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Allen v Workers' Compensation Regulator[2018] QIRC 41

Allen v Workers' Compensation Regulator[2018] QIRC 41

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Allen v Workers' Compensation Regulator [2018] QIRC 041

PARTIES: 

Allen, Karen Lee

(appellant)

v

Workers' Compensation Regulator

(respondent)

CASE NO:

WC/2016/243

PROCEEDING:

Appeal

DELIVERED ON:

28 March 2018

HEARING DATES:

14, 15, 16 November 2017

MEMBER:

Deputy President O'Connor

ORDERS:

  1. The appeal is allowed.
  2. The decision of the respondent dated 23 November 2016 is set aside.
  3. The application for compensation made by the appellant is one for acceptance.
  4. The respondent is to pay the appellant's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR– Where injury exists – Whether injury excluded under s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 – Where injury arises from management action – Appeal allowed

LEGISLATION:

CASES:

Workers' Compensation and Rehabilitation Act 2003 (Qld), s 32, s 549

Allwood v Workers' Compensation Regulator [2017] QIRC 088

Blackwood v Mahaffey [2016] ICQ 010

Canadian General Electric Company Limited v The Ontario Labour Relations Board (1956) OR 437

Commonwealth of Australia v Lyon (1979) 24 ALR 300

Davis v Blackwood [2014] ICQ 009

Hatzimanolis v ANI Corporation Ltd

(1992) 173 CLR 473

McMah and Simon Blackwood (Workers'

Compensation Regulator) [2014] QIRC 013

O'Brien v Q-Comp (2007) 185 QGIG 383

Read v Workers' Compensation Regulator [2017] QIRC 072

Q-COMP v Rowe (2009) 191 QGIG 67

Theiss Pty Ltd v Q-COMP (C/2010/11)

APPEARANCES:

Ms K. McConaghy, Counsel, instructed by Sunshine Coast Legal for the appellant.

Mr A. Johnson, Counsel instructed directly by the respondent.

Reasons for Decision

  1. [1]
    Parents' and citizens associations are bodies established at each state primary and high school to provide auxiliary support to the school.  P&Cs are separate legal entities from the school to which they are attached and they are capable of employing a large number of people and turning-over not inconsiderable sums of money in the course of a school year.  The executive committee of a P&C is a volunteer body which operates flexibly and within the relative time-constraints of its officers.  The breadth and manner of the support provided by a P&C can vary greatly, but their general remit usually extends to the operation a number of businesses and fundraising endeavours. Individually they may operate in the form of a uniform and book shop, a tuckshop, the organisation of an annual school fête and other similar fundraising activities.  Some P&Cs do more and operate, for example, before-and-after-school and vacation care services.  The Eumundi State School P&C was one of those P&Cs which ran a greater number of businesses.
  1. [2]
    Ms Karen Lee Allen, is employed by the Eumundi State School P&C as its Operations Manager.  The role of the Operations Manager is multifaceted but its primary task was to enable the Executive of the school's P&C to effectively carry-on its businesses and fundraising.
  1. [3]
    The issue giving rise to this appeal stems from a meeting held on 15 July 2016 and attended by the appellant, the President of the P&C, Mr Aaron Williams, and the school's Principal, Mr Mick Connors.  That meeting was the culmination of a number of events which would ultimately cause the appellant an injury. An injury for which the appellant now seeks compensation. 
  1. [4]
    The appellant's WorkCover compensation application was lodged on 25 July 2016.  That application was accepted by WorkCover on 1 September 2016.  The appellant's accepted WorkCover application was the subject of a review application made by the Eumundi State School P&C on 21 October 2016.  The Workers' Compensation Regulator set aside the decision of WorkCover on 23 November 2016.  Ms Allen appealed the Regulator's decision to this Commission on 20 December 2016 pursuant to section 549 of the Workers' Compensation and Rehabilitation Act 2003 (Qld).  The Regulator resists the appeal.
  1. [5]
    The appellant's statement of facts and contentions lists the following stressors as relevant to the injury sustained on 15 July 2016.

"

  1.  The Appellant attended the meeting to discuss:
  1. The resignation of the P&C Secretary, Mrs Stacey Phillips;
  2. Tuckshop issues including the conduct of Ms Revell;
  3. The Arts in Action festival

   but the meeting was in fact for other purposes, namely to:

  1. question the Appellant about her qualifications;
  2. question her in an effort to have her justify the wage she was being paid;
  3. question her competence in undertaking the tasks assigned to her;
  4. question the Appellant as to whether she had inappropriately increased her own wages;
  5. confront the Appellant about her role in the P&C's allegedly poor financial position;
  1.  The Appellant had no prior warning that such matters may be discussed;
  1.  The appellant was, as a result of the comments of the Principal as set out in the paragraph 29(b), and the acquiescence of the President to those comments, confronted with veiled allegations of wrongdoing and incompetence by her employer.

"

  1. [6]
    The primary question to be determined in this appeal is whether the appellant suffered a personal injury within the meaning of section 32 of the Act. The four fundamental questions to be determined by the Commission are:
  1. Did the worker suffer a personal injury, that being a psychiatric or psychological injury?
  1. Did the personal injury arise out of, or in the course of, employment?
  1. If the worker suffered a personal injury arising out of, or in the course of, employment was the employment the major significant contributing factor to the injury?
  1. If the appellant's employment was the major significant contributing factor to the injury was her injury excluded from the definition of injury by operation of s 32 (5) of the Act?
  1. [7]
    For the reasons that follow, I find that the appellant suffered a personal injury; the injury arose out of, or in the course of the appellant's employment; the appellant's employment was the major significant contributing factor to the injury; and, the appellant's injury was not excluded by operation of s 32 (5) of the Act.

