Yates v Workers' Compensation Regulator
[2016] QIRC 68
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- Unreported Judgment
- Yates v Workers' Compensation Regulator[2016] QIRC 68
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Yates v Workers' Compensation Regulator[2016] QIRC 68
Yates v Workers' Compensation Regulator[2016] QIRC 68
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Yates v Workers' Compensation Regulator [2016] QIRC 068 |
PARTIES: | Yates, Michelle (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NO: | WC/2015/83 |
PROCEEDING: | Appeal against decision of the Workers' Compensation Regulator |
DELIVERED ON: | 21 June 2016 |
HEARING DATES: | 26, 28, 29, 30 October, 7 & 8 December 2015 1 April 2016 (Appellant Submissions) 10 May 2016 (Respondent Submissions) 23 May 2016 (Submissions in Reply) |
HEARD AT: | Townsville (26, 28, 29 and 30 October 2015) Brisbane (7 and 8 December 2015) |
MEMBER: | Deputy President Swan |
ORDERS |
|
CATCHWORDS: | WORKERS' COMPENSATION – APPEAL AGAINST DECISION – decision of Workers' Compensation Regulator – Appellant incurred a psychiatric injury – nominated stressors very vague – unpleasant workplace – causation of injury not work related – appeal dismissed |
CASES: | Workers' Compensation and Rehabilitation Act 2003 Simon Blackwood (Workers' Compensation Regulator) v Yates [2015] QIRC 174 Simon Blackwood (Workers' Compensation Regulator) v Toward [2015] ICQ 008 Roberts v Workers' Compensation Regulator [2016] QIRC 030 Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027 Simon Blackwood (Workers’ Compensation Regulator) v Adams [2015] ICQ 001 Waugh v Simon Blackwood (Workers' Compensation Regulator) & anor [2015] ICQ 028 |
APPEARANCES: | Ms J. Sorbello, Counsel for the Appellant, instructed by Shine Lawyers Mr S. McLeod, Counsel for the Respondent, directly instructed by the Workers' Compensation Regulator |
Decision
- [1]This Appeal is made by Ms Michelle Yates (the Appellant), pursuant to s 550(4) of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Workers' Compensation Regulator (the Regulator) to confirm a decision of WorkCover Queensland (WorkCover) to reject Ms Yates' Application for Compensation.
- [2]Ms Yates contends that she sustained a psychiatric injury arising from bullying and harassment she experienced during the course of her employment with Morris Corporation (the employer), while working at Ravenswood Village over a period of time between May 2012 to March 2014. The employer was in a contractual arrangement with Carpentaria Gold Mine providing accommodation, amongst other things, for mine workers at the Village.
- [3]Ms Yates described her work with the employer as that of a "utility worker". The work, at various times, included cleaning and working in the kitchen and laundry at the Village. The Village had approximately 221 accommodation-style rooms, together with a community kitchen and dining room.
BACKGROUND INFORMATION
- [4]Prior to this matter being allocated to the Commission as constituted, an application had been made by the Regulator to the Commission on the grounds that the application, as it then stood, was out of time and not valid or enforceable pursuant to s 131(1) of the Act. Commissioner Thompson heard that application – see Simon Blackwood (Workers' Compensation Regulator) v Yates[1].
- [5]That decision considered, amongst other things, the identification of the date upon which there had been "…some evaluation, that is to say, some conclusion or expression of opinion that the injury arose out of the employment"[2] as per Martin J in the matter of Blackwood v Toward[3]. The relevant date was confirmed by Commissioner Thompson as 4 May 2012.
- [6]The Appellant's nominated stressors were considered by the Commission and this finding was that:
"… the Commission was minded not to consider particular stressors that were not specifically identified as having occurred at a time prior to 4 May 2012. The Commission has effectively erred on the side of caution in that for example it was not prepared to consider a stressor be struck out that was said to have occurred 'on a date in early 2012'. The standing or otherwise of these particular stressors would best be determined by evidence in the substantive proceedings."[4]
- [7]This resulted in three stressors identified as:
- "Approximately April 2012";
- "Approximately April 2012" - A stressor with the same heading as the first, but with different facts; and
- "In or around April 2012";
being removed from the Statement of Stressors.
NATURE OF APPEAL
- [8]This Appeal is conducted as a hearing de novo and the onus rests with the Appellant on the balance of probabilities. The applicable legislation is the Workers' Compensation and Rehabilitation Act 2003, as at 2012.
- [9]Section 32 of that Act defines "injury" as:
"32 Meaning of injury
(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
…
(5) Despite subsections (1) and (3), injury does not include 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;
(c) action by the Authority or an insurer in connection with the worker's application for compensation."
PRELIMINARY ISSUES
The Statement of Stressors
- [10]At the commencement of this hearing there were 41 Stressors nominated by the Appellant. Amendments were made by the Appellant at the commencement of the hearing to ensure that these stressors fell within the permitted time frame.
- [11]The Regulator has responded to the 41 Stressors, while the Appellant, in its written submissions after the completion of the hearing, relies upon only 14 of the Stressors for the purposes of pursuing its claim as it says that these stressors are the "specific stressors". The Appellant, however, sought to retain the remaining 27 Stressors by saying that they were retained, depending upon the "type of case" pursued by the Regulator.
- [12]The Appellant submits that, on the balance of probabilities, if the Commission finds that there are "sufficient Stressors identified" in the 14 nominated stressors to establish that they were "the" major significant contributing factor for the injury", then what is included in the other Stressors relating to management action are not causative of Ms Yates' injury.
- [13]While the Regulator advised the Appellant that it was responding to the case pursued by it (the nominated 41 Stressors), without repeating all of the submissions on and around this point, it was made clear by the Regulator that even on the Appellant's own case, it called into question the role of management action as it often stated that while Ms Yates continually complained to management about alleged bullying and harassment, management effectively had done nothing to resolve the issues.
- [14]In opening submissions Counsel for the Appellant referred to "unreasonable management actions" which would be addressed in this matter [T1-3], and that "she (Ms Yates) continuously reported the difficulties she was having in the workplace to management". The Appellant also referred in these submission to Dr Graham's evidence which was that the Appellant suffered psychological decompensation as a result of workplace bullying and the feeling of hopelessness that the bullying situation would not be resolved [T1-21].
- [15]The Appellant says that the stressors giving rise to Ms Yates' condition, namely being bullied and harassed, have been "largely" substantiated. The Regulator says that which particular stressors are said to fall into this category is "entirely unknown". Against that background, the Regulator submits that the Appellant's submissions reflect the vagueness of its case.
- [16]The Regulator has, in my view, rightly responded to all of the nominated Stressors provided by the Appellant. (See Hardy v Simon Blackwood[5] "… to engage in the proceedings on the basis that statement of stressors comprises the matters which constituted the entirety of an appellant's claim".)
- [17]It is clear that many of the Stressors are replicated and/or are so vague, that it has been significantly problematic for the Commission to discern the true nature of the Stressors and where one Stressor finishes and another starts.
- [18]With regard to the Appellant's submissions concerning the remainder of the Stressors (i.e. 27 Stressors) and the belief that these could be considered, dependent upon the type of case being pursued by the Regulator, it is accepted that this ignores the fact that it is the Appellant's Appeal and the Regulator is responding to the "type of case" being pursued by the Appellant.
- [19]I have accepted the Regulator's submissions on this point.
WITNESSES
- [20]Witnesses for the Appellant were:
- Michelle Yates, The Appellant
- Kimberly Drysdale, Housekeeper/Kitchen Hand
- Michele Lamont, Occupational Registered Health Nurse Carpentaria Gold Mine
- Dr Brenda Graham, Psychiatrist
- Dr Majd Srvghad Batmnoghaddam, General Practitioner
- [21]Witnesses for the Respondent were:
- Daniel Snow, Village Manager,
- Matthew Clift, Village Manager
- Robert Romano, Projects Manager
- Bonny Stuttard, Utility Worker
- Laurel Stuttard (referred to as Chicka), mother of Bonny Stuttard
- Shellie Sullivan, Utility Worker
- Ricky Marquand, Chef Manager
- Rudolf Cahenzli, Relief Chef Manager
- [22]It is not disputed that Ms Yates was a "worker" within the meaning of the Act.
MEDICAL EVIDENCE CONCERNING THE APPELLANT
- [23]On 4 May 2012, Dr Finberg (from the Gold City Medical Centre, Charters Towers) reported on his consultation with Ms Yates that she:
"… works at Ravenswood in kitchens and laundry, C/O bullying at worksite episode yesterday. Now feels extremely anxious a [sic] suffering from what appears to be work related stress." [Exhibit 14]
- [24]On 11 May 2012, Ms Yates was seen at the same surgery by Dr Majid Batnmoghaddam who recorded that she:
"… is very depressed and stressed; breaks into tears as soon as she enters the room and she has [sic] experiencing bullying and too much stress at work place."
