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Hodder v Workers' Compensation Regulator QIRC 154
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Hodder v Workers' Compensation Regulator
 QIRC 154
Workers' Compensation Regulator
Appeal against a decision of the Workers' Compensation Regulator
24 December 2018
16, 17 and 18 July 2018
31 July 2018 (written submissions of Respondent) 19 September 2018 (written submissions of Appellant)
26 September 2018 (written submissions in reply of Respondent)
Industrial Commissioner Knight
WORKERS' COMPENSATION – APPEAL AGAINST DECISION – psychological injury arising out of employment – critical incidents – alleged inaction on the part of the employer – no debriefing or support – whether injury arose out of reasonable management action taken in a reasonable way – determined injury arose out of reasonable management action taken in a reasonable way.
Workers' Compensation and Rehabilitation Act 2003, s 32(1), s 32(5)(c), s 550.
Prizeman v Q-COMP (2005) 180 QGIG 481
Reid v Workers' Compensation Regulator  QIRC 047
Sabo v Q-COMP  ICQ 47 (C/2010/46)
Tamara Jones v Q-COMP  QIRC 29 (WC/2009/46)
WorkCover Queensland v Kehl (2002) 170 QGIG 93
Mr T Hodder, the Appellant, representing himself. Mr J Merrell, Counsel, directly instructed by the Workers' Compensation Regulator, the Respondent.
- Mr Tony Hodder ("the Appellant") appeals a decision of the Workers' Compensation Regulator ("the Respondent") dated 7 April 2017, in which it confirmed an earlier decision of WorkCover to reject Mr Hodder's application for compensation under s 32 of the Workers Compensation and Rehabilitation Act 2003 ("the Act)" in respect of a psychological injury claimed to have developed in the course of his employment as a Youth Worker with Anglicare Southern Queensland (Anglicare) when he was performing duties as a part-time residential care worker. The appeal is made under s 550 of the Act.
- Both before and during the proceedings, Mr Hodder maintained his psychological injury arose out of, or in the course of, his employment with Anglicare and that a lack of supervision, support and debriefing by his employer, following a series of traumatic incidents in the workplace, were the major significant contributing factors to the onset of his condition.
- Essentially Mr Hodder's main complaint with his employer was in respect of its alleged 'inaction' when it came to management debriefing and following him up after four challenging incidents involving young people.
- The Respondent does not dispute Mr Hodder was a worker within the meaning of the Act and that he suffered a personal injury, namely an adjustment disorder with anxiety and depressive symptoms.
- The Respondent also concedes the personal injury arose out of, or in the course of, his employment and that his employment with Anglicare was the major significant contributing factor in the onset of his injury.
- However, the Respondent maintains the support provided to the Appellant when dealing with and responding to children with high level behaviour was reasonable management action taken in a reasonable way in connection with Mr Hodder's employment.
- In those circumstances, the Respondent maintains Mr Hodder's injury is withdrawn from being a compensable injury within the meaning of the Act.
- The relevant part of the legislation for the time period material to Mr Hodder's claim for workers' compensation, is set out below:
32 Meaning of injury
- (1)An injury is personal injury arising out of, or in the course of, employment if—
- (a)for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury; or
- (b)for a psychiatric or psychological disorder—the employment is the major significant contributing factor to the injury (my emphasis).
- (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 action 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
Issue To Be Determined
- The appeal to the Commission is conducted by way of a hearing de novo. The question to be answered in the determination of the appeal is:
- (i)whether, pursuant to s 32(5) of the Act, Mr Hodder's psychiatric or psychological disorder is excluded from the definition of injury within the Act in circumstances where it arose:
- (a)out of reasonable management action taken in a reasonable way by Anglicare in connection with Mr Hodder's employment.
- For the Appellant:
- Tony Hodder, previously a Residential Care Worker, Anglicare
- Keith Robinson, Residential Care Worker, Anglicare
- For the Respondent:
- Tammy Lloyd, Residential Care Manager, Anglicare
- Lisa Monro, Residential Coordinator, Anglicare
- Stephen Linneweber, Youth Worker, Anglicare
- Tracey Wruck, Learning & Development Coordinator, Anglicare
- Michelle Hudson, Residential Coordinator, Anglicare
- As touched on previously, Mr Hodder's case is that he sustained his injury when his employer failed to provide him with debriefing or support after four critical incidents which occurred during his employment with Anglicare.
- During the proceedings Mr Hodder maintained there were four critical incidents where he received no debriefing or support".
Mr Hodder maintains that on one of his first shifts working with a self-harm child (Ms A), she swallowed batteries and sliced her arms open. According to Mr Hodder, he took Ms A to hospital to be treated, however he ended up being forced by police to talk Ms A off the ledge of an overpass across the road from the Lady Cilento hospital. Mr Hodder contends that 'on-call' did not pick up the phone or return any of his calls when he was trying to get in contact with them. Further, he did not receive a debriefing or a phone call from an Anglicare employee after this incident.
The second incident occurred a few days later, when the same girl (Ms A) sliced her arms open again. Mr Hodder stated he could not help her with first aid as it was not topped up and her arm was spraying blood all over the house in the bedroom and kitchen, as well as outside. He then tied a sock around this wound and took Ms A to a hospital.
Mr Hodder maintains he was not debriefed, but was asked by management to come in early on his shift two days later. When he arrived, management was present cleaning the carpet, walls and outside area and the incident was spoken about like a joke, to his disbelief.
