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Febo v the Workers' Compensation Regulator[2018] QIRC 39

Febo v the Workers' Compensation Regulator[2018] QIRC 39

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Febo v the Workers' Compensation Regulator [2018] QIRC 039

PARTIES:

Febo, Rosemary Carmel

(Appellant)

v

the Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2017/129

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

20 March 2018

HEARING DATES:

27 and 28 November 2017 and

11 January 2018

HEARD AT:

Brisbane

MEMBER:

Industrial Commissioner Fisher

ORDERS:

  1. The appeal is dismissed.
  2. The decision of the Workers' Compensation Regulator is confirmed.
  3. The Appellant is to pay the costs of and incidental to the appeal.  Failing agreement, liberty to apply is granted.

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION - where the appellant had a psychiatric condition on commencement of employment - whether the psychiatric condition continued or was aggravated during employment - where appellant bears the onus of proof to establish on the balance of probabilities that she sustained an aggravation injury - whether appellant decompensated as a result of an aggravation of her depressive disorder caused by work related issues - whether the aggravation injury arose out of or in the course of her employment - whether the employment was the significant contributing factor to that aggravation - whether stressors causative of the aggravation

CASES:

Workers' Compensation and Rehabilitation Act 2003, s 32.

Eric Martin Rossmuller AND Q‑COMP(C/2009/36) - Decision http://www.qirc.qld.gov.au.

Veronica Mary Omanski AND Q-COMP (C/2012/34) - Decision http://www.qirc.qld.gov.au.

SSX Services Pty Ltd v Workers' Compensation Regulator [2016] QIRC 62

Anglo Coal (Capcoal Management Pty Ltd) v Workers' Compensation Regulator & Etherington [2017] QIRC 103

Mater Misericordiae Health Services Brisbane Limited v Q-COMP (2005) 179 QGIG 144

Therese Helen Ward AND Q-COMP (C/2011/39) - Decision <http://www.qirc.qld.gov.au>

Ramsay v Watson (1961) 108 CLR 642

Blackwood v Mana [2014] ICQ 027

WorkCover Queensland v Kehl (2002) 170 QGIG 93

Simon Blackwood (Workers' Compensation Regulator) v Chapman [2016] ICQ 011

APPEARANCES:

Ms R.C. Febo in person, the Appellant.

Ms L. Willson, Counsel directly instructed by the Workers' Compensation Regulator, the Respondent.

Decision

  1. [1]
    Rosemary Febo commenced employment as the Brisbane City Branch Bank Manager of the Bendigo Bank in August 2015.  She decompensated on the morning of 14 December 2016 before attending a performance meeting with her Regional Manager and the Employee Relations Manager.  Ms Febo claims that she decompensated as a result of an aggravation of her depressive disorder caused by issues that arose during her employment.
  1. [2]
    The parties agree, and the Commission accepts, that Ms Febo was a worker within the meaning of the Workers' Compensation and Rehabilitation Act 2003.
  1. [3]
    Ms Febo bears the onus of proof to establish on the balance of probabilities that she sustained an aggravation injury under s 32(3) of the Act.  Although not conceding that an injury was sustained, the Regulator contends that were the Commission to find that she did suffer such an injury, it arose out of reasonable management action taken in a reasonable way.

Injury

  1. [4]
    The elements of s 32(3)(ba) that Ms Febo must establish are that:
  • she sustained an aggravation of a psychiatric or psychological disorder;
  • the aggravation arose out of or in the course of her employment; and
  • the employment was the major significant contributing factor to the aggravation.
  1. [5]
    She must also negative any issue arising under s 32(5) of the Act raised by her own evidence or evidence led by the Regulator.[1]
  1. [6]
    Ms Febo's General Practitioner, Dr Ada Tam, issued a worker's compensation medical certificate on the morning of 14 December 2016 diagnosing reactive depression and anxiety.
  1. [7]
    The psychiatric disorder is described by Dr Michael Theodoros, treating Psychiatrist, in his evidence as major depression.  He said that it was an exacerbation of a pre-existing major depressive disorder with the exacerbation due to work-related factors in Ms Febo's employment.  Dr Theodoros' use of the term "exacerbation" was accepted by the parties to mean an aggravation within the meaning of s 32(3) of the Act.[2] 
  1. [8]
    Ms Febo's case is that, although she had suffered depression in the past (but which had not been specifically diagnosed earlier),[3] she had recovered sufficiently for her to commence employment at the Bank.  Ms Febo identified eight stressors at work which she claims aggravated her condition.  That the aggravation was caused by employment issues is supported by Drs Tam and Theodoros.  However, the Regulator contends that Ms Febo was suffering major depression when she commenced work at the Bank and it continued for the entirety of her employment.  The major depression was temporarily exacerbated by stressors in her life such as relationships, her car breaking down as well as workplace issues.  In this way, Ms Febo did not suffer a compensable injury for the purposes of s 32 of the Act.
  1. [9]
    Whether Ms Febo suffered an aggravation of her psychiatric disorder requires consideration of the medical evidence, including Dr Tam's medical records, in some detail.
  1. [10]
    Ms Febo and Dr Tam have a lengthy doctor-patient relationship and Dr Tam confirmed in her oral evidence that she knew Ms Febo's medical history well.
  1. [11]
    The first of Dr Tam's medical records for Ms Febo which are before the Commission is that of 2 September 2015.  It is to be remembered that Ms Febo commenced employment with the Bank in August 2015.
  1. [12]
    The medical records show that Ms Febo consulted Dr Tam on three occasions in September 2015.  The first consultation on 2 September records two physical conditions as reasons for the contact.  However, Ms Febo also reported that she had "been very irritable, and easily angered and frustrated.  A lot of negative chatter in her mind.  Not as teary, but still lacks confidence and motivation.  Poor memory and concentration."  Dr Tam commenced Ms Febo on Endep.
  1. [13]
    The second consultation on 18 September was so that Ms Febo could provide written consent for Dr Tam to write a report for an insurer.  Dr Tam suggested to Ms Febo that the insurer wished her to see a psychiatrist after her previous psychiatrist retired.  Dr Tam proposed Dr Theodoros.  In her report to the insurer dated 18 September, Dr Tam wrote that Ms Febo had deteriorated somewhat rather than improved over the last six months.  She attributed the deterioration to personal issues as well as some physical complaints.  Dr Tam also noted that Ms Febo had lost confidence in seeking employment.
  1. [14]
    Dr Tam was cross-examined about her view that Ms Febo had deteriorated over the last six months.  It was put to her that this meant that when Ms Febo commenced employment at the Bank in August her mental health was in decline and the reasons for the deterioration were unrelated to work at the Bank.  Although Dr Tam acknowledged that the time period included her commencement at the Bank, she said her letter should not be construed as meaning that the deterioration occurred specifically after August.[4]  When Dr Tam saw Ms Febo on 2 September, she was not getting worse.  Dr Tam said she had to identify the range of issues so that she could refer her to a psychiatrist.
  1. [15]
    The last consultation that month, on 26September, was because Ms Febo had experienced a panic attack the previous Wednesday.  Her car had a flat battery and she had a "meltdown".  Personal stressors relating to family and friends were also recorded.  Dr Tam wrote a referral to Dr Theodoros that day to ensure Ms Febo received treatment.  In that referral she identified various traumatic events that Ms Febo had experienced within close succession over the last three years and expressed the opinion that as a result she had "what possibly may be melancholic depression with paranoia."  She suggested possible treatment options.
  1. [16]
    Ms Febo consulted Dr Theodoros on 12 October 2015.  He wrote to Dr Tam the following day reporting that Ms Febo presented as "depressed and demoralised about her present circumstances."  He went on to describe her current symptoms and said she had "felt like this since June 2014."  He also described the psychosocial circumstances that had contributed to Ms Febo's condition.  None of these concerned her employment with the Bank.  Dr Theodoros described Ms Febo as being "very unwell and quite dysfunctional".  He advised he was going to develop a treatment plan for her severe depression.
  1. [17]
    Dr Theodoros said in oral evidence that when he first saw Ms Febo, she was diagnosed with major depression that was moderately severe and then placed on increased doses of an antidepressant.  Dr Theodoros had further consultations with her on 26 October 2015, 18 November 2015 and 14 December 2015.  There was a gap of approximately one year until Ms Febo returned to see him on 17 January 2017.
  1. [18]
    On 11 March 2016, Ms Febo told Dr Tam that she had "had a stressful week this week" and described her symptoms.  This was the first time she reported finding new employment.
  2. [19]
    On 16 March, Dr Tam wrote to the insurer advising in part that Ms Febo had a range of symptoms to the point where she was not able to function before seeing Dr Theodoros in November 2015 and being prescribed Endep.  Ms Febo also began seeing a psychologist more regularly.  Dr Tam opined that Ms Febo had improved to the point where she had been able to gain employment "earlier this year.  However, there was a setback last week when an event at work started her self-doubt again."  Dr Tam reported Ms Febo's symptoms of chest and abdominal pains, which she said she often suffered with stress.  Dr Tam went on to state that Ms Febo was coping at work until she was involved in a confrontational situation.
  1. [20]
    Ms Febo took two weeks' unpaid leave from the Bank between 30 April and 12 May 2016 because of stress.[5]
  1. [21]
    At the consultation with Dr Tam on 2 July, Ms Febo reported she was coping better in her current role despite dealing with conflict as a manager.  Other physical and personal issues were discussed, with the personal issue obviously causing her some concern.
  1. [22]
    Although Ms Febo continued seeing Dr Tam over the period March to June, the issues concerned her medication and non-work related matters.
  1. [23]
    The medical notes of 26 July record the worsening situation at work for Ms Febo.  She reports being under pressure to perform, being micromanaged, weekly reporting to a new boss, having insufficient staff, the refusal by the new boss to replace staff and the difficulty in reaching targets with the staff shortage.  Dr Tam notes, "she feels frustrated that she was recovering from her anxiety and depression, and then with this work stress she can't cope and feels she is going backwards…".  She wrote a "letter of comfort" for Ms Febo which she never presented to the Bank.  It states that Ms Febo is suffering from severe stress and burnout and proceeded to identify a number of work related causes for this condition which generally reflect those contained in her medical record of that day.
  1. [24]
    The next medical record of 19 October notes that Ms Febo has "been seeing the employee assistant (sic) programme for counselling.  The team has improved.  Things are better managed at work."
  1. [25]
    Ms Febo did not consult Dr Tam again until the morning of 14 December, before the performance meeting.
  1. [26]
    Ms Febo was a regular patient of Dr Theodoros throughout 2017.  He assumed Ms Febo had improved significantly since her last consultation in December 2015 as she did not return to his practice for 12 months.  By then there had been a distinct recurrence of major depression.[6]
  1. [27]
    In his evidence in chief, Dr Theodoros acknowledged that the causative factors for her condition were increased work load; insufficient staff to manage the requirements of the job; receiving very little support and criticism of her work performance.[7]  It was those factors which tipped her back into depression.[8]  He considered she had suffered a recurrence of a major depressive episode which seemed to be an exacerbation of a pre-existing condition with the exacerbation being due to work related factors in her new position.[9]  He was unaware of any non-work related factors that contributed to her condition.  He considered employment was the major significant contributing factor to the injury because she had improved after the first series of appointments in 2015 sufficient for her to return to some kind of employment.[10]
  1. [28]
    Dr Theodoros said under cross-examination he was of the opinion that Ms Febo had been unwell, had improved significantly, which allowed her to return to work, but then had suffered a recurrence of a depressive illness as a result of the issues at work.  He acknowledged he was relying for his opinion on the information provided by Dr Tam that she improved then deteriorated and Ms Febo's description.[11]
  1. [29]
    Dr Theodoros accepted that experiencing a panic attack and a meltdown due to a flat battery in her car were consistent with the symptoms of major depression with agitation.  Further, the symptoms Ms Febo reported to Dr Tam in March 2016 were also common with major depression.  The Regulator pressed Dr Theodoros on whether Ms Febo had a continuing depressive episode or whether a depressive episode had been exacerbated.  While acknowledging it was difficult to distinguish between continuing depression and an exacerbation due to life events, he considered that it was an exacerbation related to events at work.  He could not be 100 per cent certain that this was the case but it was his opinion that work was the most likely factor.  He said it was "really hard to know exactly what's caused what".  It was possible the meltdown showed she was in a depressive state at that time but work being the major contributing factor was a reasonable assumption for him to make given the information he had.[12]
  1. [30]
    In response to a question asked by the Commission, Dr Theodoros said:

