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Wicks v Workers' Compensation Regulator[2018] QIRC 63

Wicks v Workers' Compensation Regulator[2018] QIRC 63

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Wicks v Workers' Compensation Regulator [2018] QIRC 063

PARTIES: 

Wicks, Helen Sylvia

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2017/59

PROCEEDING:

Appeal against a decision of the Regulator

DELIVERED ON:

1 June 2018

HEARING DATES:

12, 13, 14 February 2018

8 March 2018 (Appellant's submissions)

19 March 2018 (Respondent's submissions)

28 March 2018 (Appellant's submissions in reply)

MEMBER:

Industrial Commissioner Knight

ORDERS:

  1. The appeal is dismissed.
  2. The decision of the Respondent dated 9 March 2017 is affirmed.
  3. The Appellant is to pay the Respondent'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 REGULATOR – Where the worker has suffered a psychological injury – What is the date of injury – Whether the worker was bullied by her Manager – Excessive workload – What steps were taken to address workload concerns – Whether s 32(5) operates to exclude the worker’s psychological condition from the definition of injury in s 32(1) – Appeal dismissed.

CASES:

Bowers v WorkCover Queensland (2002) 170 QGIG 1.

Davis v Blackwood [2014] ICQ 009.

Groos v WorkCover Queensland [2002] QIC 52.

Kudryavtseva v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 053.

Prizeman v Q-COMP (2005) 180 QGIG 481.

Svenson v Q-COMP [2006] QIC 16.

WorkCover Queensland v Kehl [2002] QIC 23.

Workers' Compensation and Rehabilitation Act 2003, s 32

APPEARANCES:

Mr. J. Shepley of Counsel, instructed by Stephen Alexander Industrial Relations Pty Ltd, for the Appellant

Ms. H. Blattman of Counsel, directly instructed by Ms. K. Bednarek of the Workers' Compensation Regulator, for the Respondent

Decision

  1. [1]
    Helen Wicks ("the Appellant") was engaged by Capilano Honey in November 2004 as an in-house graphic designer.
  1. [2]
    On 7 July 2015, Ms Wicks attended a meeting with her manager, Mr Peter McDonald, which he organised in response to some concerns she raised about her workload. During the meeting, they had a discussion about her workload, work processes and responsibilities.
  1. [3]
    A few months later, Ms Wicks attended a medical appointment with her doctor on 11 November 2015, where she raised concerns about her work, including bullying by her manager and her increasing workload.
  1. [4]
    On 16 November 2015, Ms Wicks presented a formal bullying complaint about Mr McDonald to Capilano's Managing Director, Dr Ben McKee. 
  1. [5]
    Following discussions with Ms Keryn Austin, Capilano's National Human Resources Manager, Ms Wicks agreed to attend a mediation on 24 November 2015, where Mr McDonald and other representatives of Capilano would also be in attendance.
  1. [6]
    On the morning of the mediation, Ms Austin approached Ms Wicks and advised there would be a delay in the commencement of the mediation due to Dr McKee and Mr McDonald being caught up in another meeting which had run over time. 
  1. [7]
    On the same day, Ms Wicks left work at or around 11.00am and obtained a Workers' Compensation medical certificate, dated 24 November 2015, upon which she relied to make an application for compensation for a psychological/psychiatric injury that she claimed arose out of her employment with Capilano.
  1. [8]
    WorkCover later rejected Ms Wicks' application for compensation. On review, the Workers' Compensation Regulator ("the Respondent") confirmed the decision of WorkCover, concluding Ms Wicks' psychiatric condition was excluded from the definition of injury on the basis that her injury arose out of reasonable management action taken in a reasonable way.
  1. [9]
    It is this decision that Ms Wicks is now appealing.

What are the legal considerations?

  1. [10]
    The appeal has to be decided by reference to s 32 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act"), the relevant subsections of which provide:

32  Meaning of injury

  1. (1)
    An injury is personal injury arising out of, or in the course of, employment if—
  1. (a)
    for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury; or
  1. (b)
    for a psychiatric or psychological disorder—the employment is the major significant contributing factor to the injury.

…

  1. (5)
    Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—
  1. (a)
    reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;
  1. (b)
    the worker’s expectation or perception of reasonable management action being taken against the worker;
  1. (c)
    action by the Regulator or an insurer in connection with the worker’s application for compensation.

What are the issues to be determined?

  1. [11]
    At the commencement of the hearing of this matter both parties agreed Ms Wicks was a worker and had sustained a personal psychological injury, namely depression and anxiety.
  2. [12]
    Ms Wicks' position is that her injury arose due to: (a) a failure on Mr McDonald's part to respond to her concerns about an increasing workload, and (b) subsequent bullying and mistreatment she endured at the hands of her manager after she raised her initial concerns about her workload.
  1. [13]
    Ms Wicks also contends her condition was exacerbated after further conversations between herself and Capilano representatives on 16 and 17 November 2015, where management failed to act on her concerns, and again on 24 November 2015, where a planned mediation between herself and Mr McDonald did not go ahead at the agreed time.
  1. [14]
    The Respondent's position is that Ms Wicks' perception that she was bullied by Mr McDonald has no basis in reality, and to that extent, her employment was not a major, or the major, significant contributing factor to the development of her injury.
  1. [15]
    Further, to the extent that it is determined (if at all) that Ms Wicks' injury arose out of the manner in which her workload was managed by Mr McDonald following her complaint in early July 2015, the Respondent contends the actions of management were entirely reasonable.
  1. [16]
    On that basis the Respondent argues Ms Wicks' injury falls within the scope of s 32(5)(a) of the Act, such that it does not constitute "an injury".
  1. [17]
    There is some question as to the date Ms Wick’s injury arose. The Respondent's position is that Ms Wicks' injury arose on or before 11 November 2015. In those circumstances it contends that none of the events, meetings or interactions between Ms Wicks, Mr McDonald and Capilano management after this date could be considered causative of her injury. 