The third incident occurred on a Friday night at the commencement of Mr Hodder's shift when the department was dropping off a young, highly sexualized 14 year-old girl (Ms B) to Felsman House. Mr Hodder maintains it was known Ms B had sexual tendencies towards older men at the time the young girl was introduced to him.
According to Mr Hodder, upon first meeting the young girl, she immediately propositioned him and the other young person in the house.
Mr Hodder then rang 'on-call' for a support person to be sent out, but maintains it was denied. He then asked to be transferred to another house, but says he was again denied on the basis it was too busy and the region was short-staffed. Mr Hodder maintains that he rang back again to report the young girl was having sexual intercourse with the other young person in the house, but states that when he rang 'on-call' back, he was told by Steve (on-call) that he could not do anything and not to worry about it.
Mr Hodder maintains that Steve told him he was not qualified to do the job as on-call because he did not have the qualifications to obtain the position in management, and was helping out because they were short.
The fourth incident occurred on 2 October 2016 when Mr Hodder was working with a young 10 year-old boy (Mr E), who he considered to be extremely manipulative. Mr Hodder maintains that for the third time in 10 days he reported to his program coordinator that Mr E was planning on reporting Mr Hodder to the department and to make allegations claiming that Mr Hodder had tried to touch him in his sleep, if Mr Hodder did not allow Mr E to stay up past his normal bedtime.
Mr Hodder claims he was told by his program manager and 'on-call' not to worry, because the young person did this sort of thing all the time. Mr Hodder maintains he was not debriefed about the incident notwithstanding he had raised the same issue with this program coordinator 10 days earlier.
Mr Hodder's Employment with Anglicare, Reporting and Debriefing
- To determine whether the management action taken by Anglicare in the wake of the critical incidents highlighted by Mr Hodder was unreasonable, and/or whether it was reasonable but actioned in an unreasonable manner, it is essential to consider the nature of Mr Hodder's employment, as well as the policies and procedures which were in place at the time to assist employees to respond to such incidents.
- Mr Hodder commenced working with Anglicare as a permanent, part-time residential care worker on 9 September 2015.
- At the time of his employment with Anglicare, the organisation was contracted by the Queensland Department of Communities, Child Safety and Disability Services (the Department) to provide residential care services for children who were unable to live with their family or were unable to be placed in alternative (foster) accommodation.
- The Residential Care program operated by Anglicare predominantly provides home care for young people aged 12 to 17 years. The residential care service generally involves live-in or rostered employees, such as Mr Hodder, undertaking combinations of awake and sleepover shifts, as well as on-call arrangements.
- The arrangements which form the backdrop in this appeal comprise of care being provided to young people in established residential homes 24-hours a day, every day of the year, including when they are not attending school during school holiday periods or at other times.
- According to the Anglicare Residential Care manual, which was provided to the Commission during the proceedings, the objectives of the residential care program include providing young people with 'the experience of a homely, safe and secure…, supportive environment in which to live', as well as the opportunity to 'experience positive change and growth, and commence recovery from the impact of physical, psychological and emotional trauma as a result of earlier experiences of abuse and neglect'.
- While working for Anglicare as a residential care worker, Mr Hodder's duties encompassed supporting the routines of the young people residing in a residential home (generally up to two young people) which involved assisting and supervising wake-up, bedtime, personal care routines, completion of chores and laundry, meal preparation, recreational activities, medical appointments and homework.
- Other responsibilities included ensuring emotional and safety standards were met in accordance with the Child Protection Act 1999, supporting young people to develop positive relationships with family members, promoting pro-social behavior, attending and contributing to team meetings and also ensuring shift reports, incident reports and other mandatory reports were completed within expected timeframes.
- Mr Hodder's direct supervisors at the time of his employment were known as residential coordinators. At the relevant time, Ms Monro was the coordinator for Lorikeet House and Ms Tammy Lloyd was the coordinator for the Felsman House.
- Both coordinators reported to Ms Tammy Lloyd, a residential care manager. Ms Lloyd's role included responsibilities such as overseeing the Anglicare residential care services in south-east Brisbane, which included Lorikeet House and Felsman House.
- The normal working hours for residential coordinators including Ms Monro and Ms Lloyd were Monday to Friday, 9.00am to 5.00pm.
- One of the regular shifts Mr Hodder undertook was on the weekend, whereby he would undertake a 24-hour shift which would generally commence at 4.00pm on a Friday and come to an end at 4.00pm on a Saturday. Residential care workers would be allocated a bedroom where it was accepted they would sleep for part of their shift.
- In circumstances where Mr Hodder was undertaking shifts outside of the standard Monday to Friday, 9.00am to 5.00pm period, and where it was necessary for him to speak to a residential coordinator (outside of their normal rostered hours) in relation to a critical incident, he was required to contact, by phone, an 'on-call coordinator', who was specifically rostered to respond to, amongst other things, out of hours calls from residential care workers working out of the care homes.
- The Anglicare on-call procedure, which was provided to the Commission during the proceedings, advises one of the core functions of the after-hours service is to provide "support and advice for incidents", noting "the types of incidents we expect to be contacted about include a child running away, medical emergencies, family contact issues, allegations or disclosures of abuse, highly significant emotional and/or behavioural issues…"
- The procedure also advises that 'if you require access to additional support or debriefing while you are on-call, please contact the Manager or Group Manager providing after hours support'.
- Appendix A of the same document goes into more detail about circumstances where residential care workers are required to contact 'on-call' including situations where a young person has been harmed, medical situations and missing children.