- [25]WorkCover Certificates were issued for Ms Yates. She was ultimately referred to a Psychiatrist, viz., Dr Brenda Graham (Dr Graham). There were subsequent medical appointments after that date.
- [26]Dr Graham provided a number of reports, after first seeing Ms Yates on 24 April 2014. While Dr Graham did not obtain Ms Yates' developmental history, she diagnosed Ms Yates as suffering from a Major Depressive Disorder – moderate in intensity and anxiety and this was within the context of a reaction to "unrelenting workplace bullying" and the inability of management to deal with Ms Yates' matters in a reasonable manner [Exhibit 13].
- [27]While Ms Yates had referred to matters which she claimed to have arisen at the workplace, she did not supply Dr Graham with the names of the persons against whom claims had been made.
- [28]Evidence was given by Dr Graham that Ms Yates had also recorded other matters as being causative of her condition, for example "false statements" made by others to WorkCover and her fear of returning to the workplace. While initially Dr Graham says that all of these matters (that is i.e. the work matters and those which occurred post‑employment) were "interrelated", she altered that opinion in re-examination by Counsel for the Appellant and said that her diagnosis of Ms Yates as at 23 April 2014, remained intact and was based upon factors which were related only to her work situation. [T4-85]
- [29]In all, the Regulator has accepted Dr Graham's evidence that the Appellant has sustained a psychiatric injury but does not accept that Dr Graham can objectively conclude that work was the cause of that condition.
APPELLANT STRESSORS
Preliminary Matters
- [30]
"(a) the process of filing and serving a list of stressors is used to identify those events or matters which an Applicant says caused the psychiatric or psychological injury;
(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;
(c) the list of stressors is not, by itself, evidence;
(d) mere provision of such a list does no more than alert the Respondent of the case to be advanced by the Appellant;
(e) however, the Respondent is entitle to engage in the proceedings on the basis that statement of stressors comprises the matters which constituted the entirety of an appellant's claim; and
(f) the Commission must decide the appeal by reference to the list of stressors and may not go beyond them when making findings."
- [31]The Appellant nominated the following stressors:
Bold type is used to identify the Stressors now relied upon by the Appellant and identified in its final submissions.
[*NOTE: The date of September 2011 below, should have been deleted by the Appellant, as the correct date was 4 May 2012.]
NO | DATE | EVENT
|
Events relevant to the bullying and harassment experienced by the Appellant | ||
A Events occurring between September 2011 and January/February 2013* when the Appellant was employed in a cleaning services position. | ||
1 | Throughout May 2012 to January/February 2013
| When the Appellant would walk past Shellie, Bonny and Chicka she would be called a bitch, a cunt, lazy, and/or tell her "that's not how you do your job" or "that's not how you do it", or words to that effect".
|
2 | Approximately May 2012 – January/February 2013 | While working in housekeeping, the Appellant entered the laundry where Shellie, Bonny and Chicka were located. Chicka turned to the Appellant and barked at her like a dog. The Appellant asked, "I beg your pardon. Are you barking at me?" Or words to that affect, and Chicka barked at the Appellant again. The Appellant completed her task in the laundry and left the scene.
|
3 | In or around 12 May 2012
| Shellie, Bonny and Chicka had approached a co-worker, Brent Roud and told him that the Appellant was a horrible person and couldn't get her jobs done, or words to that effect. The standard practice is that if a staff member completes their set tasks for the day then he/she will assist in others. On one particular day, as the Appellant had observed Shellie and Bonny leaving early rather than helping, the Appellant decided to do the same. That evening Brent approached the Appellant while she was eating dinner, questioning why she didn't remain onsite to assist her co-workers. The Appellant described the above and Brent expressed that he didn't think it was fair.
|
4 | In or around 12 May 2012
| During a toolbox meeting shortly after the interaction between the Appellant and Brent Roud, he stood during the meeting to express that he didn't think the Appellant leaving early was right. This was said with Shellie, Bonny and Chicka sitting next to him smiling. The Appellant defended herself explaining the situation. Following this Toolbox meeting the Appellant reported this event to the then Acting Village Manager, Steve, as she felt it was a personal attack against her in light of other co-workers leaving work early when their duties were completed, as she had done.
|
5 | In or about May 2012
| A mediation was conducted between the Appellant and Bonny to address the issues ongoing between them. Bonny refused to participate and called the Appellant a "fat, lazy bitch" without reprimand.
|
6 | May 2012 – January 2013
| The constant/daily bullying and harassment by Shellie, Bonny and Chicka continued as described above.
|
B Events occurring between January/February 2013 and 5 November 2013 when the Appellant was employed in a kitchenhand position. | ||
7 | January/February 2013 to 5 November 2013
| The constant/daily bullying and harassment by Shellie, Bonny and Chicka continued as described above when the Appellant walked by.
|
8 | On a day toward the start of between January/February 2013 to 5 November 2013
| The Appellant was mopping the floors in the back of the kitchen when Chicka approached her and said, unprovoked, "You're nothing but a little bitch." The Appellant responded with, "I beg your pardon" to which Chicka repeated her comment. |
9 | January/February 2013 to 5 November 2013
| Further, while the Appellant was working in the kitchen with Chicka every rostered day in the week every three weeks, Chicka would purposefully not prepare items for the Appellant's sandwich making duties. The Appellant and chef(s) would ask Chicka to perform this prep-work but to no avail.
|
10 | January/February 2013 to 5 November 2013
| Two to three times per week when the Appellant and Chicka were rostered together, Chicka would pick at the Appellant about whether she had completed certain tasks which were on the to do list, as well as criticize the Appellant's completion of those tasks.
|
11 | January/February 2013 to 5 November 2013
| [NOTE: Stressor 11 was not included in these stressors, but considered in the overall stressors i.e. 41 Stressors] |
12 | On a day between January/February 2013 to 5 November 2013
| The Appellant and Chicka were in the dining room cleaning and Chicka yelled across the room at the Appellant asking if she could read, alleging that she couldn't read because she missed a task to do on the list.
|
13 | January/February 2013 to 5 November 2013 | [NOTE: Stressor 13 was not included in these stressors, but considered in the overall stressors i.e. 41 Stressors] |
C Events occurring between 6 November 2013 and 21 March 2014 when the Appellant was working in a split kitchenhand/laundry attendant role prior until she ceased work due to her injuries. | ||
14 | From 6 November 2013 to 21 March 2014
| [NOTE: Stressor 14 was not included in the Appellant's final submissions. The Commission is unable to find any reference to Stressors described as "B(3) and B(4)" in Attachment A of the Appellant's submissions.]
|
15 | 24 December 2013 – 3 January 2014 | On 24 December 2013 an allegation was raised by Shellie that the appellant had called her a "lazy cunt". The matter was dealt with in January 2014 when Daniel Snow returned to site. The appellant stated that she had slipped on a wet towel in the laundry which is what caused her to swear. The Appellant was issued a Warning Letter for using offensive language.
|
16 | From 6 November 2013 and 21 March 2014
| The Appellant's split role was to prepare meals for the day, such as sandwiches, salads, etc., with the ingredients prepared by Chicka prior to the Appellant beginning her shift in the kitchen. The Appellant would regularly find that preparation hadn't been completed by Chicka and when she approached her Chicka would say she didn't have to do anything for the Appellant and that she can do it herself.
|
17 | On a day between 6 November 2013 and 21 March 2014
| One day the Appellant went to the fridge to gather a container of lettuce which had been prepared. Chicka ran over to the Appellant and told her that the container was hers, that she needed it, and that the Appellant should cut her own.
|
18 | 6 February 2014
| [NOTE: Stressor 18 was not included in these stressors, but considered in the overall stressors i.e. 41 Stressors] |
Events relevant to the unreasonable management actions in relation to the Appellant's concerns | ||
D Events occurring at a time throughout the period between September 2011 and March 2014, and/or the dates for which cannot be accurately/determined | ||
19 | Approximately April 2012 – March 2014
| The Appellant would verbally report the bullying and harassment up to 2 ‑3 times per week to the then acting Village Managers Steve and/or Matt Clift, Village Manager Mr Snow, and Assistant Village Managers Rudolph Cahenzli and Ricky Marquand from direct reports by the Appellant who would often be in tears. Mr Cahenzli informed the Appellant that he had repeatedly reported the bullying and harassment by Shellie, Bonny and Laurel Chicka to Mr Snow and there was nothing more he could do.
|
20 | In the period between April 2012 – March 2014
| While the Village Manager was away any complaint made by the acting Village Manager was recorded by Melinda Hancock in a notepad in the office. The Appellant's visits upon Mr Clift were recorded in this notepad and no action eventuated. |
21 | In the period between April 2012 – March 2014
| The employer's policies against bullying and harassment were only quickly mentioned during a few pre-start and Toolbox meetings over the 24 month period, one of which being on 6 February 2014.