What is the date of injury?

  1. [18]
    In opening comments to the Commission,[1] the representative for Ms Wicks' indicated an error had been made on the part of the Appellant in that the date of injury contained in the facts and contentions filed with the Industrial Registry was incorrect. Instead, Ms Wicks' representative submitted that the correct date her psychological injury arose was 24 November 2015.
  1. [19]
    In support of this position, Ms Wicks' representative provided the Commission with a Workers' Compensation medical certificate dated 24 November 2015, and detailed the events leading up to her attendance in the room of Dr John Trace, her treating GP, on 24 November 2015 when he issued the medical certificate. 
  1. [20]
    The Respondent's position is that Ms Wicks' injury arose well before 24 November 2015.
  1. [21]
    In support of this position, the Respondent's representative highlighted the medical records of Ms Wicks[2] which contained the following entry from Dr Trace in respect of an appointment Ms Wicks attended on Wednesday, 11 November 2015:

Dr John Trace O.A.M

History:
occ: graphic designer

bullying at work by a manager

stared (sic) months ago,

increasing work load,

has been in current job for 11 years,

Reason for contact:

Depression
Actions:
Prescription added: AVANZA SOLTAB ORALDISTAB 15mg one tablet nocte
….
Letter Printed – re. 1.1 Medical Certificate Standard

 
  1. [22]
    Ms Wicks' medical records also contain an entry for a further visit to Dr Trace on Saturday, 14 November 2015 in the following terms:

Dr John Trace OAM

History:

review after few days still anxiety.

feels she needs to go to work and sort her problems

discussion on situation and possibility of workcover.

If the bullying is not dealt with then a workcover claim becomes appropriate.

she indicates she is putting in the formal complaints this week,

level C cons

  1. [23]
    In a Workers' Compensation medical certificate prepared for Ms Wicks on 24 November 2015, Dr Trace notes that he first consulted with Ms Wicks "for this injury" on 11 November 2015; and that the stated cause of the injury was noted as "workplace harassment and bullying" (my emphasis).[3] On the same day, 11 November 2015, Dr Trace also prescribed Avanza, an antidepressant.
  1. [24]
    In her evidence to the Commission, Ms Wicks' described the circumstances leading up to her appointment with Dr Trace on Wednesday, 11 November 2015, noting "I just couldn’t cope with the workload anymore and I had a meltdown and I went to see my GP".[4] Ms Wicks told the Commission that Dr Trace had also suggested to her during the appointment that she keep a diary to record how she was feeling.   
  1. [25]
    It is not in dispute that Ms Wicks took sick leave for the rest of the week following her appointment with Dr Trace on Wednesday, 11 November 2015. Although she struggled to recall her follow up appointment with Dr Trace, the notes for Ms Wicks' appointment on Saturday, 14 November 2015, include the comments: "discussion on situation and possibility of workcover. if the bullying is not delat (sic) with then a workcover claim becomes appropriate."[5]
  1. [26]
    When Ms Wicks returned to work on the following Monday (16 November 2015), she presented Dr McKee with a formal complaint in respect of her manager Mr McDonald. The complaint incorporated four broad areas of concern in relation to Mr McDonald's behaviour towards Ms Wicks under the following headings:

1. He ignores my requests for help;

...

2. I feel he is purposely avoiding communicating with me in an attempt to alienate me and force me to resign;

…

3. He makes negative comments behind my back to other staff members;

…
4. He makes me feel undeserving of what I earn.[6]

  1. [27]
    By agreement, three medical reports prepared by a psychiatrist and a psychologist in respect of Ms Wicks' injury were provided to the Commission. Additional medical records obtained from Ms Wicks' local medical practice were also provided to the Commission. Neither her psychiatrist, Dr Adam Burgess, nor her psychologist, Mr Lindsay Spencer-Matthews, nor Dr Trace were called to give oral evidence during the hearing.
  1. [28]
    Although none of the reports provided to the Commission included a reference to the date of onset for Ms Wicks' psychological injury, Dr Burgess, in his report of 3 November 2016 under the heading of "Presenting Complaint", recorded Ms Wicks' "workload had gradually increased over a protracted period of time until it had begun to impact on her physical and mental health".[7]
  1. [29]
    In a report prepared by Mr Spencer-Matthews, dated 3 August 2017, he noted:

Ms Wicks reported that, over a period of approximately two years, her experience of work changed significantly under the management of Mr McDonald and her psychological and physiological wellbeing declined markedly. She reported that the changes in her experience at work were demonstrably unrelated to her performance or engagement with colleagues, but were directly related to the dysfunctional manner in which she was managed by her superior.[8]

