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Ha v Workers' Compensation Regulator QIRC 111
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Ha v Workers' Compensation Regulator  QIRC 111
Workers' Compensation Regulator
Appeal against decision of the Workers' Compensation Regulator
18 October 2016
11, 12 October 2016
Deputy President Kaufman
WORKERS' COMPENSATION – APPEAL AGAINST DECISION – PSYCHIATRIC INJURY – Where worker was injured – Where injury arose from management action – Whether management action was reasonable and reasonably taken – Appeal dismissed
Workers' Compensation and Rehabilitation Act, s 32
Mr A. Ha, the applicant in person.
Mr S. A. McLeod of counsel, instructed by the Workers' Compensation Regulator
Ex Tempore Reasons for Decision
- On 11 and 12 October 2016 I heard an appeal made by Mr Alan Ha against a decision of the Workers' Compensation Regulator. At the conclusion of the hearing I delivered an ex tempore decision. The following paragraphs comprise a slightly edited version of transcript containing my reasons for decision:
- The order will be that the appeal is dismissed. These are my reasons.
- Mr Ha appeals the decision of the Regulator confirming WorkCover's decision to reject his application for compensation. This appeal is by way of a hearing de novo and Mr Ha has the onus of proving his case on the balance of probabilities. The question to be decided is whether Mr Ha suffered an injury within the meaning of section 32 of the Workers' Compensation and Rehabilitation Act, as in force in August 2015.
- Relevantly, section 32 provides:
"An injury is a personal injury arising out of, or in the course of, employment if (b) for a psychiatric or psychological disorder, the employment is the major significant contributing factor to the injury."
- Subsection (5) provides an exception. It relevantly reads:
"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: (a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment (b) the worker's expectation or perception of reasonable management action being taken against the worker."
- They are the relevant sections, albeit I think that it is only subsection (a) that has turned out to be relevant.
- The Regulator conceded that the appellant is a worker within the meaning of section 11 of the Act, that he suffered a personal injury which arose out of, or in the course of his employment, and that the personal injury was a psychiatric or psychological disorder.
- In his closing submissions, Mr McLeod, who appears for the Regulator, also accepted that the employment was the major significant contributing factor to the injury. Therefore, the issue to be decided is whether the personal injury is excluded from the definition of injury in section 32 by the operation of section 32(5).
- Dr Leggett's evidence rightly led to Mr McLeod making the concession that he did. Dr Leggett's evidence was that the significant contributing factor to the injury was the employment, and I so find.
- The remaining question is whether section 32(5) is satisfied. Although the appellant bears the burden of proving that he suffered a section 32 injury, the respondent must persuade me that the injury is excluded by operation of section 32(5). In other words, that the injury arose out of reasonable management action taken in a reasonable way.
- The facts are of a fairly narrow compass, and I will summarize what I consider to be the most important of them. The evidence is fresh in everybody's minds, and I do not need to recite it fully.
- Mr Ha was employed as a child safety officer with the Department of Communities, Child Safety and Disability in Charleville on or around 7 April 2015. He had previously held a similar job in the Northern Territory for about 18 months. On his arrival at Charleville, Mr Ha was assigned an ongoing case involving a particular child, and he commenced to deal with this shortly after he commenced at Charleville.
- Mr Ha's work involved home visits to talk with the child, his parents and others, and he was required to make ongoing assessments of the child's needs. According to Ms Tania Waetford, who at the time was a court coordinator based at Roma, the child had previously been subject to a custodial order which at that time had expired. And as I understand it, the child had returned to live with his mother.
- The Department had been in the process of seeking to have the custodial order renewed prior to Mr Ha's involvement in the matter; that is, prior to the case being assigned to him. A decision had been taken that the circumstances warranted the Department no longer seeking a custodial order, but it would seek a protective supervision order ('PSO') under the Child Protection Act 1999. As I say, rather than pursuing the renewal of the custodial order. This would have allowed the child to remain at home rather than being returned to custody, but under the statutory supervision of the Department.