"I think when you have recurrent episodes, it's always hard to know when one - one starts and - when one - one ends, and so you tend to see fluctuations and improvements with - with that, improvement also in functioning, but it may be possible that some symptoms do persist and that - but the person is able to function and work.  And I think that's probably what's happened to her, that she has a tendency to develop depression and that sometimes there will be exacerbations based on stress, and other times there can be exacerbations just as part of the process of getting - of having a - recurrent major depression."[13]

Consideration

  1. [31]
    The Regulator maintains that Ms Febo was suffering from major depression when she commenced work and for the entirety of her employment at the Bank.  The condition was temporarily exacerbated by various stressors in her life both personal and work related.  Ms Febo contends she was fit to take up employment at the Bank but sustained an aggravation of a depressive disorder caused by work related issues.
  1. [32]
    Dr Tam's letter of referral for Ms Febo to consult a psychiatrist in September 2015 shows that she was suffering mental health issues at that time.  This letter was written about one month after Ms Febo commenced work at the Bank.  The symptoms Ms Febo advised Dr Tam on 2 September of irritability and frustration were accepted by Dr Theodoros as being possible symptoms of depression.  Ms Febo's meltdown and panic attack on 26 September are also consistent with her having depression. I note that in her evidence Dr Tam tried to rationalise this response to a flat battery as a normal response when a person has started a new job, however, Dr Tam was unaware at that time of Ms Febo's new employment.
  1. [33]
    Dr Theodoros saw Ms Febo over a two month period in late 2015 (12 October to 14 December).  Her first consultation occurred two months after she commenced at the Bank but he was unaware of her employment at that time.  His diagnosis was of major depression that was moderately severe and he prescribed increasing doses of an antidepressant.  Given Dr Tam's medical records showing a deterioration in Ms Febo's mental health resulting in a referral to Dr Theodoros for treatment and in light of Dr Theodoros' opinion, I accept the Regulator's submission that Ms Febo was suffering major depression when she commenced work at the Bank.
  1. [34]
    The next issue is whether Ms Febo was suffering from this disorder throughout her employment or whether it was aggravated over the period of her employment. 
  1. [35]
    Dr Theodoros assumed the major depression had improved significantly over the course of 2016 as she did not return to see him that year.  This assumption is supported in part by Ms Febo not attending on Dr Tam either from November 2015 until March 2016.  I note Dr Tam's record of 5 November that overall, Ms Febo's mood had improved.
  1. [36]
    Dr Theodoros found it difficult to determine whether Ms Febo's depression continued into 2016 or was aggravated by various events.  Although he could not be certain, he considered that most likely she had suffered an aggravation due to workplace events.
  1. [37]
    During the oral evidence of Dr Theodoros, neither party explored whether Ms Febo's depressive disorder went into full or partial remission, rather the focus was on whether it continued or was aggravated.  The evidence of Dr Theodoros was that Ms Febo experienced recurrent episodes of depression and had suffered a recurrence in December 2016.  He considered that although some of her symptoms persisted, she could function and work.  He further considered that her disorder was exacerbated in 2016 as a result of work related issues.
  1. [38]
    This evidence has to be considered against the medical records of Dr Tam which show that Ms Febo returned to consult her in March 2016 about a stressful situation at work.  This visit occurred only three months after Ms Febo's last consultation with Dr Theodoros and suggests that Ms Febo remained vulnerable.  The report Dr Tam provided to the insurer following the consultation shows that Ms Febo was still taking anti-depressant medication at that time.  Her medical records also show that Ms Febo continued on anti‑depressant medication throughout 2016.
  1. [39]
    Dr Theodoros was cross-examined about his opinion of a recurrence in light of Dr Tam's medical records, including the events of March and the continued reliance on anti‑depressant medication.  He did not resile from his opinion.  In those circumstances, I am prepared to accept Dr Theodoros' opinion.  I find that Ms Febo's depression had improved after consulting Dr Theodoros in late 2015 and while symptoms persisted in 2016, she suffered an aggravation of her depressive disorder.
  1. [40]
    Whether the aggravation injury arose out of or in the course of her employment and whether her employment was the significant contributing factor to that aggravation are questions to be determined after consideration of the stressors said to have been causative of the aggravation.