  1. [30]
    I have considered the materials before the Commission relating to the dates and times of medical appointments attended by Ms Wicks on 11, 14 and 24 November 2015, along with the circumstances surrounding the onset of Ms Wicks' psychological or psychiatric illness. Consequently, I am of the view the medical notes of Dr Trace on 11 November 2015, in combination with Ms Wicks' absence from work on 12 and 13 November 2015, and Dr Trace's comments in Ms Wicks' certificate of 24 November 2015, support the conclusion that the events leading to the onset of Ms Wicks' depression and anxiety occurred on or before 11 November 2015.
  1. [31]
    Significantly, Ms Wicks was assessed by Dr Trace as suffering from depression on 11 November 2015 when he also prescribed her with an antidepressant. In his notes for this appointment, Dr Trace specifically referenced Ms Wicks' occupation and took the time to record a number of issues within her workplace which she claimed had contributed to depression and now, in part, form the basis of this appeal; namely, increasing workload and bullying by her manager.
  1. [32]
    The medical notes recorded by Dr Trace for a follow up appointment on Saturday, 14 November 2015, indicate there was some discussion between Ms Wicks and Dr Trace at that appointment in respect of lodging a WorkCover claim.  
  1. [33]
    Having considered all the relevant materials insofar as they relate to the period of time within which Ms Wicks' psychological injury arose, I find the injury arose on or prior to 11 November 2015. In a practical sense, this means that any events which occurred after 11 November 2015 cannot be considered as stressors in the conduct of the present appeal proceedings.
  1. [34]
    In those circumstances, the remaining issues between the parties to be determined are:  
  1. (a)
    Did Ms Wicks' depression and anxiety arise out of, or in the course of, her employment? 
  2. (b)
    If Ms Wicks suffered a personal injury arising out of, or in the course of, her employment, was her employment with Capilano the major significant contributing factor to her depression and anxiety?
  1. (c)
    If the answer to (b) is 'yes', is the injury not compensable by virtue of it arising out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with Ms Wicks' employment?

 Nature of the Appeal and Relevant Authorities

  1. [35]
    The appeal is conducted by way of a hearing de novo. The applicable legislation is the Workers’ Compensation and Rehabilitation Act 2003, as at 2015. Ms Wicks bears the onus of persuading me, on the balance of probabilities that she suffered an injury that falls within the meaning of s 32.
  1. [36]
    In Kudryavtseva v Simon Blackwood (Workers' Compensation Regulator), Neate C considered the authorities insofar as they related to onus, noting:

…the Commission, in dealing with the matter, must feel an actual persuasion before the alleged facts can be found to exist.  The mere possibility of an appellant suffering an injury on mere conjecture is not enough.  Inference must be carefully distinguished from conjecture or speculation. (See MacArthur v WorkCover Queensland (2001) 167 QGIG 100, 1010 (Hall P) and cases cited).[9]

  1. [37]
    The extent and limits of the operation of s 32(5) of the Act as they are relevant to this matter are also well established. The onus lies with Ms Wicks in establishing that the management action taken by representatives of Capilano was not reasonable or not taken in a reasonable way.
  1. [38]
    In Prizeman v Q-COMP, Hall P stated that in determining whether action was reasonable management action taken in a reasonable way by the employer, in connection with the worker's employment, "it is the reality of the employer's conduct and not the employee's perception of it which must be taken into account."[10]
  2. [39]
    In WorkCover Queensland v Kehl,[11] Hall P also said that "reasonable" should be treated as meaning "reasonable in all the circumstances of the case", and in Bowers v WorkCover Queensland, he also wrote:

"The circumstances that a system of work or its implementation has miscarried does not necessarily lead to the conclusion that either the system of work or its implementation was unreasonable. Reasonable schemes reasonably implemented can miscarry".[12]

  1. [40]
    In Davis v Blackwood, in considering the manner in which the Commission should apply s 32(5) of the Act and determine whether management action was taken in a reasonable way, Martin P more recently noted "sometimes, that may involve considerations of what else might have been done but that will be relevant to whether what was done was, in fact, reasonable."[13]
  2. [41]
    In Svenson v Q-COMP, Hall P found the Appellant had "developed a propensity to perceive 'bullying' in the conduct of others and to react to it", noting:

Perfectly reasonable activity in the workplace may be held to be a significant contributing factor to a psychiatric injury where a claimant’s perception of what has occurred is quite different to the reality of that which has occurred. But an injury which arises out of or in the course of reasonable management action reasonably taken is not removed from the exclusion at s 34(5) because of the claimant’s flawed perception, see esp. s 34(5)(b).[14]

  1. [42]
    Other decisions where consideration has been given to reasonable management action have reinforced that it is not necessary that management action be perfect or above criticism, and the term "reasonable management action" permits failings, deficiencies and flaws provided the management action was sound, based on reason, was not arbitrary, did not involve any unfairness and did not produce an unfair result.

What are the factors Ms Wicks contends contributed to or caused the injury?  