|
E Events occurring between September 2011 and January/February 2013 when the Appellant was employed in a cleaning services position | ||
22 | Throughout April 2012 to January/February 2013
| The Appellant would regularly discuss Shellie, Bonny and/or Chicka calling the Appellant a bitch, a cunt, lazy and other inappropriate behaviour they would subject her, to the manager on duty at the time
|
23 | Approximately April 2012 - January/February 2013.
| The Appellant reported to Mr Snow an incident in which Chicka barked at her in the laundry with Shellie and Bonny present. The Appellant received no response to any investigations nor was any reprimand made.
|
24 | In or about May 2012
| Then acting Village Manager Mr Clift conducted a mediation between Bonny and the Appellant to overcome the workplace tension between them. During the mediation Bonny called the Appellant a "fat, lazy bitch". The mediation was ceased soon after and there was no reprimand for Bonny.
|
25 | [NOTE: Stressor 25 has been deleted by the Appellant.] | |
26 | In or around 12 May 2012
| No action was taken when Brent Roud raised issues against the Appellant finishing her duties early.
|
27 | 22 May 2012
| At a pre-start meeting management forced Bonny to apologise to the Appellant for her comments at the mediation. |
28 | In the period between mid-2012 and mid-2013, approximately.
| In early 2012 the new acting Village Manager, Mr Clift, started onsite. Shortly thereafter Matt approached the Appellant on the worksite expressing that he wanted to discuss the bullying that he had been told about by Melinda Hancock. The Appellant and Geoff Patterson, at her request, sat down with Matt. Melinda Hancock had informed Matt that the Appellant had been bullied and had been in tears on a number of occasions. Matt informed the Appellant and Geoff that he would look into it.
|
29 | [NOTE: Stressor 29 has been deleted by the Appellant.] | |
30 | For a period between mid-2012 to mid-2013 approximately
| Acting Village Manager Mr Clift and the Appellant would meet in his office up to several times per week in tears complaining of the bullying and harassment. Mr Clift would tell her that he knew of it and that he was trying to do something about it.
|
F Events occurring between January/February 2013 and 5 November 2013 when the Appellant was employed in a kitchenhand position. | ||
31 | Throughout January/February 2013 to 5 November 2013 | The Appellant continued to report the bullying and harassment which continued in passing Shellie, Bonny and Chicka in passing by on site, as well as the harassment the Appellant experienced from Chicka while working within the kitchen.
|
32 | 13 August 2013
| The Appellant was required to complete an online Bullying and Harassment refresher certification. While completing it, the Appellant reported to Mr Snow that the examples provided within the test were the same thing being inflicted upon the Appellant. In response Mr Snow instructed the Appellant just to complete the test. Sometime after completing the refresher certification Mr Snow asked the Appellant if she had learnt anything from it. The Appellant informed him that she had learnt that what she was experiencing was bullying and that nothing was being done about it. Mr Snow confirmed that he knew about the bullying.
|
33 | On a day between January/February 2013 to 5 November 2013 | The Appellant had reported to Mr Cahenzli of Chicka yelling at her across the dining room asking if she could read for missing a listed task. Mr Cahenzli confirmed that he heard it and was aware of Chicka's attitude and that he receives the same abuse and asked what he could do about it. The Appellant told him that he was the Assistant Village Manager and he could do something. Mr Cahenzli allowed the Appellant to finish for the day and go home but no further action was taken. |
34 | During a period within 2013
| The Appellant had reported the bullying and harassment experienced to Rob Romano, the manager above Mr Snow. Mr Romano informed the Appellant that he would discuss the matter with the Appellant on his next site visit. Despite this, Mr Romano did not speak with the Appellant, instead electing to enquire with Mr Snow, who had demonstrated a disinterest to the Appellant's circumstances. As a result Mr Romano was informed that there was no further issues and Mr Romano ceased investigating the matter.
|
35 | During a period within 2013
| The Appellant had complained to Assistant Village Manager Ricky Marquand that Chicka was not completing the required prep. Work for the Appellant to complete her duties. Management did not remedy the issue.
|
36 | In or about early April 2013 and late May 2013
| Acting Village Manager Mr Clift was at the local pub for a fundraising event. The Appellant, her husband Barry, and Geoff were there in their own time. Matt approached the Appellant, Barry, and Geoff and informed them that he would not allow the bullying to continue and that it would stop. Barry wished him luck because no one had been able to previously.
|
37 | On a date after late May 2013 and Mr Clift ceasing in his position
| Mr Clift had visited the appellant at her home to discuss the shifting of her roster from casual to full-time hours. During that discussion, the Appellant asked what he was doing about the bullying that was occurring. Mr Clift informed the Appellant that his "hands are tied" because "no one wants to go down the bullying road" or words to that effect. The Appellant thinks Mr Clift said these words because he was only an acting Village Manager and therefore didn't have the authority to open such an investigation.
|
G Events occurring between 6 November 2013 and 21 March 2014 when the Appellant was working in a split kitchenhand/laundry attendant role prior until she ceased her work due to injuries. | ||
38 | 6 November 2013 to 21 March 2014
| The Appellant would report to Daniel Snow 2 – 3 times per week when she was working with Chicka in the kitchen to report that prep had not been completed. On one occasion Daniel Snow commented that he doesn't know how she continues to turn up to work given what she experiences with Chicka, or words to that effect. Nonetheless, no action appeared to be taken.
|
39 | 24 December 2013 to 3 January 2014
| Daniel Snow investigated a complaint made by Shellie regarding the Appellant calling her a "lazy cunt". During this investigation the Appellant had explained that she had heard Shellie mumble something starting with "fuck…" The Appellant could not state in the investigation what had been said. Daniel Snow had asked her three times what Shellie had said, to which the Appellant confirmed she could not say for certain. Following a warning being given to the Appellant, Daniel Snow informed the Appellant that if she had lied in the investigation then Shellie would have also been given a warning.
|
40 | 6 January 2014
| Mr Snow held a Toolbox meeting in which the grievance procedures for the workplace were discussed. Following the meeting, the Appellant reported to Mr Snow Shellie and Chicka sniggering and laughing at Michelle. Mr Snow told the Appellant that he was getting tired of the childish behaviour but stated that he would make enquiries with Shellie and Chicka. Shellie and Chicka allegedly reported that they had been laughing at a Bonny Stuttard arriving early for work, and HR recommended Mr Snow raise grievance process in the Toolbox meeting again and provide a copy to the Appellant. Mr Snow expressed this to the Appellant suggesting she initiate a resolution with Shellie and Chicka in question.
|
41 | 30 January 2014
| Shellie had verbally abused the Appellant's daughter who had visited the site. A complaint was raised by the Appellant but nothing eventuated from this event.
|
42 | 6 February 2014
| No action to prevent harassment from occurring appeared to be taken following the Appellant's reporting of Shellie, Bonny and Chicka sniggering at her during the pre-start.
|
APPELLANT'S EVIDENCE RELATING TO EACH STRESSOR
- [32]Attachment A to the Appellant's submissions refers, for consideration, to Transcript references to support its comments. The Stressors are reproduced with obvious grammatical errors uncorrected. Upon examination of the Transcript references provided by the Appellant in support of each Stressor, it was found that in some instances, those references did not have any contextual relationship with the Stressor claimed.
- [33]Stressor 1
- The Appellant was unable to identify particular times and places where these alleged comments were made by Shellie, Bonny and/or Chicka. With one exception [T2-23] where it is alleged that Shellie called Ms Yates a "cunt" in a time frame identified as "some stage" in mid-May to mid-June and from 1 July to mid-August 2012, there is no identification of which persons said which words to Ms Yates. The generalised timeframe is problematic. In the case of Bonny, Shellie and Chicka, all deny using derogatory language towards Ms Yates [T1‑25, T2-23, T2-44].
- This Stressor is rejected on the basis that it is too vague to be appropriately addressed by the Regulator and the Commission.
- [34]Stressor 2
- The Appellant's evidence concerning this Stressor was as follows:
"While working in housekeeping, the Appellant entered the laundry where Shellie, Bonny and Chicka were located. Chicka turned to the Appellant and barked at her like a dog. The Appellant asked, ‘I beg your pardon. Are you barking at me?' or words to that affect, and Chicka barked at the Appellant again. The Appellant completed her task in the laundry and left the scene."
- The Appellant said she complained to someone in management. While she couldn't recall who she told, Mr Daniel Snow said he became aware of it at some point. Describing the word "bark", Ms Yates said it was a loud "woof, woof". The Appellant said she broke down after this incident. While she claimed that her husband Barry saw her immediately after this event, he was not called to give evidence.
- Ms Yates says that both Bonny and Shellie were also in the laundry at the time but both deny the event occurred. The Regulator says that Bonny, Shellie and Chicka only had part of the allegation put to them in cross-examination. All that was asked of them was whether the words allegedly used by Chicka had been said. They had not been questioned as to whether Chicka barked twice at Ms Yates.