Background

  1. [8]
    The appellant was first employed by the Eumundi State School P&C as the Operations Manager on 1 January 2006. Prior to that she had served as the President of the Eumundi P&C for five years and had held other roles while her children were at the school.[1] Her last day at work was the 9 August 2016.[2]
  1. [9]
    At the time that the appellant commenced her employment the P&C Executive was comprised of Jane Laird (President), Sheree Orr (Secretary) and Leona Seib (Treasurer). The recruitment process for her position was an advertisement to which the appellant responded by sending her resume to the appropriate address. The appellant was then interviewed by the aforementioned members of the P&C executive. The role as it then was reported to the President and/or the Executive.[3] The reporting involved the preparation of a monthly financial report for presentation to the P&C members at the monthly meeting.
  1. [10]
    The position description for the appellant's role at the time of her initial employment extended to book keeping at the P&C for eight hours a week.[4] However, over time and with the change of executives the role of operations manager expanded. In time the appellant eventually became responsible for the uniform shop, and then all businesses for the P&C including the tuckshop, after school care, the market car parks, all fund raising events, as well as book keeping and secretarial work.[5]  The appellant's most recent position description dated 8 January 2015, is lengthy in its duties, responsibilities, and expectations. It is clearly a full time management position.[6] The role of operations manager was guided by the P&C's constitution and Education Queensland's accounting manual.[7] The operations manager supervised staff, needed to have an understanding of employment awards, workplace health safety, food handling standards, and policies and procedures concerning after school care.[8] The accounts of the P&C are audited annually.[9]
  1. [11]
    The appellant's evidence was that she has had, in the main, a positive working relationship with members of the P&C Executive over the course of her employment.[10] She was never disciplined or given any warnings in the performance of her duties. The appellant gave evidence that over the course of her employment she was never criticised by a P&C President.[11]
  1. [12]
    The appellant's contract of employment lists the prior review dates (First reviewed 29.11.2007, 2nd Review 28.5.2008, 3rd Review: 12.10.2011, 4th Review: 8.01.2015).
  1. [13]
    Notwithstanding the full time nature of the position, the appellant was employed on a permanent part time basis.[12] Her base remuneration was set in her contract of employment at $33.80 per hour but was increased to $38.00 per hour by a resolution of the P&C Executive on 1 May 2015. The appellant's hours of work were set at a minimum of 30 hours a week and up to 38 hours a week. That contract of employment was signed by the appellant and the then P&C President, Chantelle Black.[13]
  1. [14]
    At the Annual General Meeting of the P&C held on 15th March 2016, the composition of the P&C Executive changed with the election of new office holders.[14] By early July 2016 the Executive of the P&C consisted of, Mr Aaron Williams (the new President) and Ms Stacey Phillips (Secretary) and Ms Kellie Kruger (Treasurer). Ms Jane Revell was also a member of the P&C's Executive, holding the position of Vice President and Assistant Treasurer. Ms Phillips resigned from the P&C Executive on 12 July 2016,[15] and Ms Kruger resigned on 18 July 2016.[16]
  1. [15]
    The P&C Executive met on three occasions between March and July 2016. Neither the School Principal or Operations Manager are members of the P&C Executive.[17] 

The meeting of 15 July 2016

  1. [16]
    The events leading to the appellant's injury and eventual absence from work date back to a meeting on 15 July 2016 held between Mr Connors, Mr Williams and the appellant.
  1. [17]
    The purpose of the meeting was, according to Mr Williams, first to help the appellant feel supported and to be connected with the School; secondly, to look at the appellant's job description to ascertain what she was doing "…because she was telling me she was stressed working nights"; and thirdly, to assess the sustainability of the P&C.[18]
  1. [18]
    The background to the convening of the meeting on 15 July 2016 can be traced back to an incident arising out of the appellant's attendance at a School Based Workplace Health and Safety meeting on 17 May 2016. Mr Connors evidence was: 

"…I was sitting with – next to Karen, and when it came for her to – to speak she was quite – quite anxious, and – and quite angry, and basically just said that all of the P&C staff, including herself, were really, really stressed and unhappy, and it – it was basically because of the school and it starts with the top of the school, and that means, yes, or something to that effect."[19]