- Importantly, in respect of 'staff matters' and specific circumstances where residential care workers are required to contact 'on-call', the following circumstances are also noted (my emphasis):
- Staff members injured requiring medical treatment and/or to be relieved from work duties due to injury;
- Staff members being involved in an incident and requiring debriefing after the incident; and
- If Staff are unwell/unable to complete their rostered shift….
- Mr Hodder clarified his understanding of the concept of debriefing during the appeal proceedings, explaining that he thought it should encompass the incident as a whole, noting:
…I thought the discussions would be around trying to understand the incident and then just, like, a complete overall evaluation of the whole process and me being part of that process.
- Mr Hodder confirmed he was provided with the on-call procedure when he undertook his induction for his role at Anglicare and was also informed of the procedures contained in the on-call document, but he was not able to recall with any certainty if the procedures were left in the residential houses where he worked.
- Under cross-examination, Mr Hodder acknowledged the requirement on staff within the procedure to contact 'on-call' if they were involved in an incident and required debriefing after the incident. He also acknowledged that it was open to him to speak to residential care coordinators such as Ms Hudson or Ms Monro and request a debriefing following a critical incident.
- In respect of other processes or procedures which Mr Hodder was also required to follow at the completion of a shift, or in the wake of an incident or a critical event which occurred during the course of his shift, he confirmed these included:
- As best I understand it, the reports were required to be completed on pro-forma documents accessible via a computer, located in an office, within each residential care home where Mr Hodder worked.
- In relation to the completion of shift reports at the time of Mr Hodder's employment, he was required to fill in a proforma document including details associated with what occurred during his shift and then upload the document on a particular drive, where it would later be collated with entries from other residential workers, reviewed and signed off by a nominated residential coordinator.
- Likewise, critical incident reports would be completed by residential care workers, residential coordinators and on-call coordinators, depending on the nature and timing of an incident.
Self-Care and Supervision
- During the proceedings Mr Hodder drew the Commission's attention to the TRACC Residential Care Manual and, in particular, page 30 of the manual which dealt with concepts such as 'Self Care and Stress Management' and 'Supervision'.
- As best I understand it, Mr Hodder held concerns about what he considered to be the inadequacy of those provisions, in circumstances where he was working in a role which was potentially accompanied with high levels of stress.
- The self-care provisions within the manual recognise that work involving case management and support of people within the child protection sector can be accompanied with high levels of stress, which, if prolonged and not managed both individually and at an organisational level, can lead to burnout and other psychological issues.
- The manual highlights the importance of self-care and includes references and links to resources including fact sheets and other information on topics such as stress, burnout, vicarious trauma and looking after oneself. The manual also directed staff specifically requiring assistance or further support to contact:
- The employee's line supervisor or service manager;
- The Employee Assistance Program (including relevant phone and online contact details);
- An ASQ Chaplain (including links to contact details); and
- A GP or mental health professional.
- During the proceedings Mr Hodder acknowledged he was aware of the Employee Assistance Program. He also confirmed it was open to him to contact either 'on-call', and/or, at the next opportunity, a respective residential coordinator to request a debrief.
- In her evidence to the Commission, Ms Lloyd confirmed staff were regularly reminded about the steps they should take if they required debriefing. She explained the options included directly contacting a residential coordinator or 'on-call' for out of hours queries and support, contacting the Anglicare Employee Assistance program, or speaking to a counsellor.
- In response to a question from the Commission in respect of measures or practices Anglicare put in place to monitor the fall-out from challenging situations or events and/or employees who may be personally impacted by critical incidents, Ms Lloyd highlighted that supervision was provided by residential coordinators. She explained this could occur in several ways including through regular fortnightly staff meetings, supervision via a group (monthly meetings) or on an individual basis, which could occur up to six times a year or as required by either the youth worker or their coordinator.
- Ms Lloyd told the Commission that incident reports were also regularly reviewed to determine and examine reoccurring incidents that might arise with young people. Her evidence was that, depending on the incident, Anglicare would involve external providers, including psychologists or counsellors, to support young people and to also provide support for staff including giving staff members a better understanding of why a young person may be behaving in a certain way, and/or what else staff could do to better support the young person as well as themselves.
- Ms Lloyd clarified that where particularly serious incidents such as a suicide or a death occurred, where youth workers may not immediately recognise they have been impacted, Anglicare would actively take steps to contact both residential care workers and coordinators, organising meetings, supervision or other counselling for employees who elected to be involved in such a process.
- Mr Hodder also agreed with the proposition that residential coordinators were not mind-readers. He confirmed that until a residential care worker made it known to a residential coordinator that they needed to be debriefed about an incident, a residential coordinator would not know that a residential care worker needed to be debriefed.
Evidence in relation to the critical incidents and debriefing
Incident One - Ms A and the Lady Cilento hospital
- The details of the initial critical incident, after which Mr Hodder maintains his employer failed to provide him with debriefing or support, were recorded in an incident report which was tendered during the proceedings by the Regulator.
- The description of the incident within the report, insofar as it involved Ms A, is generally consistent with the way it was described by Mr Hodder. The actual date of the incident involving Ms A is reported as 18 October 2015. Mr Hodder is noted as the person who originally reported the incident to Mr Atapana Mafulu (Mr Pana). The details of the incident include:
- At approximately 8.10pm, Ms A called out to Mr Hodder requesting he treat a self-inflicted cut she had made on her leg. While he was examining the cut on Ms A's leg, he also observed another cut on her left forearm which required bandaging;
- Mr Hodder drove Ms A to Lady Cilento hospital, where police undertook a search for any self-harming weapons or drugs before she was treated;
- The report notes that although Ms A consented to the search, she absconded from the hospital and subsequently moved to a ledge near an overpass;
- Eventually, Mr Hodder was able to persuade Ms A to move away from the ledge and she was taken back to the hospital to be treated; and
- After receiving treatment, Mr Hodder drove Ms A back to the residential care home, where she consumed some food and then went to bed.