- Mr Snow recalls, at some point, some information being given to him by Ms Yates regarding the barking incident. His investigation included interviewing Chicka. He said she advised that:
"…she did not bark at her in any sense, but apparently she had gone to drop off kitchen towels into the kitchen and she dropped them. That laundry was a very loud area to start with. If you didn't have a face-to-face conversation, it was very hard to hear someone. Chicka has said to me that as she walked off, Michelle didn't - or responded about some way and Chicka sort of yelled back in relation to what was happening." [T3‑69]
- I have not accepted that this event occurred as described by Ms Yates and this Stressor is rejected.
- [35]Stressor 3
- There is little evidence around the content of this Stressor to support the Appellant's contentions. Ms Yates gave no evidence about Bonny, Shellie or Chicka approaching Brent Roud and advising him that she was "… a horrible person who could not do her job". The issue was also not raised with Bonny, Shellie or Chicka in cross-examination.
- The only reference to Mr Roud related to a Toolbox meeting where he had asked Ms Yates why she had left work early one day and that Ms Yates had made commentary about Bonny and Shellie leaving work early. Mr Roud was not called give evidence; the Appellant gave no evidence about Shellie, Bonny or Chicka approaching Mr Roud and the other co-workers named in the Stressor were not cross-examined on this point.
- This Stressor must fail.
- [36]Stressor 4
- The difficulty with this Stressor was that Ms Yates did not give any evidence that Mr Roud didn't believe that her leaving early "was right"; that Bonny, Shellie, and Chicka smiled when Mr Roud said this, or that she reported the incident to "Steve" as an attack against her.
- The Appellant's Transcript reference shows that on 4 May 2012, Ms Yates discussed with Dr Finberg a meeting held on the previous day which had caused her work related stress. Beyond that, there is no reference to Ms Yates reporting the matter to anyone. Nor is there reference to the alleged responses of Bonny and Shellie. The only other medical reference around that time is that Ms Yates began taking Valium and as of 11 May 2012, was feeling better.
- In my view, the Appellant's references corroborate only the fact that there was a Toolbox meeting held in early May 2012 and the issue of others leaving work early, was raised at that meeting. What was not mentioned was Ms Yates complaining to "Steve" and that she was upset and viewed Mr Roud's comments as an attack on her. "Steve" and Mr Roud were not called to give evidence.
- This Stressor is rejected.
- [37]Stressor 5
- The Appellant's evidence concerning this Stressor was that around May 2012, she and Bonny were not getting on well. Mr Matthew Clift (Village Manager) suggested he conduct a mediation session between them.
- In the course of that mediation, Mr Clift said that Bonny had called the Appellant a "fat, lazy bitch" [T5-23]. Mr Clift told Bonny that those comments would not be tolerated. Mr Clift asked Bonny to apologise immediately to Ms Yates - an apology which occurred but was not accepted by Ms Yates.
- At that mediation meeting, the issue of whether or not Shellie had called Ms Yates a "cunt" was dismissed as Mr Clift had noted that Ms Yates said she was not 100 per cent sure that Shellie had called her a "cunt".
- Ms Yates also mentioned that she had been segregated from other workers and that she had been sworn at by Bonny, Shellie and Chicka. Mr Clift said that those events were not particularised.
- Comments by the Commission concerning allegations of segregation by Bonny, Shellie and Chicka towards Ms Yates are addressed in Stressor 31.
- Mr Clift's evidence was that, at no time did he believe that Bonny was unhappy about participating in the mediation. After that mediation meeting, a further meeting was called. Ms Yates agreed that the following position was put by management:
"(a) if anyone had a specific grievance there was a process to be followed and to be raised with the manager or immediate supervisor;
(b) the manager of immediate supervisor would evaluate the complaint, make a decision with the person raising the complaint, whether the matter needed to go further;
(c) Bonny apologised, in front of the meeting, to the Appellant for making inappropriate comments during the course of the mediation; and
(d) The Appellant formed the view that the apology was not genuine or sincere." [Regulator's written submissions, point 41.]
- The Regulator submits that Ms Yates met with Mr Paul Cavanagh and Mr Scott Randall after the mediation meeting. The issue for discussion centred around why Ms Yates would not accept Bonny's apology. The claims of harassment and bullying were not raised by Ms Yates with these people, which the Regulator says was unusual. It claims that the actions taken by management, post that mediation process, were warranted and appropriate in the circumstances.
- Bonny's evidence was that she recalled little of the meeting, save to say, that she commented upon Ms Yates' lack of an appropriate "work ethic". She also recalled describing one of her colleagues, "Kim" as a "bitch".
- Bonny recalled Ms Yates crying and leaving the mediation meeting. On the following day, at another meeting with Mr Clift, she apologised to Ms Yates (an apology which she described as a "general apology") and she noted that Ms Yates refused to accept that apology [T4-39]. Bonny believed that both she and Ms Yates were meant to apologise to each other and in her case, she did so on the basis that some of her actions may have been misinterpreted by Ms Yates.
- Bonny, in cross-examination, denied the allegations made by Ms Yates that she used derogatory language towards her. She said Ms Yates did not speak to her usually. Counsel for the Appellant asked Bonny about a statement she had signed after that meeting which included this sentence:
"Nearing the time of calling Michelle a 'fat, lazy bitch', I had numerous issues with her work ethics". [T4-46]
- Mr Clift's evidence was that during the meeting he had asked Bonny why she had a problem with Ms Yates. He said her response was:
"… well, she's a – she started off with she's a fat, lazy bitch". [T5-23]
- I have accepted the evidence from Mr Clift that Bonny had said the words so alleged to describe Ms Yates in the meeting/mediation which was held on 12 May 2012 and I have accepted that Bonny was advised/told by managers to apologise to Ms Yates.
- Bonny did apologise to Ms Yates and, even if Ms Yates did not believe the apology was genuine, it was made and that, under normal circumstances, should have been the end of the matter.
- I accept that Ms Yates was hurt by the comment made by Bonny towards her but I have rejected Ms Yates' claim that these comments were made by Bonny "without reprimand" from management.
- This Stressor is accepted to the extent that Bonny used those words towards Ms Yates but, it is relevant that management acted quickly and decisively in resolving the issue and Bonny issued an apology to Ms Yates.
- [38]Stressor 6
- There is insufficient detail of this Stressor to take the matter any further. All that was known from the Appellant's evidence was that nothing had changed and the "ladies" continued to cause her concern.
- This Stressor has not been established by the Appellant and consequently fails.
- [39]Stressor 7
- This Stressor applies to the period of January/February 2013 to 5 November 2013. Ms Yates referred to Chicka being very "nasty" and "awful" to her during this period. The "nasty incident" is described by Ms Yates in giving her evidence as follows:
"She asked – yelled out across the dining room one day when Rudolf was on management if I could actually read and I said, yes, I can and on the wall where she was prepping some veggies were an am and pm – forms that – just paperwork that'd been laminated telling you what your jobs were in a quick way and she said you've missed this and this and I said, well, I haven't finished yet. You know, I'm still – I'm still finishing off. I will get to them."
- Chicka denied making these comments. While Ms Yates said that Chicka had called her a "little bitch" on occasions, Chicka's response was that she could not recall this happening.
- Counsel for the Appellant claimed that Chicka's evidence was unconvincing. However, while stating this, Counsel for the Appellant had not cross-examined Chicka on the claim that she had sniggered at Ms Yates; that Chicka had claimed that Ms Yates had missed things in the performance of her duties and that Chicka had made loud comments as she walked past Ms Yates.
- Shellie admitted that she and Ms Yates did not have a good working relationship, but in saying that, she denied that she had ever called Ms Yates a "bitch", "lazy" or a "cunt" (although Ms Yates was not 100 per cent sure that Shellie had said this to her) and that she had not sniggered at Ms Yates. She also denied all other allegations made against her by Ms Yates.
- Similarly, Bonny said she had not sought to snigger at Ms Yates; ignore her or intentionally segregate her from the lunch room; or make derogatory comments about Ms Yates' work practices.
- The breadth of the allegations put to Bonny, Shellie and Chicka during cross-examination were denied.
- This Stressor is not particularised and is not accepted as it fails to provide evidence which can be properly addressed by the Regulator. As well, out of the generalised commentary made, are accusations which span a period of 11 or more months.
- This Stressor is rejected.
- [40]Stressor 8
- This Stressor relates to a day sometime between January/February 2013 and 5 November 2013 where Ms Yates says that Chicka walked past her and said "you're a little bitch, aren't you" to which Ms Yates responded, "I beg your pardon".
- Mr Rudolf Cahenzli's (Relief Chef Manager) gave evidence that he was never made aware that an incident of the type described had occurred.
- I have rejected Ms Yates claim in this regard. This Stressor is rejected.