  1. [43]
    In her statement of facts and contentions, Ms Wicks attempted to set out the stressors or events upon which she relied as having caused her decompensation. In circumstances where some of those events were lacking in detail, particularly in relation to the dates of certain events, I sought further clarification from Ms Wicks' representative at the commencement of these proceedings in respect of those stressors and events.
  1. [44]
    As best I understand it, the stressors which Ms Wicks claims contributed to her injury are:
  1. (a)
    Mr McDonald's failure to respond to concerns raised by Ms Wicks about her increasing workload;
  1. (b)
    Mr McDonald bullying and mistreating Ms Wicks after she raised concerns about her workload in July 2015;
  1. (c)
    the failure of Capilano management to adequately respond to Ms Wicks' complaint (presented on 16 November 2015) about Mr McDonald's bullying conduct and concerns about her workload; and
  1. (d)
    the failure of management to ensure a mediation between Ms Wicks and her manager took place at the agreed time.
  1. [45]
    The Respondent's position is that:
  1. (a)
    Mr McDonald acted reasonably in response to Ms Wicks' complaint in July 2015;
  1. (b)
    the alleged bullying Ms Wicks is complaining about did not happen at all, and Mr McDonald behaved in a perfectly reasonable manner toward the Appellant; and
  1. (c)
    the employer responded reasonably to the Ms Wicks' complaint, such that the injury falls within the section 32(5) exclusion.
  1. [46]
    With these parameters in mind, the factual context for resolving this matter covers a period that commenced in or around July 2015 and continued until November 2015.

Nature of Ms Wick's Work

  1. [47]
    Ms Wicks was engaged by Capilano as an in-house graphic designer. The scope of her worked included the production, or overseeing the production, of label designs, publications, advertisements, promotional material and other communication materials such as the Annual Report.
  1. [48]
    The general duties listed in Ms Wicks' position description included creating designs, readying completed art for print, sourcing suppliers for paper stocks, obtaining quotes from trade houses, printers and external design studios, creating graphic images, scanning images and managing the day-to-day operations of the in-house studio.[15]
  1. [49]
    During the period the complaint covers, Ms Wicks worked within a combined marketing and sales team headed by Mr McDonald. Other positions within the team (to the extent that they are relevant for this appeal) included a marketing coordinator role which was held by Mrs Katherine McDonald.
  1. [50]
    To a limited extent, it is somewhat relevant that Mrs McDonald was married to Mr McDonald. It is not in contention that Mrs McDonald had previously worked at Capilano in a marketing capacity. In fact, this is where she had met her future husband.
  1. [51]
    Mrs McDonald left her role at Capilano on or around the time she married Mr McDonald. After spending a period of time looking after their children, Mrs McDonald returned to work for Capilano in February 2015 on a short-term basis as a part-time marketing coordinator.
  1. [52]
    Both Mr and Mrs McDonald were called by the Respondent to give evidence during the proceedings, as were Dr McKee and Ms Austin.

Failure to Respond to Workload Concerns – July 2015

  1. [53]
    Ms Wicks told the Commission she approached Mr McDonald in or around July 2015 to raise concerns about her workload, in circumstances where she was worried about the impact an increasing workload might have on her pre-existing medical condition of Multiple Sclerosis.[16]
  1. [54]
    Ms Wicks attributed part of the increase in her workload to a re-branding project she was involved in with an external marketing consultant. The consultant, Mr Ken Melia, had been engaged by the Capilano board to oversee a number of marketing projects. Ms Wicks provided Mr Melia with graphic design support for one of the projects.[17] He also utilised other external graphic design agencies to assist with the projects.
  1. [55]
    Although it seems Ms Wicks was still required to report to Mr McDonald in a formal sense, she also undertook work for Mr Melia insofar as it related to the re-branding project. There was some question during the proceedings as to the number of times Mr Melia met with Ms Wicks in person and the extent to which he guided or influenced her workload. At the very least, there was evidence to support the conclusion Mr Melia sent a number of requests to Ms Wicks in relation to particular designs he wanted her to review and that he met with her in person on a number of occasions to discuss designs and other related matters. 
  1. [56]
    Ms Wicks recalled attending a formal meeting with Mr McDonald that he had arranged, a few days after initially raising concerns about her workload. She was not entirely clear about the date of the meeting. Although she was able to remember being asked at some point by Mr McDonald to prepare a flowchart of her work processes and responsibilities and bring it along to the meeting, she struggled to recall much of the detail or content of their discussions during this period.[18]
  1. [57]
    What she was able to recall about either meeting tended to blend together. However, it does seem Ms Wicks could remember Mr McDonald taking notes, discussing her workflow and responsibilities, and proposing a number of options to address her concerns about her workload. These options included Mr McDonald and/or Ms Wicks putting in place additional internal and/or external resources to assist with her responsibilities.[19]
  1. [58]
    Ms Wicks observed Mr McDonald taking notes during at least one of these meetings and assumed he was taking steps to put in place some resources to assist her, but she told the Commission that she did not hear back from Mr McDonald.
  1. [59]
    Mr McDonald recalled Ms Wicks raising concerns about her workload in or around late June 2015.  His evidence is that he asked Ms Wicks to prepare a flow chart of her work processes ahead of a second meeting on 7 July 2015, where they both sat down and discussed Ms Wicks' role and responsibilities.
  1. [60]
    In this regard, the Commission was provided with a copy of a meeting invite from Mr McDonald to Ms Wicks which included the following notes:

Subject:  work flow (bring the flow chart of processes)

Start:   Tuesday 7/07/2015 9.00AM

Finish:  Tuesday 7/07/2015 10.00AM.[20]