  1. [19]
    Mr Connors and the appellant met to discuss how the appellant was feeling and to explore ways of dealing with her concerns. In an email to Mr Williams of 18 May 2016,[20] Mr Connors identified three broad areas of concern. The first involved the building of bridges and relationships; the second involved personal wellbeing and support; and, the final point involved professional development.
  1. [20]
    In response to the email, Mr Williams telephoned the appellant on 18 May to offer his support. He said that he was encouraged by the email from Mr Connors as it demonstrated that the School was interested in supporting the appellant and may assist in building relations between the P&C and the School.
  1. [21]
    A meeting was convened on 11 July between Mr Williams, Mr Connors and Ms Revell to discuss, amongst other things, their concerns regarding the P&C's financial loss. The matters discussed in respect of the appellant included reducing her hours; the potential to make her position redundant; and, her level of remuneration.[21]
  1. [22]
    Mr Williams told the Commission that in the period in early July he did not have a clear picture of the reasons for the $28,000 loss.[22]
  1. [23]
    At the meeting, Mr Connors and Mr Williams had before them what is described as a P&C Analysis 2014 to 2016.[23] The document was prepared by Ms Revell.  Ms Revell said that she was familiar with MYOB and asked the appellant to send through a data file so that a budget for the tuckshop and for the P&C could be put together.
  1. [24]
    Ms Revell said that she and Mr Williams presented to Mr Connors a spreadsheet containing an analysis of the P&C finances. They told Mr Connors of their concerns and felt that they did not wish to continue in their respective roles. They indicated a desire to resign but they were encouraged by Mr Connors to remain in their roles and not to resign. He told Mr Williams and Ms Revell that he would give them his full support and try and resolve the issue.
  1. [25]
    Ms Revell told the Commission that in preparing the spreadsheet, she did not have access to the audited accounts for the P&C, she did not have any discussion with Ms Kruger,[24] the Treasurer, she did not read the Operations Manager's Report and did not have access to the appellant's job description or contract of employment.
  1. [26]
    The analysis was modelled upon an assumption that if the appellant's hours of work were reduced then more money could be paid to the School each year. When asked how the forecast was "worked out", Ms Revell said that it was prepared "By averaging out what had been incurred so far and looking at the previous year's sales".[25]    
  1. [27]
    The level of wages were, according to Ms Revell one of the major issues for the loss in 2015 and the ongoing viability of the P&C.[26] In Ms Revell's mind, the salary paid to the appellant was above award and it was not something that she expected would be the case.
  1. [28]
    It was Ms Revell's view that the salary paid to the appellant impacted on the P&C's financial viability. Ms Revell said "I wouldn't have been concerned if there was an employee earning $100 an hour at the P&C if then they were actually – their – they brought in then the income to cover that wage and then had still money to then return to the school, because the purpose of the P&C is to provide resources to the school."[27]
  1. [29]
    Ms Revell regarded the wage costs for the P&C as exorbitant.[28] Her particular concern was the above award salary paid to the appellant. Ms Revell told the Commission that she was not aware of anyone being paid above award rates.[29]
  1. [30]
    In cross-examination Ms Revell was asked:

"MS McCONAGHY: So it's fair to say that these numbers informed the decision that was taken by you and Mr Williams that things were not quite right in relation to the financials?

MS REVELL: Absolutely.  We just personally – my opinion and he – his opinion was the same:  that we didn't feel comfortable proceeding in our roles if this was the – if this was – had been ratified and approved and the norm."[30]

  1. [31]
    Following the 11 July meeting with Mr Connors, and consistent with his advice, Mr Williams and Ms Revell decided to contact Community Management Services (CMS).[31]
  1. [32]
    In the discussion with CMS the issue of the P&C's inability to afford the current wages was raised.
  1. [33]
    A draft agenda for the meeting was prepared by Mr Connors and sent to Mr Williams on 11 July. Mr Connors wrote in his email:

"A quick calculation of a 10 hours reduction would see Karen earning a weekly wage of $1140 for 30 hours per week. This could be broken down to 6 hours per day over 5 days or 7.5 hours per day over 4 days depending on our needs.

This might be a good starting point moving forward with room to review in 2017.

Before we look at the hours reduced I feel we should discuss with her the key roles and responsibilities of the position. This way we can look to see what are the most important aspects of her role."

  1. [34]
    Mr Williams responded in the following terms:[32]

"I have spoken to CMS and they have advised process is:

1. Notify Karen of meeting Friday

2. Notice period for restructure of hours of role is 5 weeks – this can be done verbally in Friday's meeting

3. We need to get the approval from the P&C members in a vote – Karen can attend this meeting as a community member. However, Karen & direct family members cannot vote due to conflict of interest.

4. If passed, then we need to meet with Karen again to formally advise and provide her with a new letter of employment.

Interestingly, as our P&C employees average less than 550 hours a week over last 12 months we have an exemption from paying any redundancy payouts to our employees we make redundant.

The important part of this strategy above is making sure we bring in the numbers of the P&C members to pass a vote to allow restructuring of the Operations Manager role."

(Underlining in original)

  1. [35]
    The email of Mr Connors was forwarded to Ms Revell for her input. Ms Revell went further than Mr Connors. In her email of 11 July,[33] Ms Revell suggested that the appellant's hours of work be reduced to 24 hours a week. Ms Revell wrote to Mr Williams in the following terms:

"(My thoughts on what Mick is suggesting…)

Giving the position 30 hours would need more duties than discussed today to keep her busy and could possibly create problems for us. I can see 3 days working (24hrs/week) with her responsible for just 3 areas. Uniform shop, bookkeeping/admin and payroll."

  1. [36]
    After setting out the areas of work and responsibility, Ms Revell wrote:

"This info might be handy when meeting with her on Friday in case she inflates her time calculations, I've held and managed this type of position before and I know how many hours those tasks should take."