- [41]Stressor 9
- Ms Yates commenced working in the kitchen in February 2013. Ms Yates remained in that role until September/October 2013. She was also required to make sandwiches, wraps and salads. The Kitchen Hand would do all her prep work such as cutting up the tomatoes, lettuce and having cheese prepared.
- Ms Yates said that when Chicka was rostered to do that prep work for her, she refused to perform those duties.
- In evidence, Chicka said that she had performed some of the prep work for Ms Yates, but she had understood Ms Yates' concern because management had told her that she was not prepping enough food for Ms Yates. Chicka understood the management instruction to mean that she must "make sure you did enough".
- In cross-examination, Chicka was not asked whether she had intentionally, not prepared items.
- I have not accepted that this issue constitutes a Stressor . It was a grievance. Ms Yates expressed her concern and the matter was rectified by management and Chicka.
- [42]Stressor 10
- The only evidence that can be found regarding this Stressor is as follows [T1-42]:
"Okay. While you were working in the kitchen, did you have any interaction with Shellie, Chikka or Bonny?‑‑‑With Bonny and Shellie, I would have interaction with them when they had smoko or lunch. They’d come in and sit in the dining room and eat.
And what was that interaction like?‑‑‑They’d come in the door, screw their nose up when any saw me, point out things that hadn’t been refilled or anything like that, which I hadn’t got around to because I didn’t finish until 12.30, 1, 1.30, so I hadn’t not around to filling them up and they’d – they’d say quite loudly in the dining room, oh, that’s empty. We can tell who’s working today. They – Shellie was vocal in front of the client about me and I was told from the client what she had said in the crib areas and stuff.
When you mean the client, who’s the client?‑‑‑The client’s Carpentaria Gold.
Did you have any interaction with Chikka?‑‑‑Yes. We worked a shift of two weeks on, one week off and we would – I’d be on morning shift when she was – she was coming in for the pm shift.
Okay. And during that period, what were your interactions with Chikka like?‑‑‑Very awful. She was nasty."
- Ms Yates explained that some of this information came from "they" (people from Carpentaria Gold Mine) who passed information on to her. These people were not named nor were they called to give evidence.
- These allegations were denied by Bonny, Shellie and Chicka.
- The vagueness of this Stressor makes it difficult to address. I reject this Stressor.
- [43]Stressor 11
- The Regulator states that there is no Transcript reference to this Stressor. The Commission has also failed to find any references and thus, this Stressor is rejected.
- [44]Stressor 12
- Counsel for the Appellant, posed the following question to Ms Yates:
"In what way was she nasty to you?‑‑‑She asked – yelled out across the dining room one day when Rudolf was on management if I could actually read and I said I beg your pardon, and she said can you read and I said, yes, I can and on the wall where she was prepping some veggies were an am and pm – forms that – just paperwork that’d been laminated telling you what your jobs were in a quick way and she said you’ve missed this and this and I said, well, I haven’t finished yet. You know, I’m still – I’m still finishing off. I will get to them." [T1-42]
- Chicka denied this allegation. Had this event occurred in the manner so described by Ms Yates, while it may contain an impolite phrase (viz., "can you read") that does not, in my view, constitute terminology which could be described as "nasty" sufficient for it to constitute a Stressor which contributed to Ms Yates' condition. Ms Yates' evidence shows that she dealt with the situation without further ado.
- This event, in my view, does not constitute a Stressor.
- [45]Stressor 13
- No Transcript references were detailed in Attachment A of the Appellant's submissions, to support this Stressor. Ms Yates gave no evidence regarding this Stressor and as such, it is rejected.
- [46]Stressor 14
- The Commission is unable to find any reference to Stressors described "B(3)" and "B(4)" in Attachment A of the Appellant's submissions and consequently, this Stressor must fail.
- [47]Stressor 15
- The difficulty with this Stressor for Ms Yates was that she agreed that she had used the words "lazy cunt" when she slipped on a wet towel while Shellie was in the room with her.
- Shellie complained to Mr Snow about the Appellant's language. Ms Yates said she had not directly sworn at Shellie.
- Ms Yates' complaint was that she was reprimanded by Mr Snow for swearing when she said Shellie called her a "cunt" on a fortnightly basis without reprimand. Shellie had previously denied that she had used that language towards Ms Yates.
- Mr Snow and Ms Melinda Hancock held a meeting on 31 December 2013 and various allegations were put to Ms Yates. Mr Snow issued Ms Yates with a Warning Letter for using offensive language and she did not challenge that outcome and her concerns or disappointment with the outcome were not recorded in this Stressor. (Ms Hancock was not called to give evidence.)
- This is an occasion upon which Ms Yates agreed she had said the words complained of. She was issued with a warning letter as a consequence. It is difficult for Ms Yates to sustain this event as a Stressor as she admitted to the allegation. Shellie on the other hand had denied speaking to Ms Yates in a similar manner.
- I have rejected this Stressor.
- [48]Stressor 16
- This Stressor has been addressed in Stressor 9.
- [49]Stressor 17
- Similarly with this Stressor, it is addressed in Stressor 9.
- [50]Stressor 18
- There are no Transcript references detailed in Attachment A relevant to this stressor. Ms Yates gave no evidence in this regard. This Stressor is rejected.
- [51]Stressor 19
- In considering this Stressor, and particularly in relation to Mr Clift, the Regulator stated that Mr Clift was present at the site on 17 May 2012 until 3 June 2012 and from 1 July to 22 August 2012, held the position of Relief Manager. The Appellant believed that Mr Clift had been in that position continuously from May 2012 to February 2013. This is clearly wrong.
- Ms Yates gave evidence that Mr Clift was willing to listen to her and that he would not tolerate bad behaviour on the site. [T2-17]
- Notwithstanding that, Ms Yates said she had complained to Mr Clift on about fifty occasions concerning the issues of bullying and harassment by Bonny, Shellie and Chicka. The issue of alleged segregation of Ms Yates by the Bonny, Shellie and Chicka has not been mentioned specifically in any of the Stressors but was generally raised. It has been dealt with in Stressor 31.
- In mid-August 2012, Mr Snow arrived at the site as Village Manager. Ms Yates claimed that when she had complained to him of this behaviour, he determined to "look into it" [T2-26]. If Mr Snow was not on the site, she would contact Mr Cahenzli and advise him that she was being bullied and harassed and Shellie was calling her a "cunt", and would snigger and laugh at her [T2-32]. If Mr Snow was on the work site, Ms Yates said she would see him three or four times a week to make her complaints.
- Mr Snow's evidence was that he was aware of "niggling" problems amongst these workers. He had been under the impression that prior to his arrival, these matters had been taken care of.
- While he was aware of these issues, he was unaware that there had been allegations of offensive language between the various workers [T3-64]. Ms Snow's evidence was that the complaints of Ms Yates primarily related to operational matters i.e. daily workings in the kitchen area. When Ms Yates spoke to him about these matters, he believed that she had perceived these issues to be related to her being bullied. He stated that these complaints were never made on a "regular basis" [T3-70].
- He recalled Bonny as having "a bit of an attitude" but did not recall her calling people names such as "bitch" nor Ms Yates saying that she had ever spoken to her like that [T3-73].
- In an overall summary of the situation in which he found himself at the work site when first arriving, Mr Snow stated:
"A lot of the conversations that came from Michelle were also extremely nasty against other staff. These weren't just necessarily complaints about her being harassed. It was talking quite negatively and quite nasty about other staff members. So – exactly. I deemed these as passing, generic conversations when I'd first just arrived as the new village manager. I wasn't there designed to just go full blazing into a – a complete overhaul of all the staff. But, you know, we'd have different discussions at different times. But, you know, the question, I'm sorry, you've just asked me is a one-way street. There was a lot of difference conversations held with these times you're talking about." [T3-122]
- Concerning the "generic conversations" he held with Ms Yates about Bonny, Shellie and Chicka, Mr Snow described these discussions, in response to cross-examination from Counsel for the Appellant, as follows:
"Not necessarily complaints, but commentary. But again, commentary from Michelle was also quite negative and very nastily backwards as well, so it was – unfortunately, I'm sorry, it was tit for tat. It was – it was complaints about what she was perceiving as being bullied, but also very nasty comments about other staff involved at that site too.
So there's many complaints about Ms Yates' perception that she was being bullied, wasn't there? ---There was a number of occasions, yes.
There were numerous complaints? --- There was a number of occasions, yes.
There was numerous complaints? --- Commentary, not complaints,. Complaints we would have done – written and informal or formal investigation side of it.
She specifically identified to you on many occasions that she felt like she was being bullied and harassed by Bonny, Chicka - Stuttard, Chicka Stuttard and Shellie Sullivan? --- On the rare occasion; not on multiple or numerous occasions.
And your perception was that it was about an attitude or negativity from Mrs Yates, wasn't it? --- Yes." [T3-123]
- Mr Snow said he had believed that there was a culture at the work site that people were treating each other disrespectfully but he was not aware of people being abusive to each other [T3-125].