  1. [61]
    Mr McDonald recalled discussing the various responsibilities contained within Ms Wicks' role and noted:

the biggest concern that I recall Helen having was the-blue folder process where three copies-three copies of a label are put into the blue folders…to track changes to labels.[21]

  1. [62]
    He told the Commission that in the meeting with Ms Wicks it was agreed Mrs McDonald would take on the responsibility of the label spec sheets and the associated jobs. Although Ms Wicks' position is that Mr McDonald did not come back to her after the meeting on 7 July 2015, during cross-examination she confirmed that following her meeting with Mr McDonald on 7 July 2015, Mrs McDonald took over creating the label spec sheets, providing the spec sheets to quality control and the printer; and filing the label spec sheet and labels in the relevant blue folders.[22]
  1. [63]
    Mr McDonald told the Commission he also raised with Ms Wicks the option of outsourcing further areas of her work to external agencies or printers such as Smith Evans, Helleys and Orora with the objective of relieving her workload.
  1. [64]
    Although it is not entirely clear as to whether he raised this solution before, after or during the meeting on 7 July 2015, Mr McDonald also recalled discussing with Ms Wicks the option of appointing a temporary graphic designer and/or to identify existing internal resources with spare capacity to assist with Ms Wicks' workload.[23] 
  1. [65]
    Mr McDonald recalled that Ms Wicks:

…didn’t want to get a temp in because our systems might be different to her systems in terms of the version of the – the version of the graphics programs.[24]

And later, that over the year he and Helen had spoken about versions of software and:

…we said to Helen if she needed to get the version of the software updated to go to the IT department and to arrange that.[25]

  1. [66]
    Ms Wicks was of the opinion the solutions put forward by Mr McDonald were not overly helpful in circumstances where a number of the suggestions would require extra work on her part to manage. For example, in the case of minor label changes, she said she did not see the point in outsourcing the work to an external agency, and was of the view that it would take just as much time and effort to outsource the work as it would to make the changes herself.[26] Likewise, Ms Wicks told the Commission that at times it was not practical to outsource the work due to urgent deadlines.
  1. [67]
    On or around 9 July 2015, Mr McDonald organised a further workflow meeting with both Ms Wicks and Mrs McDonald. In an email to both employees on the same day, Mr McDonald indicated the purpose of the meeting was to discuss how best to handle upcoming projects related to label upgrades, point of sale material and brochure preparation.[27]
  1. [68]
    In an email to Dr McKee and Mr Dirk Kemp on 7 July 2015, Mr McDonald also requested critical dates and milestones for the annual report noting:

I am trying to manage Helen’s work flow – we have a lot coming through with what Ken in working on…can you send me through the critical dates/milestones for when you need it completed for the Board so that we…make sure we are covering what needs to be done.[28]

  1. [69]
    Mr McDonald told the Commission he allocated "a lot of the work to external people, so that we could manage the workflow."[29] He confirmed that graphic design work for new brands and any associated artwork was predominantly undertaken by external agencies, but that Ms Wicks was responsible for uploading the final artwork to the printers.[30]
  1. [70]
    In August 2015, Ms Wicks advised her employer she had to move house at relatively short notice, and proceeded to take a period of annual leave from 10 August until 14 August 2015. When she returned from annual leave, Ms Wicks recalled she "…had heaps of emails, I was getting hammered and I’ve just had a lot of work to do."[31] Her memory of that period was that Mrs McDonald had checked purchase orders which had come through while she was on annual leave, but had held off on other matters.[32]
  1. [71]
    Around the same time, Ms Wicks recalled Capilano's re-branding project was coming to a conclusion, that people "…couldn’t make up their minds…" and "I would be getting different information from Ken and different information from Peter McDonald."[33]
  1. [72]
    Although it is not entirely clear when these events occurred or the context within which they arose, she also recalled Mr McDonald adjusting a deadline for a calendar, so that it was due two weeks earlier. Likewise, she described a situation where she had several different jobs to complete and had asked Mr McDonald which one was the most urgent. On that occasion, she said Mr McDonald "just shrugged and walked off".[34]
  1. [73]
    In respect of other factors which contributed to her increased workload, Ms Wicks raised concerns in relation to receiving incomplete design briefs and having to undertake administrative work such as checking purchase orders and chasing codes. In turn, she explained these responsibilities impacted the time she had available to attend to the graphic design elements of her role.[35]
  1. [74]
    Mr McDonald told the Commission that:

We may not have used the actual design brief form, but certainly we gave her a design brief in-in the sense that we actually said, 'This is what we need to see on the label.'[36]

And later:

…we were doing briefings either by email or face to face where we’d have the actual label or concept there marked up.[37]

  1. [75]
    Other materials before the Commission demonstrate Mr McDonald made attempts to outsource work to external agencies or at least offered to outsource work to agencies at different times. For example, in late June 2015, around the period where Ms Wicks initially raised concerns about her workload, Mr McDonald requested that Mrs McDonald coordinate the rollout of new artwork and label sign offs for the 'Australia Made' logo to be place on all Capilano branded domestic products.[38]
  1. [76]
    Following her meeting with Mr McDonald on 7 July 2015, Ms Wicks acknowledged she did not raise any further concerns about her workload with Mr McDonald or other managers within Capilano, such as Ms Austin or Dr McKee, until she lodged a formal bullying complaint about Mr McDonald in mid-November 2015.
  1. [77]
    Mr McDonald told the Commission he considered that he and Ms Wicks had agreed on a plan to relieve her workload around this time and the matter was resolved. Ms Wicks did not approach Mr McDonald again about her workload.

