improvement evaluation.

The timeframe for the performance improvement process may vary, but should not exceed three months.

  1. [436]
    The Guide describes the successful implementation of the performance improvement process as a "shared responsibility requiring cooperation between an employee and their supervisor."  It lists responsibilities for senior managers, supervisors and employees.  Among other things, employees are responsible for "actively participating in performance development and/or improvement activities when required" and "understanding the requirements of their position, seeking clarification if required."
  1. [437]
    It appears from the evidence in this case that, although an informal discussion was arranged between Mr Eva, Mr Raymond and the Appellant to discuss her performance in relation to the 000 call on 4 March 2012, that process morphed into discussion about a PIP in the meeting on 28 March 2012.  The PIP was not provided to her until some days after that meeting, on 2 April 2012.
  1. [438]
    The issue is whether, by apparently expediting the transition from Stage 1 to Stage 2, Mr Eva was in breach of the Guide and his actions constituted unreasonable management action. 
  1. [439]
    It seems from the passages quoted above, and a careful reading of the Guide, that the Guide is not prescriptive and that managers and supervisors have some discretion in managing each conduct or performance issue on a case-by-case basis to determine the most appropriate course of action.  I note, however, that a related document, Human Resources Procedure No B4 Managing Unsatisfactory Performance and Conduct (Exhibit 35 D1-7), sets out the "minimum requirements for the management of unsatisfactory performance" of employees.  It provides that reasonable notice and information relating to the nature of a meeting to develop a written PIP should be provided to the employee to ensure the employees able to adequately prepare for the discussion (clause 3.4.3).
  1. [440]
    In the present case, the Appellant had performed particularly poorly in relation to one call and less poorly in relation to another on the same day.  That was sufficient to provide the basis for action to be taken to improve her performance.  The preparation of the PIP in the terms outlined above was one option.  Its terms were not onerous.  Indeed, the PIP did not seem to go much beyond the level of monitoring that is usual in relation to the EMDs (noted earlier in these reasons for decision).  It was tailored to meet the perceived needs of the Appellant and ensure that she performed at the appropriate level.  In a workplace where each 000 call needs to be handled promptly and appropriately, and each call taker and dispatcher needs to operate at a level at above a 90 per cent compliance rate (as well as demonstrating appropriate conduct), managers need to ensure that all EMDs are performing to the requisite standard and are provided with sufficient training or guidance.  The proposed PIP was an appropriate tool for achieving an outcome.
  1. [441]
    I note that Mr Eva gave evidence that other EMDs received low compliance scores in AQUAs at that time, and that at least two of them were put on PIPs.
  1. [442]
    Having regard to all the circumstances, I am satisfied that the actions taken by Mr Eva to manage the Appellant's performance constituted reasonable management action taken in a reasonable way.

Stressor 22 - Justin Cumming approached the Appellant and accused her of being late and that her work ethic had dropped

  1. [443]
    Evidence:  According to the Appellant, there were three or four occasions from 2012 where Mr Cumming spoke to her about being late even though, according to the Appellant, she was never late.  By her account it was "becoming a regular occurrence" for him to say that and that he "often" spoke to her about being late to log on.  When she had told him that she was not late, he replied that her work ethic was in question and it had dropped.  
  1. [444]
    The Appellant accepted that she was required to log on ready to be operational at the start of each shift, and said that she would arrive early to her shift.  She denied being late to logon but said that sometimes it was necessary for a computer to be rebooted and she could not log onto a computer that was not operational.  "Sometimes, and frequently we were unable to logon because the computer needed to be rebooted.  It was just the system."  She cited one example where she sat down at 6.50 am for a 7.00 am start and "the computer took a long time to log in." 
  1. [445]
    The Appellant denied arriving at work at 9.29 and 46 seconds one day but not logging on until 9.35, having spent time walking around and saying hello to a few people.  She said that if she is late, she will call and let people know that she is running late, "but I'm very rarely late." 
  1. [446]
    The Appellant agreed that it was absolutely reasonable for a supervisor to raise with her the issue of logging in late.  But she took umbrage at Mr Cumming raising it with her on two occasions because she said she was always at work on time (often some 20 to 25 minutes before she was due to start work) and she saw others coming into work quite late. She referred to two situations involving her in 4 ½ years, and acknowledged that she did not know how often Mr Cumming spoke to other staff members about logging in late. 
  1. [447]
    The Appellant made written complaints about Mr Cumming targeting her about being late when she was not late.  She sent him an email on 7 June 2012 explaining that she was present before the start of a shift but sometimes there were delays in logging on (Exhibit 35 E4).  On that occasion she also wrote:

"As this is now the second time that you have confronted me, I am concerned that I am being harassed for an unknown reason and in fact, it was intimidating.  Other staff members are also noticing this behaviour and questioning it.

I would like to know the reasons why you are adopting these procedures with just me on my shifts and if there is an issue, then I am happy to organise a meeting with Paul [Shaw] and hopefully you can provide me with some clarification."

She sent a blind copy of the email to Mr Shaw, the RMC. 

  1. [448]
    Mr Cumming did not think that there was only one occasion when he spoke to the Appellant about being late for work.  He referred to an email he received from the Appellant on 7 June 2012 to which he did not reply because he went to his boss, Mr Shaw, and asked for advice about it.  Mr Cumming had written a list of his version of events and discussed those with Mr Shaw.  Mr Shaw informed Mr Cumming that the Appellant had blind copied him into her email to Mr Cumming. 
  1. [449]
    Mr Cumming also said that, on at least one occasion, he discussed with the Appellant her taking longer than required or allocated for breaks.  He asked her if everything is okay (in order to make sure there were no factors contributing to her taking longer than normal breaks) and she replied "No."  They then discussed how taking her breaks affects the operational readiness of the communications room.  Again she responded in a "sarcastic tone."  
  1. [450]
    Mr Cumming's oral evidence is confirmed by his email to Mr Eva and Mr Shaw on 7 June 2012 in which he Mr Cumming referred to a discussion he had with the Appellant that day about being at her console and operationally ready at the commencement of a shift.  He wrote:

"Jan arrived at the Comms Centre at 09:29:46 for shift start at 09:30.  After coming into the Comms room Jan walked around, said hello to everyone and sat down at her console to log in.  She was logged in at 09:35.

I approached Jan, firstly asking if everything was OK to ensure there was no underlying issue, then we discussed the requirement for her to be at her console and logged in for shift commencement.  I advised Jan that this had occurred yesterday as well.  We had already discussed this issue during the week of the 24th of April among other things which included Jan taking 25 minutes on a 15 minute break and 45 minutes on a half-hour break and the impact this had on the other EMD's and the effective running of the operation.

During our discussion today Jan got very defensive and sarcastic, showing what I believe to be a lack of respect for any authority in the room."  (Exhibit 16)

  1. [451]
    Appellant's submission: The Appellant notes that Mr Cumming confirmed that he received an email from the Appellant who raised the issue about delays with the computers.  He conceded that he did not tell the Appellant that the message was untrue.  The Appellant sent an email to him about the matter on 7 June 2012. 
  1. [452]
    Otherwise, the Appellant submits that the matters in Stressor 22 are dealt with under Stressor 17.
  2. [453]
    Respondent's submissions: The Respondent's submissions are noted in relation to Stressors 17 and 19.
  1. [454]
    Consideration and findings:  As noted earlier, this Stressor is considered with Stressors 17 and 19.  Having regard to the evidence in relation to those three Stressors, it is apparent that the Appellant performed her role poorly in relation to the 000 call taken at 1811 on 4 March 2012, there were a few occasions when the Appellant arrived late to her console or took longer than scheduled breaks, and the Appellant reacted negatively to criticism and overstated the frequency of Mr Cumming's statements to her about her occasional lateness.
  1. [455]
    Accordingly, I find that:
  1. (a)
    Mr Cumming's interruptions in relation to the 000 call taken by the Appellant at 1811 on 4 March 2012 were entirely appropriate and constituted reasonable management action taken in a reasonable way;
  1. (b)
    given the importance of EMDs being at their consoles at the commencement of each shift and to take breaks for only the allocated times so that there is continuity of staff to take calls, it was appropriate for Mr Cumming to speak to the Appellant when she was late arriving at or returning to her desk; and
  1. (c)
    in the absence of sufficient evidence to establish that Mr Cumming unfairly accused the Appellant of being late, his actions were reasonable management action taken in a reasonable way.

Stressor 23 - Erica Bolam distributed defamatory, offensive email about the Appellant. Michael Riordan demanded to know why the Appellant was mentoring

  1. [456]
    Evidence - defamatory email: The Appellant gave evidence that in mid-2012, Mr Shaw and Mr Raymond asked her to provide some mentoring to a staff member, Barbara Dever, in relation to call-taking policies, procedures and methodology.  That involved sitting with her as she answered calls, being plugged into the calls and assisting her and directing her.  On the morning of Monday 2 July 2012, the Appellant sat behind Ms Dever and plugged in.  She became aware that there was a discussion in the background, and some time later Mr Raymond told the Appellant that there had been some discussion about her mentoring Ms Dever.  The Appellant was aware that every call they were doing was being monitored. 
  1. [457]
    Mr Raymond gave the Appellant an email which she said had been forwarded to him by Mark Stevens, one of the CCS group.  Ms Bolam had sent the following email to everyone in the CCS group, in response to an email from Mr Raymond advising that student EMD Barbara Dever was being mentored by EMD Jan Henderson:

"What the ??????

Apparently Paul has signed off on Jan's LSP being complete????????  …..  I found this out when I asked Richie Raymond what the deal was this morning, when Jan plugged in with Barb!  Allegedly they had tried to have Barb mentored by three other EMDs who refused.

Just so that you know….."  (Exhibit 35 E1) 