- Upon moving to the kitchen area, Ms Yates complained about Chicka's behaviour towards her. Mr Snow's response was to advise her that he would speak to people individually.
- With regard to Mr Ricky Marquand (Chef Manager), Ms Yates said she had complained to him about six times, however, Mr Marquand recalled only one particular complaint of Ms Yates which related to Chicka.
- In all, Ms Yates believed that she had made about 70 complaints to management. Ms Yates' evidence was that Shellie had said up to about 30 times that Ms Yates could not do her job. This was always said in a loud manner. It was also alleged that Shellie said words to the effect "You can tell who is working today", up to about 20 times. A further complaint was that Bonny would snigger and laugh when it was said and that Bonny had also said the same thing to her about four times.
- Mr Cahenzli was aware that Ms Yates and Bonny did not get on when working in the kitchen. They sometimes talked to each other and then they would not talk. Mr Cahenzli said that if the incidents so alleged by Ms Yates had occurred, then he would have investigated and addressed those concerns. [T6-6]
- Quite specifically, the Regulator states that Mr Cahenzli:
"… denied that there was conduct from Chicka which was derogatory and upset the appellant; was unaware that Shellie acted in a manner that was inappropriate towards the appellant; never observed Shellie saying anything in a derogatory manner; hearing Shellie call the appellant names" [T6-7].
- Mr Cahenzli, accepted that there were personality difficulties between Ms Yates, Bonny, Shellie and Chicka but he had never seen Ms Yates in tears, nor did she ever complain to him about being called names by Bonny, Shellie or Chicka [T6‑13].
- In summary, the Regulator states that Mr Cahenzil's evidence was to the effect that:
"(a) He did not recall an incident when Chicka was alleged to call Ms Yates a "right little bitch".
- (b)He did not recall Bonny taking umbrage at a roster change.
- (c)He denied that Chicka conducted herself in such a way that she made derogatory and upsetting comments to Ms Yates.
- (d)He was not aware of Ms Yates' allegations concerning Shellie.
- (e)He had not observed Shellie saying anything in a derogatory manner or had he heard Shellie call Ms Yates names.
- (f)He had not observed Ms Yates in tears and she had never complained to him about being called names by either Shellie, Bonny or Chicka." [Regulator's submissions – page 23]
- I have not accepted Ms Yates' claim that she had made seventy complaints to various Village Managers. I have accepted that on occasions she had spoken to these Managers in a manner which is best described as ongoing commentary and grievances.
- I have rejected this Stressor.
- [52]Stressor 20
- Ms Yates said that Ms Hancock would often see her in tears and that Ms Hancock had recorded in her note pad the number of occasions upon which Ms Yates went to visit Mr Clift.
- Ms Yates did not give evidence that a note pad existed and that this pad recorded the frequency of her visits to Mr Clift.
- Ms Hancock was not called to give evidence in this matter. This Stressor is rejected.
- [53]Stressor 21
- Ms Yates' evidence on this point was that she appeared to be responding to the evidence given by Mr Snow in Exhibit 10, which is a copy of the Minutes of the Toolbox meeting held on 6 January 2014.
- Mr Snow said he had discussed grievance complaints procedures prior to Toolbox meetings and specifically on 6 February 2014.
- Other than as a response to Mr Snow's affidavit, there was nothing in Ms Yates' evidence which suggests that this management action could be considered a Stressor.
- This Stressor is rejected.
- [54]Stressor 22
- This Stressor is significantly similar to that of Stressor 19 in that, Stressor 19 covers a period of time from April 2012 to March 2014 and this Stressor covers a period in time from April 2012 to January/February 2013.
- Ms Yates' evidence was that during her period of time working in utilities, she constantly raised issues with management (i.e. Mr Clift, Mr Snow and Mr Marquand) concerning problems she was having with Bonny, Shellie and Chicka and that at least once a week, she would discuss these problems with whichever manager was present at the work site.
- Mr Snow's evidence was that if that type of complaint had been made to him by Ms Yates he would have dealt with it and if her allegations were found to have occurred, "they certainly would have been performance managed" [T3-60].
- I have preferred Mr Snow's evidence to that of Ms Yates in that most of the issues raised by Ms Yates related to the type of work performed at the site (described as "operational issues") as opposed to the type of allegations Ms Yates says she continually raised with Management.
- I have accepted Mr Snow's evidence that Ms Yates' commentary about Bonny, Shellie and Chicka was very derogatory towards them. He viewed her behaviour as little more than "tit for tat". Mr Snow said, had complaints been made about Bonny, Shellie and Chicka as claimed by Ms Yates, then he would have dealt with that matter at the time.
- I reject this Stressor.
- [55]Stressor 23
- This is a Stressor to which prior reference has been made at Stressor 2. However, Stressor 2 does not state that Ms Yates reported this matter to management. This Stressor (Stressor 23) claims that she did so.
- Ms Yates' evidence was that she was unable to recall with whom in management she lodged her complaint, even though her Stressor states that it was Mr Snow.
- Mr Snow said he had spoken to Chicka and also discussed the issue with Human Resources Officers for the employer and the matter was not taken any further because both Chicka and Ms Yates had different versions of the event.
- Ms Yates said that Bonny and Shellie were in the laundry when this event is alleged to have occurred. Both denied that an incident of this type had occurred as described by Ms Yates and I have accepted that evidence.
- The Regulator also claims that the full version of Ms Yates' evidence was not put to both Bonny and Shellie. I accept that is the case but have formed the view that this incident had not occurred in the manner so described by Ms Yates.
- I have preferred Mr Snow's evidence that he investigated that matter but it was one which was unable to be resolved satisfactorily.
- This Stressor is rejected.
- [56]Stressor 24
- The content of this Stressor has been dealt with under the heading of Stressor 5.
- [57]Stressor 25
- This Stressor was deleted by the Appellant
- [58]Stressor 26
- There are only two lines of Transcript nominated by the Appellant in Attachment A of its submissions to support this Stressor. The wording in the lines nominated do not reference or support this Stressor. There is no evidence from Ms Yates concerning this matter.
- This Stressor is rejected.
- [59]Stressor 27
- The situation with this Stressor is that Ms Yates' evidence was to the effect that she did not believe that Bonny's apology was sincere [T2-59]. Bonny did not give evidence that she was forced to apologise by management to Ms Yates. Her evidence was that management had told her to apologise "and to get along with each other". Bonny apologised as required.
- The Regulator submits that the request from management to Bonny was appropriate in the circumstances and relative to what occurred in the mediation. That Ms Yates perceived the apology of Bonny to be insincere, does not alter the fact that an apology was offered [see Stressor 5].
- I reject this Stressor.
- [60]Stressor 28
- Ms Yates said that Mr Clift had been aware of the bullying and harassment towards her by Bonny, Shellie and Chicka and to that end, he had arranged for Ms Yates and Mr Geoff Pateman to attend a meeting which ultimately became the "mediation" meeting to which previous mention has been made.
- Ms Yates' claims concerning Ms Hancock were never put to Mr Clift. In the course of discussion with Ms Yates, Mr Pateman and Mr Clift, Ms Yates said the following occurred:
- (a)That the meeting had lasted 30 – 45 minutes.
- (b)Ms Yates detailed her bullying and harassment claims.
- (c)Ms Yates referred to being segregated in the workplace by Bonny, Shellie and Chicka.
- (d)Many matters were discussed and Mr Pateman was in attendance for the entirety of the meeting.
- (e)Mr Pateman added that he had also been bullied and harassed by people.
- (f)Both Mr Pateman and Ms Hancock were not called to give evidence.
- The end result of that meeting was, as Ms Yates claimed, that Mr Clift would look into it.
- Mr Clift could recall Ms Yates crying at the time and he believed that it was because she had some disagreement with Bonny prior to the meeting. As previously mentioned, Mr Clift denied that he had seen Ms Yates three or four times a week concerning her problems with the named co-workers.
- Generally the same reasons applicable to Stressor 5 are adopted for this Stressor together with the decision that I have preferred the evidence of Mr Clift to that of Ms Yates.
- Again, the issue regarding alleged segregation of Ms Yates by Bonny, Shellie and Chicka has been addressed in Stressor 31.
- This Stressor is rejected.
- [61]Stressor 29
- This Stressor has been deleted by the Appellant.
- [62]Stressor 30
- The content of this Stressor has been previously addressed in Stressor 19. In addition to those issues raised in Stressor 19, Mr Clift said that he had visited Ms Yates at her home to discuss changes in timetables and rostering.
- This is contrary to Ms Yates' evidence where she states that Mr Clift came to her home to discuss the difficulties she was experiencing with Bonny, Shellie and Chicka. Ms Yates said that Mr Clift claims to have been aware of the issues and that he was not going to tolerate that type of behaviour at the work site.