- Other sections of the report dealing with subject matters such as 'Witnesses Involved' or 'General Comments' were completed to varying extents, however the relevant part of the report for the purposes of this appeal is the Investigation / Follow-up section of the document, which specifically records whether a critical incident debrief was organised. Here the response was recorded as 'No'.
- Under cross-examination Mr Hodder was unable to recall whether he requested a debrief through the on-call coordinator, Mr Pana.
- A shift report covering the period 16 October 2015 to 19 October 2015 also contained an account of the critical incident with Ms A and the events at the Lady Cilento hospital, but similarly contained no record of a request from Mr Hodder for a debrief.
- A further report compiled by an on-call coordinator for the period, 16 October 2015 to 18 October 2015 (Friday evening to Monday morning), contains no record of Mr Hodder requesting a debrief in relation to the 18 October incident concerning Ms A.
- Ms Hudson, the relevant residential coordinator for the Felsman House where Ms A was residing at the time of the incident was quite clear that Mr Hodder did not request a debrief in relation to the incident.
- Ms Lloyd's evidence was that she could find no record of Mr Hodder requesting a debrief after the incident in any of the Anglicare records.
- To be fair to Mr Hodder, it would seem on the evidence before the Commission that there is no record of any of the residential coordinators or the service manager specifically approaching Mr Hodder to set down a time for a debrief in relation to the incident with Ms A.
Incident Two – Ms A and further self-harm
- In respect of Incident Two, both Ms Hudson and Ms Monro confirmed their attendance at Felsman house to clean up Ms A's bedroom after she self-harmed again.
- Ms Hudson told the Commission she attended the house to provide support the day after the incident. She recalled speaking to Mr Hodder when he commenced his shift in the afternoon. Ms Hudson maintained Mr Hodder did not specifically request to be debriefed in relation to the second self-harming event involved Ms A.
- Under cross-examination, Mr Hudson indicated that when completing the critical incident report in respect of the second incident with Ms A it would have been necessary to debrief Mr Hodder and discuss the events of the incident with him.
- An incident report specifically setting out the details of the second incident with Ms A was not provided to the Commission by either party in the proceedings. Under cross- examination, Ms Hudson suggested the report was 'on file'.
- Likewise, Ms Lloyd recalled being contacted by Ms Hudson about the incident. She told the Commission she purchased a carpet cleaner for the house because Ms A often engaged in self-harming behavior. She recalled taking the carpet cleaner over to the house and cleaning Ms A's bedroom carpet.
- Ms Lloyd said Mr Hodder was required to start his shift at 4.00pm, but thought he came in a bit earlier at 2.00pm. She recalled speaking to Mr Hodder about the incident, but confirmed he did not make a request to be debriefed.
- Although the specific content of the discussions between Mr Hodder, Ms Lloyd and Ms Hudson in respect of Ms A and the second self-harming incident on the day they were all at Felsman House is not entirely clear, there is also nothing before the Commission that indicates Mr Hodder was offered a debrief in relation to the second incident by either Ms Lloyd or Ms Hudson.
Incident Three – Ms B and sexualized behaviour
- A shift report completed for the period 29 January 2016 indicates a note was taken in respect of Ms B allegedly making inappropriate advances to the staff member on duty, as well as the co-tenant residing in the house. A reference to 'on-call' being contacted during the shift is included in the report. According to the shift report, a separate incident report in relation to the event was not completed.
- An on-call data report provided to the Commission contained the following record in respect of a call received in relation to an incident at Felsman place on 29 January 2016:
Y/P attracted to each other. Staff asked to monitor and case note. Staff asked to engage with male Y/P re age difference and legal aspects. I offered support and heard no more.
- In response to a question as to whether or not he made a request, either in writing or orally to be debriefed or that he wanted to speak to someone about Incident Three, Mr Hodder responded with, "Not that I can recall".
- Likewise, Ms Hodder confirmed he did not request a debrief from Mr Linneweber, who was the on-call residential coordinator at the time Incident Three occurred.
- There also appears to be no record in either the shift report or the on-call data report of Mr Hodder specifically requesting a debrief through 'on-call' in respect of the incident.
- Ms Lloyd told the Commission she was unable to locate any record of Mr Hodder requesting a debrief in respect of the incident concerning Ms B.
- According to Ms Hudson, the events associated with Incident Three and Ms B were not brought to her attention by Mr Hodder or anyone else. Her evidence to the Commission was that she did not see a report and did not receive a request from Mr Hodder for a debrief in respect of the incident.
- Ms Hudson, under cross-examination, told the Commission that debriefings did not occur after every single incident, but would generally occur following the death of a child, a significant event or where a request for a debrief was specifically made by a staff member. In response to a query as to whether a youth worker would need to request a debriefing, Ms Hudson said 'mostly'.
Incident Four – Mr E and false allegations
- A shift report for the period 2 October 2016 provided to the Commission by the Regulator includes notes of Mr Hodder's interaction with a young person, Mr E at Lorikeet House from 4.30pm until 9.30pm. Although the document contains references to Mr E's challenging behavior during this period, there is no reference to the specific concerns raised by Mr Hodder in relation to Mr E threatening to contact the police and make false accusations.
- The residential coordinator for Lorikeet House, Ms Monro, told the Commission that the employees who were responsible for inputting details into the shift report for the period 2 October 2016 were Jenny Goose, Anita Irving and Tony Hodder.