  1. [37]
    The email of 11 July 2016 was copied to Mr Luke Williams a member of the P&C but not a member of the Executive. He was given, without the knowledge of the appellant, information concerning her salary and the matters to be discussed at the meeting on 15 July. Mr Williams accepted that the provision of confidential information concerning the appellant to a non-executive member of the P&C was a concern.[34]
  1. [38]
    It was agreed that Mr Williams would contact the appellant by telephone and advise her of the meeting. Mr Williams told the Commission that in his telephone conversation with the appellant on 12 July 2016 he did not raise the issue of a reduction in the hours of work because "…it wasn't on the table at that stage."[35] They were, according to his evidence, ideas being considered.[36]
  1. [39]
    Mr Williams said that he told the appellant during the telephone conversation that he was aware that she was being paid above award and the appellant replied with words to the effect "Yep. Okay. That sounds good."[37]
  1. [40]
    The appellant believed that the purpose of the meeting was to discuss a disagreement with Ms Revell concerning the return of a contracted tuckshop employee; the resignation,[38] of Ms Stacy Phillips, the Secretary; and Arts in Action, a fund raising event for the P&C.
  1. [41]
    In the lead up to the 15 July meeting, the appellant sent a text message to Mr Williams expressing that she felt "uneasy" about attending the meeting.
  1. [42]
    The meeting was held in Mr Connors' office. Mr Connors told the Commission that the meeting opened with a discussion "…about life in general and how well Karen was feeling and how things were going for her."[39] He said that he was trying to build a team approach with the P&C and the school.[40] The discussion turned to the appellant's training and qualifications for the position. The appellant said that she could not understand why she was now being asked about her training and qualifications as she had been employed by the P&C for 10 years.
  1. [43]
    Mr Connors chaired the meeting. Mr Williams refuted the suggestion put to him in cross-examination that Mr Connors had chaired the meeting with the appellant. However, when Mr Connors was asked in cross-examination if he chaired the meeting he replied "Yes."[41]
  1. [44]
    The detailed agenda prepared by Mr Connors outlining the issues to be considered at the meeting of 15 July was never provided to the appellant. Mr Williams acknowledged that, in hindsight, he wished he had provided the agenda to the appellant.[42]  
  1. [45]
    Prior to the meeting, the appellant was not made aware by Mr Williams of the possibility that her hours of employment could be reduced.
  1. [46]
    The meeting with the appellant was held without an offer of a support person. Mr Connors said that as the meeting was not disciplinary in nature and, as such a support person was not necessary.
  1. [47]
    Whilst Mr Williams had told the Commission that the issue of the reduction in the appellant's hours of work "…wasn't on the table", Mr Connors suggested to the appellant in the meeting that her hours of work be reduced from 40 hours per week to 38 hours per week. Mr Williams said that whilst Mr Connors had raised a reduction of the number of hours worked, Mr Williams did not act on it. He told the Commission that: "I didn't act on it. I didn't say yes. It wasn't in my mind we were going to do it. It's never happened."[43] Mr Williams would never have had had the opportunity to act on it as the appellant took leave from 9 August 2016 and has not returned to work.
  1. [48]
    Mr Williams told the Commission when asked:

"MS McCONAGHY: But the focus was on her salary?

MR WILLIAMS: One part of the conversation was around her salary. That she's paid above award rate, and that was a question that we were there at the meeting to discuss."[44]

  1. [49]
    Mr Williams was further asked in cross-examination:

"MS McCONAGHY: She – at this meeting she had had to discuss why she was being paid the rate she was being paid?

MR WILLIAMS: Yes. She was asked to discuss.

MS McCONAGHY: She had to defend why she was being paid a particular rate?

MR WILLIAMS: The purpose of the meeting was to ask why her rate was above award, and to that – as suggested by P&C Queensland, that's correct."[45]

  1. [50]
    When Mr Connors was asked in cross-examination whether a reduction of 10 hours or a quarter of her hours was too severe he replied: "Well, I suppose, it's better than being made redundant."[46] Mr Connor's evidence was that the possibility of making the appellant redundant was an issue that had been considered.
  1. [51]
    During the meeting the appellant's salary was raised. The appellant said at the meeting that she could have a conversation about her salary with Mr Williams because he was her employer but she could not have it in front of Mr Connors.  The appellant said that her salary was confidential. The appellant's evidence was that Mr Williams replied "Oh, Karen, he's the Minister's representative," and the appellant replied, "I know what he is but I don't work for Education Queensland.  I think you should get some advice from CMS." 
  1. [52]
    Mr Connors produced the spreadsheet prepared by Ms Revell. The appellant said that she had never seen the document before and recalled that it contained her salary for the period 2008 to 2016. The appellant told the Commission that she said to Mr Connors: "This is wrong.  I've never earnt this much.  I've just done the group certificates.  They – this is not right." The appellant said that Mr Connors replied "Doesn't matter if it's right or not.  It's a guide."  The appellant said she replied: "No.  This is wrong.  I don't know what this is and I don't – I don't earn that."
  1. [53]
    Mr Williams accepted that the appellant was not provided with a copy of the spreadsheet prior to or at the meeting; that the spreadsheet contained errors; and that the appellant also objected to her salary being discussed in front of Mr Connors as it was a confidential matter.
  1. [54]
    Ms Kruger, the Treasurer was not invited by Mr Williams to attend the meeting even though it was apparently called to discuss, amongst other things, the viability of the P&C.[47]
  1. [55]
    Mr Williams was asked:

HIS HONOUR: You didn't do anything between the time you took over between March and July, you didn't inform yourself of anything, did you?  You've told us before that you didn't look at the audited accounts?

MR WILLIAMS: That's correct.

HIS HONOUR: You hadn't looked at the reports.  You hadn't spoken to anybody previously?

MR WILLIAMS: That's correct.

HIS HONOUR: You're the president of a new organisation?

MR WILLIAMS: Mmm.