- Ms Yates said her husband, Mr Barry Yates, was present at the time. Ms Yates claimed that, notwithstanding Mr Clift's comments, Ms Yates noticed no change in the behaviour of Bonny, Shellie and Chicka [T1-28]. Mr Yates was not called to give evidence by the Appellant.
- I have preferred Mr Clift's evidence over that of Ms Yates. This Stressor is rejected.
- [63]Stressor 31
- The content of this stressor has been considered in Stressor 19. What is additional to that commentary in Stressor 19, was that Mr Cahenzli was of the opinion that Ms Yates was in part responsible for her own isolation as she had made no effort to go and sit with Bonny, Shellie and Chicka just as much as the three women made no effort to include her. However, Mr Cahenzli, upon making enquiries about this claim, found that Ms Yates was a smoker and as she could not smoke inside the building, she sat outside.
- In my view, the segregation claim (within the ambit of "Bullying and Harassment" claims) made by Ms Yates, is not accepted.
- This Stressor is rejected.
- [64]Stressor 32
- I can see little in the primary commentary with regard to this Stressor which could possibly cause concern to Ms Yates. What was conducted by the employer was a basic Bullying and Harassment course, which had been introduced by the employer for all employees and all that was required of Ms Yates, was to do a refresher course.
- Ms Yates said she told Mr Snow that the points for discussion in the course were indicative of what she had been experiencing in the workplace for some time and he acknowledged that by saying "Yeah". Mr Snow's evidence was that he had to approach Ms Yates on a couple of occasions to get her interested in doing the course. It was apparent to him that she did not wish to do it. He also denied the conversation which Ms Yates said occurred.
- I have preferred Mr Snow's evidence. This Stressor fails.
- [65]Stressor 33
- A similar claim was made in Stressor 31. While Ms Yates claimed that Mr Cahenzli said that Chicka treated him as badly as she treated Ms Yates, the allegation was not put to Mr Cahenzli in cross-examination.
- This Stressor is rejected.
- [66]Stressor 34
- The Appellant's concern regarding this matter was that she had spoken to Mr Robert Romano (Project Manager) who had been advised of her problems at the work site and that he said he told her that he would discuss the matter on his next visit to the site. Ms Yates said this hadn't happened and Mr Romano had chosen to speak with Mr Snow who, by this time, had become disinterested in Ms Yates' concerns. Nothing further was done by Mr Romano.
- Mr Romano's evidence was that Ms Yates had discussed with him problems concerning food issues and the "treatment" she had been receiving from Bonny and Shellie. While Ms Yates said she had referred to the whole gamut of her concerns with the named co-workers, Mr Romano said that Ms Yates referred generally to problems she was having with Bonny but she had not outlined the specifics of those issues with him. Ms Yates had also advised him that she was happy to work in the laundry. Mr Romano was adamant, during cross-examination, that he had not been told by Ms Yates of alleged bullying, being called names, or the named workers sniggering at her.
- I prefer the evidence of Mr Romano to that of Ms Yates. This Stressor is rejected.
- [67]Stressor 35
- This Stressor related to Mr Marquand and his alleged lack of action concerning Ms Yates' complaints. While Ms Yates again stated that she had presented to him the entirety of her concerns with her fellow workers, nothing had occurred. Mr Marquand's evidence is that Ms Yates had mentioned Shellie calling her names and Chicka making derogatory comments towards her. Mr Marquand was unable to recall the specifics of those matters. Mr Marquand reported what he had said to other employees as a result of Ms Yates' complaints. His evidence was as follows:
"And what did you tell her? --- I said that we – same thing -. So I've discussed it with the other guys. We all need to work together. It's a small team. If you find something that isn't done you can slice some more tomatoes, get carrots, do whatever we need to do to complete that. And they're not just jobs that are, like, specific that one person definitely has to do and no one else can do it. It's – it – most kitchens, sort of, work that way. If you need it, you'll do it."
And? --- Help out the team." [T5-12, 3]
- I accept that Ms Yates did not provide specific allegations to Mr Marquand and that he had done his best to respond to what he understood was the nature of the complaint.
- I prefer the evidence of Mr Marquand over that of Ms Yates. This Stressor is rejected.
- [68]Stressor 36
- Ms Yates said she and her husband were at the local hotel for a fundraising event. They spoke to Mr Clift who advised them that he would not let the bullying of Ms Yates continue.
- This discussion was allegedly held after the May mediation session. Mr Clift, while recalling that he had attended the local hotel for a fundraising event, denied that he had held a conversation of the type described by Ms Yates with her. Neither Mr Yates nor Mr Pateman were called to give evidence.
- I prefer the evidence of Mr Clift. This Stressor is rejected.
- [69]Stressor 37
- Sometime in late May 2013, Mr Clift had visited Mr and Mrs Yates at their home. When asked what he was doing concerning Ms Yates' complaints, Ms Yates said Mr Clift had told her "my hands are tied" because "no-one wants to go down the bullying road" or words to that effect.
- Ms Yates claimed that Mr Clift explained that he was only an acting Village Manager and he did not have the authority to instigate such an investigation. Ms Yates agreed that Mr Clift had discussed with her the roster and the possibility of moving from casual work to full-time work. Mr Clift did not recall any other conversation occurring regarding Ms Yates' complaints about the three named co‑workers. All he recalled was a discussion that occurred in regard to roster changes.
- I have accepted Mr Clift's evidence over that of Ms Yates. This Stressor is rejected.
- [70]Stressor 38
- This Stressor relates to Ms Yates' claim that she met with Mr Snow at least two to three times per week to discuss her concerns. She claims that Mr Snow told her that he couldn't understand how she could keep coming to work given Chicka's treatment of her. Notwithstanding that, Ms Yates said that Mr Snow did nothing to assist her.
- Ultimately, Mr Snow's view was that Ms Yates was not being bullied as alleged. Most of her complaints, in his view, related to the food preparation matters. Mr Snow's memory was that of Ms Yates complaining of "niggling daily glitches" while making salads.
- I have preferred Mr Snow's evidence over that of Ms Yates. This Stressor is rejected.
- [71]Stressor 39
- This Stressor relates mostly to what was contained in Stressor 15 concerning an incident which occurred on 24 December 2013.
- In this Stressor, Shellie had complained that Ms Yates had called her a "lazy cunt". Ms Yates said that she had heard Shellie swearing but she was unable to say what had actually been said as Shellie had commenced a "mumbled" sentence beginning with the word "fuck".
- It appears that the complaint is that Mr Snow asked Ms Yates on three occasions, what Shellie had said but Ms Yates remained uncertain. Ms Yates received a warning for this and her stressor stated that "Daniel Snow informed the Appellant that if she had lied in the investigation then Shellie would have also been given a warning".
- I am uncertain as to what this actually means.
- The Regulator's perception was that Mr Snow denied the allegation put to him that he somehow wanted the Appellant to lie because if she did lie, then a warning letter could be issued to Shellie.
- Mr Snow's evidence is that:
"I did give Michelle that encouragement to say if something has taken place, this is your opportunity to defend what you have now been alleged to being said…" [T3-71]
- This nominate Stressor is rejected on the grounds that Mr Snow's evidence is more plausible and believable than Ms Yates'.
- [72]Stressor 40
- There has been no evidence reference in Attachment A to support this Stressor. This Stressor is rejected.
- [73]Stressor 41
- There was no evidence referenced in Attachment A to support this Stressor. The Stressor is rejected.
- [74]Stressor 42
- There was no evidence referenced in Attachment A to address this Stressor. This Stressor is rejected.
WITNESSES FOR THE APPELLANT
- [75]Two other witnesses gave evidence for the Appellant, Ms Kimberly Drysdale and Ms Michelle Lamont.
Evidence of Ms Drysdale
- For the purposes of the time frame in which this matter is being considered, Ms Drysdale was working for the employer for 2 weeks in May 2012.
- Ms Drysdale was employed as a utility worker in the housekeeping and kitchen areas of the work site. She had worked for the employer from January/February 2012 through until mid-May 2012.
- Ms Drysdale believed that Bonny, Shellie and Chicka behaved badly towards Ms Yates and she was unsure as to whether it was Bonny or Shellie who had told her that Ms Yates had a "bad attitude, was lazy and lived in a hovel".
- Mr Drysdale's described herself as a "very intimidating person", but she determined to leave her employment because she had been bullied by Bonny and Shellie.
- Her evidence was that at the toolbox meeting held in early May 2012, if Ms Yates added commentary to any issues under discussion, others at the meeting (including Chicka) would tell her that no-one was interested and would tell her to "shut-up" because she was stupid [T3-20]. She said this commentary occurred in the presence of Mr Kelvin Davies and Mr Cahenzli. The nature of the topic being discussed at the time was not given, but she described the behaviour as "so rude". Mr Cahenzli's evidence was that he had not observed Bonny, Shellie and Chicka behaving abusively towards Ms Yates.