The Stressors

  1. [41]
    Ms Febo identified eight stressors which she claimed caused the aggravation of her injury.  These are:
  1. Inadequate induction and onboarding;
  2. Inadequate staffing model and resourcing;
  3. Unreasonable time delays;
  4. Unreasonable increase in Branch lending targets;
  5. Micromanagement and intimidation by management;
  6. Serious undermining and non-disclosure by staff;
  7. Inadequate training to perform all duties of Branch Manager role; and
  8. Unreasonable performance - formal written warning.
  1. [42]
    There are some linkages and overlap between the stressors.  To avoid repetition, and where possible, the issue will be dealt with under the most relevant heading.
  1. [43]
    Ms Febo provided tendered a substantial number of exhibits in support of each of her stressors.  Although not all of the exhibits or the evidence about each stressor is addressed or specifically referenced, they have all been considered in reaching my decision.
  1. Inadequate induction and onboarding
  1. [44]
    The main issues raised by Ms Febo under this heading are:
  1. (i)
    the employment agreement and the position description did not require the Branch Manager to be a qualified home lender;
  2. (ii)
    no formalised training plan;
  3. (iii)
    no clear targets or expectations; and
  4. (iv)
    no personal or branch half yearly review.
  1. [45]
    Ms Febo also raised issues of accreditation under this heading, but these are more appropriately dealt with under Stressor 3.
  1. [46]
    Employment Agreement & Position Description:  A key contention of Ms Febo is that she was not informed prior to taking the position that the Branch Manager was required to be a qualified home lender.  It was her understanding that she required knowledge of home lending but would not be responsible for performing this function.  When she commenced employment at the Brisbane City Branch, a Customer Relationship Manager (CRM), with responsibility for home lending was in place.  Mr Daw, the person filling this position, was removed from the Branch within about eight weeks of her commencement, leaving her with the responsibility for performing the home lending role.  The first of the issues raised under this stressor addresses the qualifications for and the duties of the role of Branch Manager.
  1. [47]
    Ms Febo was provided with an Employment Agreement on her appointment.  Under the heading of "Position", the Employment Agreement states that a position description accompanies this agreement.  Ms Febo's evidence is that no such position description was received.  The Employment Agreement only provides the terms and conditions of Ms Febo's employment.  Moreover, she did not see a position description until these proceedings when one was disclosed.
  1. [48]
    The Employment Agreement does not address specific job requirements.  That is the function of a position description.  Although the position description does not explicitly state that a branch manager is to be a qualified home lender, there are several key result areas which touch on this issue such as provide financial services; generate loan approvals; complete and approve loan applications.  Fiona Durham, the Bank's Employee Relations Manager for Queensland and New South Wales, ultimately agreed under cross‑examination that the position description in evidence was probably not the current one and probably had been updated.  However, it was a generic document which did not specify the requirements of any branch in particular as they are set up differently.[14]  According to Gavin McNab, Regional Manager and Ms Febo's original line manager, the key result areas in the position description were correct despite the direct reports being incorrect.
  1. [49]
    Training Plan:  Ms Febo complains that there was no tailored training for new Bendigo Bank Branch Managers.  The training was ad hoc at best with no formalised plan or program, which was contrary to the Bank's promise of support, adequate development and training.  There was a checklist and there was no follow up by her manager in respect to her knowledge and understanding of the requirements of the position.
  1. [50]
    Ms Febo said most of her training was online with a little bit of classroom or workshop learning.  She tendered her training report[15] which shows that she completed 107 modules during her employment.  However, most concerned compliance and did not concern lending. 
  1. [51]
    Ms Durham said all staff complete an induction program but the "on boarding" and induction when Ms Febo was appointed was the responsibility of the Regional Manager and Learning and Development to ensure that she had the resources to complete the training.  It was also her responsibility to undertake the training.[16]  There is now a more formal training plan for branch managers.
  1. [52]
    No clear targets or expectations:  Ms Febo contends no clear targets or expectations were provided to her by Mr McNab either during her induction or her six-month probation period despite her requesting this of him during her first week of employment.  She said his response was:

"Look, take a few weeks and settle in and we'll get to that.  So that was what I was told, so that's what I did."[17]

  1. [53]
    Ms Febo was then asked:

"When did you get your targets?-- He ran through the targets in a meeting at some point, but it certainly wasn't at the very start.  It was a good few months in."[18]

  1. [54]
    Mr McNab confirmed that he discussed the targets that were required to be met with her and the CRM.  When Ms Febo commenced employment the targets had already been set so the discussion concerned the "traffic light reports" indicating where the Branch sat and "clarified what those expectations were in terms of the numbers and the budget."[19]
  1. [55]
    No personal or branch half yearly review:  Ms Febo says she was not provided with a copy of her half yearly review as required by Bank policy so she was unaware of how her Branch performed relative to the KPIs.  She was also not provided with an end of year performance review as also required by Bank policy.  Ms Febo contends that these omissions, demonstrated a further lack of transparency, management inadequacies and unreasonable absence of obligatory management duty and process.  She was left feeling very unsettled and without the necessary knowledge and information of the Branch's end of year performance and KPI results to run the Branch.
  1. [56]
    The issue of the end of year performance review was not raised in cross-examination with Mark Lally who was Ms Febo's Regional Manager formally from 1 July 2016.
  1. [57]
    Ms Durham said an end of year financial review would occur because it is linked with the setting of pay increases and bonuses which are allocated in September/October. The process is completed electronically and she understood that the entire staff was required to have a review.  Ms Durham found it difficult to comprehend that Ms Febo was not subject to the process.
  1. Inadequate staffing model and resourcing
  1. [58]
    When Ms Febo commenced at the City Branch, the staff complement comprised Ms Febo as the Branch Manager, two Customer Service Officers (CSO) (i.e., tellers); one Senior CSO; one Customer Relations Officer (CRO) and one CRM as well as one staff member who had been seconded to another branch.  Not all positions were full-time.  Mr McNab said there were five FTE positions.[20]
  1. [59]
    Ms Febo complains that the original Branch staff complement she started with reduced over time to three full-time staff - herself, a CRO and one CSO with one other CSO being part-time.  The City Branch was also responsible for settlements, unlike other Brisbane branches, a process which was resource intensive.  The reduced staffing levels made it difficult for targets and other responsibilities to be met.  Ms Febo contends that Mr McNab mismanaged the staffing numbers and resources to the detriment of the Branch's results causal to her injury.  Mr McNab's evidence was that the resources required for settlements were factored into the FTE positions.
  1. [60]
    The occupant of the CRM position was Mr Daw.  In or about October 2015, he was moved to the Ascot Branch.  The failure to fill his position was a cause of great concern to Ms Febo, principally because he was responsible for home lending.  The task then fell to her.  At the time of his removal, and for some time thereafter, Ms Febo contends that she did not have the necessary qualifications and knowledge to undertake this task.  While she continually pressed first Mr McNab then Mr Lally for a replacement, one was not given to her.
  1. [61]
    Mr McNab said Mr Daw was moved to the Ascot Branch after evaluations were done about the foot traffic going into the Branch; the demand for lending and other products.  These had been declining before Ms Febo was appointed as Branch Manager and a decision was made to allocate staff within the region to where they were most needed.  Mr McNab believed that the business volume going through the Branch at that time did not warrant a CRM whereas there was demand for those positions in other branches.[21]
  1. [62]
    Despite this rationale for moving the CRM out of the Branch, Mr McNab and Ms Febo discussed searching for a qualified replacement.  Mr McNab told Ms Febo that the position would be advertised.  He also asked colleagues if they were aware of a suitable replacement.  The position was then left vacant for a period however Mr Daw was a "support mechanism" for Ms Febo.  Mr McNab acknowledged that for a short period of time the Branch was short staffed, as were other branches, but "it was matter of trying to adjust and work around what limited resources we had."[22]
  1. [63]
    After a replacement could not be found, the Branch was restructured as the FTE was changing.  Mr McNab asked Ms Febo to consider how she could best manage staff, what staff she would need and the hours required to be worked as some hours were being split, with part-time staff being considered.  He and Ms Febo discussed the changes, however, he could not recall the outcome.[23]
  1. [64]
    Mr McNab agreed that Ms Febo continually asked for assistance and it was provided in a range of ways including access to other Branch managers and the Mobile Relationship Manager (MRM).  Ms Febo acknowledged Mr McNab would assist in a managerial but not a lending capacity and David D'Arcy, who was the MRM assigned to her branch, would also assist.  The evidence given by Mr McNab about the assistance available to Ms Febo was not put to her beyond those people already mentioned.
  1. [65]
    Ms Febo gave evidence that discussions were held with her about a Ms Kellar coming to the Branch as the CRM.  Mr McNab could not recall the conversation and doubted that it had occurred because Ms Kellar had previously worked in the City Branch and wished to remain in the Strathpine Branch where she was now located.  Mr McNab was shown an email trail, one of which he was copied into, which supported the view that Ms Kellar was to be moved to the City Branch.  He said an assumption could not be made that Ms Kellar had been promised to work in the City Branch, rather it was a consideration that she would come in to cover Ms Febo's absence in April/May.
  2. [66]
    Mr McNab acknowledged that Ms Febo continually raised the issue of replacing the CRM/2IC role with him "pretty much every time I met with her".[24]  He acknowledged though, he had not always responded to emails she sent about the matter, despite those emails advising of her concern around the impact of the decision.  Although Ms Febo expressed concern in her evidence about the lack of certainty around replacing the CRM and the effect it had on her, Mr McNab denied there was any uncertainty.  He said they had discussed in September/October 2015 that no-one could be found within the network to replace the CRM so the occupant was not replaced.  Mr McNab said the decision to not to replace the CRM/2IC was advised to Ms Febo.  A CRO was to be brought in from another Branch who was going to be developed into the higher position.  However, the new CRO did not start until early in 2016.  Mr McNab and Ms Febo were at odds as to whether that person was a junior staff member and whether he refused to do lending.
  1. [67]
    Ms Febo wrote to Mr McNab on 13 May about the staffing model for the Branch.  She proposed a staffing model which included the merger of certain roles but maintained her request for a CRM.
  1. [68]
    Mr McNab said that when this email was received, he discussed the matter with his replacement, Mr Lally, who was aware of the situation within the City Branch.  Mr Lally advised that the situation should be left with him.  In answer to a question from the Commission, Mr McNab said that he did not reply to later emails from Ms Febo simply closing the door on the appointment of a CRM because better ways to manage the business were still being considered.  The situation was evolving.[25]  He acknowledged Ms Febo was disappointed she did not have that support but said he could not comment on whether the absence of the position was causing her anxiety and stress on a daily basis.  He considered she was requesting the position so that she might avoid that area of lending.[26]
  1. [69]
    Mr Lally said one of his first tasks as Regional Manager was to discuss the staffing at the City Branch with Ms Febo as staff had to be appointed to the Branch.  He acknowledged that as at that time, July 2016, the Branch was still one staff member short.  On being asked by the Regulator what position that was, Mr Lally said:

"At - at that stage we had to discuss the positions.  Rose wanted a - what we call a customer relationship manager.  The problem we had that - with any branch we have certain FTE limits that we can - we've got to work in.  The problem we had was that Rose also wanted Steven there in the branch.  Steven, however, wasn't up to the role of a customer relationship manager.  Also, in fact, with that as well is that the branch itself - we have very few customer relationship managers in our region.  They're mainly put in branches where we have high lending results that the city branch hadn't produced that sort of figure for the last couple of years.  The lending was quite low and, in fact, it was in negative territory so we'd gone backwards.  To have Steven in the branch, the only way that we could fit Steven in to keep him there was to - basically to appoint two lower positions, what we call a customer relationship officer.  So the option was either to have two of them or to go out, find another customer relationship manager and have a lower role of a customer service officer, and that's - that's fairly complex, but that was the situation.  The discussions with Rose was that she didn’t want to lose Steven from the branch.  So the only way that we could move forward was to have two customer relationship officers, and that was the only way we could fit things in our budget.  There was nowhere to move on increasing that."[27]

  1. [70]
    Although Ms Febo did not achieve her desired outcome from her meeting with Mr Lally, her evidence was she was quite positive.[28]  She had been finally advised by Mr Lally that the Branch would not be getting a CRM position and because they were just starting their working relationship she was prepared to work collaboratively.
  1. [71]
    However, the issue of staffing remained of concern to Ms Febo.  The CRO, Steven, took three months leave from July 2016.  Ms Febo raised staffing in November when she again requested a CRM because the CRO would not perform lending.  Mr Lally advised that he could not change to a CRM because she had an existing CRO and that would be an increase in FTE which would not be approved.  He advised that the vacant CRO position could be replaced and discussions should occur with the other CRO, who would not perform lending, about being developed into the lending business.[29]  In the event that situation did not resolve, Mr Lally was prepared to discuss the matter with the CRO concerned.
  1. Unreasonable time delays
  1. [72]
    The issues of concern to Ms Febo are the eight month delay in achieving FSRA accreditation from Mr McNab, the delay in the replacement of the CRM and delays in obtaining resources.  As the latter two issues were addressed in the previous stressor, this stressor only considers the FSRA accreditation.
  1. [73]
    Ms Febo gave evidence that her Employment Agreement specifies that unless she has received authorisation to give financial product advice, she must not give a customer a recommendation or statement of opinion about financial products.  She contends that it is an ASIC requirement that a person engaged in home lending have accreditation under the Commonwealth legislation.  Without the accreditation she was unable to speak to customers about banking products which was a primary part of her role.[30]
  1. [74]
    Mr McNab said that the FSRA accreditation concerned basic deposit and insurance and not the lending side of the business.  He was concerned about the length of time it was taking her to achieve the accreditation because she would have undertaken the training in other institutions but it was not transferable to the Bank.  Given her experience, he expected her to do the training more quickly.
  1. [75]
    Mr McNab did not sign off on Ms Febo's accreditation until April 2016.  She had emailed him on 8 February 2016 advising that she required her workplace skills observation component of the training completed by him.  In his response the following week he agreed to come into the City Branch the following day to complete it, however, he failed to do so.  On 11 March, the Retail Operations Manager emailed Mr McNab advising that this observation needed to be completed in his presence and requesting that he do so "at the earliest."  However, it was a further month before this occurred.  When questioned about the delay, Mr McNab said he had tried to have one of his team sign off on it but that was unable to be done and he was required to do it.  He then said, "workload and the fact that I was a little bit annoyed that it had taken so long, I probably didn't give it the priority I should have at the time."[31]
  1. Unreasonable increase in Branch lending targets
  1. [76]
    Ms Febo said that when she commenced employment, Mr McNab advised her that the Branch's lending target was $1M per annum or $90,000 per month.  In July 2016, Mr Lally increased the targets to $4M and $338,000 respectively.  This sizeable increase was made without a concomitant increase in staff and in the absence of a CRM.  It was her understanding that $1M of the $4M was to come from the MRM and the remainder was to be generated by the Branch.  Ms Febo contends that her view is supported by the evidence of Mr D'Arcy.
  1. [77]
    Ms Febo tendered spreadsheets for the financial years 2014/15 to 2016/17 which she argued supported her view.[32]  The lending target for the City Branch is shown as $4M, the MRM is shown as $3M and the total lending for the Branch being $4M.  Ms Febo provided the business plan she submitted to Mr Lally[33] which included these numbers and which were not corrected.  When this was put to Mr Lally in cross-examination he conceded he missed the $3M in the early part of the business plan and had concentrated on the later part where the total budget of $4M was shown.
  1. [78]
    Mr Lally disputed the increase to the 2016 lending target as explained by Ms Febo.  His evidence is Ms Febo had overall accountability for a total budget of $4M with the MRM being responsible for $3M of that amount.  This was no different to previous years where the business banking target was included in the total budget. It remained the Branch Manager's responsibility to ensure the total budget was met for the Branch.  In 2016/17 the business banker had been taken away from branches and replaced with a MRM.  Further, he had clarified the position in an email to Ms Febo on 6 June 2016 when he set out the lending growth as $4.5M with the MRM responsible for $4M of that amount.  These figures were later amended to $4M and $3M respectively.  He said the $1M target for the City Branch Manager did not change in 2016/17.  The $338,000 budget per month included the contribution from the MRM.[34]
  1. Micromanagement and intimidation by management
  1. [79]
    Ms Febo contends that:
  1. (i)
    the lending targets were unrealistic given the removal of the CRM and the staffing mix available;
  2. (ii)
    Mr Lally set unreasonable expectations that she achieve his demands each and every month without a CRM and sufficient staff;
  3. (iii)
    Mr Lally micromanaged her on a weekly basis; and
  4. (iv)
    Mr Lally made verbal threats to her.
  1. [80]
    The complaints set out in (i) and (ii) above have largely been considered in respect of other stressors.  Only the issues of weekly micromanagement and verbal threats shall be considered here.
  1. [81]
    Mr Lally succeeded Mr McNab officially from 1 July 2016.  The initial meeting between Mr Lally and Ms Febo was held on 20 July where a range of issues including staffing and the business plan for the Branch were discussed.  This was followed up two days later with an email from Mr Lally advising that he required her to focus on lending opportunities and with the staff to search out lending referrals and grow the deposit side of the business.  He set out six action items that he required and which would be reviewed on a weekly basis commencing 1 August.  He required the first report by 29 July.  When he had not received an acknowledgement of this email he sent another email early on 29 July requesting the information be supplied by close of business.  Ms Febo complied.
  1. [82]
    Ms Febo did not mind being evaluated but objected to his management style.  She considered it unreasonable, excessive and intimidating.  She was concerned he was acting contrary to Bank Policy.[35]
  1. [83]
    On 26 July, Ms Febo consulted Dr Tam who wrote a letter of comfort that was not shown to anyone at the Bank.  Mr Lally said in his evidence that he was unaware of any psychiatric or psychological distress being suffered by Ms Febo and she did not disclose that she was struggling at work.[36]
  1. [84]
    Tendered in evidence were emails from Mr Lally over the period 19 September to 24 October 2016 with his "demands".  On several occasions, Mr Lally merely responded with "Thanks Rose" with no other comment, follow up meeting or telephone call.  Ms Febo described the process as "very robotic".  She said:

"It felt like a very command and control situation, with no feedback, no coaching, no assistance in order to get through to meet his, you know, to meet the target."[37]