- Mr Ha was tasked with the preparation of an affidavit to support the making of the PSO instead of the custody order. According to Ms Waetford, the court was aware that the Department was changing course. But nevertheless, an evidentiary basis was required for the making of a PSO, and to that end, an affidavit was to be prepared.
- Mr Ha's immediate supervisor was then acting senior team leader Shane Doré, and Mr Doré had the general supervision of Mr Ha's work. Mr Ha prepared a draft affidavit, exhibit R1, which was intended to be used to support the making of the PSO. He did so on the 13th – or he completed that draft on 13 July. The draft was sent to Ms Waetford who provided feedback to both Mr Ha and Mr Doré on 22 July 2015. Mr Doré, in his evidence, said that he had just provided input, I think those were his words, into the making of that affidavit.
- Exhibit R2 is an email from Ms Waetford to Messrs Doré and Ha. She notes that she has made some changes to the formatting and layout of the affidavit and other stylistic changes, put in some headings, pointed out that the affidavit need not be a lengthy update, and in dot point form indicated what sorts of matters needed to be included in the affidavit. For example, for specified reasons the decision was made to return the child to the care of his mother; the decision is in his best interests for the following reasons which were then to be fleshed out; that since he has been home he has had support, and so on and so forth.
- Mr Ha replied to that email on the same day at 1.33 pm. That's also part of exhibit R2, saying:
"Hi Tania and Shane.
Thanks for your work.
Some parts I am still stuck with which relates to an FGM (Family Group Meeting) and that an SAR (Social Assessment Report). Shane might know where the FGM referral might be at?
- And he made some other observations. Mr Ha prepared a second draft, which is exhibit R3, after there had been an exchange of emails between him and Mr Doré regarding its contents. This was also sent to Ms Waetford.
- On 6 August 2015, Ms Waetford sent Mr Ha an email seeking confirmation that R3 was the correct version, and further stating she intended to help him with it as it needed to be filed urgently. That correspondence can be found in exhibit R5, to which is attached the second version of the affidavit.
- Ms Waetford followed this up with a detailed email suggesting changes, and this can be found in exhibit R6. This was from Waetford to Mr Ha asking to please print it out and to work through his affidavit paragraph by paragraph. She recommended that he meet with Mr Doré quickly before starting on the amendment to seek guidance, and particularly with his assessment information at certain paragraphs.
- And she makes another suggestion about how the affidavit should be written and made suggestions in relation to amending certain paragraphs. Paragraph 5 to deal with the change of the application from a custodial order to a PSO; and indicating that he ought to consider putting into it:
"what is different about mum's current living arrangements to warrant him going home?
What is mum doing differently?
Why did [the child] want to go home?
His sister is now home, doing okay?
What is different about [the child] that means it's better for him to be home? (he is older, can self-protect?, indicated that he wants to be home, which has affected his placement, stability in Toowoomba? It is not clear why he is home)."
She makes some suggestions about what should go into various other paragraphs. It is not necessary that I go through that in detail.
- Ms Waetford was the court coordinator tasked with ensuring that the material that was to be placed before the Childrens Court was appropriate to support the granting of the orders sought, which in this case was intended to be a PSO. At that time, I think I am correct in saying that there was no suggestion that Mr Ha did not agree with that course of action. And Mr Doré says that, and I will go to his evidence in more detail shortly, that Mr Ha accepted on 13August at a morning meeting that a PSO was the appropriate way in which to proceed. And consequently on 13 August 2015 at around midday, Mr Doré called Mr Ha into his office to finalize the affidavit.
- Mr Doré was sitting at his computer with the affidavit on the screen, and he typed alterations to the affidavit. Mr Ha was sitting opposite him, and Mr Ha's evidence is that Ms Waetford was on the telephone during the course of this entire procedure, whereas Mr Doré says that she may have been on the phone from time to time. Ms Waetford, as I recollect the evidence, did not have a memory of being on the phone for the making of the changes to the affidavit. She was in Roma at that time.