Bullying and mistreatment of Ms Wicks - post July 2015 complaint about workload

  1. [78]
    During the proceedings, Ms Wicks struggled to articulate elements of Mr McDonald's behaviour that could be described as bullying or mistreatment. Much of her evidence deviated towards her interpretation or perceived motivation as to why Mr McDonald was behaving in a particular manner, rather than providing the Commission with examples of how he actually behaved towards her and why she considered it to be bullying.
  1. [79]
    However, Ms Wicks, in writing, was able to set out the following broad complaints about Mr McDonald's treatment of her in a formal document which she provided to Dr McKee on 16 November 2015:

1. He ignores my requests for help;

...

2. I feel he is purposely avoiding communicating with me in an attempt to alienate me and force me to resign;

…

3. He makes negative comments behind my back to other staff members;

…4. He makes me feel undeserving of what I earn.[39]

 Ignores my requests for help

  1. [80]
    The details provided in the complaint by Ms Wicks under the heading 'ignores my requests for help' were in many respects similar to her evidence as set out in paragraphs [53] to [65].  
  1. [81]
    Ms Wicks concluded this section of her complaint noting:

I feel he is deliberately ignoring the issue in an attempt to stress me to the point of resigning. I feel he is making every effort to make my job as difficult as possible.[40]

Ms Wicks provided an example where Mr McDonald had put his hands in the air and walked away at a time when she had raised concerns with him about the urgency and prioritisation of multiple jobs.

  1. [82]
    In terms of avoiding contact with her, the examples provided by Ms Wicks were predominantly in relation to what Mr McDonald was not doing, rather than any overt behaviour she could point to. For example, she complained that he rarely came near her, that he was uninterested in what she did on a day-to-day basis, and that he engaged with Mrs McDonald, while leaving her to "flounder".[41]
  1. [83]
    Separately, Ms Wicks also raised concerns about no longer receiving design briefs and having to chase up information. She also highlighted Mr McDonald's negativity and lack of interest in respect of an ongoing project and suggested it would have been beneficial to have a marketing coordinator involved to assist her with the administrative responsibilities associated with her role.
  1. [84]
    By way of example, Ms Wicks described an incident where she was waiting for feedback on a particular piece of work and had to wait three days. She noted that "I have no doubt it was to add more pressure and hinder my chances of hitting deadlines. Again, I feel that I’m being set up to fail."[42]
  1. [85]
    As best I understand it, Ms Wicks' complaints about negative comments being made behind her back were in relation to her suspicions that Mr McDonald was speaking to others about her quality of work. Although it is not entirely clear within the complaint as to how Ms Wicks is aware this was happening, in one part of the document she notes, "he commented to another staff member that 'I was probably looking for a job interview."[43]
  1. [86]
    At the conclusion of the sub-heading about negative comments, Ms Wicks notes:

I am also concerned these negative comments are not just being made to ‘internal’ staff members. We use external contractors who’s line of work crosses over with mine and I have no doubt that he has been painting me in a negative light to them, This could limit my chances of finding employment elsewhere if I chose to do so.[44]

  1. [87]
    In her complaint about Mr McDonald making her feel undeserving of what she earns, Ms Wicks raised concerns that Mr McDonald:

Told me in the last pay review that ‘I was worth more last year than this year’. I feel he said this to manipulate me into thinking I don’t deserve what I’m getting paid, therefore he could squeeze a little more out of me.[45]

  1. [88]
    In terms of Mr McDonald's direct treatment and engagement with her, Ms Wicks under cross-examination acknowledged Mr McDonald did not swear, yell or say a mean word to her.[46] In a conversation with a WorkCover representative, Ms Wicks said "…he makes comments to me about other people's jobs. It wasn’t nasty comments about me, but he should come to me about it."[47]

Mr McDonald's Evidence

  1. [89]
    Mr McDonald's evidence was that following his meetings with Ms Wicks in early July 2015, he thought they had resolved her concerns around workload. He confirmed that Ms Wicks had made no further complaints about workload or any other matters until her complaint to Dr McKee in mid-November 2015.
  1. [90]
    The Commission was provided with examples of email interaction between Mr McDonald and Ms Wicks between July 2015 and November 2015, which included Mr McDonald:  
  • wishing Ms Wicks well in relation to her upcoming house move in early August 2015;[48]
  • approving an Annual Leave request at relatively short notice in mid-September 2015;[49] and
  • inviting Ms Wicks to celebratory lunch for a record sales month in early October 2015.[50]
  1. [91]
    In clarifying the nature of the interaction between herself and Mr McDonald in the period between July 2015 to November 2015, Ms Wicks made the following comments:

COMMISSIONER: Ms Wicks, so are you …saying that you got on quite well with Mr McDonald up until the last few weeks?

