Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2017
  4. State of Queensland (Department of Justice and Attorney-General) v Workers' Compensation Regulator - [2017] QIRC 77

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

State of Queensland (Department of Justice and Attorney-General) v Workers' Compensation Regulator[2017] QIRC 77

State of Queensland (Department of Justice and Attorney-General) v Workers' Compensation Regulator[2017] QIRC 77

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

State of Queensland (Department of Justice and Attorney-General) v Workers' Compensation Regulator [2017] QIRC 077

PARTIES:

State of Queensland (Department of Justice and Attorney-General)

(Appellant)

v

Workers' Compensation Regulator

(Regulator)

CASE NO:

WC/2016/53

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

11 August 2017

HEARING DATES:

23 and 24 November 2016 (Hearing)

9 February 2017 (Appellant Submissions)

10 March 2017 (Regulator Submissions)

17 March 2017 (Appellant Submissions in Reply)

HEARD AT:

Cairns (23 and 24 November 2016)

MEMBER:

Deputy President Swan

ORDERS

  1. [1]
    The Appeal is dismissed.
  1. [2]
    The Appellant is to pay the Regulator's costs of, and incidental to the Appeal.

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Workers' Compensation Regulator - Employer Appeals Review Decision - Worker incurred a psychiatric/psychological injury - Grievance lodged by one employee against a number of employees in the Cairns Magistrates Court - Grievance submitted to senior officers within the Court - Complainant requested that senior officers in that Court not provide a copy of that Grievance to those complained of - Lengthy meetings held between senior officers and relevant employees where headings of complaints were mentioned but not elaborated upon - This process caused Ms Boult (the Worker) to decompensate - Many requests made by the Worker to see a copy of the Grievance which was continually refused until after a pre-mediation meeting had occurred - Failure to produce the Grievance was unreasonable management action taken in an unreasonable manner - Exclusionary provisions of s 32(5) of the Act do not apply - Appeal is dismissed - Decision of the Workers' Compensation Regulator upheld.

CASES:

Workers' Compensation and Rehabilitation Act 2003

R v Gaming Board for Great Britain:  Ex parte Benaim and Khaida [1970] 2 QB 417

Davis v Blackwood [2014] ICQ 009

Hansen v WorkCover Queensland (unreported) Industrial Magistrate K.O. Taylor dated 15 November 2001, page 16

Kiao v West [1985] HCA 81; (1985) 159 CLR 550

APPEARANCES:

Mr J. Merrell of Counsel, instructed by Ms M. Cule of the Crown Solicitor for the Appellant.

Mr S. McLeod directly instructed by Ms C. Godfrey of the Workers' Compensation Regulator.

Decision

  1. [1]
    A Notice of Appeal was filed by the State of Queensland (Department of Justice and Attorney-General) with the Industrial Registry on 7 April 2016, against the Review Decision of the Workers' Compensation Regulator (the Regulator), dated 2 March 2016.
  1. [2]
    The Review Decision had set aside an earlier decision of WorkCover Queensland to reject an Application for Workers' Compensation made by Ms Melissah Boult and to substitute a decision to accept Ms Boult's Application for Workers' Compensation in accordance with s 32(5) of the Workers' Compensation and Rehabilitation Act 2003.
  1. [3]
    Ms Boult's injury was that of an "adjustment disorder with stress, anxiety and depression".

WITNESSES

  1. [4]
    Witnesses for the Appellant were:
  • Ms Leeann Lunson, Senior Registrar, Cairns Magistrates Court; and
  • Ms Amanda Graham, Deputy Senior Registrar, Cairns Magistrates Court
  1. [5]
    Witnesses for the Regulator were:
  • Ms Melissah Boult, Court Services Officer, Cairns Magistrates Court;
  • Ms Melissa Allen, Court Services Officer, Cairns Magistrates Court; and
  • Ms Maili Vue, Administration Officer, Cairns Magistrates Court.

 [*The position held by each witness listed above is the position held at the material time of this Appeal.]

BACKGROUND MATERIAL

  1. [6]
    In early May 2015, Ms Lunson and Ms Graham attended a meeting with a staff member, Ms Martha Parkinson where she claimed that some comments made by other staff members had caused her to become distressed. 
  1. [7]
    Ms Graham said that Ms Parkinson was upset and teary and commented "about people being treated badly".  Ms Parkinson said this was the result of some personal work relationships which had broken down.  Ms Parkinson went on sick leave for two weeks and when on leave, she met again with Ms Lunson and Ms Graham at a city shopping centre.  Ms Lunson had organised this meeting for the purpose of ascertaining the reasons for Ms Parkinson's absence and what might occur when she returned to work.
  1. [8]
    On 8 May 2015, Ms Parkinson sent an email to Ms Lunson advising that she wished to make a formal complaint against Ms Boult and Ms Allen for:
  • harassment and intimidation;
  • malicious attack; and
  • inappropriate behaviour
  1. [9]
    Upon receipt of this email, Ms Lunson contacted Ms Parkinson for the purpose of a "welfare check" as she was concerned about her.  Ms Lunson talked through options which Ms Parkinson might consider.  She also sought to elicit more information as to what Ms Parkinson was actually alleging against others at the workplace.
  1. [10]
    Ms Lunson consulted the Ethical Standards Unit of the Department of Justice and Attorney-General "because of the nature of the words in the email."  She spoke with the Director, Mr Neil Boyd.  Mr Boyd did not think that there was sufficient in Ms Parkinson's claim to substantiate allegations of serious bullying or harassment.  [T1‑9]
  1. [11]
    Ms Lunson said that an agreement was reached with Mr Boyd to undertake an "informal, low-key" approach in order to resolve the matter.
  1. [12]
    After reading Ms Parkinson's Grievance, Ms Lunson's evidence was that:

"…. It actually provided me with some comfort around my thinking that this would be better off managed quite informally, in a very low-key way, because it was clearly for - for my mind, a breakdown in relationships, more than any serious workplace harassment or bullying."  [T1-12]

  1. [13]
    Ms Lunson then sought assistance from Ms Pan from the Department's Human Resources section, who advised that she discuss the issues openly with the staff involved.  [Exhibit 3, 26 May 2015 entry]
  1. [14]
    On 21 May 2017, Ms Lunson communicated with Ms Parkinson and the outcome of that conversation was that:

 (a) She and Ms Parkinson were in agreement that a facilitated external third    party approach would be the best option; and

 (b) Ms Lunson would soon need to be open with Ms Parkinson's colleagues about what had occurred and that she would not show those colleagues her Grievance unless she would like her to do so.