- Separately, Mr Hodder provided the Commission with his own version of a shift report he maintains he partly completed on 2 October 2016 in relation to the incident with Mr E. He told the Commission he completed the shift report on the night in question and stored it on the computer at the Lorikeet House, before prematurely leaving his shift early the following morning.
- In circumstances where the 2 October 2016 shift ultimately proved to be Mr Hodder's final shift at Anglicare and where he only worked half of his shift, it is not clear on the evidence before the Commission whether the shift report Mr Hodder tendered was ever uploaded for a residential coordinator to consider, whether any of the residential coordinators or Anglicare management were emailed or saw the report, and/or how or whether its content formed the basis for the eventual shift report which was reviewed by Ms Monro.
- Ms Monro confirmed that she had not seen the shift report Mr Hodder maintained he prepared until after the Commission proceedings had commenced.
- Certainly, there are some very similar details contained in both reports for the period from 4.30pm until 9.00pm, however the information in Mr Hodder's report dealing with an incident whereby Mr E allegedly threatened to report Mr Hodder to the police for sexually assaulting him in retaliation for Mr Hodder advising Mr E he could not play his Xbox, is not included in the final report signed off by Ms Monro.
- Notwithstanding the inconsistencies between the reports, the real inquiry in respect of Incident Three and Mr Hodder's appeal more broadly is whether any debriefing or support in respect of the incident was sought or offered and the circumstances in which this may have arisen.
- It is the case that Mr Hodder raised some concerns with Ms Monro more generally about Mr E's behaviour on 20 September 2016, but at that time it would not have been possible to request a debrief specifically in relation to the events of 2 October 2016, because they were yet to occur.
- In relation to the taped conversation Mr Hodder held with Ms Monro on 20 October 2016, which included some discussions around threats being made by Mr E, he acknowledged under cross-examination that he had told Ms Monro he had not reported the threats being made by Mr E, but at the time was told by Ms Monro to immediately report any such behaviour.
- Similarly, Ms Monro's evidence is that Mr Hodder did not raise the incident with her or request a debrief in respect of Mr E and his conduct on 2 October 2016. Under cross-examination, Ms Monro confirmed a youth worker would generally be required to request a debrief after such an incident, where they determined that they needed additional support.
- In response to a question from the Commission around what steps Anglicare put in place to assist residential care workers (in circumstances where there had been a critical incident), Ms Monro advised that the residential coordinators would generally be on-site with the staff member and they would debrief them, or for after-hours incidents, 'on-call' would be available.
- Ms Monro said that in an immediate crisis where a staff member had to leave the house, they would potentially arrange for another youth worker to replace them and then they would follow-up and go through the crisis management steps by debriefing them.
- Both before and during the proceedings Mr Hodder, who represented himself, maintained his psychological injury arose out of, or in the course of, his employment and that a lack of supervision, support and debriefing by his employer, following a series of traumatic incidents in the workplace, were the major significant contributing factors in the onset of his condition.
- Similarly, at the commencement of his extensive written submissions Mr Hodder maintains this argument, but by paragraph  he has somewhat altered his position to the extent that he contends:
…this responsibility of Anglicare management to provide support and guidance by way of scheduled follow up supervisions has demonstrably been ignored on numerous occasions resulting in the Appellant being denied the opportunity to access the debrief associated with supervisors after the following incidents: …
- The difficulty with the latter submission and what is essentially an extension to Mr Hodder's original position (see paragraph ), is that this was not the case the Respondent came to meet during the actual appeal proceedings.
- The Respondent has understandably raised concerns about Mr Hodder's change in position, reinforcing its understanding of the case, notably:
- the four critical incidents occurred;
- the Appellant was not debriefed by the employer's management after them; and
- the absence of debriefing caused his injury.
- Although Mr Hodder represented himself during the proceedings and has clearly put in a substantial amount of effort in developing his written submissions, it would be unfair for the Commission, at this late stage, to consider those submissions insofar as they include arguments, additional material or general commentary about matters which did not form the basis of the appeal during the formal proceedings.
- Mr Hodder maintains that despite making numerous verbal and written requests, his employer did not provide any support to him following incident One. In support of this position, Mr Hodder submits:
- He was denied access to the Riskman reporting system which prevented him from making a formal request for a debrief;
- That a negative response against the question as to whether a debrief had been arranged should have signaled to Ms Hudson that she needed to arrange a debrief for Mr Hodder;
- That he was denied the essential support he was due when Ms Hudson failed to arrange follow-up supervision;
- That he made a further request for support when he submitted his shift report;
- That he sought assistance through 'on-call' and, by extension, a debrief on not one, but two separate occasions; and
- That he should have been provided with direct 'supervision' after the incident.
- Mr Hodder argues that in being deprived of access to the Riskman reporting system, he was denied proper support, supervision and debriefing, which in turn he has characterised as 'not reasonable management action, nor was it taken in a reasonable way.'
- The Respondent maintains there was never any evidence given by Mr Hodder in his evidence-in-chief or cross-examination that he sought to be debriefed after Incident One, noting:
- There is also no evidence to suggest Mr Mafulu requested debriefing on behalf of Mr Hodder;
- The shift report completed by Mr Hodder does not indicate he made a request for a debrief following the incident with Ms A; and
- There is no request in the on-call notes of Mr Hodder requesting a debrief after Incident One.