- Mr Ha alleges that the final affidavit that was produced after that meeting with Mr Doré contains false statements and that he was forced to perjure himself by swearing it. And it was around this time that he decompensated and has not returned to work since leaving on 14 August 2015.
- Mr Ha alleges that he formed the opinion that a PSO was no longer necessary, and he outlined why this is so in his evidence-in-chief which I allowed to be provided by way of a document, which is exhibit A1. He says that on 13May 2015, the child returned home to his mother after several years of being in out of home care. Although he required several weeks to adjust to the behavioural expectations of the local school, he made rapid positive changes to his personal presentation. Those changes prompted Mr Ha to rethink or review the levels of intervention through a court order which could be recommended to the court, given the mother's progress, also with her previous issues of concern.
- He states that in early August 2015, he orally advised his supervisor, Mr Doré, of his opinion that an intervention with parental agreement ('IPA'), would be more appropriate than a PSO. And he says that on 7 August during a documented supervision session, Mr Doré wrote Shane advised Allen that given his assessment of the child's current circumstances, it was no longer appropriate that he file the updated affidavit. The notes of that meeting are attached to exhibit R8.
- And on 11 August, Mr Ha states that:
I put in writing to Mr Doré this opinion, the interventions needed are able to be delivered and accepted on a voluntary basis. My assessment was in line with the principle of minimum intervention necessary to achieve the child protection goals.
- This, indeed, seems to be the crux of Mr Ha's complaints. He formed the view that a PSO was not necessary, that an IPA was better. He tried to persuade his superiors that that was the case, and was unsuccessful in doing so. He takes umbrage at this, even to this day, and from his evidence, his cross-examination of Mr Doré and his closing submissions, it is apparent that Mr Ha continues to hold the view that he was right and those who hold superior positions to him were wrong.
- But that is not the issue in the proceedings. The issue is whether the action of management in dealing with the writing of the affidavit, the creation of the affidavit, was reasonable. Mr Ha says that an IPA is sufficient because it is less formal and does not require a court order intervention. It is made by consent between the Department and the mother.
- The document that Mr Ha put in writing on 11August, which he calls exhibit B in that statement of his, is referred to in exhibit R9, and I turn to that now. Exhibit R9, which is an email from Mr Ha to Mr Doré on Tuesday 11 August 2015 at 4.25 pm. He thanks Mr Doré for the report, that is the assessment report:
"I wish I had received it much earlier. I can imagine that the belated arrival of this report would be attributed to the busy work schedule we've all had."
- And he then critiques the report and makes it clear that in his view a PSO is not the right way to go. And he sets out his reasons therefore. So that is 11 August. And what followed then was a meeting on 13 August which resulted in an email from Mr Doré to Mr Ha saying:
Given you indicated to Cheryl and I this morning that you now agree with the PSO, can you please continue to work on this affidavit and bring it up to standard using the feedback provided by Tania. I appreciate you are snowed under, however this really needs to be a priority."
- As I said, Mr Ha does not accept that he told Mr Doré and Ms Budge that he now agreed with the PSO, and Mr Doré's evidence will be referred to later which clearly indicates that he formed the view that that's precisely what Mr Ha had indicated.
- Exhibit R8 is an email to which are attached the notes of the general supervision meeting. The email is from Mr Doré to Mr Ha dated 10 August 2015. Mr Doré says that he attaches the record of the supervision meeting, and he says he has discussed with Ms Budge his worries about Mr Ha's skill level around assessing risk and what can be done to support him to develop further in the area. He points out that given Mr Ha's 18 month's previous experience, he is surprised and concerned to hear of his assessment of the child's current situation, particularly given that Mr Ha was so firm in that assessment.