  1. [85]
    Two important events followed in November.  First, Mr Lally conducted a "health check", i.e., a performance review of both the City Branch and Ms Febo on 1 November, and secondly, an operational audit was conducted which had an unsatisfactory overall result.
  1. [86]
    In relation to the health check, Ms Febo contends that the form used by Mr Lally was not approved by the Bank as it did not provide a two-way feedback process.  Ms Durham's evidence was unclear as to whether the health check document was a standard tool, however, she was clear that it was not wrong or in breach of policy for Mr Lally to use the process.[38]
  1. [87]
    Ms Febo submits the assessment was unfair because it was predetermined.  Mr Lally had completed the document, rating her performance against results he had put together without any supporting documentation for her to verify.  The health check was the first time she had been formally reviewed as an end of financial year performance review had not occurred.
  1. [88]
    Ms Febo's notes of the meeting record Mr Lally as saying he did not want any excuses and him threatening her with a performance improvement program if the results did not improve.  She felt the process was directive and intimidating in its approach.
  1. [89]
    At the same meeting Mr Lally provided her with the end of financial year remuneration letter which did not advise of any salary increase, only a share grant.  Ms Febo considered the contents of the letter to be "fairly straightforward" and not raising any concerns for her or her Branch.  According to Ms Durham, an increase would not have been offered because by the end of the financial year Ms Febo had been employed for less than one year.
  1. [90]
    A week following the meeting Mr Lally sent Ms Febo an email noting she had raised and acknowledged that the Branch was behind expectations in lending; that a follow up meeting would occur in mid-November and listing his immediate expectations in respect of lending and insurance.  Ms Febo found the demands to be unreasonable considering depleted staff and quadrupled targets together with the stress she was under because of her lack of training.
  1. [91]
    The follow up meeting between Mr Lally and Ms Febo occurred on 25 November.  Ms Febo was dissatisfied with the conduct of the meeting.  She believed Mr Lally was aggressive and had firm opinions.  She again raised the staffing mix, especially the need for a CRM as one CRO who had been at the branch for six weeks had resigned and the other was refusing to do lending.  Ms Febo's evidence is that Mr Lally told her that "if things did not improve she would fall on her own sword" and she "should go and work at another bank". She understood both of these remarks to be threats to her employment.
  1. [92]
    Mr Lally could not recall making the first remark.  He said when he spoke of a manager's responsibility to the branch he would have said something to the effect of the results of the branch and what the branch does is the branch manager's responsibility.[39]  In relation to the second remark, Mr Lally initially said he could not recall it but then conceded he may have made it off the cuff.[40]
  1. [93]
    Mr Lally sent Ms Febo an email on 28 November outlining the financial results.  There were some improvements but not overall.  Mr Lally informed her the aim was to meet budget each month.
  1. [94]
    It was Ms Febo's evidence that she did not believe Mr Lally was providing any coaching of her as required by the Performance Management Policy.  Rather, it was a series of demands with timelines and consequences.  She considered he was micromanaging her.  Mr Lally denied that he had not provided any coaching and gave examples of telephone calls he had with Ms Febo where he spoke about what other branches were doing, visits to her branch and ways of working with the MRM.  His view was that Ms Febo was always fairly confident in what she was doing, further, he had never received a request from her for coaching.[41]
  2. [95]
    Mr Lally did not consider his approach to weekly reporting to be micromanagement.  He was endeavouring to determine what Ms Febo was doing and to increase lending business in the Branch.
  1. Serious undermining and non-disclosure by staff
  1. [96]
    In late November an audit was conducted of the City Branch with the overall result being unsatisfactory.  In early December two cash discrepancies were found.  The staff responsible for the discrepancies had not reported them to Ms Febo and she had not found them because the relevant system check was due to be completed the day the Compliance Manager came to speak to the two staff.
  1. [97]
    One of the matters Ms Febo was warned about at the performance meeting on 14 December was the discrepancies.  Mr Lally explained that in banking the branch manager is responsible for the compliance of the staff and the branch.
  1. [98]
    Other issues raised by Ms Febo were a group email from a CSO shortly after Ms Febo commenced setting out staff responsibilities in the Branch, with the reference to her being to "try and remember names", complaints made about her after the staff Christmas party by the two staff responsible for the cash discrepancies and the refusal by the CRO to assist with lending.
  1. Inadequate training to perform all duties of Branch Manager role
  1. [99]
    Much of the evidence about training has been set out earlier and is not repeated.  An additional matter is the delegated limit authority (DLA).  It was a requirement for branch managers after July 2016 to have a DLA.  They were given a restricted DLA with the aim being to achieve the full DLA.  The DLA was to be achieved by completing training and the submissions of applications which were assessed by the lending support area.
  1. [100]
    Ms Febo rejected the proposition put to her in cross-examination that she did not achieve the DLA because she did not have enough experience with lending applications and systems.  Ms Febo said the submissions were lengthy and complex and as at November 2016, had submitted several applications, two of which received 100 per cent.
  1. [101]
    Mr McNab was aware of Ms Febo's progress to achieve the DLA as it was a priority.  It was the focus of many discussions with her.  He said that Ms Febo was provided with support to "get lending out of the way" so that she could move on to achieving the DLA.  Ms Febo did not raise with him that she was having difficulties achieving that accreditation. 
  1. [102]
    Mr Lally was critical of Ms Febo not having achieved a DLA but equally noted that it normally takes 12 months for a manager, particularly a manager with experience in lending and being a branch manager, to obtain a DLA.
  1. Unreasonable performance - formal written warning
  1. [103]
    This stressor concerns the performance meeting on 14 December followed by the issuing of the formal written warning later that day.
  1. [104]
    Mr Lally called into the Branch on 13 December to advise her that a meeting would be held the next day to discuss branch performance as well as matters from the Christmas party.
  1. [105]
    Present at the meeting were Ms Febo, Mr Lally and Ms Durham.  It is unnecessary to dwell on the events of 14 December as Ms Febo had decompensated prior to the meeting.  This stressor is not considered further.

Is the aggravation injury employment related?

  1. [106]
    For the purposes of s 32 of the Act, the injury is taken to have occurred when the worker decompensates from that condition.  In this case the decompensation occurred on 14 December 2016.
  1. [107]
    To satisfy s 32, the injury, including an aggravation injury, must firstly arise out of or in the course of employment.  As Neate C explained in SSX Services Pty Ltd v Workers' Compensation Regulator, the law in relation to this elements is settled.  He said:

" … the legal test that the injury must arise out of, or in the course of, employment is relatively undemanding.  There are decisions for the propositions that:

  1. (a)
    the phrase 'arising out of' is wider than 'caused by' and, although it involves some causal or consequential relationship between the employment and the injury, 'arising out of' does not require that direct or proximate relationship that would be necessary if the phrase used were 'caused by;'
  1. (b)
    an injury arises out of employment if the fact that the claimant was employed in the particular job caused, or to some material extent contributed to, the injury;
  1. (c)
    in determining whether an injury occurred 'in the course of' employment, regard must always be had to the general nature, terms and circumstances of the employment and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen."[42] (references omitted)
  1. [108]
    The second employment element of s 32 is that for a psychiatric/psychological injury, employment be the major significant contributing factor.  As O'Connor DP noted in Anglo Coal (Capcoal Management Pty Ltd) v Workers' Compensation Regulator & Etherington:

"… while the test is now, relatively a higher one, the remarks of Keane JA in Newberry v Suncorp Metway Insurance Limited are still relevant:

'… The requirement of s. 32 of the WCRA that the employment significantly

contribute to the injury is apt to require that the exigencies of the employment must contribute in some significant way to the occurrence of the injury which the claimant asserts was caused by the breach of duty of the person (not the employer) against whom the claim is made.'

His Honour later continued:

'That having been said, however, I should also observe in passing that the fact that an injury has been suffered arising out of employment, or in the course of employment, is not sufficient to establish that the employment has been "a significant contributing factor to the injury".  To read s. 32 of the WCRA in that way would be to read the latter words out of the section, and in my respectful opinion to accord scant respect to the evident intention of the legislature to require a more substantial connection between employment and injury than is required by the phrases 'arising out of employment' or 'in the course of employment.' "[43]