  1. [458]
    The Appellant was upset about errors in the message (e.g. she was not on a LSP) and other aspects of it.  She went to the PDR office and they discussed the email.  The Appellant said that Mr Raymond and Mr Colquhoun told her that Mr Riordon had come in the day before and was questioning why she was mentoring Ms Dever.  However, Mr Riordan made no comment to the Appellant about her mentoring.  The Appellant rang Mr Webb and told him about the email then went back to mentoring Ms Dever for two days (Monday and Tuesday).  After two days off, she was told that she was not mentoring Ms Dever. The Appellant agreed that it was reasonable that a supervisor who thought that an EMD was on a PIP should not be mentoring a student who was having difficulty.  But in her view that situation would not happen. 
  1. [459]
    Ms Bolam gave evidence that she was the acting supervisor on that day.  She understood that the Appellant was on a PIP or LSP and, for that reason, was "taken aback" that the Appellant was mentoring Ms Dever.  She was concerned that Ms Dever (who needed extra training to be a call-taker) was being trained by someone who was on a PIP.  Ms Bolam acknowledged that the Appellant had trained other students in call-taking, and would have been comfortable with her assisting Ms Dever had she not been on a PIP.  Because there had been no email advising of this arrangement, Ms Bolam asked what had happened and sent an email to her colleagues. 
  1. [460]
    Ms Bolam stated that her email was addressed to individuals (rather than the CCS group) because "it was just me as their colleague, not me as a supervisor sending the email."  "It was just to let my colleagues know better."  It was not meant for the Appellant and she did not intend the Appellant to see it.  One of the addressees forwarded it to someone else.  In Ms Bolam's words, "it obviously caused [the Appellant] some grief which was never my intention." 
  1. [461]
    Ms Bolam acknowledged that the Appellant was not on the LSP, although said she was not aware of that at the time. 
  1. [462]
    Ms Bolam recalled that Mr Eva spoke to her about the email.  She explained to him that she sent it to her colleagues rather than to the CCS group, but he was "not very impressed" about that or with the way Ms Bolam expressed herself.  She mentioned to him that it was not sent "in a professional manner" but was "just sent to my colleagues."   In cross-examination, Ms Bolam stated that the email was not sent "in a professional capacity" and was just to make her colleagues aware of what had happened, but conceded that she "probably should have worded it better."  Ms Bolam stated that she did not think the email was defamatory or completely inappropriate or that it made people think less of the Appellant.  Nor did indicate that she was displaying contempt of the Appellant.  In her opinion, "It just tells the truth." 
  1. [463]
    Mr Eva gave evidence that it was not normal practice for an EMD who was on a PIP to be mentoring or training another student, because at that time management wants the EMD to concentrate fully on their own performance.  However, they could mentor someone in relation to a different matter.  For example, if a person was on a PIP about call taking they could mentor a student on dispatch.             
  1. [464]
    Mr Cumming understood that the Appellant had performance issues at the time she was asked to mentor Ms Dever.  He did not recall how or why he thought that, and conceded it might have been because of rumour around the office and Ms Bolam's email of 2 July 2012.
  1. [465]
    Appellant's submission:  The Appellant refers to the email sent by Ms Bolam which she interpreted as "discrediting me."  She was "really upset" and, at that time, was not on an LSP.  The Appellant notes, among other things, that Ms Bolam confirmed that the email was sent to supervisors and managers (even though she said it "wasn't sent in a professional capacity") and conceded that she had her facts wrong and had no confirmation that the Appellant was on an LSP at that time.  Nonetheless, Ms Bolam denied that she was defamatory but said that it "just tells the truth."  She also denied that it was a completely inappropriate email.  Mr Cumming recalled receiving the email and admitted that he and other supervisors acted on "scuttlebutt and rumour" around the office.  There was a lot of rumour about the Appellant. 
  1. [466]
    The Appellant submits that, notwithstanding Ms Bolam's denials, Ms Bolam issued a defamatory statement which was untrue about the Appellant and which made people think less of her. 
  1. [467]
    The Appellant made no submission in relation to Mr Riordan.
  1. [468]
    Respondent's submissions: The Respondent submits that it was reasonable for a supervisor to communicate with other supervisors some concern about an EMD who had had recent performance issues meant touring a student on a PIP.  The Respondent, while conceding that the manner in which Ms Bolam communicated was not ideal, submits that management action does not have to be "best practice."[43]  In the circumstances, the Respondent submits that this was a blemish in management by an immediate supervisor who was counselled by him or senior manager about the email.
  1. [469]
    The Respondent notes that there was no evidence about the allegation that Mr Riordan demanded to know why the Appellant was mentoring.
  1. [470]
    Consideration and findings: It is clear from the evidence that the email sent by Ms Bolam was incorrect.  The Appellant was not on an LSP at that time.  The evidence summarised in relation to Stressor 18 was to the effect that the Appellant was never presented with an LSP, although she did sign a PIP in late June 2012.  Ms Bolam's explanation of the nature of the message seems to suggest that, on the one hand, it was not sent as an official document to the other CCSs yet, on the other hand, was justifiable as a means of informing her colleagues in that cohort.  She did not appear to appreciate or accept the import of its content or expression for the Appellant.
  1. [471]
    I find that the email was incorrect and inappropriately worded.  It should not have been sent.  It does not constitute reasonable management action, and the action in composing and sending it was not taken in a reasonable way.
  1. [472]
    In the absence of any evidence about Mr Riordan, I make no findings in respect to the other element of Stressor 23.

Stressor 24 - Justin Cumming hovered, criticised, interrupted the Appellant mentoring Ms Dever

  1. [473]
    Evidence: The Appellant gave evidence that on 3 July 2012, while she was mentoring Ms Dever, Mr Cumming either stood behind her during the call or would question the call.  It got to the stage that the Appellant wrote down every case number and every comment that he made.  She found it distressing for herself and Ms Dever because Ms Dever told her that she felt she was being watched the whole time.  The Appellant also felt that she was being watched and questioned about everything. 
  1. [474]
    The Appellant claims that there was excessive supervision because Mr Cumming constantly came up to her, criticised her and interrupted her while she was mentoring Ms Dever.  She initially disagreed with the proposition that it is reasonable for a supervisor to keep an eye on an EMD who is mentoring a student where that EMD was on or had recently completed a PIP for call-taking performance.  In her view, "if I wasn't considered competent to mentor a student, I should [not] have been in that situation in the first place.  Paul Shaw and Richard Raymond considered me competent to mentor Barbara."  In addition, if Mr Cumming had "had concerns about me he should've raised them with me."  However, the Appellant conceded that, in light of Mr Cumming's knowledge of her 000 call on 4 March 2012 and Ms Dever's circumstances, it was reasonable for him as supervisor to keep an eye on her. 
  1. [475]
    The Appellant also stated that she had been told that Ms Dever asked to be removed from her mentoring, but did not identify why she made that request. 
  1. [476]
    Mr Cumming understood that the Appellant had performance issues at the time she was asked to mentor Ms Dever.  He did not recall how or why he thought that, and conceded it might have been because of rumour around the office and Ms Bolam's email of 2 July 2012.  He gave the following evidence:

"In my opinion, someone with performance issues mentoring someone with learning difficulties probably shouldn't happen.  And, as a supervisor, I think it would be my job to monitor that situation.  Because we're not in a working environment where mistakes can be fixed later.  The mistakes have detrimental effects on patient outcomes."  (T 5:31)

  1. [477]
    Mr Cumming described the role of the supervisor in relation to all EMDs as being to make sure that 000 calls are answered in a timely fashion and proceed in a timely fashion according to the ProQA so that the EMDs dispatch ambulances in a timely manner to the jobs as they are coded.  If somebody is mentoring a student, then the supervisor provides a high level of supervision to ensure that it is done correctly.  The supervisor's role is to oversee the student and make sure they are progressing with their learning, that is, they are "getting better at it."  Mr Cumming gave evidence that even when a person is being monitored by a signed off competent EMD, he would supervise the mentor for that purpose. 
  1. [478]
    Appellant's submission: The Appellant submits that Mr Cumming's actions were distressing for herself and Ms Dever.  She notes that Mr Cumming admitted that, at the time she was mentoring Ms Dever, he thought that she was on a PIP or LSP and therefore he took a particular interest in the Appellant and Ms Dever.  This perception was based largely on the email from Ms Bolam. 
  1. [479]
    In the Appellant's submission, Stressor 24 follows on from Stressor 23.  Having been misinformed by Ms Bolam, Mr Cumming acted in an overbearing and inappropriate way in supervising the Appellant and Ms Dever who she was mentoring. 
  1. [480]
    Respondent's submissions: The Respondent submits that there can be no doubt that, given the critical role of the call taker in the communications room and Mr Cumming's knowledge of the two personnel beneath him, Mr Cumming had an obligation to provide a greater level of supervision and would have been remiss not to have done so.
  1. [481]
    Consideration and findings: The fact that the Appellant was assigned to mentor Ms Dever is another indication that her managers considered her to be technically competent to undertake that role.  It did not, however, quarantine her and her student from being supervised by Mr Cumming.  Indeed, it was incumbent on him to ensure that the Appellant was discharging her mentoring role adequately and to assess Ms Dever's progress.  That approach enabled Mr Cumming to be satisfied that both the Appellant and Ms Dever were performing their respective roles or to provide assistance or correction if required.
  1. [482]
    I am satisfied that Mr Cumming closely supervised the Appellant on this occasion, and that his supervision constituted reasonable management action taken in a reasonable way. 

Stressor 25 - The Appellant was shown a document on the board in the kitchen which was an inappropriate and disrespectful "Hurt Feelings" skit

  1. [483]
    Evidence: The Appellant gave evidence that, on the night of 19 July 2012, a couple of weeks after the incident with Ms Dever, she saw a Hurt Feelings Report that was pinned to the noticeboard.  She described it as "pretty full-on" and said that she was upset about it, feeling that it was directed at her.  The Appellant rang Mr Broomfield about it.  She sent Mr Broomfield an email on 20 July 2012 attaching a slide of the Hurt Feelings Report (Exhibit 14). 
  1. [484]
    The document asked, for example, "Which ear were words of hurtfulness spoken into."  It listed nine possible reasons for filing the report (e.g. "I am thin skinned") and concluded with space for the name of the "little sissy" filing the report.  There were suggestions this was a gender-based document, as one entry was for the name of the "Real Man" who hurt "your sensitive little feelings" and there was an entry for a "Real-man signature: (person being accused)."
  1. [485]
    In her oral evidence, the Appellant said that she felt the document related to her "in the situation that was occurring in the com centre."  Although the document did not have her name on it, the Appellant said "I believe … it was directed at me."  She reiterated that belief in cross-examination, but conceded that she subsequently found out who put up the document and accepted that a man had put it up with the approval of Mr Raymond, who later told the Appellant he realised he should not have agreed to that occurring.  The Appellant accepted that.  She did not speak to the person who put up the document, and did not concede that there was no indication that he did so in relation to her. 
  1. [486]
    The Appellant contacted Mr Broomfield on 20 July 2012 when she was "very upset" and spoke to him about the document and that she believed it was directed at her.  The Appellant said that she did not recall whether she told him the document had been put there by Ms Bolam.  Although she agreed that during the phone call the word "up-bullying was used," the Appellant denied that it was in relation to her accusing Ms Bolam of placing the poster on the wall. 
  1. [487]
    Some of the circumstances are more clearly set out in the Appellant's email to Mr Broomfield dated 20 July 2012 attaching a copy of the Hurt Feelings Report.  She described the circumstances in which she became aware of the document and wrote:

"when we read the content, I was offended felt that it was directed at me.  This morning when I spoke with you Chris, I of course assumed it was Erica, wrongly.  I have just been told who placed it on the board.  I have been told this morning that there was no malice intended and it was only placed up there as a joke.  Sadly I am so broken that I don't see it as a joke intended or not and yes I am offended but I accepted the explanation.  I think it is understood that in light of events the person should not have done it and in hindsight regrets their actions.  And there it will stay."  (Exhibit 14)

  1. [488]
    The email continued, however, to afford Mr Broomfield "every opportunity… to have this systematic behaviour halted."  It listed the Appellant's ongoing concerns and the effects that the alleged intimidation, bullying and harassment were having on her and her daughter.
  1. [489]
    Mr Broomfield gave evidence that he spoke to the Appellant on 20 July 2012 by telephone.  She stated that she wanted to raise a complaint about Ms Bolam who she considered had put up an offending poster on the wall and claimed that the poster was aimed at her.  Mr Broomfield asked how the Appellant knew it was Ms Bolam.  The Appellant said she wasn't sure at that time but she was adamant it was Ms Bolam and said that she had had discussions with people about it.  Mr Broomfield said he would have the poster removed and if she could send a copy to him it would be passed on to the investigator.  He also asked her to raise the concern when the investigator met with her.  Mr Broomfield cautioned the Appellant because she had not given him any evidence that it was Ms Bolam who put up the poster.  He suggested that she be careful about speaking with others and accusing somebody without specific evidence.  That could be seen as harassing the person.  Mr Broomfield's file note of that conversation (Exhibit 13) is consistent with his oral evidence. 
  1. [490]
    As noted earlier, the Appellant's email to Mr Broomfield on 20 July 2012 explained that Ms Bolam did not put up the poster.  Mr Broomfield agreed that some of the statements in the email (e.g. that the Appellant felt "broken," and "anxious and physically sick") raised issues for him as a manager in respect of which action should be taken quickly.  He advised her of counselling and peer support and arranged the independent investigation within about one month. He also said he would support the Appellant if she decided to take time off work until the complaint was resolved.  (Exhibit 13)
  1. [491]
    Appellant's submission:  The Appellant notes that the Hurt Feelings Report was placed on the noticeboard in the kitchen of the Communications Centre.  She felt really upset when she saw it before it was thrown away.  In her submission, the document was clearly a workplace stressor, and it matters not whether Ms Bolam was responsible for it.
  1. [492]
    Respondent's submissions: The Respondent submits that there is no evidence about who placed this document on the noticeboard or why it was put there.  Nor is there any evidence that it had anything to do with the Appellant.  The most significant issue arising out of this stressor is the Appellant's perception and her immediate accusation, without any evidence, to a very senior QAS officer (Mr Broomfield) that Ms Bolam had placed this on the noticeboard.
  1. [493]
    Consideration and findings: There is no evidence to suggest that the offending document was directed at the Appellant.  However, she saw it at her workplace and was upset about it.  The poster was disposed of soon afterwards.  The Appellant's initial reaction was to assume that Ms Bolam had been involved in displaying the document on the noticeboard.  The Appellant conveyed that assumption to Mr Broomfield, before she was informed that someone else had placed it there.  Mr Broomfield cautioned the Appellant about speaking with others and accusing somebody without evidence as that could be seen as harassing the other person.  It is apparent from his file note and oral evidence that, before receiving the email and attached poster from the Appellant, Mr Broomfield:
  1. (a)
    advised the Appellant that he would include this matter in the pending investigation about her other complaints (see Stressor 26);
  1. (b)
    said he would support her taking time off until her complaint had been resolved;
  1. (c)
    advised her that Priority One counselling is available, and encouraged her to utilise its services;
  1. (d)
    extended the opportunity to her to contact him again if she wished to discuss anything further in relation to the investigation
  1. [494]
    I find that the Appellant was shown the "Hurt Feelings" skit document at her workplace and that she was upset by it.