- He points out that Mr Ha needs to go back through the child's file and re-familiarize himself with the reasons he came into care, what progress his mother has or has not made in addressing those reasons. What "Evolve", has assessed the child's problems to be, including why he has the problems and how they might be addressed in the future. And then he speaks of another case matter that there were some concerns with, and a fairly detailed document headed General Supervision is provided giving a detailed assessment of Mr Ha's performance as at that time.
- And as Mr Doré pointed out this morning, on page 2 of that document, Mr Doré said that he would complete the affidavit in respect of the application for the PSO for the child, the reason being given that Mr Ha at that time was saying that he did not consider that the PSO was appropriate.
- Mr Ha denies that he agreed on the morning of the 13th that a PSO was appropriate. He asserts that he was numb, and felt that he had to go along with it, as otherwise he would be sacked. As Mr McLeod observed in his submissions, Mr Ha prefaced a question to Ms Waetford on the basis that he had a crystal clear recollection of what happened on that day. He makes the observation that there is no evidence to support a suggestion that Mr Ha faced having his employment terminated. Mr Ha bases this allegation on what allegedly transpired on the morning of 13August and he sets this out in exhibit A1 under a heading Intervention by Manager Budge.
- Ms Budge and Mr Doré came to his desk at 8.45 that morning without prior notice, despite his work day not commencing until 9 am. He says that Ms Budge asked what's happening with the affidavit, and he alleges that he found it difficult to write anything, as there was not any significant information to present to the magistrate for that type of compulsory order.
- I have already referred to the email from Ms Waetford, and also Mr Doré, indicating the sorts of material that should be provided to support such an affidavit. And Mr Ha alleges, effectively, that he was bullied by saying that "we need the order, otherwise we get nothing. Can you please work on it so we can get it finalized." And that's said to be stated in a bullying manner. I am not quite sure how that is said to constitute bullying. He says he sat quietly. He did as he was told, which was work on the affidavit while Ms Budge and Mr Doré got distracted with another matter within the workplace.
- And at 10.15, he received an email from Mr Doré saying, and I wrote that earlier, that given he indicated that he agreed with the PSO, could he please work on it. He states that he did not. He had not agreed to it. And then at midday, Budge and Mr Doré called him into the conference room for a meeting, and this was a performance meeting. He assumed that the meeting was about the difference of opinion about the order. That meeting dealt with certain performance issues that concerned both Ms Budge and Mr Doré. During the course of that meeting, Ms Budge indicated that she intended to place Mr Ha on a performance improvement plan, a PIP, which he felt again constituted bullying. Mr Ha's evidence is to the effect that putting him on a PIP was setting him up to be dismissed.
- He states that, during that meeting, Ms Budge said that he was not listening about the case, stating "I don't want to see you on a child death review panel. With all this I'm going to put you on a PIP performance improvement plan." Again, Mr Ha contends that such comments are bullying comments. Mr Doré does not recall those comments being made.
- Mr Ha says he felt highly intimidated, overwhelmed, humiliated, frightened, did not know what to do or say and he had no prior offer for a support person. Mr Doré remained quiet throughout the meeting. Mr Ha called a witness, Alex Johns-Kula, who said that she offered to be his support person, and he said to her he would be right, and that he had not been asked or invited to bring a support person to that meeting.
- Mr Doré, as I said, denies the tenor of the conversation as described by Mr Ha. Ms Budge was not called because she was ill. Mr McLeod produced and read from a doctor's certificate indicating that she would not be able to give evidence until at least 9December, or she would not be able to work until 9December, and that the giving of evidence was not conducive to her recovery. I do not draw any inference from the failure to call Ms Budge in the circumstances.
- Mr Doré gave his evidence this afternoon. He was the team leader at the time of these incidents. He was Mr Ha's supervisor. The case had been assigned to Ha when he came to Charleville. It had been an ongoing case, and what was sought was an outcome for a particular order. At the time that Mr Ha started, a custodial order had been sought, but it was decided that the child could be at home, and therefore a PSO was deemed to be the appropriate order. He said that the Department must present evidence to the Children's Court to support the order and you need an affidavit for that purpose.