  1. [109]
    Although Dr Theodoros expressed the opinion that employment was the major significant contributing factor to the injury, whether this is the case is a question of mixed law and fact to be determined by the Commission.[44]  In undertaking the task, the Commission may be assisted by the medical evidence.[45]
  1. [110]
    Ms Febo contends that her injury had its roots in the inadequate induction and no set training plan, however, it arose around May 2016, escalated by 26 July when she first consulted Dr Tam for psychological problems, and worsened over the ensuing months until she decompensated on 14 December.  Ms Febo's evidence is that by May she was "beside herself" because the CRM/2IC did not commence as assured by Mr McNab and had "broken down by July".[46]  The work events that aggravated her depression occurred on dates broadly captured between October 2015 and 14 December 2016, and more specifically between May and 14 December 2016, when the formal performance meeting was held.
  1. [111]
    Ms Febo's contentions about how and when the injury arose raise several issues.  She argues that the injury she sustained in December 2016 had its origins in the inadequate induction and the absence of a set training plan.  Further, the denied requests for a qualified CRM (from October 2015) was a direct aggravation of her injury.  The Commission has previously found, based on the evidence of Dr Theodoros, that at those points in time Ms Febo was suffering from a pre-existing non-work related psychiatric condition.  The evidence of Dr Theodoros is that Ms Febo was dysfunctional in October 2015.  The pre-existing condition was manifest at the time the work events said to have been the origins of the aggravation occurred.  The contemporaneous medical evidence does not disclose these events as being of concern to Ms Febo at that time.  In fact the treating doctors did not know that she was employed then.   I have formed the view that Ms Febo did not mention them, not because they were not important (the removal of the CRM patently was) but because she was debilitated at the time with major depression.
  1. [112]
    Given as I have found, that Ms Febo's condition improved but she suffered an aggravation of her psychiatric disorder in 2016, then the workplace events in 2015 cannot have been contributory to the aggravation.
  1. [113]
    Ms Febo's contention that the injury arose around May 2016 ignores Dr Tam's medical record of 11 March 2016 where Ms Febo reported a stressful week in the context of her employment and the report to the insurer following that consultation that she had been involved in a confrontational situation and was not coping any more.  Evidence about the confrontational situation is not before the Commission.  Her evidence is that by March she had not received her FSRA accreditation and was doing work for which she was not qualified which was causing her concern.  Ms Febo took two weeks' leave in April/May 2016 because of stress at work.
  1. [114]
    Dr Tam's medical records of 26 July confirm some of the eight workplace events (stressors) nominated by Ms Febo as being contributory to her injury.  Her medical certificate of 8 September 2017 repeats these events but also identifies workplace intimidation and having had inadequate induction and training as additional causes.
  1. [115]
    Dr Tam said in her evidence that there were no other stressors contributing to her condition except the workplace issues.  However, Dr Tam's records also show non-work related events as potentially causing some stress for Ms Febo.  The most significant record is 2 July where Ms Febo not only discusses the situation at work but also a personal issue, which in my view, was likely to have been stressful.  However, the contribution of this issue, if any, was not explored in cross-examination or with the doctors with the result that I am unable to place any weight on it as a contributory factor to the aggravation.
  1. [116]
    The other notes of Dr Tam for the period October 2015 to December 2016 almost exclusively identify work issues as being the causes of stress to Ms Febo.
  1. [117]
    The medical certificate issued by Dr Tam on 8 September 2017 states that Ms Febo is suffering from and being treated for major depression and anxiety disorder as a result of workplace intimidation, being micromanaged, inadequate induction and training in lending and compliance, working under pressure without lack of staff support, unfair and unrealistic targets for performance (with specific reference to lending targets), being undermined by staff as well as other issues that occurred after the decompensation.
  1. [118]
    The workplace events reported to Dr Theodoros, while not on all fours, are broadly consistent with those reported to Dr Tam and were set out earlier - increased work load; insufficient staff to manage the requirements of the job; receiving very little support and criticism of her work performance.
  1. [119]
    A letter from a Psychologist provided through the Bank's employee assistance program was tendered by consent, without the author being required for cross-examination.  The psychologist reports that Ms Febo's initial appointment was on 28 September 2016 for reasons relating to conflict with staff members in the branch.
  1. [120]
    Martin J said in Blackwood v Mana:

"It is an uncontestable requirement that, for an expert opinion to be of any value, the facts upon which it is based must be proved by admissible evidence.  It is not a requirement, though, that the facts which are proved must correspond with complete precision to the proposition on which the opinion is based."[47] (references omitted)

  1. [121]
    There is little difference between the stressors Ms Febo reported to the health professionals and those advanced by her in this case.  Even excluding the stressors that occurred when she had the pre-existing psychiatric disorder and that which occurred after her decompensation, I consider that the "facts" of the workplace events sufficiently correspond with the propositions on which the health professionals' opinions were based.  In particular, both the General Practitioner and the treating Psychiatrist are supportive of Ms Febo's claim that the stressors identified were the major significant contributing factors to the aggravation injury, that is, the major depressive disorder.  No independent medical report is before the Commission.
  1. [122]
    I am satisfied that the evidence supports a conclusion that the aggravation to Ms Febo's psychiatric disorder arose out of or in the course of her employment and employment was the major significant contributing factor to it.

Management Action

  1. [123]
    Except for Stressor 6 which concerns the serious undermining and non-disclosure by staff, all others involve management action.  Because of my finding that the workplace events of 2015 did not contribute to the aggravation, it is unnecessary to consider those matters.  However, in the event I am wrong about that, I have addressed them in this section.  Both s 32(5)(a) and (b) of the Act have been raised by the Regulator.
  1. [124]
    In broad terms, Ms Febo's case is that she was not equipped to perform the home lending role in the Branch.  Her previous banking experience had been in senior roles, not directly in performing work as a lender or teller.  It was clear from the evidence of Ms Febo and Mr McNab that they held different views about Ms Febo's capabilities.  Mr McNab said the Bank was seeking to recruit a person experienced in lending and development.  Ms Febo had made representations both in the interview and to the recruitment agency that she had experience in lending albeit that she had been out of that field for some time.  Mr McNab was aware that she had a DLA in previous employment which indicated her qualifications.  He said she also mentioned that she had undertaken a comprehensive lending program with a previous employer.
  1. [125]
    Ms Febo had no recollection of being asked about her lending experience during the interview.  Under cross-examination she said she had the knowledge and skill of lending but did not know how to process loans.  She had no previous experience in the role with the result she relied on Mr Daw, the CRM, to perform the role.  His removal from the Branch after eight weeks of her commencement left her in an untenable position.  She continually requested he be replaced as by that time she had not completed the relevant training or received the necessary accreditation to perform the role.  While a CRO was recruited to the Branch, he refused to undertake lending because it was above his pay grade.  Ms Febo contends that she received limited assistance from Mr McNab or others.  The failure by the Bank to provide an experienced lender in the Bank on a full‑time basis caused her significant stress.  Further, the Bank failed to provide appropriate training or to support her to achieve the qualifications she needed to undertake the role.
  1. [126]
    Her task was made more difficult when Mr Lally increased the lending targets for 2016/17.  This increased her stress further and increased again when he began his weekly micromanagement of her in relation to reaching the targets which she considered impossible both given the sizable increase and the absence of a dedicated experienced home lender.  The reduction in staff numbers in the Branch over the period of her employment added to the complexity of the task confronting her.
  1. [127]
    A number of stressors overlap and link, especially the staffing issues (Stressor 2), the increase in branch lending targets (Stressor 4) and micromanagement and intimidation by management (Stressor 5).  The training issues (Stressors 1 and 7) and delays (Stressor 3) feed into these matters.  For these reasons, in considering the reasonableness of management action, the stressors will be considered slightly out of order.
  1. Inadequate induction and onboarding 
  1. [128]
    There are four parts to Stressor 1.  The first concerns the position description.  The disclosed position description shows a creation date of January 2007 and a date when it was updated of September 2008.  I accept it is unlikely that it was current as at the time of Ms Febo's employment.  I further accept that contrary to the terms of the Employment Agreement, the position description was not attached.  However, I do not see that the omission in providing a position description is particularly relevant.  She did not raise the issue during her employment.  It was only belatedly raised consequent on the disclosure process.  Further, as much as Ms Febo now takes issue with the non-provision of the position description at the time of her commencement and disputes many of its contents, including its reporting lines, this is an afterthought, as the Regulator submits.  In any event, Mr McNab's evidence, which I accept on this point, is that the key result areas remain current.
  1. [129]
    The second issue concerns the absence of a formalised training plan.  It links with Stressor 7 which deals with the training as Branch Manager.  I accept that the training for Ms Febo was not provided as a stand-alone package for branch managers.  The training transcript shows that Ms Febo undertook a great deal of training over the period from her commencement to mid-2016.  The evidence shows that Ms Febo was aware of the need to undertake training and a program was provided by the Bank for that purpose.
  1. [130]
    The third issue concerns there being no clear targets or expectations.  It does not appear that there was a collaborative approach to the setting of targets and expectations, however, this was because Ms Febo commenced after those had been established at State level.  It was Ms Febo's role to ensure those targets and expectations were met.  I am satisfied that Ms Febo was aware of the targets she was required to meet during her probationary period as shown by her evidence and that of Mr McNab which was set out earlier.
  1. [131]
    The fourth concerns the absence of a personal or branch half yearly review.  The evidence of Ms Febo and Ms Durham differs on this point and is unable to be reconciled.  However, the evidence of Ms Durham and Mr McNab is that Ms Febo was not entitled to a pay increase because of her length of service at the Bank.  While I accept that the Bank policy requires a performance review to be undertaken, if one was not then it was no more than an oversight.  It was not a matter Ms Febo expressed concern about at the time.
  1. [132]
    I am not satisfied that the evidence in relation to Stressor 1 establishes that management action was unreasonable or taken unreasonably.