Stressor 26 - Chris Broomfield told the Appellant there would be no investigation and accused her of "up-bullying"

  1. [495]
    Evidence: The Appellant gave evidence that, on 13 July 2012, she saw Mr Broomfield about alleged bullying by Mr Eva.  She read a letter of complaint at that meeting, which was attended by Mr Eva, Mr Webb, Mr Broomfield and Kim Stephens (an HR representative).  The document referred to "intimidation; bullying and harassment tactics that have been consistently part of my work environment for the last three years but has escalated over the last 12 months."  (Exhibit 35 E28-33)  It specified examples of alleged intimidation and harassment.  The Appellant said that Mr Broomfield asked Mr Eva not to speak and said that he would organise an investigation into her complaint.  She understood that it was agreed at that meeting there would be an investigation.
  1. [496]
    At Mr Broomfield's request, the Appellant completed an Employee Complaint Notification Form which she signed on 16 July 2012 and lodged with Kim Stephens (Exhibit 35 E22-27).  She sent that document with a covering letter to Mr Broomfield (Exhibit 35 E20-21) by email.  In that letter she reiterated her concerns and stated that a clear message should be sent to all staff that "this is totally unacceptable behaviour and will not be tolerated at any level."  She suggested that the relevant officers be demoted immediately, and be prevented from applying for categories of positions for at least 24 months.
  1. [497]
    The Appellant understood the meeting on 13 July 2011 to have been confidential.  Subsequently, she walked into the kitchen at work where to fellow workers (Ms Beaumont and Kirsty McAllister) were discussing what the Appellant had spoken to Mr Broomfield about.  When they saw her they stopped and "looked very uncomfortable."  The Appellant sent an email to Mr Broomfield on 18 July 2012 advising him that "there were little snippets of conversations and questions asked that indicated that the meeting content has been discussed within this room which has then filtered through.  And it is very obvious this morning that certain people are aware of my complaint."  Having set out what she heard, the Appellant stated that "it seems that Tim Eva has not honoured your request that no party discussed the content of the meeting we had on Friday."  She then specified other concerns.  Mr Broomfield replied by email that day stating, among other things:

"I will re-enforce the issue of confidentiality with Officer Eva and also ask for the same compliance from yourself.  I will add your email to your letter of complaint for the investigator.

If there are any other issues of concern from you relating to your complaint, please raise them with the investigator when he/she meets with you."  (Exhibit 15)

  1. [498]
    He also acknowledged that this may be a stressful time for the Appellant and reminded her of the confidential Employee Assistant Service Priority One available to QAS employees (Exhibit 35 E17-18).
  1. [499]
    According to the Appellant, when she rang Mr Broomfield on 20 July 2012 about the Hurt Feelings Report, he told her:
  1. (a)
    there was going to be no investigation about her complaint to him the previous week about bullying; and
  1. (b)
    that there was such thing as "up-bullying," which the Appellant took to mean that she was being accused of up-bullying.  
  1. [500]
    Later that day, the Appellant sent Mr Broomfield an email that included the Hurt Feelings Report (Exhibit 14).  That email is considered in relation to Stressor 25.
  1. [501]
    The Appellant said she was surprised to hear from Mr Broomfield that there would be no investigation.  However the following week she was contacted by email by Jeremy Taylor, the person requested to conduct the investigation.  The interview with Mr Taylor occurred on 7 August 2012, and the Appellant's application for compensation was lodged on 9 August 2012.
  1. [502]
    Mr Broomfield gave evidence that, in response to the email from the Appellant (Exhibit 12), he organised a meeting with Mr Eva, Kim Stephens and the Appellant on 13 July 2012.  Mr Broomfield began the meeting by asking the Appellant to state her issues or concerns.  She raised a number of factors to show that she believed she was being harassed and bullied.  Some issues involved staff other than Mr Eva, who did not speak during the meeting.  Apparently Mr Eva became agitated.  Mr Broomfield halted the meeting and said that, given the issues that had been raised, he would look at having the matter investigated independently, but first that would need to be assessed by the Ethical Standards Unit.  That process would require all matters or concerns raised by the Appellant to be put in writing.  He wanted everyone to maintain confidentiality regarding the matter. 
  1. [503]
    On 18 July 2012, the Appellant sent an email to Mr Broomfield raising concerns that she believed that Mr Eva that she had broken the confidentiality of the meeting on 13 July 2012.  Mr Broomfield replied by email stating that he would reinforce the issue of confidentiality with Mr Eva.  (Exhibit 15)
  1. [504]
    Mr Broomfield gave evidence that he spoke to the Appellant on 20 July 2012 by telephone concerning her complaint about the Hurt Feelings poster (Stressor 25).  He denied saying to the Appellant that there would be no investigation or that he said he would not be investigating the poster. 
  1. [505]
    Mr Broomfield said that he had intended to have the matter investigated independently outside of their region, but relied upon the Ethical Standards Unit's assessment of the complaint to see whether it needed to be carried forward to the CMC.  When the evidence was received from the Appellant, it was passed to the Ethical Standards Unit.  Mr Broomfield spoke to the relevant officer there before sending that material for assessment.  He subsequently received an email from the Ethical Standards Unit advising that the matter was to be investigated by the organisation and that an independent investigator would be appointed.  Jeremy Taylor was appointed as the independent investigator.  In light of that evidence, Mr Broomfield described the allegation in Stressor 26 as false.
  1. [506]
    In relation to the allegation that he accused the Appellant of "up-bullying," Mr Broomfield gave evidence that, when he spoke to the Appellant, he mentioned that "just because you have a supervisor who manages staff underneath, staff underneath don't have a right to accuse and harass the supervisor upwardly."  He continued:

"So whether she took that as up-bullying or not, but in the chain of command it's not just about a supervisor who is harassing or bullying staff underneath.  It can go the other way, whereby accusing somebody of inappropriate actions, or whatever it might be, and not being correct may be seen by the supervisor is bullying to them."  (T 5: 24)

  1. [507]
    Appellant's submission: The Appellant's written submission refers to written and oral communications between her and Mr Broomfield but makes no submission about what conclusion, if any, the Commission should reach in relation to Stressor 26.
  1. [508]
    Respondent's submissions: The Respondent relies on Mr Broomfield's evidence and the email exchange between him and the Appellant advising that if there are any other issues of concern to raise them with the investigator when she meets with them, and reminding her of the availability of the Employee Assistance Service, Priority One.
  1. [509]
    Consideration and findings: Some of the evidence in relation to Stressor 25 is relevant to this Stressor. 
  1. [510]
    Given Mr Broomfield's oral evidence and his file note of 20 July 2012, and more significantly the fact that the investigation by Mr Taylor commenced relatively soon after the communications between the Appellant and Mr Broomfield, I am not satisfied that Mr Broomfield told the Appellant there would be no investigation. 
  1. [511]
    I also find that, appropriately in the circumstances, Mr Broomfield discussed with the Appellant the fact that staff underneath a supervisor do not have a right to accuse and harass that supervisor, and that he cautioned the Appellant about speaking with others and accusing somebody without evidence as that could be seen as harassing other person.  I do not find that Mr Broomfield accused the Appellant of "up-bullying."

Stressor 28 - Timothy Eva denied the Appellant a support person in meetings

  1. [512]
    Evidence: The evidence that might be relevant to this Stressor is found elsewhere in these reasons for decision.  As noted earlier:
  1. (a)
    the Appellant had a support person (Mr Kennedy) at her meeting with Mr Eva, Ms Johnson (and her support person), and Mr Moran on 30 October 2009 (Stressor 2);
  1. (b)
    the Appellant met with Mr Eva on 1 August 2011 to discuss various concerns and, although apparently entitled (or at least expecting) to do so, she did not have a support person present because her nominee could not stay for the meeting (see Stressor 6);
  1. (c)
    the Appellant did not have a support person in her meeting on 19 October 2011 with Mr Eva and Ms Bolam (the circumstances for which are discussed in relation to Stressor 15);
  1. (d)
    the Appellant did not have, or request, a support person at her meeting with Mr Eva, Mr Merefield and Mr Byrnes on 24 February 2012 (which she requested) about her removal from patient transport duties (see Stressor 16);
  1. (e)
    the Appellant was given advance notice of, and documentation in relation to, her meeting with Mr Eva and Mr Raymond on 28 March 2012 but apparently did not have (or ask to have) a support person with her at that meeting (see Stressor 18);
  1. (f)
    the Appellant had a support person at the meeting with Mr Raymond and Mr Eva on 22 May 2012 to discuss her refusal to sign a PIP (see Stressor 21); and
  1. (g)
    the Appellant attended a meeting with Mr Broomfield, Mr Eva, Mr Stevens and Mr Webb (who I take to have been her support person) on 13 July 2012 to consider her complaint about alleged bullying by Mr Eva (see Stressor 26).
  1. [513]
    According to the Appellant, she thought the meeting of 28 March 2012 with Mr Eva was an informal meeting (see Stressor 18).  During the course of that meeting she was told it was a formal meeting.  Had she received notice of that meeting she would have sought to have a support person, such as a union member or someone that she could trust, in the meeting with her.  She would also have sought further information with regard to the case. 
  1. [514]
    Appellant's submission: The Appellant notes that she refers to these matters in Stressor 15.  In support of a finding in her favour in respect of Stressor 28, the Appellant refers to the evidence of Ms Kennedy:
  1. (a)
    that she overheard Mr Eva saying of people who want to use support people that it "does highlight the level of distrust" and, although that statement was in a meeting unrelated to the Appellant, it corroborates her statement about the words used by Mr Eva when he denied her a support person;
  1. (b)
    about the Human Resources Procedure B4, Managing Unsatisfactory Performance and Conduct  (Exhibit 35 D1) and her confirmation that a PIP goes on to a person's file and can affect their career, and that (having regard to the relevant protocols) reasonable notice needs to be given to people who are being considered for such a plan; and
  1. (c)
    that it was appropriate for any meeting about that issue to offer a support person.
  1. [515]
    Respondent's submissions: The Respondent submits that there was evidence only in relation to one meeting, on 19 October 2011.  That is discussed under Stressor 15.
  1. [516]
    The Respondent also notes that, in relation to the meeting on 28 March 2012, the Appellant had advance notice of the meeting and had been given the opportunity to prepare for it including by the provision of an AQUA for the first call on 4 March 2012.  The Appellant gave evidence that she did not seek any assistance in preparation for that meeting.  She did not take a support person to the meeting or suggest that she requested one to attend. 
  1. [517]
    Consideration and findings: Having made findings in relation to the meeting on 19 October 2011 (see Stressor 15), it seems that only the circumstances surrounding the meeting on 28 March 2012 remain in issue.  While the evidence supports a finding that the Appellant had sufficient notice of that meeting and an opportunity to prepare for it, there is no suggestion that she was aware that the proposed PIP would be discussed at that meeting.  On the basis of her understanding of the expected scope of the meeting, she made no effort to obtain assistance (including a support person) for that meeting.  Had the meeting proceeded as she expected, she could not have complained later about the absence of a support person.
  1. [518]
    There is no evidence to suggest that at the meeting she requested a support person once it became apparent that a PIP was to be discussed.  Nor is there evidence that she suggested that the meeting be adjourned to a later date in order that support person attend.  However, given that she took a union representative as a support person to the meeting on 22 May 2012 to discuss the PIP, it is likely that she would have requested that a support person accompany her to the meeting on 28 March 2012 had she known that a proposed PIP would be discussed.  While that might be the case, there is no evidence that Mr Eva denied her the opportunity to have a support person at the meeting on 28 March 2012.
  1. [519]
    I find that Mr Eva did not deny the Appellant a support person in the meeting on 28 March 2012.