- Mr Ha prepared a draft affidavit which was subsequently forwarded to Ms Waetford, and Mr Doré may have made some comments or given feedback at the time that that affidavit was prepared. He referred to the 22 July email from Ms Waetford with a draft setting out the matters to be addressed, and he said it was usual for such feedback to be provided.
- He also referred to a bundle of emails, exhibit R4, which do not directly bear upon the child's case, but are indicative of the matters with which Mr Ha was being assisted and guided. Mr Doré said that there were a number of drafts prepared for the affidavit in this case. A second draft was sent in emails and points that needed to be addressed were discussed. He referred to the email appending the record of the supervision meeting which outlined the issues and the concerns about Mr Ha's ability to effectively finalize the affidavit. He said that that was a particular concern to them.
- In relation to the disagreement as to the appropriate order, he said initially he was not aware that there was a disagreement until about 7August. He thought that Mr Ha was supportive of the PSO, and it was around then that he found that Mr Ha had formed the view that an order was not required at all. He spoke of the 13 August meeting, the 8.45 am meeting, at which he, Mr Ha and Ms Budge were present. He says that Mr Ha was at his desk and we approached him. Discussion around the application and Mr Ha's worries were discussed, especially Mr Ha's view that there was not sufficient evidence for a PSO, and Mr Ha believed that an IPA was more appropriate.
- Mr Doré said at the end of the conversation, his impression was that Mr Ha agreed with the application and he would finalize the affidavit. I accept Mr Doré's evidence that whatever the words used in the conversation were, the impression that was conveyed to him, and I infer to Ms Budge, was that Mr Ha had been persuaded that the PSO was the appropriate way to go, and therefore Mr Ha was asked to complete the affidavit. Had that not been Mr Doré's impression, given what he had said at the performance meeting about him taking over the making of the affidavit, would not have made sense. It is reasonably clear to me that whatever Mr Ha said, Mr Doré was able to form a view that Mr Ha was content with the PSO.
- As I mentioned, an email, Exhibit R9, was then sent to Mr Ha, asking him to proceed with the affidavit as he had indicated that he agreed with the PSO. What is important, as Mr McLeod noted, is that that Mr Ha did not cavil with that email of 13August. He did not get back to Mr Doré or Ms Budge saying no, I do not accept that a PSO is necessary, I still believe that an IPA is the way to go and I do not want to swear the affidavit. Had that been done, given the evidence of Mr Doré, I draw the inference that Mr Doré would have completed the affidavit himself, as he said in his evidence-in-chief.
- Mr Doré said that sometimes he has robust conversations with people in Mr Ha's position about views, and they challenge each other, and that is not unusual, and that subsequently amendments can be made to documents. He gave evidence about the second meeting at around noon of that day involving Mr Ha, Ms Budge and himself. The discussion went to their worries that he had outlined. These were discussed. There was a general discussion with Mr Ha about his specific worries and it was noted that Mr Ha had 18 months experience, but he was nevertheless experiencing ongoing difficulties with his writing. He had been provided with support, but seemed to be unable to make the changes.
- There was concern regarding Mr Ha's investigative and assessment abilities and other performance issues. The finalization of the affidavit was also discussed, and Ms Budge told Mr Ha that given these matters, she intended to place him on a provisional improvement plan. Arrangements were made for the finalization of the affidavit and Mr Doré was to be available to assist Mr Ha with it, and I have related what occurred that afternoon in Mr Doré's office.
- He said he had the affidavit on his computer and changes were made based on his and Ms Waetford's feedback. He was asked whether Mr Ha had input to the changes and he said that Mr Ha clarified certain information to him. This is in contrast to Mr Ha's evidence to the effect that he said nothing in that meeting. I prefer Mr Doré's evidence where it conflicts with Mr Ha's evidence. It is inherently unlikely that in a meeting of that length, Mr Ha would have said nothing. And Mr Doré said he contacted Ms Waetford, but she was not on the phone for the whole process; he probably had her on loud speaker.