7.Inadequate training to perform all duties of the Branch Manager role

  1. [133]
    As noted earlier, this stressor only deals with the DLA.  Ms Febo claims to have been unreasonably pressured by Mr Lally to complete this by December 2016 in circumstances where she was understaffed.  If she had completed this within that timeframe the DLA would have been achieved in less than 12 months.
  1. [134]
    The evidence of Mr McNab and Mr Lally shows they were keen for Ms Febo to achieve this accreditation as it was necessary for the continued development of the lending business.  Mr McNab said that Ms Febo had attained a DLA in previous employment and this seemed to be confirmed by Ms Febo when she said she did not have a DLA at Bendigo Bank.[48]  The effect of previously having a DLA on her ability to attain that authority at Bendigo Bank was not explored further in evidence.
  1. [135]
    When Mr Lally raised the target date in November, Ms Febo only had about six weeks to achieve the DLA in circumstances where she had a depleted staff complement and was already under pressure to improve the Bank's performance. Although Ms Febo's  attainment of the DLA would have been beneficial to both her and the Bank, it was unreasonable management action to expect Ms Febo to take less than the standard time of 12 months to complete given the range of other improvements she was required to make in a similar time frame.

3.Unreasonable time delays

  1. [136]
    This stressor involves a number of delays, broader than the delay in obtaining the FSRA.  However, only this issue is considered below.
  1. [137]
    The delay in achieving the FSRA accreditation is also to be seen in the context of the absence of a dedicated home lender from the City Branch.  I accept that while there was some pressure on Ms Febo to achieve this accreditation, the evidence of Mr McNab is that it was not essential for the home lending role.  However, by his own evidence, Mr McNab showed that the accreditation was not a priority and contributed to the delay because of his annoyance with Ms Febo.  Such conduct from a senior manager is petty and unhelpful.  Because the accreditation had the effect explained by Mr McNab, I consider his action to be a blemish rather than unreasonable management action taken unreasonably.
  1. Inadequate staffing model and resourcing
  1. [138]
    The CRM was removed from the Branch eight weeks after Ms Febo had commenced employment in circumstances where Ms Febo did not have recent, direct experience in home lending.
  1. [139]
    Mr McNab explained the reasons for the removal of the CRM: essentially the volume in lending at the City Branch did not warrant his retention and other areas in the region required such staff.  Mr Lally's evidence was that few CRM positions exist in the region.  The effect of the decision was that Ms Febo was required to pick up the lending functions of the position.  I am satisfied on the evidence of Mr McNab that regular, and as needed, support was provided to Ms Febo in respect of lending after the removal of the CRM, including the assistance of Mr D'Arcy, the MRM.  Because the support was not always on site or immediately available, this absence would have been inconvenient at times.
  1. [140]
    The decision to remove the CRM was not unreasonable management action; it was a business decision based on the needs of the City Branch as against other branches in the region.
  1. [141]
    Of particular concern to Ms Febo was the failure to replace the CRM.  The evidence establishes that Ms Febo continually raised the need for a CRM to be appointed.  She contends that over the period October 2015 to July 2016 Mr McNab did not inform her that the position was not going to be replaced.  She believed that he had given her a commitment to replace the CRM in May 2016 as shown by the inclusion of Ms Kellar in the emails of that month.  Her submissions are that Mr McNab had provided misleading promises, had created uncertainty over a lengthy period and prevaricated over the position.  All of this was not reasonable management action taken in a reasonable way.
  1. [142]
    In my view, Ms Febo was aware earlier than May 2016 that the position was not going to be replaced.  When the advertising for the position did not result in an appointment, the Branch was restructured and a CRO was brought into the Branch.  I accept the evidence of Mr McNab that the situation in May 2016 had not altered from September/October 2015, that is, the CRM was not being replaced.  Given Mr McNab and Ms Febo agree that this issue was continually discussed, I am satisfied that Mr McNab communicated to Ms Febo that no appointment was on the horizon.  I accept however that Mr McNab left open the possibility about a CRM position because he considered it was still evolving as late as May 2016.  It would have been helpful had Mr McNab been definitive by communicating to her in writing that the position was not going to be reinstated to the Branch.  However, he had made it known to Ms Febo that the CRM was not being replaced in the short term.  It was, as he said, a case of conversations and reasoning "falling on deaf ears".[49]
  1. [143]
    The other aspect of the stressor was the reduction in staff in the Branch and the impact on the delivery of targets.  The refusal by Mr Lally to replace staff was a cause of stress reported to Dr Tam on 26 July.  The evidence of Mr Lally confirms that on his commencement in the role of Regional Manager, the City Branch was short one staff member.  He discussed the situation with Ms Febo who was quite positive even though the outcome was not the one sought by her.  At that point his action cannot be found to be unreasonable management action.
  1. [144]
    However, this solution was not enduring.  The CRO who was brought into the Branch would not perform lending as such duties did not fall within his position description.  Mr Lally advised that it was an issue for Ms Febo as the Branch Manager to address in the first instance and provided advice about how she might provide encouragement to him to take on some responsibility.  Were that approach not to succeed then he would discuss the matter with the CRO concerned.  The approach adopted by Mr Lally was not unreasonable management action.
  1. [145]
    The Commission accepts that the Branch had periods where it was understaffed and did not have the best mix of staff in circumstances where Ms Febo was struggling with the home lending aspect of the business.  The Commission further accepts that Ms Febo was under pressure as a result of the removal of the CRM and not being replaced despite her many requests.  However, the evidence shows that staffing of a branch is subject to a range of variables, including set FTE numbers.  Further, the staffing of the City Branch was the subject of a number of discussions between first Mr McNab and Ms Febo and later Mr Lally and Ms Febo to try to find the most appropriate staffing mix.  This was reasonable management action taken in a reasonable way.  That Ms Febo remained unhappy with the outcome does not establish that management action was unreasonable or taken unreasonably.

4.Unreasonable increase in branch lending targets

  1. [146]
    Ms Febo claims that the increase of Branch lending targets was a contributing factor to her injury.  The Regulator submits that Ms Febo has a flawed perception of the budget.
  1. [147]
    Her evidence and that of Mr Lally's are at odds as to the target for the Branch.  Ms Febo claims that of the $4M target, $3M was to come from the Branch and $1M from the MRM.  Mr Lally's evidence is that the contributions are reversed.  I prefer the evidence of Mr Lally as he was the senior manager responsible for setting the targets.  I consider that Mr Lally's email of 6 June 2016 sets out how the distribution of the targets for the Branch and the MRM albeit that they were later revised downwards.  While Ms Febo had overall accountability, the MRM was directly responsible for achieving the target of $3M in lending for the 2016/17 year and the Branch target remain unaltered.  The overall accountability of the Branch Manager for the total budget had not changed.
  1. [148]
    Because I have not accepted Ms Febo's evidence about the increase to branch lending targets, it follows that I do not accept Mr Lally engaged in any unreasonable management action with respect to this issue.