Stressor 29 - Erica Bolam invaded the Appellant's personal space, standing in front of her questioning her dispatch decisions, and interrupting her and standing over her during calls

  1. [520]
    Evidence: The Appellant gave evidence that Ms Bolam's behaviour towards her straddled the periods in which Ms Bolam was respectively an EMD and a supervisor.   She recalled that Ms Bolam was promoted to a supervisor role in either 2010 or 2011. Ms Bolam's evidence was that she started acting as a CCS in 2009. According to the Appellant, their interactions "became worse" after that promotion.  In particular, while the Appellant was taking most of her calls, Ms Bolam "would come and stand behind me, in front of me or sit on the desk beside me, challenge everything, talk to me while on a call, distract me, same with dispatching."  That made the Appellant feel "intimidated, distracted, judged" and it got to the stage where she felt that Ms Bolam was "just intimidating me."  As a consequence, the Appellant sometimes "lost the train of thought" in the course of telephone conversations, or she could not hear what the call was saying because Ms Bolam was "talking around me or over me."  The Appellant acknowledged that the role of supervisor involves some level of supervision, but said that she did not observe Ms Bolam standing behind or in close proximity to any other EMDs. 
  1. [521]
    The Appellant agreed that on the evening of 12 October 2011 she was working with Ms Bolam as acting supervisor.  The Appellant made an error in respect to a Code 1 vehicle response, and Ms Bolam spoke to her about it.  The Appellant did not like the manner in which Ms Bolam addressed her.  The ROS, Ms McAllister, spoke to the Appellant about the incident (which apparently she had observed) and the need for the Appellant to respect her supervisors.  In cross-examination, the Appellant denied that she had shown disrespect to her supervisor and queried Ms McAllister's perception.  She agreed that she told Ms McAllister that she had a long-standing problem with Ms Bolam which was being dealt with by Mr Eva, and discussed how perceptions of her behaviour were a result of certain people in the communications room.  The Appellant spoke to Ms McAllister about the way Ms McAllister's perceptions were a result of other people's perceptions, and she felt that Ms McAllister was taking Ms Bolam's side.  She agreed that Ms McAllister offered her assistance through Priority One and additional education.  The Appellant was already using Priority One, and declined any further assistance with her performance.  They also discussed specific operational matters, including whether the Appellant had correctly recorded certain information that evening and her role in relation to another matter that evening.
  1. [522]
    As noted earlier when describing the role of supervisors, Ms Bolam gave evidence that in her role as supervisor she was often walking around the communications room, providing assistance when requested and speaking with the EMDs as appropriate.  Given the level of noise in the room, and the need to pick a moment between radio or telephone communications involving a dispatcher, a supervisor would normally stand in front of the dispatcher so they would be aware that the supervisor was going to speak to them.  On occasions she would come around the desk and look at the console, especially if an EMD was taking a difficult call.  The supervisor might stand behind them to offer them support or assistance with a difficult call.  If an EMD was raising a voice (e.g. because the caller was hearing impaired or frantic) she would stand behind them to actively listen and see if the EMD needed some help.  If a call taker was not following the script on the screen, she would direct them to follow the script. 
  1. [523]
    Ms Bolam described her relationship with the Appellant as a "working relationship … Just a professional relationship."  At times she thought that the Appellant found the role "a bit challenging" and that she "found it hard to follow directives."  Examples of their interactions are considered elsewhere in these reasons.
  1. [524]
    Some of Ms Bolam's evidence about her supervision of the Appellant is set out in relation to Stressor 30, and is also relevant to this Stressor.
  1. [525]
    Mr Eva gave evidence that almost immediately after he commenced in the position of RMC he became aware that the Appellant felt intimidated by the behaviour of Ms Bolam in her capacity as a supervisor.  He did not recall being aware of any tension between the two women before then.  He had conversations with the Appellant about the behaviour which he described as "an unfortunate set of circumstances" because it was the type of behaviour that he, as a manager, was demanding of his supervisory staff.  In particular he wanted them to be:

"highly mobile in the room, to stand behind the EMDs, to listen to their conversations, and to participate in a supportive and assisting way, wherever possible.  So in actually [sic] fact, to supervise the staff a little bit more intimately than they had done before.  …  [W]e wanted our supervisor to be highly engaging."  (T 7: 54)

  1. [526]
    Mr Eva said that it was difficult when the Appellant would bring her concerns to him because "the exact behaviour that she was complaining about is the exact behaviour that I'd actually advised of the supervisory group more broadly, not just particularly Erica Bolam."  According to Mr Eva, some of the things that the Appellant "felt intimidating were exactly the behaviour we'd actually asked of the supervisor."  He would meet periodically with the group to talk about the type of behaviour that management wanted them to exhibit, but also "to cater for the perception of that behaviour, because it was an alteration in how they had conducted business previously.  So we would talk about catering for altered perceptions in that regard."
  1. [527]
    When the Appellant brought to his attention concerns about the particular behaviour of Ms Bolam, Mr Eva said he would speak to Ms Bolam informally about the role of the supervisor, the expected behaviour of her in that role, and ask to be aware that "in a change of role there is some difficulty of understanding, and to be acutely aware that" there might be "an altered perception" with regard to the way she presented herself.  Mr Eva said he had similar conversations with others because part of his role was to "mentor and challenge them and grow them in their role of a supervisor."
  1. [528]
    The Appellant also gave evidence that she observed Ms Bolam pulling faces, rolling her eyes, finger-pointing and mouthing words silently at her.  That occurred in relation to the Appellant's work and in social conversations. 
  1. [529]
    Appellant's submission:  The Appellant made a single submission in relation to Stressor 29 and Stressor 30.
  1. [530]
    Respondent's submissions: The Respondent submits that there were no specific incidents nominated apart from those dealt with in other stressors, and that no evidence was called from independent witnesses.
  1. [531]
    Consideration and findings: This Stressor is considered with Stressor 30.

Stressor 30 - Excessive monitoring by supervisor on every shift and in relation to meal breaks, toilet breaks, log on times, and case details

  1. [532]
    Evidence: It appears that, from at least May 2009, the Appellant perceived that some of her supervisors and fellow workers held concerns about her competence.  That perception was misplaced.  It is apparent from the evidence in relation to Stressors 1, 3, 15 and 24 that so far as the Professional Development Officer (Ms Kennedy) and the Appellant's managers were concerned there was no issue about the Appellant's competence.  However, competence is not the only measure of an EMD’s performance.  Mr Eva, for example, gave evidence that more experienced or capable staff would align themselves with less experienced staff (including a qualified EMD who needed some support) and mentor or coach them.  In the case of an EMD, that is not about reassessing them because they have already been assessed as competent. It is clear from the correspondence referred to earlier and other evidence that, although the Appellant's competence was not in issue, her supervisors considered that she needed additional supervision and assistance to improve her practice.
  1. [533]
    Mr Cumming and Ms Bolam gave evidence about the extent to which the Appellant was supervised and the reasons for it. According to Mr Cumming, it was not unusual for a supervisor to stand next to or near an EMD when they are on a 000 call.  The purpose of doing so is to ensure that the script is being followed and, in certain circumstances, to ensure that relevant additional information is sought while the caller is still online.  There are times (usually on a daily basis, although not in respect of every 000 call) when he would interrupt or speak while the EMD was on the phone.  He explained that the supervisor has a "huge role" because they are "ultimately the responsible person in the room to make sure correct decisions are made," and that 000 calls are answered in a timely manner and proceed correctly. 
  1. [534]
    Mr Cumming gave evidence that, as a supervisor, he:
  1. (a)
    would have interaction all day long with the CDS, discussing resource availability and allocation and asking them to review calls to see whether they should be upgraded or downgraded; and
  1. (b)
    would inform the ROS of significant incidents in the region, as well is any resourcing issues or hospital issues;
  1. (c)
    would take advice from the CPS and the ROS in relation to clinical issues (which can overrule some Pro QA decisions); and
  1. (d)
    would sometimes pass that advice to the EMD, with the result that sometimes different decisions are made and different paths are followed. 
  1. [535]
    He agreed that the Appellant was possibly being supervised more heavily from March 2012 until she ceased working in August that year, as a result of the two calls in March (and irrespective of whether she was on a PIP or LSP).  As noted in relation to Stressor 17, the first poor call taken by the Appellant on 4 March 2012 was described as a difficult call and her handling of it was poor.  She received a very low score in relation to her work and it was the first call subsequently considered in relation to her PIP.
  1. [536]
    In response to the allegation that the Appellant was excessively monitored on every shift and in relation to meal breaks, toilet breaks, log on times and case details, Ms Bolam said that she had to speak to the Appellant "a few times" with regard to returning from her break some time.  Staff need to be present on time and throughout the shift to answer 000 calls and dispatch cars.  Ms Bolam explained that, with 10 people in the room who need to have breaks it is important that each person returns from their break on time so the next person can take their break.  If that does not happen "it's like a domino effect which then throws everything into chaos." 
  1. [537]
    Ms Bolam's evidence is consistent with Mr Cumming's evidence considered and accepted in relation to Stressors 17, 19 and 22.
  1. [538]
    Ms Bolam gave evidence that she did not believe that she was over-supervising the Appellant, but suggested that the Appellant required "additional assistance."
  1. [539]
    The personal and professional difficulties experienced by Ms Bolam and the Appellant in their workplace relationship are illustrated by a file note dated 12 October 2011 prepared by Ms Bolam in relation to a dispatch made by the Appellant contrary to an instruction by Ms Bolam.  The file note records that, after Ms Bolam discussed the matter with the Appellant, "she acknowledged her error and dismissed me."  The file note it continues:

"She offered that I make her feel uptight, I asked why, when I was just asking a question with regard to an error made in her dispatch, which she stated it was a the way that I asked.  When asked why she stated that we would be having a chat with Tim - that's what's going to happen and requested that I just let it be.

I discussed the incident with ROS McAlister who asked if I would like her to have a word with Henderson; I stated that I thought it would be a good idea as there was no need for her to feel uneasy around me.

There seems to be a pattern with regard to her not despatching the most appropriate resource based on SOPs."  (Exhibit 26)

  1. [540]
    Ms Bolam sent emails about the Appellant to the manager because the Appellant "couldn't follow supervisors' directives."   In an email dated 5 April 2012 to Mr Eva headed "Workplace Practices," Ms Bolam provided information with regard to the Appellant's work ethic or the way she did her job and why Ms Bolam needed to supervise her.  The email commenced:

"I would like to address workplace practices of Jan Henderson.  Since the meeting with you, Jan & I.  Jen's behaviour towards me is quite dismissive and she has difficulty following the chain of command.  She becomes defensive when provided feedback & will raise her open hand to halt further conversation.  She refuses to discuss issues and takes exception at having issues raised." (Exhibit 28)

 The email listed specific incidents on 17, 25 and 27 March 2012.