- Mr Hodder maintains he was denied support following Incident Two notwithstanding him making verbal and written requests for assistance. He states that he also experienced continuous delays in accessing the employer's Riskman system, which meant it was impossible for him to make a direct request for support and debriefing.
- In support of his position about deficiencies in the provision of support and debriefing, Mr Hodder submits:
- He made a frantic plea for support after a young person cut her vein, yet, according to the service manager, there was nothing in the files when she searched through them to indicate this occurrence ever took place;
- The fact that Anglicare did not tender the on-call notes to confirm the on- call coordinator provided the appropriate response surely supports his position that he was not provided with support;
- He was offered no assistance and no support following the event;
- He was not relieved from his shift after the event;
- There is no recorded supervision or debrief in Anglicare's records to confirm the employer undertook a check on Mr Hodder's welfare; and
- The tendered shift report was completely devoid of any mention of the incident, so how did Ms Hudson obtain the details she used to complete the incident/hazard report?
- The Respondent's representative maintains Mr Hodder did not make a request for a debrief following Incident Two, further noting:
- Ms Hudson's evidence was not that residential care workers are briefed after every critical incident whether they request one or not;
- The shift report relating to the period where Incident Two occurred did not contain a request for a debrief;
- There was no evidence given by any of the managers called by the Regulator that any supervision they provided would necessarily include a critical incident debrief.
- That in his own submissions, Mr Hodder acknowledged that residential care workers are frequently reminded verbally to ask if they feel they require supervision and/or a debrief.
- The Respondent also highlighted several inconsistencies between Mr Hodder's written submissions, referencing his oral evidence where he stated that requesting a debriefing was 'the furthest thing from his mind', but then later submitting that the subject of supervision or debriefing was never mentioned by his managers resulting in Mr Hodder feeling intimidated and obliged to hold his tongue by deferring to his supervisors. The Respondent noted Mr Hodder gave no evidence that he felt intimidated and obliged to hold his tongue, notwithstanding the material contained in his written submissions.
- Mr Hodder submits Anglicare failed to take reasonable action when they accepted a young female into a residential house that was not suited to her care-needs, which, among other things, led to him being sexually propositioned by a 14-year-old girl. Further, 'on-call' did not follow up on the incident and he was denied proper support, supervision and debriefing.
- Mr Hodder maintained Mr Linneweber had no relative education in relation to on-call supervision, therefore he could not be expected to assess, whether by phone or in person, whether a residential coordinator should be relieved from their duties.
- The Respondent maintains the relevant shift report does not contain any indication that Mr Hodder sought to be debriefed. Moreover, the on-call notes do not indicate he requested a debrief after the incident.
- A large part of Mr Hodder's submissions in respect of Incident Three focus on the role of Mr Linneweber as an 'on-call' residential coordinator, his lack of expertise and his alleged failure to follow various procedures such as directing Mr Hodder to record the details of Incident Three on Riskman, failing to ask Mr Hodder about his welfare, failing to understand the severity of the situation and failing to arrange relief for Mr Hodder after he requested a support worker.
- Mr Hodder's submissions in respect of Incident Three also encompass a range of additional criticisms in relation to Anglicare's management processes and procedures relating to additional events concerning Ms B after Incident Three. However, in circumstances where issues to be determined in this appeal relate directly to the provision of support and debriefing to Mr Hodder by his employer specifically in respect of Incident Three, they are not relevant.
- Mr Hodder argues he contacted Ms Tahnee Ledgerwood on the evening of 2 October 2016 and requested a support youth worker and/or to be replaced by another residential care worker. In support of his position, Mr Hodder points to his version of the shift report, noting he was eventually replaced mid-way through his shift by Mr Linneweber.
- Mr Hodder maintains that the failure of Anglicare to tender any on-call records during the proceedings can only result in an assumption that Anglicare failed to provide the appropriate support and advice to him. Further, that it failed to demonstrate the 'on- call' coordinator followed proper procedure by checking on the welfare of Mr Hodder and recording the incident.
- Significantly, Mr Hodder submits Anglicare has committed perjury in that a forged document was knowingly tendered to the Commission.
Was the system of debriefing, management action?
- Mr Hodder submits he is arguing his case on the basis of unreasonable management action, noting:
- the requirement that he complete critical incident reports, inform the 'on- call' coordinator or residential coordinator that he seeks or needs to be debriefed after a critical incident is not an everyday duty or task;
- it was not everyday that he was involved in a critical incident in his employment; and
- it was not everyday that he needed debriefing.
- Mr Hodder maintains it was his employer's responsibility to provide proper access to its reporting system by providing the necessary clearances, thus ensuring a request could be lodged for a critical incident debrief. He also submits it was obligated to employ appropriately qualified coordinators to ensure adequate 'on-call' support was provided.
- The Respondent maintains the system of debriefing by the employer was management action, explaining that it was necessary (leaving aside obvious cases where a residential care worker was assaulted or where a young person died) for the residential care worker to inform the employer if he or she needed to be debriefed after a critical incident.
- The Respondent submits that seeking a debriefing following a critical incident was something different to Mr Hodder's everyday duties and was something different to the incidental tasks of his employment. Further, the Commission in other decisions has recognised that in certain factual circumstances, a failure to act by management may be management action.
- It maintains completing critical incident reports and shift reports, and informing the 'on-call' coordinator of incidents that had happened during a shift, may be reasonably considered to be part of Mr Hodder's everyday duties or tasks. However, it argues the requirement that Mr Hodder inform the on-call coordinator or, where relevant, the residential coordinator, that he seeks or needs to be debriefed after being involved in a critical incident, is not an everyday duty or task faced by Mr Hodder, because:
- It was not everyday the Appellant was involved in a critical incident in his employment; and
- It was not everyday the Appellant was involved in a critical incident in his employment in respect of which he stated he needed debriefing.