HIS HONOUR: You've accepted that you have obligations under the constitution and under the accounting procedures and the policy guidelines of the P&C Queensland, isn't it your responsibility to inform yourself before you take any steps?

MR WILLIAMS: And, your Honour, you may think me naïve, and I probably was coming into it, but I think what happened at that time was directly – I took on the role saying, “I'm very busy.  I can come to meetings,” it was all supposed to run – run smoothly and I was, “Okay.  That's great.  It's all running smoothly.”  I come in, I do the meetings, I make sure everyone's happy.  That was the naïve idea I had coming in.  When I started to realise that I think there was – it was more complicated than that and there were things happening, I started to look into that and I – and it did take me 12 weeks, 16 weeks, absolutely.  But remembering I'm at school once – I need to turn up once every two months.  That was – that was the role that I took on.  So it wasn't until we started to actually look into it more deeply that I think I realised what I had to do.[48]

  1. [56]
    Mr Connors told the appellant at the meeting that she was the "face of the P&C" and that he had concerns that she was seen that way. He suggested that the appellant report to the School's Business Services Manager; that she sign on and off each day; that she not be the face of the P&C; that she no longer contribute to Newsmundi; that she was not to attend afternoon teas on Mondays with the School Chaplain; and that the records of the P&C in future be kept by the School. Mr Connors also expressed the view that the appellant's involvement in the P&C was preventing other people from becoming involved and that she conducted meetings of the P&C even though she did not chair the meeting.[49]
  1. [57]
    At the conclusion of the meeting, the appellant "…did become a little upset". Mr Connors said that he reassured the appellant that it wasn't about her job.
  1. [58]
    Also, at the conclusion of the meeting, Mr Connors said that it was a really good meeting and asked Mr Williams if had anything he would like to say. Mr Williams asked the appellant if she wanted to say anything. The appellant said "No.  I'm going to cry."  She then gathered her things and returned to her office. She said she was hysterical and so mad at Mr Williams. Mr Williams came to the P&C office and the appellant said, "Why?  What have I ever done that made you think you had to take me into that?"  She said, "You didn't tell me I was the page.  You keep saying we've got to get on the same page.  I didn't know I wasn't on the page.  I don't know what that was about.  What is going on?"
  1. [59]
    The appellant said that she felt terrible, worthless and completely unvalued. She said that she knew there was nothing she could do to make Mr Williams and Mr Connors see the value in what she did and who she was.  The appellant tried to finish work but said that she could not function. She decided to go home as she did not want the staff to see her in that condition. After the appellant returned home, she contacted her doctor to make an appointment and telephoned the school chaplain to arrange a time to meet with her.
  1. [60]
    In an email dated 15 July 2016 the appellant wrote to Mr Williams in the following terms:

"I am in need of some clarification after today's meeting. I must say I was not expecting or prepared for the meeting I went into. I thought we were discussing the tuckshop situation and Stacey's resignation and advise on what P&C need to do. Instead I feel I was the [sic] situation that had been getting discussed. Then fed to the lion. It has triggered some pretty nasty memories. I need to know if the P&C intend to reduce my income or reassess my position?"[50]

  1. [61]
    In an email some three days later Mr Williams responded to the appellant as follows:

"I am really sorry that you feel that way. When we spoke on the phone we did discuss that the meeting was regarding the structure of the P&C, its sustainability and how we can work more closely with the school?

I thought that was a very positive meeting. I believe that you receiving additional support and working more closely with the school is a very good thing?

As discussed, the next step is for us to have CMS come in and provide us with advice on the best structure for the P&C to assure that it is an efficient, sustainable organisation. I will contact them today to see when they are available to do this and will let you know of the timelines around this."[51]

  1. [62]
    The appellant took extended sick leave from 9 August 2016.

Was the employment the major significant contributing factor to the injury?

  1. [63]
    A medical report was prepared by Dr Sharon Harding a consultant psychiatrist on 9 November 2016 for WorkCover Queensland.[52]
  1. [64]
    In that report, Dr Harding concludes that:

"In my opinion Ms Allen has had an exacerbation of her pre-existing non-specific Anxiety Disorder and now meets criteria for the diagnosis of an Adjustment Disorder with Mixed Anxiety and Depressed Mood."[53]

  1. [65]
    Dr Harding concluded that her condition had:

"…developed gradually over a period of time and acutely declared itself following a meeting in the workplace in July of 2016 where her job description, wages and future duties were discussed and scrutinised."[54]

  1. [66]
    Dr Harding records that Ms Allen's general practitioner identified that she had a pre-existing history of anxiety which had not been of the severity she presented with after the 15July meeting.
  1. [67]
    The evidence of Dr Harding is not challenged and I accept that the meeting of 15 July 2016 was the major significant contributing factor in the development of the appellant's Adjustment Disorder with Mixed Anxiety and Depressed Mood.

Arising out of, or in the course of, employment

  1. [68]
    An injury "arising out of, or in the course of, employment" means an injury sustained while the worker is engaged in the work that he or she is employed to do or in something which is concomitant of, or reasonably incidental to, the person's employment to do that work.[55] The appellant's stressors arose out of the interactions at work, namely the meeting on 15 July. It follows therefore, that the appellant's injury arose out of, or in the course of, her employment.

Is the injury excluded from being compensable because the injury was the consequence of "reasonable management action taken in a reasonable way" by her employer in connection with her employment?