  1. [15]
    Prior to the meeting of 25 May 2015, Ms Lunson said that she had sought advice from the Department's Human Resources and Ethical Standards Unit as to how best to proceed with the matter.  She said she had been advised to "get as much out of Martha Parkinson" pertaining to clarity around her Grievance. 
  1. [16]
    The Appellant says that despite advice from the Department to obtain clarity around the Grievance, apart from Ms Lunson's meeting with Ms Parkinson on 20 May 2015, Ms Lunson did not have any further discussions with Ms Parkinson to clarify her Grievance.  [T1-32]

Background Material

  1. [17]
    Ms Boult works in the Department of Justice and Attorney-General as a Court Services Officer at the Cairns Magistrates Court.
  1. [18]
    On 30 June 2015, Ms Boult claimed to have suffered a psychological injury as a consequence of a Grievance lodged against her by Ms Parkinson, who was also employed in the same workplace as Ms Boult as a Court Services Officer.
  1. [19]
    Essentially this matter relates to events which occurred between 25 May 2015 and 3 June 2015 concerning a number of events and meetings at the Cairns Magistrates Court.
  1. [20]
    From Ms Boult's perspective, the core of this matter relates to the actions of Management in its handling of this Grievance.  Significantly for Ms Boult, a copy of the actual Grievance was only given to her on 5 June 2015, after a number of meetings/interactions with Ms Lunson and Ms Graham had occurred and a pre‑mediation conference had been held before an independent mediator.  
  1. [21]
    On 25 May 2015, Ms Boult (and others) had been requested to attend a meeting with Ms Lunson and Ms Graham, where Ms Boult says she was unaware of the nature of the complaints made against her despite her repeated requests for a copy of Ms Parkinson's Grievance.  During that meeting, Ms Boult says that Ms Lunson told her she could not give her a copy of the Grievance as Ms Parkinson did not want that document released.

GROUNDS OF APPEAL

  1. [22]
    The Appellant asserted that the Regulator erred in finding that:
  • Ms Boult suffered from a psychiatric or psychological injury which was an "injury" for the purposes of s 32 of the Workers' Compensation and Rehabilitation Act 2003 (the Act); and/or
  • Ms Boult sustained a personal injury of a psychiatric/psychological origin, that arose out of, or in the course of, her employment with the Cairns Magistrate's Court, Department of Justice and Attorney-General (the Department); and/or alternatively
  • Ms Boult's employment with the Department was "the major significant contributing factor" to the her injury, under s 32(1) of the Act; and/or alternatively
  • The exemptions of reasonable management action prescribed in s 32(5)(a) and/or (b) of the Act, did not apply to the facts of the matter i.e. that Ms Boult's injury arose out of, or in the course of, reasonable management action taken in a reasonable way by the Department, or Ms Boult's perception of reasonable management taken by the Department against her.
  • The Regulator erred in its consideration of the factual basis upon which the claim was based and the decision of the Regulator was against the weight of the evidence.

 RELEVANT LEGISLATION

  1. [23]
    This Appeal relates to whether Ms Boult suffered an injury within the meaning of s 32 of the Act.  Relevantly that section provides as follows:

  "32 Meaning of injury

  (1) An injury is 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.

  (3) Injury includes the following -

   (ba) an aggravation of a psychiatric or psychological disorder, if the aggravation arises out of, or in the course of, employment and the employment is the major significant contributing factor to the aggravation;

  (5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances-

   (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 Regulator or an insurer in connection with the worker's application for compensation.  Examples of actions that may be reasonable management actions taken in a reasonable way -

• action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker

• a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment."

AGREED FACTS

  1. [24]
    It was agreed that Ms Boult was a worker for the purposes of the Act and that she had suffered a personal injury ("adjustment disorder with stress, anxiety and depression") arising out of or in the course of her employment and her employment was the major significant contributing factor to her injury.
  1. [25]
    Ms Boult's evidence was that the symptoms of her injury commenced on 25 May 2015. She claimed that she was unable to get an appointment with her General Practitioner until 3 June 2015 and on that date her injury was diagnosed. 
  1. [26]
    There was no medical evidence called in this matter nor were there any medical documents/records tendered by the Parties.

AN OVERVIEW OF THE APPELLANT'S CLAIM

  1. [27]
    The Appellant claims that Ms Boult's injury arose out of or in the course of reasonable management action taken in a reasonable way in connection with her employment.
  1. [28]
    The Appellant outlined its reasons as to why the exclusionary provisions of s 32(5) of the Act should apply in these circumstances as:
  • The Appellant's course of action to seek to resolve the Greivance informally between the immediate parties, was reasonable and in accordance with the Department's policies;
  • There was nothing inappropriate or unreasonable about the way in which the May meeting was conducted and any actions taken by the Appellant were reasonable in all of the circumstances;
  • The Appellant's actions in managing the Grievance and responding to Ms Boult's request for a copy of the Grievance were reasonable in all of the circumstances; and
  • In the alternative, the Appellant contends that Ms Boult's injury arose out of, or in the course of her perception of the Appellant's reasonable management action being taken against the worker within the meaning of s 32(5)(b) of the Act because of the reasons above.