Findings and Conclusions
- To succeed in this Appeal, Mr Hodder bears the onus of proof, on the balance of probabilities to prove that he did sustain an injury within the meaning of the Act.
- The Respondent does not dispute Mr Hodder:
- Was a worker within the meaning of the Act;
- Suffered a personal injury, namely an adjustment disorder with anxiety and depression; and
- That the personal injury arose out of, or in the course of his employment; and
- That Mr Hodder's employment with the employer was the major significant contributing factor to his injury.
- However, the Respondent maintains Mr Hodder's injury is removed from the statutory definition of injury in circumstances where it maintains that the support provided to Mr Hodder when dealing with high level behavior was reasonable management action taken in a reasonable way in connection with Mr Hodder's employment.
- Conversely, Mr Hodder maintains the management reporting systems and debriefing processes that were in place at the time of all four incidents where unreasonable and led to unreasonable management action being taken in an unreasonable way.
- Further, that in situations where an employee has not requested a debrief after a critical incident, Mr Hodder maintains the onus rests with management to question this abnormal behavior and explore the reasons behind it, by ensuring appropriate supervision is conducted to ascertain the employee's mental state of health.
Was the system of debriefing management action?
- Having considered the nature of Mr Hodder's employment and daily responsibilities, I am satisfied the Anglicare system of debriefing following a critical incident is specific management action that would not otherwise form part of the everyday duties or tasks he would have otherwise performed.
- In Tamara Jones v Q-COMP, one of the stressors that was accepted by the Commission to be management action was the lack of debriefing provided to an employee by management following critical events in the workplace where the claimant worker was employed on an on-call sexual assault roster in a women's health service.
- In this regard, I am also satisfied that Mr Hodder's complaint in respect of Anglicare's alleged failure to act when it came to initiating debriefing and/or support processes following a critical incident, constitutes management action for the purposes of s 32(5) of the Act.
Was the system of debriefing reasonable management action taken in a reasonable way?
- In Sabo v Q-COMP, Hall P wrote (footnotes omitted):
In the absence of argument, I do not accept that the exercise of determining whether a managerial decision is "reasonable" and "taken in a reasonable way" is so like an exercise of discretion that an appellant seeking to reverse a decision of a tribunal in the first instance, should be required to meet the standard set by the principles in House v The King at 505 per Dixon, Evatt and McTiernan JJ; compare Mascauslane v Fisher Paykel Finance Pty Ltd (a "reasonable notice" case). However, the exercise of assessing "reasonableness" for the purposes of s. 32(5)(a) of the Act, is evaluative as well as judgmental. The is room for difference of opinion. The judicial officer dealing with the matter at first instance should be allowed a measure of latitude.
- It is well established that management action need only be reasonable, rather than perfect. That is, instances of imperfect but reasonable management action may, in the appropriate circumstances, be considered a "blemish", but management action does not need to be without blemish to be reasonable.
- It is clear on the materials before the Commission that the role of a residential care worker and a residential coordinator can be quite complex and challenging at times. Many of the children who enter the Anglicare residential program have experienced prior trauma, neglect and past challenges in their lives, which in turn can result in young people engaging in 'difficult to manage' behaviours.
- Certainly, the Commission had the benefit of considering not just Mr Hodder's position description and the Anglicare Residential Care Manual, but also shift and on- call reports over the periods of time during which the incidents Mr Hodder raised occurred.
- Having considered those materials, it is clear the requirement to manage high level behaviours and complex situations form a regular part of the role of residential youth workers, residential coordinators and/or 'on-call' coordinators.
- Certainly, it appears it is not uncommon for young people in the residential program to act out, abscond, engage in aggressive or confronting behaviours, consume medication or drugs in an inappropriate manner, be admitted into hospital, refuse to follow a request or a direction from a residential care worker or sadly, engage in self- harming or more extreme conduct. In just one weekend alone, it was possible to identify a minimum of ten such incidents from the materials provided to the Commission where such behavior occurred across a number of residential homes operated by Anglicare.
- It is also very clear that one of the roles of a residential coordinator or an 'on-call' residential coordinator is to provide debrief assistance and support where requested.
- I accept, as did Mr Hodder under cross-examination, that residential care workers will respond or react to critical incidents such as those described above, in different ways and will also require varying levels of support.
- Likewise, it is not unreasonable to assume that until a residential care worker makes it known to a residential coordinator that they need to be debriefed about an incident, that a residential coordinator would not know that a residential care worker has a need to be debriefed.
- Mr Hodder maintains that where a residential care worker experiences a critical incident and they do not request a debriefing, then the onus is on the employer to assume their failure to request a debriefing is abnormal and to make inquiries of the worker in respect of their mental health.
- In my view, the requirement for a residential coordinator or an 'on-call' residential coordinator to attempt to assess the mind of residential care worker and determine, without any indication or insight from the worker themselves, whether there is a requirement for the employee to participate in a debrief in relation to every critical incident that arises during their employment, is both impractical and unreasonable. Other than perhaps where an overdose, a death or an assault occurs, it is the residential care worker, in my view, who is generally best placed to make such an assessment.
- In this regard, I accept, as did Mr Hodder during the proceedings, that when he first commenced his employment with Anglicare, he was provided with an induction and a series of instructions from management insofar as they related to initiating contacting with residential coordinators or service managers, following a critical incident with a young person.