  1. [541]
    Ms Bolam said that because the Appellant complained about her (including that she was over-supervised), she felt it was necessary for Mr Eva to know "what I was dealing with as a supervisor" and why Ms Bolam had to supervise the Appellant "more vigilantly because … she was a challenge."    According to Ms Bolam, she was not supervising other EMDs to the same amount because she had not met the resistance from anyone else.  Others would answer her questions whereas the Appellant "would refuse and hold an open palm to my face."  Ms Bolam concluded her email by stating that she was reticent to notify Mr Eva of such trivial incidents but the Appellant's "disregard for a supervisor's instructions is, in my opinion, unacceptable."
  1. [542]
    According to Ms Bolam, the Appellant was "quite distraught" on one occasion when she admitted to making an error.  On other occasions she did not like to take constructive criticism and Ms Bolam found that "a challenge." 
  1. [543]
    Ms Bloomfield suggested that the Appellant was targeted for making mistakes.  In her evidence, on the occasions when she observed the Appellant object to being done what was outside the relevant procedure or protocol, the Appellant was "cut down quite quickly, verbally, in front of everybody and was told just to do what she was told and not to discuss or argue about it." 
  1. [544]
    According to Mr Colquhoun, Mr Cumming and Ms Bolam also asked Mr Colquhoun to audit the Appellant's calls.  They did not ask him to audit calls of other operators.  The number of requests to audit the Appellant's calls was "far greater than" for any other EMD in the room. 
  1. [545]
    To gauge the extent of the Appellant's non-compliance with the minimum standards relative to other EMDs, Mr Colquhoun said that during her period of employment he thought that there were four or five other calls by EMDs that achieved a compliance rate below 50 per cent, and four with a customer service score of zero.[44]  Although he was not aware of any management action taken in relation to those people, such as them being placed on PIPs or Personal Development Plans, he was aware that the Appellant was put on a PIP.  He was unable to say whether any of the other calls scored zero for dispatch life support instructions, but stated that he would expect some action to be taken if they did (e.g. by putting the person on a PIP).  He also agreed that when a deficit such as was exhibited on the two calls taken by the Appellant were highlighted, the regional manager had a responsibility to do something about that. 
  1. [546]
    It is worth recalling, however, Mr Eva's evidence that other EMDs received low compliance scores in AQUAs at around May 2012, and that at least two of them were put on PIPs.
  1. [547]
    The total audits of the Appellant's calls between 2 October 2008 and 26 April 2012 conducted by the Maroochydore Communications Centre shows her total average score at 91.98 per cent (Exhibit 35 E35). However, as noted earlier in this decision (see Assessment of EMDs), those statistics are only part of the information which informs any assessment of the performance of an EMD, and other factors are taken into account.  Indeed it is clear that supervisor feedback is a significant component of that assessment.
  1. [548]
    Appellant's submission: The Appellant's submission recounts evidence in relation to Stressor 29 and Stressor 30, but offers no analysis of that evidence apparently on the basis that it speaks for itself in support of a finding that those Stressors are made out.
  1. [549]
    Respondent's submissions: The Respondent submits there were no specific incidents nominated apart from those dealt with in the other Stressors.  However, the Respondent notes that Mr Cumming agreed in cross-examination that the Appellant was being heavily supervised in her last six months.  He also stated that her behaviour changed in the last six months and there were performance issues identified in the calls for March 2012 which required extra supervision.
  1. [550]
    The Respondent submits that because the role of EMDs and their compliance with procedure is "mission critical" for QAS, public safety and patient outcomes, the QAS had a responsibility to more closely monitor and supervise the Appellant as she demonstrated performance gaps, particularly combined with resistance to instruction and advice from more senior and experienced staff.
  1. [551]
    In response to the proposition that the result of random audits of calls taken by EMDs or AQA was the ultimate sign of an EMD's competence, the Respondent points to evidence of senior officers that such a result was a minor component of assessing capacity or even competence.  It does not assess dispatching.
  1. [552]
    In response to a suggestion that the Appellant's reluctance to accept the advice of a more experienced officer in relation to dispatching issues because of her desire to adhere to policy and procedure, the Respondent submits that:
  1. (a)
    the supervisor's role was to inject clinical experience into the decision-making;
  1. (b)
    the Appellant's allegation that there was no way to record that input was not correct, and in fact it was her role to make those notes; and
  1. (c)
    if the Appellant was in any doubt about the supervisory process early on, it was explained to her clearly at the very latest in September 2011 when she applied for but did not achieve the supervisor's role and was given feedback by Mr Emery, Mr Eva and Mr Shaw. 
  1. [553]
    Consideration and findings: Having regard to the evidence in relation to Stressor 29 and Stressor 30 and relevant evidence considered in relation to earlier Stressors, it is apparent that Ms Bolam had a fairly active approach to supervision and operated in close proximity to the EMDs in performing her role.  It is apparent that the Appellant resented and on occasions resisted Ms Bolam's interventions as a supervisor, characterising them as invasions of the Appellant's personal space.  As noted later in these reasons, she told her consultant psychiatrist, Dr Sue Pavey, that in her role as acting supervisor Ms Bolam was "lording over" the Appellant.  It is reasonable to surmise that, having regard to the evidence about the interpersonal relationship between the Appellant and Ms Bolam, there may have been occasions when Ms Bolam focused the exercise of her supervisory powers and functions on the Appellant.  However, the evidence does not establish that she improperly invaded the Appellant's personal space in the course of her work as a supervisor.
  1. [554]
    The evidence also establishes that, despite the Appellant being technically competent as an EMD, there were aspects of the way she did her work that justified at times close supervision.  An increased level of supervision was applied after the two incidents where she handled calls poorly on 4 March 2012.  The evidence also establishes that the Appellant did not readily accept criticism or additional supervision, relying on the fact that she was certified as competent as being sufficient to enable her to proceed with a minimum of supervision or intervention by those above her in the hierarchy at the Communications Centre.
  1. [555]
    The evidence suggests (but it is not sufficient for a finding to be made) that the Appellant was supervised more closely than some, or perhaps most, other EMDs.  Again, if that was the case, there may have been a personal element associated with the level of scrutiny.  However, the evidence noted in relation to this Stressor and elsewhere in these reasons provides a basis for such supervision.  It also seems that the Appellant was prone to characterise a relatively small number of occasions when she was criticised or asked about her behaviour as "excessive" (see Stressors 17, 19 and 22). 
  1. [556]
    Accordingly I find that, to the extent that Ms Bolam entered the Appellant's personal space, stood in front of her questioning her dispatch decisions, and interrupting her and standing near her during calls, Ms Bolam was acting within the range of appropriate behaviour for supervisors that was sanctioned and encouraged by management.  Her behaviour constituted reasonable management action taken in a reasonable manner.
  1. [557]
    I also find that the monitoring of the Appellant in relation to breaks, logon times and case details was not excessive, but constituted reasonable management action taken in a reasonable manner.

Medical evidence

  1. [558]
    Before considering the parties' overarching submissions, it is appropriate to assess aspects of the medical evidence.
  1. [559]
    Dr Sue Pavey gave the only medical opinion evidence.  She is a consultant psychiatrist and first saw the Appellant on 24 October 2012 (more than two months after she went on sick leave from work) for an assessment lasting 90 minutes.  Dr Pavey subsequently saw the Appellant on 15 occasions (each for 50 minutes) until 12 June 2013.
  1. [560]
    The documentary evidence authored by Dr Pavey included medical reports dated 30 October 2012, 16 January 2013, 3 April 2013, 18 April 2013 and 12 March 2014 (Exhibit 35 C6-13b, 139-141).  Those reports provided her diagnosis of the Appellant's condition, and her assessment of the cause of the Appellant's condition.
  1. [561]
    Diagnosis: Dr Pavey diagnosed the Appellant as having Axis I Major Depressive Disorder, single episode, triggered by alleged bullying (DSM IV 296.23) and Axis IV Occupational problem.
  1. [562]
    Cause of condition: Dr Pavey noted that the Appellant had no previous psychiatric history, and no history of any symptoms of mental illness or any previous treatment for mental illness.  The Appellant denied having any previous problems with low mood or anxiety.  Therefore Dr Pavey did not consider that the current psychiatric diagnoses represented aggravations of pre-existing conditions.
  1. [563]
    The records of Dr Scanlan (Exhibit 35, C24-25) show that in July and August 2008, before the Appellant worked at QAS, she had stress in her job.  According to the Appellant, there were "all sorts of goings-on" in her previous place of employment including conflict between two other people, but not, she said, between her and other people.  There is no suggestion that such stress contributed to the injury for which the Appellant seeks compensation.
  1. [564]
    In her report to Dr Scanlan on 30 October 2012, Dr Pavey stated that the Appellant:
  1. (a)
    had been on sick leave from work since 8 August 2012;
  1. (b)
    presented with "a severe major depressive episode;" and
  1. (c)
    had experienced significant depressive symptoms for "at least one year," with the symptoms worsening over the last three months.
  1. [565]
    There were "no other significant stresses apart from the focus of the Workcover claim of bullying and harassment by supervisors in the workplace."  Dr Pavey wrote:

"Jan went into great detail about the numerous incidents of perceived victimisation at work.  The main issue concerned allegations of incompetence by a small clique.  These had been investigated on several occasions and always found to be without basis.  Jan indeed describes being exceptionally good at her job and had excelled in the training stages with early certification achieved.  She wonders whether this provoked jealousy in the workplace and lead to the attempts to undermine her.

Issues emerged quite early on during her employment and led to her making complaints to managers.  She describes how the issues were not handled according to correct procedures.  On one occasion she describes insulting emails being distributed by acting up supervisors.  Due to inappropriate conduct of work meetings by supervisors she started recording these meetings and when she disclosed this fact, a formal investigation was agreed to by her manager.  The outcomes are still awaited.

Jan reports that even if the investigation finds in her favour and validates her claims of workplace harassment she will find it very difficult to return to work if the colleagues involved in the alleged slander remain in post as supervisors.  She feels undermined amongst a wide group of colleagues and was made to feel extremely uncomfortable on a recent visit to the workplace last week when individuals did not look her in the eye and asked her to leave the room."  (Exhibit 35 C140)

  1. [566]
    In that report, Dr Pavey recorded that the Appellant presented with a depressive episode with increased anxiety "which has arisen in the context of the alleged workplace bullying."  Her symptoms had worsened in recent months "as the workplace issues became more frequent and were inadequately addressed in the meetings which allegedly did not follow procedural guidelines."
  1. [567]
    Dr Pavey recorded that the Appellant's career "has always been a central focus in her life."  She described the Appellant's assessment of her current and potentially future circumstances as follows:

"Jan described a profound enjoyment and love of her chosen profession and as she contemplates the possibility that she may not be able to return to the workforce in her chosen role she has a strong feeling of grief and loss.  Her immediate manager who has been on long term leave from the office has now returned to work and is supportive of her but despite this she feels that if the perpetrators of the alleged bullying are retained in post she will not be able to handle a hostile atmosphere that now prevails.  Jan's preoccupation with these workplace issues has prevented her from creating a full life for herself on the Coast.  She has no regular activities or local friendships."  (Exhibit 35 C140)

  1. [568]
    Elsewhere, Dr Pavey referred to the Appellant's condition as being related to her "employment issues."  In her clinical report dated 18 April 2013, Dr Pavey stated that the Appellant had been on sick leave since late August 2012 due to developing anxiety and depressive symptoms "in the context of alleged workplace bullying."  She recorded that, at the review on 24 October 2012, the Appellant:

"described in detail numerous alleged bullying incidents since working for QAS and felt that her depression and anxiety symptoms directly related to feeling undermined at work.  She was reticent to see her problems as psychiatric and requiring medication and was focused on resolving the employment issues, seeking redress for her grievances.  She believed that she would not cope with return to work if the alleged perpetrators of the bullying remained in post."