MS WICKS: Yeah. It – it – to – he’s treated me okay. Like he didn’t do anything that I could …say was bullying and …he would say things to me demeaning, if you know what I mean.[51]

  1. [92]
    In relation to Mr McDonald's invitation to Ms Wicks to the Bavarian Beer Café lunch/dinner, she said that she spoke to Mr McDonald while they were at the function and had a good time, but because she liked "the other people that were there."[52]
  1. [93]
    On his part, Mr McDonald said he noticed nothing amiss in his relationship or interaction with Ms Wicks. He recalled that he sent on average about twenty emails a month to Ms Wicks from the period June to November 2015 and there was no change in the variety of emails or the nature of his correspondence.
  1. [94]
    Mr McDonald's evidence is that he was managing approximately six or seven employees in the second half of 2015, all of whom worked in a relatively small area. He said that it was necessary for him to pass Ms Wicks' desk to walk down the hallway. Although he spent time out of the office travelling, on the days when he would be in the office his evidence was that he would try to say "good morning" to everybody. By saying good morning, he was of the view this gave his team members an opportunity to also raise any concerns or questions they may have had for the day.
  1. [95]
    He acknowledged the design brief forms were not always completed in full, but said the information would come through or be provided to Ms Wicks in other ways such as in an email. Alternatively, he or others would 'mark-up' an existing label to demonstrate the required changes or hand-draw the design.
  1. [96]
    Mr McDonald did recall Ms Wicks complaining that some people within the organisation had not completed the design brief forms when she would get busy, but that she would be given guidance about what was needed, albeit not always in the design brief form.[53]
  1. [97]
    Mr McDonald told the Commission he outsourced a lot of the branding work to external agencies, but generally Ms Wicks would look after the existing brands and new projects, or brands would be outsourced. He said that outsourcing work such as brochures, point of sale material, images for the website and other brand work assisted Ms Wicks because she would have had to do the work if it was not outsourced.
  1. [98]
    Under cross-examination, Mr McDonald confirmed Capilano turnover and revenue had increased in the period from 2014 to 2016 in circumstances where Australia experienced one if its worst droughts.
  1. [99]
    The drought resulted in a reduction in the supply of honey and a number of SKUs being deleted from the supermarket shelves. This provided Capilano with an opportunity to introduce a pre-existing brand back into the major supermarkets which led to a 20 percent gain in market share. Essentially, Capilano's sales increased because there was less competition due to the drought.

Dr McKee's Evidence – Bullying

  1. [100]
    Dr McKee is the Managing Director of Capilano. He confirmed the Capilano office was small and that Ms Wicks' work area was located approximately fifteen metres from his own office.[54] He told the Commission he was not aware of other employees within Capilano making bullying complaints about Mr McDonald.[55]
  1. [101]
    Dr McKee's evidence was that he was quite surprised when Ms Wicks came to speak to him about Mr McDonald. He said that given the size of the office and the location of Ms Wicks' work space, he would often see Mr McDonald and Ms Wicks interacting.[56] He could not recall ever seeing anything alarming about their interaction.[57]
  1. [102]
    Dr McKee considered that he had quite a good relationship with Ms Wicks. He told the Commission that when she came to see him he wanted to be supportive because she did not appear to be happy at the time of making her complaint.[58]
  1. [103]
    He acknowledged the business was busy and growing during and after the period in which Ms Wicks' made her complaint, but confirmed Ms Wicks did not make any direct complaints to him about her workload or her interactions with Mr McDonald until she spoke to him on 16 November 2015.[59]
  1. [104]
    His evidence was that although the company turnover grew, in part, due to the opportunities presented by the drought, the re-introduced product range was relatively limited in terms of the branding work required to bring it back on line.

 Ms Austin's Evidence – Bullying

  1. [105]
    Ms Austin told the Commission that in 2014 she recalled Ms Wicks complaining about her salary. She recalled Ms Wicks stated:

…that she thinks the amount of work that she does, and the quality of her work and what her responsibilities are, is that she's entitled to more money and she …wasn’t very happy about it. So I told her to write a letter, put it in writing to her manager to address that.[60]

  1. [106]
    Ms Austin confirmed that following this discussion, Mr McDonald agreed to give Ms Wicks a further salary increase in 2014 which resulted in her being paid $8,000 above the relevant medium salary contained in the Australian Institute of Management market survey results for a graphic designer.
  1. [107]
    In 2015, she recalled Ms Wicks received another salary increase which led to her being paid more than $15,000 above the medium salary for a graphic designer.
  1. [108]
    Ms Austin told the Commission she had observed Ms Wicks and Mr McDonald interacting at work on a daily basis. She said they appeared to have a good working relationship. She recalled Mr McDonald expressing to her that he "thought highly" of Ms Wicks and had not noticed anything out of the ordinary about their interaction until she was provided with Ms Wicks' complaint in November 2015.[61]

Mrs McDonald's evidence - Bullying

  1. [109]
    Mrs McDonald told the Commission the work she undertook at Capilano included providing marketing material to account managers, overseeing website updates, developing point of sale material, magazine advertisements, coordinating social media and other marketing initiatives with external providers.
  1. [110]
    She confirmed she took over the label spec and filing responsibilities from Ms Wicks and assisted her with work from time to time.
  1. [111]
    Mrs McDonald recalled taking on some of Ms Wicks' duties while she was away on leave in August 2015. She said this involved her checking order forms as they came into the marketing department to determine whether any labels needed to be altered. She said this process sometimes involved making changes to artwork on a label.
  1. [112]
    Mrs McDonald confirmed Ms Wicks was generally responsible for graphic design work required for Capilano branded products, but that artwork for a new brand would be undertaken by an external provider.