  1. [69]
    The respondent contends in its Statement of Facts and Contentions that if the appellant suffered a personal injury, which arose out of or in the course of her employment and her employment is the major significant contributing factor, then the appellant's psychiatric or psychological disorder has arisen out of, or in the course of, reasonable management action taken in a reasonable way by her employer in connection with the appellant's employment. Consequently, the respondent submits that the injury is excluded by virtue of s 32(5) of the Act.
  1. [70]
    The respondent's Statement of Facts and Contentions contend that the appellant's injury arose as a consequence of:

"

  1. (a)
    reasonable management action taken in a reasonable way by the    employer in connection with the appellant's employment; and/or
  1. (b)
    the appellant's expectation or perception of reasonable management action; and/or
  1. (c)
    reasonable management action taken by the employer in relation to the meeting of 15 July 2016; and/or
  1. (d)
    the appellant's expectation or perception of reasonable management action taken by the employer in relation to the meeting of 15 July 2016.

"

  1. [71]
    In order that s 32(5)(a) can apply three things must be shown:

(a) that there was reasonable management action, and

(b) that it was taken in a reasonable way, and

(c) that the "action" gave rise to the disorder.

Was the meeting of 15 July Management Action?

  1. [72]
    The appellant submits that the action taken at the meeting of 15 July was not management action for the purposes of s 32(5). It is contended that if there was management action it was not taken by the appellant's management but by the School Principal who is not the appellant's management. As such, the injury sustained by the appellant is not excluded by operation of s 32(5) of the Act.
  1. [73]
    The appellant's submission is based upon the decision in O'Brien v Q-Comp [56] and, in particular, the case of Canadian General Electric Company Limited v The Ontario Labour Relations Board.[57]
  1. [74]
    More recently, I have had the opportunity to consider the meaning of "management action" in the context of s 32 (5) of the Act. In Read v Workers' Compensation Regulator,I wrote the following:

"Management action does not embrace every instruction of and action by an employer. Rather, the expression contemplates a particular type of action by an employer, and something other than a mere instruction or requirement that the worker perform his or her duties. Management action must be something different to the normal duties and incidents of her employment as a ... In other words, it must be something more than what was part and parcel of her employment."[58] (Citations omitted)

  1. [75]
    Further, in Allwood v Workers' Compensation Regulator, I described "management action" as follows:

"The concept of management action in the context of a worker's employment, and for the purposes of the Act, is not so broad that it encompasses anything and everything that a manager does or says in the particular workplace, rather the expression "management action" relates to those actions undertaken when managing the worker's employment.

…

The exclusory action in s 32(5) of the Act was, in my view, intended by Parliament to relate to specific management action directed to the appellant's employment itself, as opposed to action forming part of the everyday duties or tasks that the worker performed in their  employment. Therefore the management action said to enliven s 32(5) of the Act must be something different to the everyday duties and incidental tasks of the appellant's employment."[59]

  1. [76]
    The role of the Commission when undertaking an enquiry as to whether a psychological or psychiatric injury arose out of, or in the course of, reasonable management action taken in a reasonable way was considered by Martin J in Davis v Blackwood, his Honour wrote:

"The task of the Commission when applying s 32(5) does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances. There may be any number of actions or combinations of actions which would satisfy s 32(5). The proper task is to assess the management action which was taken and determine whether it was reasonable and whether it was taken in a reasonable way. Sometimes, that may involve considerations of what else might have been done but that will only be relevant to whether what was done was, in fact, reasonable.[60]

…

I agree with the reasoning of Hall P in Q-Comp v Hohn where he said that the mere occurrence of reasonable management action will not insulate a disorder from characterisation as an "injury". In cases such as this the Commission will be aided by expert evidence which can assist in the assignment of weight to the various factors which go to the creation of maintenance of a psychiatric disorder. If the evidence supports a finding that the psychiatric disorder results from the employment being a significant contributing factor then, when one turns to consider s 32(5), it is important to determine to what extent, if any, there is an overlap of reasonable management action and other employment factors.[61]"

  1. [77]
    In Q-COMP v Rowe Hall P wrote:

"…Section 32(5)(a) of the Act requires the insurer, Q-COMP and any appellate tribunal to enquire whether the psychological injury arose out of or in the course of reasonable management action taken in a reasonable way. The presence of unreasonable management action with a sufficient causal connection to the injury may require that a negative answer be given to the question posed by s. 32(5)(a)."[62]

(emphasis added)

  1. [78]
    In Blackwood v Mahaffey,  Martin J wrote:

"…If, after considering all the relevant evidence and weighing up the factors which were accepted as having given rise to the personal injury, the Commission forms the conclusion that any of the conduct referred to in s 32(5) does not, on balance, displace the evidence in favour of the worker then a finding in the worker's favour must follow."[63]

  1. [79]
    The submission of the appellant that the conduct of the meeting on 15 July was not management action, in my view, misapprehends the evidence before the Commission. It is not in dispute that the meeting was convened at the instruction of Mr Williams. Mr Williams contacted the appellant on 12 July to inform her of the meeting and to give her some background as to the subject matter to be discussed. Mr Williams, together with Mr Connors attended and participated in the meeting.
  1. [80]
    The respondent submits that to the extent that the meeting on 15 July involved the President of the P&C, being her employer and the one to whom she reports would satisfy the concept of management action.  
  1. [81]
    The evidence suggests that meeting related to specific management action directed to the appellant's employment itself, as opposed to action forming part of the everyday duties or tasks that she performed in her employment. As such, the meeting and the subject matter discussed which included, amongst other things, an assessment of her position description, remuneration and hours of work, constituted management action for the purposes of s 32(5) of the Act.