The Appellant's Statement of Facts and Contentions

  1. [29]
    The Stressors nominated by Ms Boult in her original claim were identified by the Appellant as follows:

 "9. In an undated document provided to the Appellant by WorkCover in July 2015 and in her submissions made to the Regulator in February 2016, the worker provided a list of stressors she alleges arose during the course of her employment with the Appellant that caused her decompensation.  The principal stressors raised by the worker were that during a process taken by the Department to deal with a workplace complaint made by another employee that named the worker, the Department:

   a. allegedly failed to follow due process and denied the worker natural justice in a meeting that took place  on 25 May 2015 between her, Ms Melissa Allen, Court Services Officer (Ms Allen) and Senior Registrar Leean Lunson (Ms Lunson) and Deputy Senior Registrar Amanda Graham (Ms Graham);

   b. allegedly failed to follow procedural fairness after the meeting referred to above.

Appellant's Further Contentions

  1. [30]
    The Appellant states that Ms Boult claims her injury occurred on 25 May 2015.  Her General Practitioner diagnosed her condition on 3 May 2015 as being that of an adjustment disorder with stress, anxiety and depression.
  1. [31]
    On 8 May 2015, Ms Parkinson had advised that she would be making a formal Grievance saying she had been bullied in the workplace by Ms Boult and Ms Allen.  That Grievance was received by Ms Lunson on 20 May 2015.
  1. [32]
    The Appellant says that, contrary to Ms Boult's claim of previously asking for a copy of the Grievance, Ms Boult first requested a copy of the Grievance on 2 June 2015 and that was given to her on 5 June 2015.
  1. [33]
    Given that the Grievance was to be conducted informally through mediation, and no disciplinary action would be taken against Ms Boult, then any failure on the Management's part failure to provide a copy at that time does not render that management action in trying to resolve Ms Parkinson's Grievance to have been unreasonable and to have been taken unreasonably in all of the circumstances.
  1. [34]
    The Appellant submitted that the evidence it adduced shows that the actions taken by Ms Lunson and Ms Graham were reasonable and conducted in a reasonable manner.

Ms Lunson

  1. [35]
    Ms Lunson's evidence was that in considering Ms Parkinson's Grievance, she had contacted Human Resource Officers within the Department to discuss the most appropriate method for discussing the Grievance openly with the employees involved.

What was put to her by a Departmental Human Resources officer was that she get as much out of Ms Parkinson which would assist in clarifying her Grievance.

  1. [36]
    In correspondence to Ms Parkinson on 25 May 2015, Ms Lunson, inter alia, stated:

 "I will soon need to be open with your colleagues about what has occurred, and give them an insight into the issues you have raised with me.  I will not show them your complaint unless you'd like me to."  That consent from Ms Parkinson not given.

Also added by Ms Lunson was the following:

 "As discussed this morning, I intend to speak with Melissa Allen, Melissah Boult and Janelle Roberts.  We could include Vanita if she is open to participation.  It may be desirable to address any related issues or conflict at the same time as much of it appears to be emanating from the same historical events/break-down in friendships with the same group of your colleagues". [Exhibit 5]

  1. [37]
    By return email on 25 May 2015, Ms Parkinson agreed with that approach.
  1. [38]
    Ms Lunson, prior to commencing the meeting of 25 May 2015, had emailed both Ms Boult and Ms Allen asking them to "come and see me now".  There was no further indication in that communique as to what was to be discussed with her.
  1. [39]
    Ms Lunson, together with Ms Graham, said she told both persons what the matter entailed.  She said Ms Allen asked if it related to Ms Parkinson and she advised them not to get "too caught up in this at the moment".  [T1-16]
  1. [40]
    Ms Lunson said she advised both Ms Boult and Ms Allen that the matter to be discussed did not involve the prospect of disciplinary action against any person and she would not be taking anyone's side.  [T1-17]
  1. [41]
    The matters mentioned by Ms Lunson in this meeting included:
  • How both persons regarded their relationship with Ms Parkinson;
  • How had the friendship between them and Ms Parkinson had become strained in the workplace;
  • Issues around the utilisation of Post-It note conversations rather than direct communication in the office.  Ms Parkinson's claim was that Ms Boult would only communicate with her via Post-it notes;  [T1-18]
  • Internal office problems associated with the repayment of monies by Ms Vue to Ms Parkinson, where both Ms Boult and Ms Allen somehow became involved in that matter;
  • Issues with outside of work relationships which involved Ms Allen's then partner, who "was in trouble with the Police".  The relevance of this was that Ms Parkinson's husband was a Police Prosecutor and as such she and her husband should not be involved with Ms Allen while she continued to see her partner.  This was said to carry forward into the work situation;
  • Issues as to who and who wasn't was invited to Ms Parkinson's wedding from amongst the office staff; and
  • Ms Parkinson's claim that when Ms Boult was in the Court's clerk section,  files which Ms Parkinson required for work were never made available to her.  (Both Ms Allen and Ms Boult said this issue was not raised in the meeting of 25 May 2015.)
  1. [42]
    Ms Lunson said the meeting of 25 May 2015, involved significant interjection by both Ms Boult and Ms Allen and she believed that both persons were acting defensibly and specifically so, Ms Allen.
  1. [43]
    Ms Lunson said that at the end of that meeting she had given a document entitled "Guide for Preventing and Responding to Workplace Bullying" (Safe Work Australia, November 2013), to both Ms Boult and Ms Allen.  The document was tabbed at certain places to ensure that both persons understood "that I did not actually regard this as harassment or bullying".  [T1-20]  Ms Lunson regarded the incidents complained of by Ms Parkinson as more akin to a "communication breakdown".  [T1-21]
  1. [44]
    Ms Michelle Menzies (a Family Court Mediator from Cairns), was chosen to conduct the proposed mediation. 
  1. [45]
    Upon hearing that the mediator was a person from outside of the Cairns Court arena, Ms Lunson believed that both Ms Boult and Ms Allen appeared to be comfortable with that suggestion.
  1. [46]
    Ms Lunson said that at no time during the meeting did Ms Boult ask her for a copy of the written Grievance.
  1. [47]
    After that meeting of 25 May 2015, Ms Lunson sent both Ms Boult and Ms Allen an email stating:

"Hi, ladies.  I intend to send you a formal account of our interaction yesterday, not War and Peace, just an outline of what we talked about.  I'm happy for you to respond to it too. I'll retain it for records, as I'm required to do under these circumstances."  [Exhibit 10]

  1. [48]
    However, after sending that email, Ms Lunson said she had forgotten to send that precis to them as she became involved in other work duties.
  1. [49]
    In that aforementioned email, Ms Lunson had also referred to discussions with Ms Boult and Ms Allen where she claimed that they had told her that "everyone had noticed that Martha [Ms Parkinson] was behaving differently".  Ms Lunson said the purpose of raising those issues with Ms Boult and Ms Allen was that she did not want to be involving others in the debate or, in effect, did not wish either of them "lobbying other staff".  [T1-25]
  1. [50]
    Ms Lunson next had contact with Ms Boult and Ms Allen when she and others had been unable to contact them in the workplace.  They had been absent from the office for about 40 minutes and were eventually seen in the car park.
  1. [51]
    Ms Lunson went to the car park and entered into a long conversation with both persons at that location. She believed that Ms Allen had become aggressive towards her saying that Ms Parkinson had dragged herself and Ms Boult into the current situation.  [T1-25]
  1. [52]
    On 3 June 2015, Ms Lunson and Ms Graham receive an email from Ms Boult.  Inter alia, that email contained the following commentary:

"Recently you informed me that a formal written complaint has been lodged against me.  You also have informed me that you are unwilling or unable to advise me as to the grounds on which the complaint is based and any specific details related to it.

…

I was shocked and upset to learn that a complaint has been lodged against me but I was even more disturbed and distressed when I learned that I was not going to be informed of the grounds for the complaint or when the complainant's allegations occurred…

The lack of information available to me and the uncertainty on my part as to how the Department's proposed mediation process is expected to resolve this matter is causing me considerable stress and having a profound effect on my state of mind, general health and wellbeing.  I have to insist that I find myself in a situation that, to my knowledge, is not of my making or caused through any fault of mine".  [Exhibit 13]

  1. [53]
    In Cross-Examination, Ms Lunson said she agreed that the matters raised in the Grievance predominantly addressed working relationships with Ms Allen, rather than with Ms Boult.  Ms Graham also agreed with this.
  1. [54]
    When queried as to why Ms Boult had been included in the discussions concerning the Grievance, Ms Lunson said that Ms Allen had asked if Ms Boult could attend as "a buddy or somebody else to be in the room with her.  So we did not, you know, dispute that".  [T1-33]
  1. [55]
    The Regulator said that as that proposition had not been put to Ms Allen in Cross‑Examination, the veracity of Ms Lunson's evidence on that point should be questioned.

The Meeting of 25 May 2015 - Ms Boult

  1. [56]
    Ms Boult's evidence was that it was only after about ten minutes of conversation in the meeting that Ms Lunson advised those present that a Grievance had been lodged against Ms Allen, Ms Vue, Mr Horald (who did not give evidence at this Hearing) and herself.  Ms Graham confirmed that Ms Boult had cried at times during the meeting.
  1. [57]
    Ms Boult said that no specific details were provided of the Grievance.  All that had been said was that it related to personal matters outside of the workplace.
  1. [58]
    Ms Boult did not accept that Ms Lunson had said that Ms Parkinson was not seeking to take disciplinary action against anyone.  Ms Allen agreed that Ms Lunson told her that the issues in contention were of a "low-level type".  Ms Allen said Ms Lunson had not told her there would be no disciplinary action, before the commencement of the meeting on 25 May 2015, but agreed that, within the meeting of 25 May 2015, Ms Lunson told her that Ms Parkinson was not seeking disciplinary action being taken against her [T2-21, 23 and 30].  Also agreed by Ms Allen was that Ms Lunson told her in that meeting that there would be no disciplinary action as a consequence of the Grievance.  Notwithstanding Ms Parkinson's alleged view concerning disciplinary action, Ms Allen retained her concern about her keeping her job.  Ms Allen also said that she and Ms Boult had asked for a copy of the Grievance at that meeting, which was refused.
  1. [59]
    Requests for a copy of the Grievance, on at least five occasions, were made by Ms Boult and this was denied by Ms Lunson and Ms Graham.  Ms Allen corroborated Ms Boult's claim. 
  1. [60]
    Notes taken by Ms Boult of the meeting of 25 May 2015 included the following: 

 "Mel & I asked for a copy of the Grievance during meeting … about 5 times each & each time denied."  [Exhibit 22]

  1. [61]
    The Appellant claimed that Ms Boult's notes were not taken contemporaneously as she had not provided them to the Regulator's Review Officer.  Her explanation for not doing so was that she had taken the notes with her when she met with the Regulator's Review Officer on that day but she had not showed them because she did not know that she had to.
  1. [62]
    Ms Allen's evidence was the same as that of Ms Boult to the effect that she was unaware of what the meeting of 25 May 2015 concerned.
  1. [63]
    The Regulator says, that after taking into account the events of 25 May 2015, the fact that the Grievance document was never forwarded to Ms Boult represented unreasonable management action undertaken in an unreasonable way.
  1. [64]
    On 27 May 2015, Ms Boult received an email from Ms Lunson [Exhibit 11] that referred to what Ms Lunson viewed as the use of the word "everyone" when Ms Boult and Ms Allen had spoken at the earlier meeting on 25 May  2015.  Ms Lunson said she was concerned with the use of that word because it implied that a large group of people in the workplace had discussed issues concerning Ms Parkinson.  Also discussed were issues of employees feeling isolated in the workplace amongst other things in similar vein.
  1. [65]
    Ms Boult said she had contacted Ms Lunson, in response to her email of 26 May 2015, asking for the Grievance document. Ms Lunson could not recall that conversation.
  1. [66]
    Ms Boult's understanding of the email from Ms Lunson of 27 May 2015, was that she was being accused of not being inclusive in the workplace. 
  1. [67]
    During the meeting of 25 May 2015, mention had been made by Ms Lunson of utilizing the services of an outside mediator to consider the matter.