- The Regulator submitted that the only evidence of relevance given by Ms Drysdale was that she remembered Bonny apologising to Ms Yates.
- In considering Ms Drysdale's evidence, I accept that there was animosity amongst the named workers, including Ms Drysdale who had formed a friendship with Ms Yates.
Evidence of Ms Lamont
- Ms Lamont is an occupational registered health nurse employed by Carpentaria Gold Mine from 2002 to 2013.
- She recalled Ms Yates telling her that she was unwell and feeling "being stressed and bullied in the workplace" by Bonny, Shellie and Chicka. She referred Ms Yates to a General Practitioner in May 2012. During that period she also saw Ms Yates, as a friend, about two to three times per week.
- Ms Lamont made reference to Ms Yates being segregated in the lunch room by Bonny, Shellie and Chicka. Ms Lamont said that she also was a smoker, and she and Ms Yates would sit outside the lunch room area to have a cigarette [T3-48]. She believed that she and Ms Yates had no choice other than to do this as the other three women would not make room for them inside of the lunchroom.
- In considering Ms Lamont's evidence, I accept that Ms Yates spoke to her concerning difficulties she was having with co-workers. On the matter of segregation, I have found that primarily Ms Yates sat outside of the lunch room because she was a smoker, as was Ms Lamont.
CONSIDERATION OF EVIDENCE AND CONCLUSION
- [76]The Appellant submitted that based upon the "unchallenged evidence of Dr Graham", the Commission has only to decide whether the Appellant has "established that she was bullied and harassed by three main perpetrators".
- [77]Concerning the specialist medical evidence given, save for Dr Graham's evidence that events at work and outside of it were interrelated and causative of Ms Yates' injury, and her later retraction of that point, the following is not a criticism of Dr Graham's evidence. Dr Graham was presented with information from Ms Yates upon which she made a clinical finding. It is accepted that Ms Yates suffered a psychiatric injury. However, as I have found that Ms Yates was an unreliable witness, I am unable to accept Dr Graham's opinion upon the questions of causation of Ms Yates' injury.
- [78]Counsel for the Appellant further added:
"More specifically, the Tribunal need only be satisfied, on the balance of probabilities, the sufficient stressors identified 1 to 18 are established such that they were the major significant contributing factor to the injury."
- [79]Counsel for the Appellant described the Stressors as being "largely substantiated". The ones which fell into that category have not been specifically identified.
- [80]Included in the "Further Amended Statement of Stressors" was the assertion that the management action identified at Stressors 19 to 42 were not causative of the injury sustained. This, in my view, is a statement which is inconsistent with the case as outlined by the Appellant in its opening submissions and conducted by the Appellant in the Hearing.
- [81]The difficulty with this submission, is that the Appellant's case was based upon claims that management had failed to act on Ms Yates' complaints.
- [82]In my view, the Regulator was entitled to engage in the proceedings on the basis that the Statement of Stressors comprised the matters which constituted the entirety of the Appellant's claim.
- [83]Significantly, in Simon Blackwood v Adams[8] Martin J stated that the Commission is to confine itself to the list of nominated stressors and may not go beyond them when making findings.
- [84]The Appellant submitted that it could point to only one mediation process (which it said had failed) conducted by management to deal with Ms Yates' concerns. It said that as the employer had taken no action to assist Ms Yates, it was unnecessary to consider the exclusionary provisions of s 32(5)(a) of the Act.
- [85]When determining the question of reasonable management action, the Appellant stated that consideration must also be given to the lack of reasonable management action exhibited by the respondent. In Waugh v Simon Blackwood[9], Martin J observed:
"Management action can be viewed in a global way … the effect of the various omissions and the steps which were taken constitute management action which was not reasonable".
- [86]When considered globally, the Appellant says that the evidence shows that management were aware there were ongoing interpersonal difficulties between Ms Yates and the other three co-workers and had made no real attempt to manage the situation reasonably.
- [87]Notwithstanding that submission, the Regulator has not made any concessions that either management was unaware of, or uncaring towards, Ms Yates' complaints or that it had taken no action whatsoever to respond to those complaints. It says that the exclusionary provisions of the Act would apply in those circumstances (s 32(5)(a) of the Act).
- [88]There is little question that most of the nominated Stressors provided by the Appellant are vague, so much so that many could not be properly responded to by the Regulator. There were very few occasions when the particularisation of a stressor was sufficient to enable a considered opinion to be formed from the evidence given on the point. As earlier stated, this difficulty was evident in the very structure of the Stressors. (For example, Stressor 17 which provided a time frame of "On a day between 6 November 2013 and 21 March 2014.)
- [89]It was clear that Ms Yates' evidence related to an alleged pattern of behaviour on the part of Bonnie, Shellie and Chicka towards her and also that when she complained of this to management, nothing was done.
- [90]I have not accepted Ms Yates as a credible witness. I have not accepted her assertions that the events referred to in her evidence occurred as she had described them. I have also not accepted her evidence that she had approached management on the number of times alleged. I have accepted that when she did approach management her complaints formed the basis of commentary/grievances rather than particularised allegations.
- [91]In considering all of the evidence, I have accepted Mr Snow's analysis of the situation where he states that:
- On occasions when Ms Yates had raised with him issues concerning the other three workers, Ms Yates had been "extremely nasty" and "negative" in her comments concerning those workers. In effect, what was occurring at the worksite was "tit for tat" behavior between these workers. There was no evidence however, that Ms Yates was using abusive language towards those workers or complaining of such to management hence, as I understand it, the "tit for tat" analogy may well have been related to nasty and negative commentary between the parties.
- Matters raised by Ms Yates with him were not specific complaints but ongoing commentary and grievances. It was obvious that many of the nominated stressors related to "operational" matters in the kitchen around food preparation, amongst other things, and some other stressors have been categorised by me as "grievances".
- In his view, Ms Yates perceived the issues of her complaint (commentary/grievances) to be further examples of bullying behavior towards her.
- As management had not observed abusive behavior between the named workers I have accepted that, had that occurred, or been complained of by Ms Yates, then appropriate action would have been taken. (For example, Stressor 5.)
- Ms Yates' concerns/complaints were investigated and acted upon when particularised and warranted.
- [92]In Hardy[10], Martin J stated that the list of stressors is not of itself evidence. With some of Ms Yates' stressors, there was no evidence given by her. Those stressors clearly failed.
- [93]It its attempts to manage a situation where unpleasantness between employees was evident, Management had ensured that its Bullying and Harassment and Grievance Policies were made clear to workers at Toolbox meetings.
- [94]The Regulator was entitled to engage in the proceedings on the basis that the Statement of Stressors comprised the matters which constituted the entirety of the Appellant's claim and significantly, Adams[11] case states that the Commission is to confine itself to the list of nominated stressors and may not go beyond them when making findings.
- [95]The Appellant asserts that if it can be found that any of the 14 Stressors can be "largely substantiated" as "the" major contributing factor to the injury, then Ms Yates' claim must succeed.
- [96]With one part exception (Stressor 5), I have not accepted that any of the nominated 14 Stressors or the remaining 27 Stressors have been substantiated.
- [97]I have been unable to find that the Appellant has discharged its onus in proving on the balance of probabilities that its claim is one for acceptance.
- [98]I accept that Ms Yates sustained a psychiatric injury, however I am not satisfied that Dr Graham could objectively conclude that work was the cause of that condition.
- [99]Ms Yates injury was not a "personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury" (s 32(1) of the Act).
- [100]Therefore, it is not necessary to consider the exclusionary provisions of s 32(5) of the Act which, in any event, would have clearly applied (as seen in the findings of the Commission for each Stressor) if it had been found that Ms Yates' injury fell within the meaning of "injury" in s 32(1) of the Act.
- [101]The Appeal is dismissed.
- [102]The Appellant is to pay the Regulator's costs of, and incidental to the Appeal.
- [103]Order accordingly.
Footnotes
[1] Simon Blackwood (Workers' Compensation Regulator) v Yates [2015] QIRC 174
[2] Simon Blackwood (Workers' Compensation Regulator) v Yates [2015] QIRC 174, [16]
[3] Simon Blackwood (Workers' Compensation Regulator v Toward [2015] ICQ 008, [44]
[4] Simon Blackwood (Workers' Compensation Regulator) v Yates [2015] QIRC 174, [29]
[5] Hardy v Simon blackwood (Workers' Compensation Regulator) [2015] ICQ 027
[6] Roberts v Workers' Compensation Regulator [2016] QIRC 030, [56]
[7] Hardy v Simon blackwood (Workers' Compensation Regulator) [2015] ICQ 027
[8] Simon Blackwood (Workers' Compensation Regulator) v Adams [2015] ICQ 001
[9] Waugh v Simon Blackwood (Workers' Compensation Regulator) & anor [215] ICQ 028
[10] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027
[11] Simon Blackwood (Workers' Compensation Regulator) v Adams [2015] ICQ 001