Was the management action taken in a reasonable way?

  1. [82]
    It may be argued that it was reasonable to convene a meeting to discuss, amongst other things, the building of a better relationship between the School and the P&C; to deal with the tension between the appellant and Mr Connors; to explore ways of engaging with the appellant's apparent difficulty with staff over fundraising; and to ensure the on-going viability of the P&C for the benefit of the whole School community. However, the same cannot readily be said for the manner in which the meeting was conducted.
  1. [83]
    What is clear from the evidence is that the P&C had significant internal governance issues. The Executive was, with the exception of the President and Vice President almost non-existent. Even Mr Williams and Ms Revell had expressed a wish to be no longer involved. It was only through the encouragement of Mr Connors that they continued to be so. The only constant was the appellant.
  1. [84]
    Mr Williams thought it was inappropriate to invite Ms Kruger to attend the meeting on 15 July even though she was the Treasurer and it is accepted that she would have had an interest in being involved in the viability of the P&C.
  1. [85]
    Notwithstanding that Mr Williams, as President of the P&C, was the employer and accountable person for the purposes of the P&C Constitution, he took no steps throughout the meeting to control the agenda. Indeed, the agenda for the meeting was prepared by Mr Connors and forwarded to Mr Williams for his comment.
  1. [86]
    In the conduct of the meeting, Mr Williams very much took a back seat. Mr Connors chaired the meeting and I accept that he took the predominate role. The meeting should have been conducted by Mr Williams and by failing to do so, abrogated his responsibility as the employer of the appellant to Mr Connors. The meeting informed the appellant of the change in the reporting structure which effectively shifted the supervisory responsibility of the appellant from the President and P&C as the employer to the School. 
  1. [87]
    The School Principal is an ex officio member of the P&C and in accordance with the P&C Constitution is automatically a member of the organisation. He is not, however, a member of the P&C Executive and there is a clear delineation between the role of the School Principal and the P&C. The function of the Principal is to provide advice, to assist and mentor the members of the P&C Executive in the performance of their roles.
  1. [88]
    I accept that Mr Williams did not properly or fully inform the appellant of the exact nature of the meeting on 15 July. The failure to provide the appellant with the agenda prior to the meeting or at the very least at the meeting was unreasonable. 
  1. [89]
    Mr Williams went into the meeting ill-prepared. He had not properly informed himself of the reason for the 2015 loss, he relied upon a document prepared by Ms Revell which was loosely described as a P&C analysis, a document which did not identify areas of expenditure and which, as it transpired was inaccurate in a number of respects, most notably the number of hours worked by the appellant. To compound matters, the underlying assumptions used in the preparation of the document were not readily apparant from the evidence.
  1. [90]
    Mr Williams told the Commission that he spoke with CMS in early July.[64] He said that prior to speaking with them he informed himself of the appellant's role by what he had been told and by reading her job description. However, as is apparent from the evidence, Mr Williams could never have fully informed himself of the roles performed by the appellant as he was not in receipt of her job description and contract of employment until it was emailed to him on 12 July. Importantly, the job description was never sought by Mr Williams but was emailed to members of the P&C Executive and Mr Connors, according to the appellant, because Mr Revell had asked for it. 
  1. [91]
    The focus of the meeting was, in my view, on the reduction of hours worked by the appellant. Mr Williams and Ms Revell were of the belief that the reason for the P&C loss in 2015 was based on the fact that the appellant was paid over the award. One of the reasons advanced by Mr Williams for calling the meeting was to consider the appellant's salary. The agenda prepared for the meeting of 15 July euphemistically described the issue of a reduction in hours as "Discussion around the alignment of the current hours of work and rate of pay for the Eumundi SS position with the Parents and Citizens and Other Associations Retail Award – State 2012." 
  1. [92]
    The issue of the viability of the P&C which Mr Williams said was one of the reasons for calling the meeting was never discussed.[65]
  1. [93]
    I do not accept that one of the other stated purposes for convening the meeting was to assist the appellant to feel supported and to be connected with the School.
  1. [94]
    It is hard to contemplate how a reduction in working hours for an employee could be seen to assist or be beneficial. This is particularly so having regard to the fact that the appellant had told Mr Connors following the meeting on 17 May that she could not afford to reduce her hours.[66]
  1. [95]
    There was a view that the loss in 2015 was primarily the consequence of the salary paid to the appellant. The view was formed, as the evidence demonstrates, through ignorance. Ignorance of the basis for the loss and the financial records of the P&C; ignorance of the hours worked by the appellant; ignorance of her job description; and ignorance of her contract of employment.
  1. [96]
    Whilst I accept that management action need only be reasonable and does not need to be perfect the conduct of the meeting on 15 July falls outside of what might be considered a "blemish".[67]

Conclusion

  1. [97]
    On the evidence before the Commission, I am satisfied that the appellant suffered an adjustment disorder with mixed anxiety and depressed mood; the injury arose out of, or in the course of the appellant's employment; the appellant's employment was the major significant contributing factor to the injury; and the appellant's injury was not excluded by operation of s 32 (5) of the Act.