 The Car Park Incident - 27 May 2015  

  1. [68]
    Ms Boult and Ms Allen went to the car park of the Court House after receiving an email from Ms Lunson.  [Exhibit 11]
  1. [69]
    Both Ms Boult and Ms Allen had been absent from the work office for about forty minutes and Ms Lunson had gone looking for them.
  1. [70]
    Ms Boult said when Ms Lunson came to the car park where she and Ms Allen had gone, she was yelling at both of them.  Ms Boult claimed that Ms Lunson wished to continue talking about the Grievance and matters relating to the email.  Ms Boult was crying at this point.  Ms Allen said that Ms Lunson had been aggressive towards her and that Ms Boult appeared to be "in shock and could hardly speak".
  1. [71]
    When mentioning the matter of mediation rather than a formal investigation being undertaken in response to the Grievance, both Ms Boult and Ms Allen said that Ms Lunson told them that if the matter proceeded towards a formal investigation then "you can be guaranteed that one of you will lose your job".  This was denied by Ms Lunson.
  1. [72]
    Ms Lunson accepted that Ms Boult had been stressed during the car park conversation which had last for a considerable period of time.
  1. [73]
    The Regulator submits that:

 "The actions taken by Ms Lunson were wholly unreasonable in the circumstances.  The car park was never the forum for such discussions to occur and the actions of Ms Lunson amount to unreasonable management action undertaken in an unreasonable way."

  1. [74]
    Ms Boult said that Ms Lunson's evidence around the car park meeting was incorrect.  However, Ms Allen said that there were a number of topics mentioned during the car park meeting which were basically consistent with Ms Lunson's Evidence In-Chief. 
  1. [75]
    Ms Allen said these discussions were around social events in the workplace and perceptions that may be held by those employees who had not been invited to some events.  She also said that Ms Lunson had referred to money being owed by Ms Vue to Ms Parkinson.  Also raised was an issue around email policy and within that context, comments that had been made about Facebook entries.
  1. [76]
    Ms Allen agreed with Ms Boult's evidence that Ms Lunson had told both herself and Ms Boult that if the matter was to be dealt with as a disciplinary proceeding that "jobs would be lost", or words to that effect.
  1. [77]
    The Appellant submits that the email sent by Ms Lunson to Ms Boult on 27 May 2015, which was later viewed by Ms Allen, was reasonable.  All that was included in that email was that Ms Boult and Ms Allen should be careful about using the word "everyone", in relation to Ms Parkinson.  Also mentioned was the way that staff might perceive matters when they were not invited to lunches.
  1. [78]
    The fact that Ms Lunson had sought to speak to Ms Boult and Ms Allen in the car park was, in the Appellant's view, hardly surprising as that was where she had found them.  Both employees had been absent from the workplace for around 40 minutes.  In the Appellant's view it was not unreasonable for Ms Lunson to raise with Ms Boult and Ms Allen matters relating to Ms Parkinson's Grievance and matters which were included in the email from Ms Lunson to them on 27 May 2015 at that time.

 Meeting of 1 June 2015 - Ms Graham, Ms Boult, Ms Allen and Ms Vue

  1. [79]
    A further meeting was held on 1 June 2015, where Ms Vue was supported by Ms Boult and Ms Allen.  Ms Graham was also in attendance.
  1. [80]
    Ms Vue was advised by Ms Graham that there had been a complaint raised by Ms Parkinson relating to "strained relationships" and being "treated differently in the workplace".  Ms Graham said she was attempting to resolve the dispute by way of mediation.
  1. [81]
    Ms Vue said that Ms Graham did not go into the details of the Grievance.  Ms Graham confirmed that Ms Boult was upset and shocked about the Grievance.  [T2-7]
  1. [82]
    Ms Vue's evidence was that Ms Boult had asked for a copy of the Grievance but had been advised by Ms Graham that she did not have permission to provide it to her.  Ms Lunson again denied that any of those persons at that meeting had at that time, or previously, asked for a copy of the Grievance.
  1. [83]
    The Regulator referred to evidence given by Ms Boult, Ms Allen and Ms Vue, that Ms Boult had become upset during the meeting and that Ms Graham had left the meeting and at no time had she checked on the wellbing of Ms Boult.  Ms Allen said that she, Ms Boult and Ms Vue were "venting" amongst themselves and Ms Graham said she would leave.  Ms Vue recalled in the meeting Ms Boult saying words to the effect that "how can we go into mediation when we don't know what is in the Grievance".  [T2-3]
  1. [84]
    Ms Graham's evidence was that:

"There was - there was some discussion with Maili [Ms Vue], Melissa [Ms Allen] and Melissah [Ms Boult] about more personal interactions so the things - the other things that had happened outside of work and I indicated that - that I - to them - I said would you like me to leave?  And they said yes so I went back to my office and I waited for them to finish up and made sure that each of them was okay… After they came out."  [T1-77]

  1. [85]
    From the Appellant's perspective, that Ms Graham did not return to the meeting to see how those employees were faring, did not amount to unreasonable management action in all those circumstances. 

Meeting of 2 June 2015

  1. [86]
    Ms Graham met with Ms Boult.  Ms Graham advised that there was to be a pre‑mediation meeting with Ms Menzies.  Ms Graham recalled Ms Boult again asking for a copy of the Grievance and her response again was that she did not have authority to do that but that she would make some enquiries.  Ms Graham said Ms Parkinson had still not given her consent to the release of the Grievance.