  1. [569]
    In her report dated 12 March 2014, Dr Pavey also stated that she had treated the Appellant for symptoms of major depression and increased anxiety which had arisen "during the course of a workplace dispute" and that the Appellant "alleged that she had been repeatedly bullied and that appropriate management practices were not followed."
  1. [570]
    Dr Pavey did not record specific information in relation to those incidents in her reports.  However, in her report of 16 January 2013, Dr Pavey referred to the Appellant's claims of workplace bullying and her need to be supported in dealing with the alleged perpetrators of the bullying.  In that report, Dr Pavey recorded that the Appellant referred to a workplace meeting between the Appellant and her manager in December 2012.  The Appellant had informed Dr Pavey that at that meeting her allegations of bullying were disputed and she was informed that there was no such problem in the workplace and that there would be no changes with regard to the alleged bullies in respect of their interactions with the Appellant.
  1. [571]
    In her evidence in chief, Dr Pavey stated that the Appellant's depression was a result of being:

"completely preoccupied with her workplace issues.  She spoke at great length about all the incidents at work which had led her to become highly stressed and anxious and which, in my view, had basically caused this episode of mental illness."  (T 1:18)

  1. [572]
    When asked for her opinion about the stressors leading to the Appellant's illness, Dr Pavey stated:

"She described having been bullied for some time and she gave lots of incidents going back a long time, describing things happening as far back as I think 2009, probably one in 2008 where she felt that people ganged up on her and basically insinuated that she was incompetent.  So this multiple [indistinct] incidents where people would say things or report things or do things were, there was a clique of people she described as doing this and all - all giving the overall impression that she was no good at her job and this was very, very upsetting for her because she took enormous pride in her job and felt she was - did it in an excellent way.  So huge - it was very humiliating and stressful to feel that she was being attacked in the workplace and it caused her a lot of stress and depression comes about for many reasons, but stress is - usually when you diagnose depression you look for what is triggering it and lots of adverse things happening can contribute to it and also a sense of loss is commonly linked with depression and in her mind she saw that this situation was untenable and that she was losing her career which has highly - highly valued, that she was contemplating not having something which was central to her meaning in life."  (T 1: 19)

  1. [573]
    Dr Pavey explained in cross-examination that although the Appellant spoke to her "in great detail, at great length about the ins and outs of her situation," Dr Pavey did not write everything down because she was treating a mental illness and did not need to know all those details.
  1. [574]
    Dr Pavey expressed the view that the Appellant did not feel validated.  She would go through the correct procedures for making complaints and then did not receive what she felt was the appropriate recognition and investigation of the complaint.  Consequently "she had the sense of being all alone without any backup."  According to Dr Pavey, the Appellant kept referring to her immediate manager who was supportive and was the only one who "actually gave her a sense that her complaints were valid."  However, the Appellant "seemed to feel very isolated in the response that she received from management."
  1. [575]
    Dr Pavey recorded the names of people mentioned by the Appellant including Erica (presumably Ms Bolam), a "key one" who was promoted to be an acting supervisor and was "lording over" the Appellant, which she found "particularly difficult."  Apparently the Appellant made "multiple references" to her.  The other names were Mel (presumably Ms Johnson) and Chris.  Dr Pavey also noted that the Appellant gave her "loads of examples of where people were complaining … about her,"  but Dr Pavey "had the impression that there were just multiple, multiple examples of where she felt unjustifiably criticised and then went on to try and defend herself in various meetings."  It was the Appellant's perception that she was unjustifiably criticised.
  1. [576]
    When asked for her opinion about the importance of the complaints handling procedure as opposed to the initial incidents, Dr Pavey said:

"It was very much intertwined.  I mean, I wouldn't pull out at the start, you know, which would have been more important, but as the months went by, it was certainly the fact that her case was not being - she didn't feel that her case was being satisfactorily dealt with that was perpetuating the problem."  (T 1: 20)

Having recovered after treatment and medication, the Appellant decompensated again when she was told that her complaints of bullying were not validated.

"But as the time went by, it was the fact the way the case was handled which became the crucial issue.  At the start it seemed to be very much a mixture of both of the feeling being upset by the way her colleagues were treating her.  I think she was hopeful at the start that she would be vindicated, but when she wasn't vindicated that became enormously stressful."  (T 1: 20)

  1. [577]
    The effect of the medical evidence for this appeal: The Appellant submits that, given the concessions made by the Respondent, the medical evidence is largely irrelevant.    While that might be correct in relation to the nature of the injury, the evidence relating to the possible cause of the injury remains relevant to whether the exception in s 32(5) of the Act operates. In other words, the medical evidence supports the conclusion that:
  1. (a)
    the Appellant suffered from a psychiatric injury; and
  1. (b)
    the psychiatric injury arose out of, or in the course of, the Appellant's employment.
  1. [578]
    The question is whether the medical evidence assists the Commission in determining whether the psychiatric disorder arose out of, or in the course of:
  1. (a)
    reasonable management action taken in a reasonable way by the employer in connection with the Appellant’s employment; and/or
  1. (b)
    the Appellant's perception of reasonable management action against her.
  1. [579]
    As the preceding summary of Dr Pavey's evidence indicates, the Appellant's psychiatric injury did not represent an aggravation of pre-existing conditions.  Rather, the Appellant had experienced significant depressive symptoms for at least one year with the symptoms worsening toward the end of her active employment.  Although the Appellant went into great detail about the "numerous incidents of perceived victimisation at work" and gave "lots of incidents" of having been bullied from at least 2009, Dr Pavey did not write everything down because she was treating a mental illness and did not need to know all those details.  The effect of that evidence is that the Appellant experienced, or at least perceived, numerous incidents to which she reacted.  But there is little information from Dr Pavey about individual instances or categories of behaviour.  The examples referred to by Dr Pavey include:
  1. (a)
    people giving the overall impression that the Appellant was incompetent or  no good at her job (which was very upsetting for her because she took enormous pride in her job and felt that she did it in an excellent way);
  1. (b)
    Ms Bolam who, as acting supervisor, was "lording over" the Appellant;
  1. (c)
    insulting emails (specifically the "What the ??????" email) being distributed by acting up supervisors;
  1. (d)
    the Appellant feeling undermined at work;
  1. (e)
    issues (particularly and perhaps primarily her complaints) not being handled according to correct procedures.
  1. [580]
    The Respondent's submission notes that the medical evidence has not identified which stressors caused the Appellant's psychological condition.  Consequently, it is not clear whether management action (reasonable or unreasonable) or other events in the workplace, or a combination of them, gave rise to the injury.
  1. [581]
    In particular, the Respondent submits that, when being cross-examined, Dr Pavey conceded that:
  1. (a)
    she was virtually reliant on the history of the patient unless she had some collateral history;
  1. (b)
    she had no independent verification about whether the reported incidents had occurred at the workplace;
  1. (c)
    she did not think she had been told (or did not recall being told) about the Appellant's application for a supervisor's role or being unsuccessful in obtaining that role in September 2011; 
  1. (d)
    she didn't know about any feedback after the Appellant did not get the job as supervisor;
  1. (e)
    the Appellant did not tell her that she had received low compliance scores in two calls in March 2012, which were related to life-threatening situations;
  1. (f)
    it was the Appellant's perception that she was being unjustifiably "crucified" or criticised;
  1. (g)
    she could make no comment on whether there had been completely reasonable management action taken in relation to the Appellant;
  1. (h)
    she agreed that if there were genuine issues of competence being raised and the Appellant felt she may not be competent and her job may be under pressure, this would create a sense of loss and this was compounded in her case because the Appellant felt she was excellent at her job;
  1. (i)
    she did not know whether she had been told about the Appellant making a formal complaint to QAS in August 2012, which was under investigation;
  1. (j)
    she was unaware that the Appellant had complained to her general practitioner in 2008 about stress in her previous job;
  1. (k)
    it was symptomatic of depression to ruminate about everything, including perceived unfairness and injustice;
  1. (l)
    she did not get any information about the Appellant's interpersonal relationships prior to the alleged events.
  1. [582]
    Those particulars listed in the Respondent's submission, confirm that, in effect, the medical evidence contributes little to the resolution of the central issue in this case.  That is in no way a criticism of Dr Pavey.  It is simply a reflection of the extent to which her evidence can assist the Commission to decide whether s 32(5) of the Act operates in relation to this appeal.
  1. [583]
    I note, however, that although the Appellant told Dr Pavey about incidents going back to 2009 (and possibly 2008), Dr Pavey's evidence is that the Appellant had experienced significant depressive symptoms for at least one year (i.e. from mid to late 2011) and that the symptoms had worsened over the last month or so of her time at work.  That evidence supports a finding that, however dispiriting the perceived personal slights or victimisation were in 2009, they did not cause or were not a significant contributing factor to the Appellant's psychiatric condition.  It is also relevant to note that Dr Pavey stated there were "no other significant stresses apart from the focus of the WorkCover claim of bullying and harassment by supervisors in the workplace."  Dr Pavey's evidence was that a range of workplace incidents (which the Appellant characterised as bullying, and much of which she characterised as insinuations that she was incompetent) cased this "episode of mental illness."