Orders

  1.  The appeal is allowed.
  1.  The decision of the respondent dated 23 November 2016 is set aside.
  1.  The application for compensation made by the appellant is one for acceptance.
  1. The respondent is to pay the appellant's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission

Footnotes

[1] T 1-48, Ll 33-43.

[2] T 1-48, Ll 45-46.

[3] T 1-49, L 22.

[4] T 1-50, Ll41-42.

[5] T 1-50, Ll43-47.

[6] Exhibit 1.

[7] T 1-53, LL 29-32.

[8] T 1-53, Ll 33-38.

[9] T 1-53, Ll43.

[10] T 1-54, Ll 9-11.

[11] T 1-54, Ll 26-31.

[12] Exhibit 2.

[13] Ibid.

[14] Exhibit 15.

[15] T 1-28, L11.

[16] T 1-86, L26.

[17] T 1-52, Ll 5-24.

[18]  T 3-60, Ll. 1-6

[19]  T 3-121, Ll. 1-16

[20]  Exhibit 20.

[21]  T 3-129, Ll.

[22]  T 3-27, Ll.16-18.

[23]  Exhibit 17.

[24] T 2-117 L24.

[25] T2-115

[26] T 2-104 Ll. 4-7.

[27] T 2-91, Ll. 36-41.

[28] T 2-88, L33.

[29] T 2-108, Ll.

[30] T 2-117, Ll. 31-35.

[31] T 2-89, Ll 30-35.

[32]  Exhibit 22.

[33]  Exhibit 16.

[34]  T 3-65, Ll.7-9.

[35]  T 3-103, Ll.35-39.

[36]  T 3-103, Ll.31.

[37]  T 3-75, Ll.15-19.

[38]  T 1-75, Ll.35-39.

[39]  T 3-155, Ll.11-12.

[40]  T 3-155, Ll.12-13.

[41]  T 3-154 L.16.

[42]  T 3-83 Ll.14-15.

[43]  T 3-103 Ll.41-46.

[44]  T 3-91 Ll.11-13.

[45]  T 3-91, Ll.38-40.

[46]  T 3-151, Ll.6-7.

[47]  T 3-90, L.38.

[48]  T 3-57, T3-58.

[49]  T 3-157.

[50] Exhibit 3.

[51] Exhibit 3.

[52] Exhibit 14.

[53] Exhibit 14.

[54] Ibid.

[55] Commonwealth of Australia v Lyon (1979) 24 ALR 300, 303-304; Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, 478; Theiss Pty Ltd v Q-COMP (C/2010/11), [3].

[56]  (2007) 185  QGIG 383 at 401.

[57]  (1956) OR 437 at 443.

[58]  [2017] QIRC 072 at [8] to [10].

[59]  [2017] QIRC 088 at [68].

[60] Davis v Blackwood [2014] ICQ 009, [47].

[61]  Ibid [51].

[62]  (2009) 191 QGIG 67, [15].

[63]  [2016] ICQ 010, [57].

[64]  T 3-27, L.13.

[65]  T 3-134, L.42.

[66]  T 3-127, L.15

[67] McMah and Simon Blackwood (Workers’ Compensation Regulator) [2014] QIRC 013, [37].

Close

Editorial Notes

  • Published Case Name:

    Allen v Workers' Compensation Regulator

  • Shortened Case Name:

    Allen v Workers' Compensation Regulator

  • MNC:

    [2018] QIRC 41

  • Court:

    QIRC

  • Judge(s):

    Deputy President O'Connor

  • Date:

    28 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
Allwood v Workers' Compensation Regulator [2017] QIRC 88
2 citations
Jump To
Cite 1 - [2017] QIRC 88
Cite 2 - [2017] QIRC 88
Canadian General Electric Company Limited v The Ontario Labour Relations Board (1956) OR 437
2 citations
Jump To
Cite 1 - (1956) OR 437
Cite 2 - (1956) OR 437
Davis v Blackwood [2014] ICQ 9
3 citations
Jump To
Cite 1 - [2014] ICQ 9
Cite 2 - [2014] ICQ 9
Cite 3 - [2014] ICQ 9
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
2 citations
Jump To
Cite 1 - (1992) 173 CLR 473
Cite 2 - (1992) 173 CLR 473
McMah v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 13
2 citations
Jump To
Cite 1 - [2014] QIRC 13
Cite 2 - [2014] QIRC 13
O'Brien v Q-Comp (2007) 185 QGIG 383
2 citations
Jump To
Cite 1 - (2007) 185 QGIG 383
Cite 2 - (2007) 185 QGIG 383
Q-COMP v Rowe (2009) 191 QGIG 67
2 citations
Jump To
Cite 1 - (2009) 191 QGIG 67
Cite 2 - (2009) 191 QGIG 67
Read v Workers' Compensation Regulator [2017] QIRC 72
2 citations
Jump To
Cite 1 - [2017] QIRC 72
Cite 2 - [2017] QIRC 72
The Commonwealth v Lyon (1979) 24 ALR 300
2 citations
Jump To
Cite 1 - (1979) 24 ALR 300
Cite 2 - (1979) 24 ALR 300
Workers' Compensation Regulator v Mahaffey [2016] ICQ 10
2 citations
Jump To
Cite 1 - [2016] ICQ 10
Cite 2 - [2016] ICQ 10

Cases Citing

Case NameFull CitationFrequency
Grace v Workers' Compensation Regulator [2021] QIRC 2853 citations
King v Workers' Compensation Regulator [2020] QIRC 1802 citations
State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2025] QIRC 1662 citations
1

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