Emails of 3 June 2015

  1. [87]
    On 3 June 2015, Ms Boult emailed Ms Lunson and Ms Graham formally requesting the release of the Grievance document.  Ms Boult said she had been unable to understand how the mediation process would be of assistance if she did not know the content of the Grievance.  The Appellant had questioned why Ms Boult had not made reference to prior requests for the Grievance document in this email.  The Regulator said the request was but one of many requests made by Ms Boult for the document.
  1. [88]
    Ms Lunson asked Ms Graham whether she could speak to Ms Parkinson asking if the persons named in the Grievance could read the document and Ms Graham reiterated that it would only be released if Ms Parkinson consented to do so.
  1. [89]
    Ms Graham forwarded an email to Ms Menzies on 3 June 2015 and advised that she had spoken with each of the participants and they were feeling unprepared for the meeting and that one had asked for a copy of the Grievance.  Ms Menzies' response (on the same day) was:

"I am not sure how your Grievance policy flows.  If you could provide me with the information on your policy of internal Grievance I will be in a better position to advise whether Melissa Bolt [sic. Melissah Boult] is to be provided with the complaint.  Normally natural justice is to be afforded and people need to be informed on what has been reported in the complaint.

…

As I will be speaking to Martha first tomorrow I might be able to explain that people have a right to know of complaints lodged depending on your Grievance policy.  [Exhibit 18]

  1. [90]
    Ms Graham advised Ms Boult that Ms Parkinson retained her view of not releasing the document.

 Email of 4 June 2015 from the Mediator

  1. [91]
    Ms Menzies further emailed Ms Graham on 4 June 2015 stating:

"After the pre-mediation today it has become apparent that we will need to provide the participants with the Grievance that Martha has lodged. This is to satisfy procedural fairness and mediation that will be transparent.  If we do not do this I think that we will come to impasses due to perceptions real or unreal of being kept in the dark during mediation.

  Would you be able to speak with Martha and explain this to her". [Exhibit 20]

 Was it a matter of unreasonable management action taken in an unreasonable way that Ms Lunson did not provide Ms Boult with the copy of the Grievance?

  1. [92]
    The Appellant submits that the first time Ms Boult asked for a copy of the Grievance was on 2 June 2015.  It says that Ms Lunson's refusal to provide the document did not amount to unreasonable management action on her part.
  1. [93]
    The Appellant said that what was being asked of Ms Boult was that she attend a private mediation conducted on an informal basis without direct management involvement and that this was not a disciplinary investigation process.  The Appellant drew a distinction between this type of informal approach and that of a disciplinary process/investigation, which could result in disciplinary action being taken against Ms Boult.  The failure to produce the Grievance in those circumstances may well be viewed as unreasonable management action.  However, the Appellant says that the tenor of the complaints made against Ms Boult and others were not of a serious nature and did not involve accusations of bullying or harassment where disciplinary action or formal investigation was needed to be taken.  The failure to produce the Grievance document was a "blemish" and could not be viewed as unreasonable.
  1. [94]
    The Regulator says that the first occasion upon which Ms Boult requested a copy of the Grievance was on 25 May 2015.  In all, Ms Boult requested a copy of the Grievance on five occasions during that meeting and on other occasions.  Ms Boult's evidence on this point is corroborated by Ms Allen for the meeting 25 May 2015 and Ms Allen and Ms Vue for the meeting on 1 June 2015, who both attest to Ms Boult continually asking for a copy of the Grievance.
  1. [95]
    The Regulator referred to the matter of R v Gaming Board for Great Britain:  Ex parte Benaim and Khaida[1], where Lord Denning stated:

"… without disclosing every detail, I should have thought that the board ought in every case to be able to give the appellant sufficient indicators of the objections raised against him such as to enable him to answer them."

  1. [96]
    The Regulator says that Ms Lunson's failure to provide Ms Boult with the substance of the Grievance and the issues arising from that, amounted to unreasonable management action taken in an unreasonable way.  It was a denial of procedural fairness.  It says that:

 "Simply outlining that the issue related to personal issues outside of the workplace and that they may be intruding into the workplace was totally insufficient and unreasonable.  This approach adopted by Ms Lunson led Ms Boult to make further requests to be provided with a copy of the Grievance." [Regulator's Submissions, point 84]

  1. [97]
    The Regulator said that to expect Ms Boult to participate in a pre-mediation process with Ms Menzies without those details was unreasonable and the Regulator points to Ms Menzies' apparent acceptance that the process was "flawed" when advising Ms Lunson of this on 3 June 2015.  This commentary from Ms Menzies highlighted the difficulties which arose when a copy of the Grievance had not been given to Ms Boult and others.
  1. [98]
    The Regulator did not accept that the failure to give a copy of the Grievance to Ms Boult was merely a "blemish".  The fact that Ms Parkinson had requested that Ms Lunson refrain from giving a copy of the Grievance to Ms Boult, provided more reason for Ms Lunson to provide the necessary information and detail to Ms Boult so that she could appropriately and fairly respond to the allegations.
  1. [99]
    It did not matter whether the process adopted was a disciplinary process or an informal process and the Regulator submits that:

 "The simple fact remains, management action was unreasonable as it failed to provide such information/details to Ms Boult.  Contrary to the Appellant's contention, the failure to provide a copy of the written Grievance and provision of the information underpinning the basis of the complaint did produce an unfair result, so much was apparent by the views expressly stated by Ms Menzies."  [Regulator's Submissions, point 86]

 CONCLUSION 

  1. [100]
    In Davis v Blackwood[2], Martin J, in relation to whether a psychological or psychiatric injury arose out of, or in the course of reasonable management action taken in a reasonable way, set out the role of the Commission when considering these matters:

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

  1. [101]
    In considering this matter, a number of factors require consideration.
  1. [102]
    If, as the Appellant asserts, the matter was very low-key and there was no intention of anyone considering disciplinary action being taken against Ms Boult, then the progression of the matter in the hands of Ms Lunson and Ms Graham does not support that proposition. The action taken by both Ms Lunson and Ms Graham in its handling of this meeting was in my view unfair.  The action taken by Ms Lunson and Ms Graham involved lengthy meetings (within the Court House and in the car park) prior to the pre‑mediation meeting with Ms Menzies.  All agreed that Ms Boult was very upset and crying during the meeting of 25 May 2017.  In my view, there was nothing low-key about these meetings.  I have determined that Ms Lunson and Ms Graham were well aware the failure to produce a copy of the Grievance to Ms Boult was causing her considerable distress.
  1. [103]
    The Appellant says that there is disagreement between Ms Boult and Ms Allen as to whether Ms Boult asked for a copy of the Grievance.  The Appellant submitted that Ms Allen had been equivocal in her response to this question. Within that context, the Appellant posed the following question to Ms Allen:

  "Mr Merrell:  In that meeting Ms Boult didn't ask for a copy of the written complaint?

 Ms Allen:  We both asked for copies.  We wanted more information".  [T2-31]

  1. [104]
    I am unable to accept the Appellant's submission on that point.   Ms Allen's response does not identify any equivocation at all.  She clearly stated that both she and Ms Boult had asked for copies of the Grievance.
  1. [105]
    The Appellant also submitted that if the Commission accepted that Ms Boult had continually asked for a copy of the Grievance and that request was denied, then the failure of the Departmental officers present to provide it to her (viz., Ms Lunson and Ms Graham), was only a "blemish".
  1. [106]
    I have not accepted that submission.  The Oxford English Dictionary defines "blemish" as "a small mark or flaw which spoils the appearance of something".  In my view, what occurred was more than a "blemish" in the processes adopted by Ms Lunson and Ms Graham.  Alluding to what may constitute the Grievance of Ms Parkinson; being conscious of Ms Boult repeatedly asking for a copy of the Grievance; not providing the detail surrounding the Grievance; seeing Ms Boult clearly distressed and crying in this process which had taken roughly two and a-half hours on 25 May 2015, had none of the  hallmarks of a low-key process.  It was an unfair and unreasonable action on the part of Ms Lunson and Ms Graham towards Ms Boult.
  1. [107]
    The evidence of both Ms Lunson and Ms Graham was to the effect that much of Ms Parkinson's Grievance related to non-work related issues which was claimed to have had an impact on work relationships and they had referenced various instances for the attendees at the meeting but had not elaborated upon those points.
  1. [108]
    Further, I accept Ms Boult's claim that she had been unable to comprehend why Ms Parkinson's Grievance of alleged outside of work activities could be visited on her in her work situation.   Clearly, that confusion and anxiety was perpetuated by the fact that she had not been shown the particulars of the Grievance.  That is unfair because, at that point in time, she had no opportunity to address or adequately respond to some or all of those concerns and added to that was that both Ms Lunson and Ms Graham gave evidence that they were aware that Ms Boult was clearly upset during the meeting.
  1. [109]
    I have not accepted Ms Lunson's and Ms Graham's evidence that they were not asked for a copy of the Grievance by Ms Boult on a number of occasions during that meeting.  Ms Boult's evidence, which I have accepted has been corroborated by Ms Allen.
  1. [110]
    Further, providing Ms Boult with a copy of the "Guide for Preventing and Responding to Workplace Bullying", had, in my view, the capacity to further alarm her.  Ms Lunson and Ms Graham gave evidence that they had explained to the Ms Boult at the meeting of 25 May 2015 that a disciplinary process was not being contemplated and that giving her a copy of the Guide did not mean that bullying allegations were being considered.  Ms Allen agreed those comments were made [T2-30].  However, the decision to provide that document in circumstances where Ms Boult was clearly distressed and where she had asked for a copy of the Grievance on a number of occasions and was denied that request, and where she was unaware of the detail of the claims being made also, in my view, added to her anxiety.
  1. [111]
    It is fair to say that remembering all details of conversations that were held between Management and Ms Boult was problematic for all witnesses.  No precis of the discussions which were held on 25 May 2015 occurred, notwithstanding the fact that Ms Lunson said she would do so.
  1. [112]
    Because that didn't occur, what was required by witnesses was their memory of a conversation that went for anywhere up to two and a-half hours in 2015.  I am not surprised that there are different versions of what may, or may not, have been said in these conversations.  However, I have considered the thrust of those discussions and I have accepted the evidence of Ms Boult (corroborated by Ms Allen who claims to have also been upset on that day), that she was particularly distressed at the meeting of 25 May 2015. 
  1. [113]
    I have not accepted that it was made clear to Ms Boult that she should not be concerned about any dire consequences (i.e. disciplinary action) as a result of the Grievance.
  1. [114]
    I acknowledge that the evidence of Ms Boult and Ms Allen differ on this point.  I have not seen that divergence as a critical factor.  The meeting, as previously stated, was lengthy and I have not found it surprising that one's recollection of the meeting could differ.
  1. [115]
    Transcript references of what witnesses recalled saying at the meeting of 25 May 2015, bolsters my view that absent any recording of the meeting, different recollections were highly probable.

The Car park Meeting

  1. [116]
    Further, the "car park" meeting did little to lessen the apprehension of Ms Boult. 
  1. [117]
    Ms Boult's evidence was that she had advised Ms Lunson that she had nothing to hide from a formal investigation.  She said that Ms Lunson said that if that approach was adopted then "you can be guaranteed that one of you will lose your job".  Ms Boult's evidence was corroborated by Ms Allen.
  1. [118]
    While it is understood that Ms Lunson was looking for Ms Boult and Ms Allen on the afternoon of 27 May 2015 as they were not in the office area, it was unfair for her to then conduct a conversation/meeting which lasted around an hour, with both women in the car park of the Court.  The impropriety of that action is clear. 
  1. [119]
    At the time of the car park meeting, Ms Allen said that Ms Boult had not decided that the proposed mediation was appropriate as she still had not received a copy of the Grievance [T2-37].  Ms Boult's evidence was clear to the extent that she did not believe it was fair or reasonable to continue to discuss the Grievance without knowing its content.