5.Micromanagement and intimidation by management

  1. [149]
    The unreasonable management action is said to have been taken by Mr Lally when he micromanaged her on a weekly basis, made verbal threats about her job security and carried out non-Bank sanctioned performance checks.  Further, he set unreasonable expectations and demands that she achieve them in the context of increased branch lending targets and with only junior staff to support her.  The issues of branch lending targets and staffing mix have been previously considered.
  2. [150]
    Ms Febo's evidence is that she did not mind being evaluated but objected to his management style.  She considered it unreasonable, excessive and intimidating.  Her concern was that he was acting contrary to Bank Policy which requires coaching and feedback.  She considered he had a responsibility to proactively work with her if he was genuinely interested in helping her improve the business and this did not occur.
  1. [151]
    The Regulator contends that this stressor engages s 32(5)(b) of the Act - the worker's expectation or perception of reasonable management action being taken against the worker.  In its submission the naming of the stressor introduces the concept of perception, in this case, perception of intimidation.  The management style adopted by Mr Lally was outcomes oriented but that did not make it unreasonable.  In addition, his style of coaching was to identify issues that needed improvement and to provide advice and guidance as to how she could improve her performance.
  1. [152]
    In respect of Ms Febo's contention that Mr Lally was not acting in accordance with Bank Policy, the Performance Counselling Policy is relevant.  The first requirement of the Policy is for managers to work positively with employees and provide opportunities to maximise employee's performance.  The Policy goes on to provide that where an employee is not meeting the requirements of their role through coaching then a performance counselling process may be implemented.
  1. [153]
    The Policy does not define what is meant by the term "coaching" but it is generally understood to be a developmental approach, ensuring that the employee gains the necessary skills and knowledge to perform their role.
  1. [154]
    Mr Lally had a different management style to Mr McNab.  When he assumed the role of Regional Manager there were a few branches, including the City Branch, which were underperforming.  He had a prescriptive and directive approach to try to improve the performance of those branches.  His requirement for Ms Febo to provide weekly reports was open to him and there is nothing in his first request made by email of 22 July which could be considered to be unreasonable management action. 
  1. [155]
    However, Mr Lally was quick to follow up if the weekly reports were not received.  Further, he did not always acknowledge or respond to the reports and frequently cancelled or rescheduled meetings with Ms Febo.  On any view of the email exchanges between Mr Lally and Ms Febo after July, the approach adopted by Mr Lally could not be described as coaching, albeit that he provided occasional advice and guidance.  The obligation was on him to provide the coaching, not wait for Ms Febo to ask for it.
  1. [156]
    I do not accept Ms Febo's submission that the health check Mr Lally performed in November was not bank sanctioned.  Ms Durham's evidence confirmed the approach was open to him.
  1. [157]
    I also do not accept that it was unreasonable management action for Mr Lally to have populated the health check document before the meeting.  It represented his views about the Branch's performance and was subject to discussions between them.
  1. [158]
    Ms Febo also contends that the threats about "fall(ing) on your own sword" made by Mr Lally was unprofessional, unsupportive and vindictive.  Mr Lally acknowledged the possibility he may have told her she should go and work at another bank and could not recall telling her she should fall on her own sword if things did not improve.  I consider it likely that Mr Lally made both remarks - he was demanding results and was not prepared to have staff who could not deliver those results in a timely manner.
  1. [159]
    In WorkCover Queensland v Kehl, Hall P held that "reasonable" should be treated as "reasonable in all of the circumstances of the case".[50]  Mr Lally was a man on a mission, to as quickly as possible turn around the performance of the Branch.  His initial request for weekly reports cannot be seen to be unreasonable or unreasonably taken in circumstances where the Branch had been ailing even prior to Ms Febo's appointment.  However, as time went on, in his haste to achieve improved performance, he neglected to continue to carry out the task in a reasonable way in terms of coaching, feedback and follow up. 
  1. [160]
    In deciding that Mr Lally acted unreasonably in certain respects, I do not accept Ms Febo's characterisation of his actions as micromanagement.  I accept however that Ms Febo felt her employment was threatened when he made the remarks about falling on her sword and suggesting she work elsewhere.

The non-management action stressor - Stressor 6

  1. [161]
    Stressor 6, serious undermining and non-disclosure by staff, received little attention during the proceedings. The evidence establishes that the events set out earlier in the decision occurred.  They do not fall within the description of management action.
  1. [162]
    The issues of staff conflict were raised with the psychologist provided through the Bank's employee assistance program and the matters were raised with Dr Tam in 2017.
  1. [163]
    In my view, the issues with the staff were compounding issues rather than being directly contributory to the aggravation injury.

Is the injury withdrawn from s 32(5) of the Act?

  1. [164]
    All but one relevant stressor involved management action.  After consideration of the relevant stressors, the Commission found that some involved reasonable management action taken in a reasonable way and some did not.  The Commission must weigh the factors found to be contributory to the aggravation injury to decide whether the injury is compensable or excluded.
  1. [165]
    Ms Febo contends that the injury arose around May 2016 because the CRM did not commence as promised by Mr McNab.  Ms Febo's coping skills diminished to the point that she took two weeks' leave on account of stress.  The evidence supports a conclusion that the critical action[51] that gave rise to the disorder was the non‑replacement of the CRM.  This was found to be reasonable management action taken in a reasonable way.
  1. [166]
    The meeting between Mr Lally and Ms Febo on 20 July about staffing resulted in an outcome Ms Febo was quite positive about and was found to be reasonable management action.  Mr Lally's email of 22 July which set out six action items he wished her to focus on and notified her of the introduction of the weekly reports was a reason Ms Febo attended on Dr Tam on 26 July.  Her medical record for that date noted the worsening situation at work after Ms Febo reported what can only be considered a temporary improvement earlier that month.    Ms Febo described herself at this time as broken down.  Given the actions taken by Mr Lally prior to the appointment with Dr Tam were found to be reasonable management action taken reasonably they cannot have contributed to the aggravation.
  1. [167]
    Mr Lally's subsequent actions have to be seen in the context of Ms Febo's perspective of the loss to her of an important resource and the consequential impact of that on meeting branch targets, which is the issue to which Mr Lally's actions were then directed.  The targets set for the Branch to achieve involved reasonable management action taken in a reasonable way. 
  1. [168]
    The stressor of the pressure to attain the DLA was an added burden at a time when she was already under strain. 
  1. [169]
    I attribute greatest weight to the non-replacement of the CRM and the first request made by Mr Lally on 22 July as causative actions giving rise to the disorder than any of his subsequent actions and the pressure to attain the DLA.  These causative actions were found to be reasonable management action taken in a reasonable way.
  1. [170]
    In the circumstances the Commission finds that the injury is removed from s 32(3) by the operation of s 32(5) of the Act.

Orders

  1. The appeal is dismissed.
  2. The decision of the Workers' Compensation Regulator is confirmed.
  3. The Appellant is to pay the costs of and incidental to the appeal.  Failing agreement, liberty to apply is granted.

Footnotes

[1] Eric Martin Rossmuller AND Q-COMP(C/2009/36) - Decision http://www.qirc.qld.gov.au.

[2] Veronica Mary Omanski AND Q-COMP (C/2012/34) - Decision http://www.qirc.qld.gov.au.

[3] T2-48.

[4] T2-19.

[5] T1-45.

[6] T1-103.

[7] T1-103.

[8] T1-104.

[9] T1-103.

[10] T1-104.

[11] T1-107.

[12] T1 - 110, 112.

[13] T1-113.

[14] T3-10, 11.

[15] Ex 13.

[16] T3-15.

[17] T2-52.

[18] T2-52.

[19] T3-64.

[20] T3-57.

[21] T3-61.

[22] T3-51.

[23] T3-52.

[24] T3-73.

[25] T3-72.

[26] T3-72.

[27] T2-80.

[28] T1-58.

[29] Ex 31.

[30] T2-57.

[31] T3-48.

[32] Ex 24.

[33] Ex 47.

[34] T2-79.

[35] T2-65.

[36] T2-90.

[37] T1-61.

[38] T3-31, 32.

[39] T2-94.

[40] T2-113.

[41] T2-119.

[42] SSX Services Pty Ltd v Workers' Compensation Regulator [2016] QIRC 62, [194].

[43] Anglo Coal (Capcoal Management Pty Ltd) v Workers' Compensation Regulator & Etherington [2017] QIRC 103, [80].

[44] Mater Misericordiae Health Services Brisbane Limited v Q-COMP (2005) 179 QGIG 144 and Theresa Helen Ward AND Q-COMP (C/2011/39) - Decision .

[45] Ramsay v Watson (1961) 108 CLR 642, 645.

[46] T1-97.

[47] Blackwood v Mana [2014] ICQ 027, [13].

[48] 2-53.

[49] T3-71.

[50] WorkCover Queensland v Kehl (2002) 170 QGIG 93, 94.

[51] Simon Blackwood (Workers' Compensation Regulator) v Chapman [2016] ICQ 011, [23].

 

Close

Editorial Notes

  • Published Case Name:

    Febo v the Workers' Compensation Regulator

  • Shortened Case Name:

    Febo v the Workers' Compensation Regulator

  • MNC:

    [2018] QIRC 39

  • Court:

    QIRC

  • Judge(s):

    Fisher IC

  • Date:

    20 Mar 2018

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
Anglo Coal (Capcoal Management) Pty Ltd v Workers' Compensation Regulator [2017] QIRC 103
2 citations
Jump To
Cite 1 - [2017] QIRC 103
Cite 2 - [2017] QIRC 103
Blackwood v Mana [2014] ICQ 27
2 citations
Jump To
Cite 1 - [2014] ICQ 27
Cite 2 - [2014] ICQ 27
Mater Misericordiae Health Services Brisbane Limited v Q-COMP (2005) 179 QGIG 144
2 citations
Jump To
Cite 1 - (2005) 179 QGIG 144
Cite 2 - (2005) 179 QGIG 144
Ramsay v Watson (1961) 108 CLR 642
2 citations
Jump To
Cite 1 - (1961) 108 CLR 642
Cite 2 - (1961) 108 CLR 642
SSX Services Pty Ltd v Workers' Compensation Regulator [2016] QIRC 62
2 citations
Jump To
Cite 1 - [2016] QIRC 62
Cite 2 - [2016] QIRC 62
WorkCover Queensland v Kehl (2002) 170 QGIG 93
2 citations
Jump To
Cite 1 - (2002) 170 QGIG 93
Cite 2 - (2002) 170 QGIG 93
Workers' Compensation Regulator v Chapman [2016] ICQ 11
2 citations
Jump To
Cite 1 - [2016] ICQ 11
Cite 2 - [2016] ICQ 11

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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