Submissions about reasonable management action

  1. [584]
    As noted earlier, the central issue in this appeal is whether the Appellant’s injury was withdrawn from the category of compensable injuries by operation of s 32(5) of the Act because her  psychiatric disorder arose out of, or in the course of:
  1. (a)
    reasonable management action taken in a reasonable way by QAS in connection with the Appellant's employment; or
  1. (b)
    the Appellant's perception of reasonable management action being taken against her.
  1. [585]
    The general legal principles in relation to s 32(5) of the Act are set out earlier in these reasons (see Reasonable management action).  The parties’ submissions in relation to individual Stressors were considered in relation to those Stressors.
  1. [586]
    Appellant's submissions: The Appellant submits that the behaviour of the main protagonists (Ms Bolam, Ms Johnson and Mr Eva) related primarily to their interpersonal relations with the Appellant and not "management."  Because the majority of instances, whilst involving co-workers and others who might be the Appellant's superiors, did not occur in the context of management action but represented workplace bullying, the exemption in s 32(5) does not apply.[45]
  1. [587]
    The Appellant submits that it is clear that over a long period she was experiencing conflict in the workplace due, for example, to:
  1. (a)
    a chain of events starting when the Appellant and Ms Beaumont had conflict in early 2009;
  1. (b)
    the friendship between Ms Beaumont and Ms Bolam, leading to Ms Bolam perpetuating behaviour which she conceded represented a different managerial style to the style she used with other staff.
  1. [588]
    In the alternative, the Appellant submits that if s 32(5) applies then "reasonable" management action was not taken.  In support of that submission, the Appellant states that:
  1. (a)
    the Appellant was "shadowed" by Ms Johnson in early 2009 without her knowledge, leading to understandable confusion, conflict and stress.  This situation could have easily been addressed with appropriate communication.  There are no policies or procedures to cover shadowing (Stressor 1);
  1. (b)
    the Appellant's request on 9 December 2009 for a change of the roster (so that she did not need to work on the night shift crew where she was being isolated and bullied) was not allowed;[46]
  1. (c)
    despite managers including Mr Eva, Mr Peatey, Mr Broomfield and others being made aware on a number of occasions that the Appellant was suffering from work-related stress which was affecting her  health in 2009, 2010 and 2011, reasonable steps were not taken to address the underlying difficulties with the conflict in the workplace between the Appellant and others;
  1. (d)
    Mr Eva denied the Appellant the right of a support person during an important meeting (Stressor 28);
  1. (e)
    Mr Eva insensitively conveyed to the Appellant that she was not to be considered for the Frontline Management course (Stressor 12);
  1. (f)
    Mr Eva was insensitive in the way that he had Mick Byrnes remove the Appellant from her duties on 24 February 2012 (Stressor 16);
  1. (g)
    Mr Eva flagrantly disregarded the Policies and Procedures in respect to managing unsatisfactory performance in the way that he dealt with the Appellant on numerous occasions. 
  1. [589]
    The Appellant's submission also refers to the "inept management" of Mr Eva including, on a number of occasions, mishandling things like:
  1. (a)
    permitting supporting persons to be present during meetings;
  1. (b)
    giving appropriate notice of meetings;
  1. (c)
    scheduling meetings between the Appellant (as a person who had made a bullying complaint) and Ms Bolam (who allegedly had exhibited bullying behaviour) in circumstances where the Appellant was not given prior notice;
  1. (d)
    mishandling the process of the implementation of a PIP; and
  1. (e)
    advising the Appellant that she was being placed on a LSP.
  1. [590]
    In the Appellant's submission, Mr Eva had quite an authoritarian management style.  He was dismissive of policies and procedures, and made it clear that he considered that managers had power to do things in the way they thought fit even when the policy and procedure about performance management specifically directed managers not to use their own system. Indeed, the Appellant goes so far as to submit that Mr Eva "rode rough shot" over policies and procedures.  That approach would necessarily bring him into conflict with the Appellant, who was so heavily focused on policies and procedures.  She submits that it can be accepted that Mr Eva's actions were not reasonable.
  1. [591]
    Although her submission refers to specific events, the Appellant submits that the Commission is entitled to consider the actions of management in a "global" way.  The submission refers to the statement of Hall P that it is entirely appropriate to take a global approach with respect to issues that occur over a period of time in the workplace and it is not necessary for the hearer of fact to be "forced" to "tease out the transactions and series of events said to have brought about the injury."[47]
  1. [592]
    As to what is "reasonable" management action, the Appellant submits that:
  1. (a)
    it cannot be reasonable for a manager to act in a way that is contrary to the policies of the workplace;
  1. (b)
    the test of reasonableness must be assessed in respect of the particular worker[48] and, in this case the employer was bound to have regard to the Appellant's displayed coping levels.
  1. [593]
    The Appellant concedes that if overall it is found that management played a role in the injury, then s 32(5) may apply.[49]  However, the Appellant also relies on a statement by Deputy President O'Connor in Abbey Emma Holt (Westpac Bank) v QCOMP that the authorities support the approach that an appellant may succeed in a claim for compensation "based on any event or stressor that does not arise or occur in the course of reasonable management action taken in a reasonable way."[50]
  1. [594]
    Respondent's submissions: The Respondent submits that:
  1. (a)
    the Appellant has not identified which, if any, Stressors she alleges fall outside the scope of "management action;"
  1. (b)
    most of the Appellant's Stressors refer to actions of more senior officers (acting or substantive) in their roles of supervising and directing the Appellant;
  1. (c)
    the alleged Stressors which are arguably not management action (Stressors 1 to 4 and 25) will not be proven.
  1. [595]
    The Respondent submits that the Appellant would not accept the role of the supervisors, and made serial complaints about them.  Although she made complaints about bullying, none of them were substantiated.  The Appellant also complained about the monitoring and supervision that was required of the supervising staff.
  1. [596]
    The Respondent further submits that, in relation to each nominated Stressor, the balance of the evidence is that the Appellant's allegations are not true or are inaccurate perceptions of management performing its reasonable and responsible role in the circumstances of a Communications Centre for QAS.  In specified instances, there may have been flaws, blemishes and imperfections in the delivery or manner in which this reasonable management action was applied.  However, the Respondent submits, that does not prevent the exclusion in s 32(5)(a) and (b) applying.
  1. [597]
    In reply to the Appellant's submissions that "reasonable" management action was not taken, the Respondent submits that:
  1. (a)
    the "shadowing" of the Appellant by Ms Johnson occurred on one occasion in May 2009, the evidence supports a finding that this action was reasonable (in view of the Appellant's lack of confidence and her supervisor's role to support her and safely run the Communications Centre), and there is no evidence that this event caused or contributed to the Appellant's psychological condition;
  1. (b)
    the Appellant gave evidence that she asked Mr Peatey to remove her from night shift because of ongoing problems that she was having with certain people during the night, and she believed the request was granted;[51]
  1. (c)
    the evidence established that when the Appellant raised issues in 2009 and 2011 the matters were investigated and resolved by facilitated discussions, no other evidence was adduced about what problems the Appellant was allegedly experiencing or what further action was sought or taken, and there is no evidence that the Appellant was suffering a psychological condition at that time or that the psychological condition diagnosed in 2012 arose out of incidents at that time;
  1. (d)
    the allegation that Mr Eva denied the Appellant the right of a support person during an important meeting would not be established on the evidence because the Appellant chose not to have a support person is at other meetings, and there is no causative link between this alleged incident and a psychological condition;
  1. (e)
    if the information about the Frontline Management course was "insensitively conveyed," this constitutes a blemish in the way in which reasonable management action was taken;
  1. (f)
    if the manner in which Mr Eva as RMC removed the Appellant from duties in Patient Transport Services was "insensitive" (which is denied), this was a mere blemish in the way in which reasonable management action was taken;
  1. (g)
    the evidence does not support a finding that Mr Eva "flagrantly" disregarded policies and procedures on "numerous" occasions.

 Consideration and conclusion

  1. [598]
    Although it is appropriate to consider the actions of management in a "global" way, it is also appropriate to commence that assessment by reference to the numerous Stressors that formed the basis of how this appeal was conducted including to note how many involved management action.  As will be apparent from the consideration of those Stressors earlier in these reasons for decision, I had regard to the individual submissions made in respect of each Stressor and the other submissions summarised immediately above.  Those Stressors were considered in detail earlier and it is not necessary to repeat in detail the findings in relation to them.
  1. [599]
    It is sufficient to note in relation to the 26 Stressors about which evidence was given that:
  1. (a)
    all but six of the Stressors[52] involved management action;
  1. (b)
    of the 20 Stressors involving management action, four Stressors[53] were not proved;
  1. (c)
    of the 16 Stressors that were proved, 15 were found to involve reasonable management action (although in relation to five of those Stressors[54] there was a blemish in the way part or all of the action was taken) and hence are excluded by operation of s 32(5)(a) of the Act; and
  1. (d)
    of the six Stressors that involved personal disputes in the workplace, three Stressors[55] were not proved.
  1. [600]
    Considering the actions of management in a "global" way, it is apparent that, while the approach taken by individual managers was not perfect, it was explicable and defensible having regard to the circumstances at the time including the nature of the work and the individuals involved.  In some instances, deviation from slavish adherence to SOPs and other policies or guidelines in particular circumstances was appropriate.  For the most part the other imperfections in process or implementation can properly be characterised as blemishes.  They do not negate the operation of s 32(5) of the Act.
  1. [601]
    In response to other of the Appellant's submissions, I am satisfied that the managers at the QAS usually acted reasonably in light of the Appellant's displayed coping levels.  In particular, there was evidence that the relevant managers approved or expressed a willingness to support the Appellant taking leave after particular incidents in the workplace about which the Appellant was concerned, and directed her to Priority One (a service that she used).
  1. [602]
    To the extent that the Appellant maintains an assertion that management failed to deal adequately with her complaints (listed in [85]), evidence summarised in relation to relevant Stressors demonstrate that:
  1. (a)
    management investigated and/or held meetings in relation to many of her complaints; and
  1. (b)
    the Appellant said that she felt better after or was happy with the outcome of at least some of those actions.
  1. [603]
    Although the underlying issues were only partly resolved or temporarily assuaged, and (as Dr Pavey records) the Appellant was not content with outcomes that did not vindicate her, I am not satisfied that management failed to make appropriate attempts to deal with the issues that she identified.
  1. [604]
    The only Stressors that were proved (in part or in whole) and which are not excluded by operation of s 32(5) of the Act are:
  1. (a)
    Stressor 4 (Mr Fisher was rude to the Appellant, prompted by rumours about the Appellant in the Workplace) – 29 January 2010;
  1. (b)
    Stressor 7 (Ms Bolam yelled at the Appellant) – 5 August 2010;
  1. (c)
    Stressor 15 (Mr Eva made a disparaging statement about but not to the Appellant) – on or about 21 October 2011;
  1. (d)
    Stressor 23 (Ms Bolam sent an incorrect and offensive email) – 2 July 2012; and
  1. (e)
    Stressor 25 (the Appellant was upset by the "Hurt Feelings" skit poster) – 19 July 2012.

Details of the behaviours and the context in which incident occurred are set out earlier and need not be repeated.

  1. [605]
    Given those findings, it is appropriate to consider whether the reasons for the decision of Deputy President O'Connor in Abby Emma Holt (Westpac Bank) v Q-Comp[56] ("Holt") affect the outcome in this present appeal.  Two aspects of that decision are relevant:
  1. (a)
    the distinction drawn between action taken by management and action taken by a co-worker;[57] and
  2. (b)
    the circumstances in which a worker's appeal might succeed when the Commission is satisfied that only some of the alleged stressors have been proved.
  1. [606]
    As to the first aspect, O'Connor DP referred to the statement about what constitutes management adopted by Vice President Linnane in              O'Brien v Q-COMP,[58] quoted earlier in these reasons.  O'Connor DP characterised many of the stressors in Holt as actions taken by co-workers and hence actions to which s 32(5) of the Act did not apply.  It will be apparent from my findings in relation to each Stressor in the present appeal that I have drawn a similar distinction in respect of some of them.
  1. [607]
    As to the second aspect, O'Connor DP wrote: "The authorities support the approach that the Appellant may succeed in a claim for compensation based on any event or stressor that does not arise or occur in the course of reasonable management action taken in a reasonable way"[59] (emphasis added).  As Hall P stated in Q-COMP v Glen Rowe,[60] a passage quoted by DP O'Connor in Holt, "However, 'may' cannot be read as 'must'," and the Commission is not "at liberty to allow a claimant to succeed where at least one stressor does not '… arise or occur in the course of reasonable management action taken in a reasonable way'."
  1. [608]
    In Holt, O'Connor DP found that the incidents identified by the Appellant (namely, the inappropriate comments made about her appearance and weight) could not properly be described as reasonable management action taken in a reasonable way and consequently would not trigger the operation of s 32(5) of the Act.  The combination of those incidents would lead to a situation in which the Appellant could no longer cope, and there was medical evidence that it was reasonable to draw a causal relationship between the alleged workplace harassment and the development of the Appellant's psychological symptoms.  Furthermore, the conduct of a manager not to investigate allegations made by the Appellant was held to be a clear failure to perform his management functions and could not be categorised as reasonable management action taken in a reasonable way.[61]
  1. [609]
    The facts and findings in Holt are quite different from the facts and findings in the present appeal.  In this case, a substantial majority of the Stressors involved management action and I have found that, of those Stressors that were proved, most were reasonable management action taken in a reasonable way.
  1. [610]
    Having regard to a range of factors, including the relative significance of those Stressors in the context of the totality of the Stressors and Dr Pavey's evidence, I am not satisfied that those five Stressors would have been sufficient to cause the Appellant's injury.  Consequently, the appeal cannot succeed by reference only to those Stressors.
  1. [611]
    Although, as a consequence of those findings, the appeal must necessarily fail, I acknowledge that the Appellant has held ongoing grievances in relation to some of her co-workers and managers.  By reference only to the evidence in this case, it would appear that at least some of those grievances were based on misunderstandings of particular exchanges or misperceptions of the reactions of other people to her.  Other grievances arose because of personality differences and clashes that occur commonly in workplaces.  I accept that those differences exist and that some consequent interactions have caused distress to the Appellant.  However, they do not provide a sufficient foundation for success in this appeal.

 Orders

  1. [612]
    For the reasons given above:
  1. (a)
    the appeal is dismissed
  1. (b)
    the decision of the Workers' Compensation Regulator is confirmed
  1. (c)
    the Appellant is to pay the Respondent's costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of further application to the Commission.
  1. [613]
    Order accordingly.

       

Footnotes

[1] "MPDS" is Medical Priority Dispatch System.

[2] State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447 (Hall P); Q-COMP v Hetherington [2004] 176 QGIG 493 (Hall P); Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031.

[3] O'Brien v Q-COMP (2007) 185 QGIG 383, 401 quoting Canadian General Electric Company Limited v The Ontario Labour Relations Board (1956) OR 437, 443.

[4] Q-COMP v Foote (2008) 189 QGIG 539, 810 (Hall P).

[5] Q-COMP v Foote (2008) 189 QGIG 539, 810 (Hall P).

[6] Sheridan v Q-COMP (2009) 191 QGIG 13, 16 (Hall P).

[7] Lackey v WorkCover Queensland (2000) 165 QGIG 22.

[8] Avis v WorkCover Queensland (2000) 165 QGIG 788, citing State Government Insurance Commission v Stevens Brothers Pty Ltd & Anor (1984) 154 CLR 552, 555 and 559 (Murphy, Wilson, Brennan and Deane JJ); Dickinson v The Motor Vehicle Insurance Trust (1987) 163 CLR 500, 505 (Murphy CJ, Wilson, Brennan, Dawson and Toohey JJ).