Mediation Process

  1. [120]
    I have accepted that it was only after many requests were made to Ms Lunson for a copy of the Grievance that it was provided to her on 5 June 2015.  This date was after the pre-mediation conference.
  1. [121]
    Again, Ms Boult was involved in the pre-mediation process without having seen the Grievance.  Notwithstanding the comments being made by Ms Boult about the inappropriateness of her having to undergo this process without knowing the full details contained within the Grievance, it took Ms Menzies (the assigned mediator) to advise Ms Graham that the approach they had taken by not producing the Grievance earlier, was not sound practice and that it could produce a flawed outcome.
  1. [122]
    In my view, the process undertaken by Ms Lunson and Ms Graham did not constitute reasonable management action taken in a reasonable way.  Ms Lunson gave evidence that the Department Human Resources officer had advised her to ensure that she would openly discuss the issues with the employees involved.  Ms Lunson did not make any further contact with Ms Parkinson after seeking this advice and the evidence shows that no open discussion occurred as there was no elaboration upon the issues contained within the Grievance.
  1. [123]
    The Appellant, by its written Submission in Reply, referred to the decision of Hansen v WorkCover Queensland[3] (unreported) where it was stated by Industrial Magistrate K. O. Taylor that: 

 "…In order to fall within the provision of s 34(5), it is not necessary that management action be perfect or above criticism.  It need only be reasonable.  The term "reasonable management action" permits failings, deficiencies and flaws provided the management action was sound, based on reason, was not arbitrary, did not involve any unfairness and did not produce an unfair result."  [Appellant's Submission in Reply, point 4]

  1. [124]
    In this case, I have found that the management action involved unfairness at a level which could only render such action as unreasonable.
  1. [125]
    Further reference was made by the Appellant (Submissions in Reply) to the decision of Mason J in Kiao v West[4]:

  "The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of a court in procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.  It seems that as early as 1911 Lord Lorburn L.C. understood that this was the law when he spoke on the obligations to 'fairly listen to both sides' being a 'duty lying upon everyone who decides anything'. Board of Education v Rice.  But the duty does not attach to every decision of an administrative character.  Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way.  Thus the decision to impose a rate or a decision to impose a general charge for services rendered to rate payers, each of which indirectly affects the rights, interests or expectations of citizens does generally attract this duty to act fairly.  This is because the act or decision which attracts the duty is an act or decision:

 "… which directly affects a person (or corporation) individually and not simply as a member of the public or a class of the public.  As executive or administrative decision of the latter kind is truly a "policy" of "political" decision and is not subject to judicial review."  [Appellant's Submission in Reply, point 7]

  1. [126]
    The Regulator submits that the types of issues involved in this matter do not naturally fit within the constraints of a decision of an "administrative character". It was the case that complaints/Grievance had been made by Ms Parkinson against Ms Boult (amongst others) and Ms Boult had a right to know the detail of those Grievance.  I accept that submission.
  1. [127]
    Procedural fairness was denied to Ms Boult during the process adopted by Ms Lunson and Ms Graham in dealing with Ms Parkinson's Grievance.  This process "directly affected" Ms Boult's rights and interests and the impact of this was known to both Ms Lunson and Ms Graham. 
  1. [128]
    Against this background, I have determined that Ms Boult's injury arose out of or in the course of her employment and her employment was the major significant contributing factor to her injury.  Ms Boult's injury is not excluded from being an injury within the meaning of s 32 of the Act because it arose out of or in the course of unreasonable management action taken in an unreasonable way.
  1. [129]
    I have dismissed this Appeal.  The exclusionary provisions of s 32(5) do not apply to remove the injury from the definition of s 32(1)(b) of the Act. 
  1. [130]
    The vagueness of the information provided by Ms Lunson at the meeting of 25 May 2015 concerning the allegations in my view caused anxiety and apprehension on the part of Ms Boult.  This, coupled with the fact that she could not actually view the Grievance, exacerbated those symptoms. 
  1. [131]
    The Appeal is dismissed and the Decision of the Workers' Compensation Regulator dated 2 March 2016, is upheld.
  1. [132]
    The Appellant is to pay the Regulator's costs of, and incidental to the Appeal.
  1. [133]
    Order accordingly.

Footnotes

[1] R v Gaming Board for Great Britain:  Ex parte Benaim and Khaida [1970] 2 QB 417 at 431

[2] Davis v Blackwood [2014] ICQ 009 at [47]

[3] Hansen v WorkCover Queensland (unreported) decision of Industrial Magistrate K.O. Taylor dated 15 November 2001 at page 16

[4] Kiao v West [1985] HCA 81; (1985) 159 CLR 550 at 587

Close

Editorial Notes

  • Published Case Name:

    State of Queensland (Department of Justice and Attorney-General) v Workers' Compensation Regulator

  • Shortened Case Name:

    State of Queensland (Department of Justice and Attorney-General) v Workers' Compensation Regulator

  • MNC:

    [2017] QIRC 77

  • Court:

    QIRC

  • Judge(s):

    Swan DP

  • Date:

    11 Aug 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Davis v Blackwood [2014] ICQ 9
2 citations
Jump To
Cite 1 - [2014] ICQ 9
Cite 2 - [2014] ICQ 9
Kioa v West [1985] HCA 81
2 citations
Jump To
Cite 1 - [1985] HCA 81
Cite 2 - [1985] HCA 81
Kioa v West (1985) 159 C.L.R 550
2 citations
Jump To
Cite 1 - (1985) 159 C.L.R 550
Cite 2 - (1985) 159 C.L.R 550
Regina v Gaming Board for Great Britain (1970) 2 QB 417
2 citations
Jump To
Cite 1 - (1970) 2 QB 417
Cite 2 - (1970) 2 QB 417

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.