- The affidavit was completed and Mr Ha signed it. There was no suggestion that Mr Ha did not want to sign it. And as I recollect Mr Ha's evidence, he did not say that at the time of signing he protested, either.
- In cross-examination by Mr Ha, Mr Doré spelt out why there were compelling reasons for the PSO, and I do not need to go to those. But he made out what seems to me a cogent case for the seeking of a PSO rather than an IPA, which again leads me to repeat my observation that this seems to be more a matter of Mr Ha still wanting to prevail, as it were, with his view that an IPA was the appropriate way to proceed. That is not a question for me to decide. But Mr Doré certainly dispels any suggestion that this was, as Mr Ha tried to describe it, a power play by the Department to get its own way.
- Having regard to the matters to which I have referred, I am satisfied that the requirements of section 32(5) have been satisfied. Insofar as the making of the affidavit is said to be one of the reasons for Mr Ha's decompensation, it seems to me that the process outlined that I have just dealt with was reasonable management action taken in a reasonable way.
- I do not accept that Mr Ha was forced to swear the affidavit. There is no warrant for his assertion that he felt that he would be sacked if he did not swear the affidavit, nor is there any warrant in his assertion that the PIP was the start of a process to get rid of him.
- Exhibit R10 is an email from Ms Budge to Mr Ha in which she expresses concern at his statements to the effect that he was forced to swear the affidavit. This is an email that she sent on Saturday 15August. She says that she is worried about Mr Ha's assertion in an earlier email that he sent to her, that he had done Child Safety a favour whilst flexing his ability to manage the ethical issues on the child. She said it is not only about following orders, as she tried to explain to him on Thursday. It is about taking advice from others, other experts, and she again went through the reasons as to why she believed that a PSO was the appropriate manner in which to proceed.
- She pointed out that a PSO is the least intrusive order that can be sought from a court. And then she dealt with the PIP. She said she understands that he is disappointed about it, however he should look at it in a positive way and use the time to enhance his current skills and learn new skills. I do not go into the further detail of it.
- Just reverting to the question of whether Mr Ha was forced to make the affidavit and management action in relation thereto, I find that he was given considerable assistance and feedback to prepare the affidavit. I accept what Mr Doré said, that he would take it over. But on 13August Mr Ha indicated he would do it, or at least left Mr Doré and Ms Budge with that impression. It was reasonable then to request Mr Ha to continue with the completion of the affidavit, which he then did without protest.
- It seems to me that there is nothing inappropriate or unreasonable in Mr Doré's sitting with Mr Ha to complete the affidavit, and nothing untoward in Mr Doré's typing of the amendments on his computer. In my view, it was reasonable management action taken in a reasonable way, insofar as the whole affidavit process was conducted.
- As for the lunchtime meeting and the intimation by Ms Budge that Mr Ha would be placed on a PIP, I find that that meeting was an appropriate counselling meeting. The reasons for the intention to place him on a PIP were explained to him. It was to give him an opportunity to improve. There is nothing in the evidence before me to suggest that the PIP was suggested for any untoward or inappropriate reason, certainly not as a reason to commence a termination process.
- Again, I find that the conduct of the lunchtime meeting and the intimation by Ms Budge that she intended to place Mr Ha on a PIP was reasonable management action taken in a reasonable way. For those reasons, the appeal is dismissed.
- I order that Mr Ha pay the Regulator’s costs of and incidental to the appeal to be settled by agreement. If not, there may be recourse to the Commission.
- Published Case Name:
Ha v Workers' Compensation Regulator
- Shortened Case Name:
Ha v Workers' Compensation Regulator
 QIRC 111
Deputy President Kaufman
18 Oct 2016