[9] WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6, 6-7 (Hall P).

[10] Avis v WorkCover Queensland (2000) 165 QGIG 788.

[11] WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6, 7 (Hall P).

[12] See Q-COMP v Hohn (2008) 187 QGIG 139, 143 (Hall P); Q-COMP v Glen Rowe (2009) 191 QGIG 67, 71 (Hall P).

[13] Davis v Blackwood [2014] ICQ 009, [51] (Martin J).

[14] See WorkCover Queensland v Kehl (2002) 170 QGIG 93, 94 (Hall P); Mayo v Q-COMP (2004) 177 QGIG 667; Delaney v Q-COMP Review Unit (2005) 178 QGIG 197.  See also Re Yu and Comcare [2010] AATA 960.

[15] Bowers v WorkCover Queensland (2002) 170 QGIG 1, 2 (Hall P).

[16] Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301, 307 (Blades C).

[17] Hansen v WorkCover Queensland (Unreported, Industrial Magistrates Court, Industrial Magistrate Taylor, 15 November 2001) 16.

[18] Prizeman v Q-COMP (2005) 180 QGIG 481.

[19] Svenson v Q-COMP (2006) 181 QGIG 629, 630 (Hall P).

[20] Versace v Braun (2005) 178 QGIG 315, 316 (Hall P); see also Alex Sabo v Q-COMP (C/2010/46) - Decision <http://www.qirc.qld.gov.au> , [21]

[21] See Q-COMP v Glen Rowe (2009) 191 QGIG 67, 71 (Hall P).

[22] Davis v Blackwood [2014] ICQ 009, [47] (Martin J).

[23] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027, [7].

[24] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027, [8]

[25] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027, [7].

[26] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027, [8].

[27] Blackwood v Adams [2015] ICQ 001, [17].

[28] Blackwood v Adams [2015] ICQ 001, [19].

[29] See Browne v Dunn (1894) 6 R 67 (HL).

[30] Ms Johnson objected to Ms Kennedy attending that meeting with Mr Eva on the basis that Ms Kennedy would have been there as a support person (rather than as the PDO) and Ms Johnson was entitled to the support person of her choice.  (T 6: 67-68)

[31] I.e., Ms Johnson's behaviour which was the subject of the complaint.

[32] The Sunshine Coast night shift ran from 6.00 pm until 6.00 am, and the Wide Bay night shift ran from 6.30 pm until 6.30 am.  The room was separated into two, with two operators for each shift and the supervisor.

[33] A peer support officer is involved in looking after people's welfare and could can be in contact with people about such things as their home life, nasty calls, nasty jobs, or complaints.  The peer support officer is trained in the role, but is not a counsellor.  If they felt the need, they could refer people to an appropriate person such as a psychiatrist.  (T 7: 6-7)

[34] The Appellant said that she had approximately 25 sessions with Ms Dixon, a psychologist, over a period of about 18 months.  (T 2: 22-23)

[35] See clause 3.21.1 of the notice of claim.

[36] Those structural changes are discussed in more detail in relation to Stressor 13.

[37] Mr Eva and Mr Emery in consultation with their regional operations supervisory groups.  (T 7: 65)

[38] Mr Emery said that he knew that the Appellant had expressed these concerns because she told him. He did not know who the other people were. (T 6-33)

[39] Although it seems the Appellant considered the issue between her and Mr Riordan was dealt with by an email from her to him.  (T 3: 40)

[40] Apparently in the recording of her conversation with Mr Eva about the call, the Appellant said "I fucked up".

[41] A freelance question or instruction is any question or instruction that is not in the protocol or that does not provide an acceptable clarification or enhancement to a question or instruction explicitly listed in the protocol: see Universal Protocol Standard 4.

[42] It might have been a different PIP:  see Reply of the Regulator para 15 and reference to Mr Eva’s evidence T7:98.

[43] See Svenson v Q-Comp [2006] QIC 16.

[44] Tate Taylor, Erica Bolam and Rebecca Bridson, as well as the Appellant.  (T 4: 50-51)

[45] See Abby Emma Holt (Westpac Bank) v Q-Comp (WC/2012/44) - decision .

[46] Note, however, that the Appellant gave evidence that her request was granted:  see Stressor 3.

[47] Delaney v Q-COMP Review Unit (2005) 178 QGIG 197; see also Waugh v Simon Blackwood (Workers' Compensation Regulator) & anor [2015] ICQ 028, [42].

[48] WorkCover Queensland v Kehl (2002) 170 QGIG 93.

[49] Q-COMP v Glen Rowe (2009) 191 QGIG 67.

[50] Abby Emma Holt (Westpac Bank) v Q-Comp (WC/2012/44) - decision , [106].

[51] See T 1: 89.

[52] Stressors 2, 3, 4, 7, 10 and 25.

[53] Stressors 13, 14, 26 and 28.

[54] Stressors 1, 5, 6, 12 and 16.

[55] Stressors 2, 3 and 10.

[56] Abby Emma Holt (Westpac Bank) v Q-Comp (WC/2012/44) - decision   

[57] Abby Emma Holt (Westpac Bank) v Q-Comp (WC/2012/44) - decision , [103]

[58] O'Brien v Q-COMP (2007) 185 QGIG 383, 401.

[59] Abby Emma Holt (Westpac Bank) v Q-Comp (WC/2012/44) - decision <http://www.qirc.qld.gov.au>, [106]. 

[60] Q-COMP v Glen Rowe (2009) 191 QGIG 67,

[61] Abby Emma Holt (Westpac Bank) v Q-Comp (WC/2012/44) - decision , [105], [99], [100[, [130]. 

Close

Editorial Notes

  • Published Case Name:

    Henderson v Workers' Compensation Regulator

  • Shortened Case Name:

    Henderson v Workers' Compensation Regulator

  • MNC:

    [2015] QIRC 216

  • Court:

    QIRC

  • Judge(s):

    Member Neate IC

  • Date:

    22 Dec 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
Avis v WorkCover Queensland (2000) 165 QGIG 788
3 citations
Jump To
Cite 1 - (2000) 165 QGIG 788
Cite 2 - (2000) 165 QGIG 788
Cite 3 - (2000) 165 QGIG 788
Bowers v WorkCover Queensland (2002) 170 QGIG 1
2 citations
Jump To
Cite 1 - (2002) 170 QGIG 1
Cite 2 - (2002) 170 QGIG 1
Browne v Dunn (1894) 6 R 67
2 citations
Jump To
Cite 1 - (1894) 6 R 67
Cite 2 - (1894) 6 R 67
Canadian General Electric Company Limited v The Ontario Labour Relations Board (1956) OR 437
2 citations
Jump To
Cite 1 - (1956) OR 437
Cite 2 - (1956) OR 437
Cf Delaney v Q-Comp Review Unit (2005) 178 QGIG 197
3 citations
Jump To
Cite 1 - (2005) 178 QGIG 197
Cite 2 - (2005) 178 QGIG 197
Cite 3 - (2005) 178 QGIG 197
Church v Workers' Compensation Regulator [2015] ICQ 31
2 citations
Jump To
Cite 1 - [2015] ICQ 31
Cite 2 - [2015] ICQ 31
Davis v Blackwood [2014] ICQ 9
3 citations
Jump To
Cite 1 - [2014] ICQ 9
Cite 2 - [2014] ICQ 9
Cite 3 - [2014] ICQ 9
Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500
2 citations
Jump To
Cite 1 - (1987) 163 CLR 500
Cite 2 - (1987) 163 CLR 500
Hardy v Workers' Compensation Regulator [2015] ICQ 27
5 citations
Jump To
Cite 1 - [2015] ICQ 27
Cite 2 - [2015] ICQ 27
Cite 3 - [2015] ICQ 27
Cite 4 - [2015] ICQ 27
Cite 5 - [2015] ICQ 27
Holt v Q-COMP [2013] QIRC 79
6 citations
Jump To
Cite 1 - [2013] QIRC 79
Cite 2 - [2013] QIRC 79
Cite 3 - [2013] QIRC 79
Cite 4 - [2013] QIRC 79
Cite 5 - [2013] QIRC 79
Cite 6 - [2013] QIRC 79
Lackey v WorkCover Queensland (2000) 165 QGIG 22
2 citations
Jump To
Cite 1 - (2000) 165 QGIG 22
Cite 2 - (2000) 165 QGIG 22
Leigh Sheridan v Q-COMP (2009) 191 QGIG 13
2 citations
Jump To
Cite 1 - (2009) 191 QGIG 13
Cite 2 - (2009) 191 QGIG 13
Mayo v Q-COMP (2004) 177 QGIG 667
2 citations
Jump To
Cite 1 - (2004) 177 QGIG 667
Cite 2 - (2004) 177 QGIG 667
O'Brien v Q-Comp (2007) 185 QGIG 383
3 citations
Jump To
Cite 1 - (2007) 185 QGIG 383
Cite 2 - (2007) 185 QGIG 383
Cite 3 - (2007) 185 QGIG 383
Prizeman v Q-Comp (2005) 180 QGIG 481
2 citations
Jump To
Cite 1 - (2005) 180 QGIG 481
Cite 2 - (2005) 180 QGIG 481
Q-COMP v Foote (No. 2) (2008) 189 QGIG 539
3 citations
Jump To
Cite 1 - (2008) 189 QGIG 539
Cite 2 - (2008) 189 QGIG 539
Cite 3 - (2008) 189 QGIG 539
Q-Comp v Hetherington (2004) 176 QGIG 493
2 citations
Jump To
Cite 1 - (2004) 176 QGIG 493
Cite 2 - (2004) 176 QGIG 493
Q-Comp v Hohn (2008) 187 QGIG 139
2 citations
Jump To
Cite 1 - (2008) 187 QGIG 139
Cite 2 - (2008) 187 QGIG 139
Q-COMP v Rowe (2009) 191 QGIG 67
5 citations
Jump To
Cite 1 - (2009) 191 QGIG 67
Cite 2 - (2009) 191 QGIG 67
Cite 3 - (2009) 191 QGIG 67
Cite 4 - (2009) 191 QGIG 67
Cite 5 - (2009) 191 QGIG 67
Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301
2 citations
Jump To
Cite 1 - (2006) 181 QGIG 301
Cite 2 - (2006) 181 QGIG 301
Re Yu and Comcare [2010] AATA 960
2 citations
Jump To
Cite 1 - [2010] AATA 960
Cite 2 - [2010] AATA 960
State Government Insurance Commission v Stevens Bros Pty Ltd (1984) 154 CLR 552
2 citations
Jump To
Cite 1 - (1984) 154 CLR 552
Cite 2 - (1984) 154 CLR 552
State of Queensland v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447
2 citations
Jump To
Cite 1 - (2003) 172 QGIG 1447
Cite 2 - (2003) 172 QGIG 1447
Svenson v Q-COMP (2006) 181 QGIG 629
2 citations
Jump To
Cite 1 - (2006) 181 QGIG 629
Cite 2 - (2006) 181 QGIG 629
Svenson v Q-COMP [2006] QIC 16
1 citation
Jump To
Cite 1 - [2006] QIC 16
Versace v Braun (2005) 178 QGIG 315
2 citations
Jump To
Cite 1 - (2005) 178 QGIG 315
Cite 2 - (2005) 178 QGIG 315
Waugh v Workers' Compensation Regulator [2015] ICQ 28
1 citation
Jump To
Cite 1 - [2015] ICQ 28
WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6
3 citations
Jump To
Cite 1 - (2003) 172 QGIG 6
Cite 2 - (2003) 172 QGIG 6
Cite 3 - (2003) 172 QGIG 6
WorkCover Queensland v Kehl (2002) 170 QGIG 93
3 citations
Jump To
Cite 1 - (2002) 170 QGIG 93
Cite 2 - (2002) 170 QGIG 93
Cite 3 - (2002) 170 QGIG 93
Workers' Compensation Regulator v Adams [2015] ICQ 1
3 citations
Jump To
Cite 1 - [2015] ICQ 1
Cite 2 - [2015] ICQ 1
Cite 3 - [2015] ICQ 1

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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