- I note the Anglicare 'on-call' procedure specifically highlights circumstances where residential care workers are required to contact 'on-call'. These include
- Staff members injured requiring medical treatment and/or to be relieved from work duties due to injury;
- Staff members being involved in an incident and requiring debriefing after the incident; and
- If Staff are unwell/unable to complete their rostered shift.
- I also accept the evidence of Ms Monro that residential care workers are regularly encouraged in staff meetings and other forums to contact their line manager or access other support mechanisms if they determine they require a debriefing and/or further support. For example, in respect of any critical incidents that occurred during Monday to Friday, 9.00am to 5.00pm, it was open to Mr Hodder to contact the relevant residential coordinator to raise any concerns.
- There was no evidence to suggest Mr Hodder was prevented from such actions or that the conduct of the residential coordinator or manager was so threatening or abhorrent that he was somehow prevented from initiating contact.
- The Anglicare Residential Care Manual also points to a series of options and contacts that are available for residential care workers in the event they require more support or assistance, including:
- The employee's line supervisor or service manager
- The Employee Assistance Program (including relevant phone and online contact details)
- An ASQ Chaplain (including links to contact details)
- A GP or mental health professional
- Mr Hodder himself acknowledged that following a critical incident it was also open to him to contact the relevant residential coordinator to request a debrief or additional support. He was also aware of the existence of the Employee Assistance Program which would have given him direct access to a counsellor in the event he did not feel comfortable speaking with a residential coordinator.
- In respect of the notification of critical incidents, at the time of Mr Hodder's employment, Anglicare management had set up a system for residential care workers to report events or obtain guidance beyond the hours of 9.00am to 5.00pm, Monday to Friday. This involved residential care workers following the on-call procedure.
- The on-call procedure set out in some detail circumstances where a residential care worker was required to contact an 'on-call' coordinator. Relevantly for this appeal, it highlighted that a residential care worker was required to contact 'on-call' and request a debrief if the employee determined one was required.
- Although there are elements of his written submissions that would suggest otherwise, in my view, there is no reliable evidence before the Commission that indicates Mr Hodder sought a debrief or further support from Anglicare management following Incidents One, Two, Three and Four and/or that such requests were ignored.
- In circumstances where Mr Hodder did not specifically ask for a debrief, it would have been particularly difficult for a residential coordinator to provide a debrief or further support.
- It may well be the case that at the very beginning of Mr Hodder's employment he experienced difficulties logging on to the Riskman reporting system, however I accept the evidence of Ms Monro that residential care workers were regularly encouraged to directly contact their line manager, or access other support mechanisms if they determined they required a debriefing and/or further support.
- I agree with the Respondent's submissions that in respect of Incidents One, Three and Four, it was open to Mr Hodder to contact 'on-call' and directly request a debrief. I am not persuaded by Mr Hodder's written submissions that the mere act of his contacting 'on-call' to report an incident and/or ask for advice about how to handle a situation constitutes, 'by extension', a request for a debrief.
- In relation to Incident Two (and any other incidents for that matter), it was also open to Mr Hodder to speak directly to Ms Hudson or Ms Lloyd during their normal working hours and request a debrief or further support and guidance.
- In relation to Incident Four, I accept that some of the more challenging aspects of Mr E's behaviour featured in Mr Hodder's discussions with Anglicare management, however these discussions were held some weeks before 2 October 2016 and Mr Hodder was requested at that time of those discussions to immediately report any threats being made towards him by Mr E.
- In all the circumstances, I am satisfied that the system Anglicare had in place at the time of Mr Hodder's employment to assist residential care workers access debriefing and/or support was reasonable and implemented in a reasonable manner.
- I am also satisfied there were several adequate pathways that Anglicare management had put in place which Mr Hodder could have accessed in order to request a debrief and/or obtain further support from the relevant residential coordinators following the four incidents which occurred during the course of his employment.
- In all of those circumstances, I find Mr Hodder's injury arose out of or in the course of reasonable management action taken in a reasonable way in connection with his employment. As such, I am satisfied Mr Hodder's injury is withdrawn from being a compensable injury within the meaning of the Act.
- Finally, Mr Hodder in his written submissions has raised a series of concerns in respect of the employer tampering with evidence and/or misleading the Commission. Having considered the materials before the Commission, I am satisfied there is no evidence to support such submissions.
- I make the following Orders:
- The appeal is dismissed
- The decision of the Respondent dated 7 April 2017 is affirmed.
- The Appellant is to pay the Respondent's costs of and incidental to this appeal.
 Exhibit 1.
 T1-79, 80.
 Exhibit 5.
 Exhibit 3.
 T1-83, 87.
 Exhibit 4.
 Exhibit 5.
 T2-59, 60.
 Exhibit 7.
 Exhibit 1.
 Exhibit 8.
 Exhibit 9.
 T3-28; T2-44.
 Exhibit 11.
 Exhibit 8.
 Exhibit 12.
 Exhibit 6.
 Exhibit 19.
 Exhibit 29.
 Exhibit 1.
 Tamara Jones v Q-COMP  QIRC 29 (WC/2009/46) at .
 Sabo v Q-COMP  ICQ 47 (C/2010/46) at .
 WorkCover Queensland v Kehl (2002) 170 QGIG 93, 94.
 Prizeman v Q-COMP (2005) 180 QGIG 481.
 Reid v Workers' Compensation Regulator  QIRC 047 at .
- Published Case Name:
Tony Hodder v Workers' Compensation Regulator
- Shortened Case Name:
Hodder v Workers' Compensation Regulator
 QIRC 154
24 Dec 2018