 Medical Evidence

  1. [113]
    In support of the submission Ms Wicks had suffered an injury within the definition of s 32 of the Act, her representative relied on the evidence of Dr Adam Burgess, Consultant Psychiatrist, and Mr Spencer-Matthews, a registered psychologist.
  1. [114]
    In a report to Dr Alison Scandrett, dated 3 November 2016, Dr Burgess found that Ms Wicks was suffering from a major depressive episode with significant features of anxiety, noting:

It is clear that the nature of her perceived maltreatment for work has activated a number of significant psychodynamic features within Helen.[62]

  1. [115]
    In a subsequent report, Dr Burgess confirmed the diagnosis, noting:

…Major Depressive Episode with features of anxiety, which seems to have resulted from work related stressors and perceived workplace bullying.[63]

  1. [116]
    In his report dated 31 July 2017, Mr Spencer-Matthews noted that Ms Wicks had:

…reported that the changes in her experience at work were demonstrably unrelated to her performance or engagement with colleagues, but were directly related to the dysfunctional manner in which she was supervised by her Manager.[64]

  1. [117]
    Neither Dr Burgess nor Mr Spencer-Matthews were called by the Appellant to elaborate on the material in the reports or clarify their comments in respect of the cause of Ms Wicks' illness.
  1. [118]
    Ms Blattman, on behalf of the Regulator, contends Ms Wicks' injury arose out of her perception that she was bullied by Mr McDonald and that her perception has no basis in reality.
  1. [119]
    In subsequent written submissions filed in the Commission in respect of this matter, Ms Wicks' representative argues that during the proceedings, the version of events provided by Ms Wicks to her doctors was not challenged, either through Ms Wicks or the medical practitioners who provided reports. On that basis, Ms Wicks' representative argues the Commission is "not only entitled to, but should rely that the onus of proof being met by the Appellant".[65]
  1. [120]
    The difficulty that I have with this latter submission is that in this matter, the opinions of Dr Burgess and Mr Spencer-Matthews are based on the information or facts as reported to them by Ms Wicks.
  1. [121]
    If the Commission is unable to verify the facts or if there is some question as to whether the circumstances or events complained about by Ms Wicks to her treating medical practitioners occurred in the manner in which they were described by her, then it follows that their evidence may be of less value. That is, the information or facts supporting or underpinning the opinion of Dr Burgess or Mr Spencer-Matthews are critical if their views are to be accepted.

 Consideration and Conclusions – Bullying Stressor

  1. [122]
    At the commencement of the proceedings, Ms Wicks' representative confirmed that one of the stressors contributing to the onset of her psychological injury was the subsequent bullying and mistreatment she endured at the hands of Ms McDonald from July 2015 until November 2015 after she raised her initial concerns about her workload.
  1. [123]
    Certainly, this appears to be one of the main complaints she made to her treating medical practitioners in circumstances where they have attributed the onset of her psychological injury, at least in part, to "perceived workplace bullying"[66]or the "dysfunctional manner in which she was supervised by her Manager".[67]
  1. [124]
    Although Ms Wicks, in her written complaint about Mr McDonald and some aspects of her oral evidence attempted to provide examples of bullying behaviour she alleges was directed toward her by her manager, my view is the evidence does not support her position.
  1. [125]
    For example, on her own evidence, Ms Wicks told the Commission that Mr McDonald "treated me okay. Like he didn’t do anything that I could …say was bullying",[68] up until the last few weeks before she decompensated.  Likewise, Ms Wicks confirmed Mr McDonald did not swear or yell at her.[69]
  1. [126]
    Other examples of email communication between Mr McDonald and Ms Wicks for the period August to October 2015 point to an interaction that appeared reasonably healthy with no apparent animosity or aggression from either party.
  1. [127]
    In the end, aside from her concerns about being overloaded by work, the main focus of Ms Wicks' complaints in relation to bullying appeared to be more in relation to what Mr McDonald was not doing, rather than any overt bullying or aggressive behaviour he may have been exhibiting towards her.
  1. [128]
    For example, Ms Wicks complained Mr McDonald was purposely avoiding communicating with her in an attempt to alienate her and force her to resign.   
  2. [129]
    On his part, Mr McDonald's evidence was that he noticed nothing amiss in his relationship or engagement with Ms Wicks up until the time he was made aware of her formal complaint. Likewise, Dr McKee, Ms Austin and Mrs McDonald were unable to recall anything out of the ordinary in terms of the interaction between Ms Wicks and Mr McDonald up until she made her formal complaint.
  1. [130]
    In respect of Ms Wicks' complaint in relation to Mr McDonald avoiding her, I prefer the evidence of Mr McDonald, Dr McKee, Ms Austin and Mrs McDonald in circumstances where Ms Wicks recollection of various events throughout the hearing was quite patchy and where her evidence regularly deviated towards her interpretation or perceived motivation as to why Mr McDonald was behaving in a particular manner.
  1. [131]
    Ms Wicks also complained Mr McDonald was making negative comments behind her back to other staff members. However, the Commission was provided with a communications report from WorkCover where Ms Wicks confirmed he had not been saying anything nasty about her.[70]
  1. [132]
    Ms Wicks also complained that Mr McDonald told her in her most recent pay review that she was "worth more the year before".[71] She was of the opinion that he said this to manipulate her into thinking she did not deserve what she was getting paid, in an attempt to squeeze a little more out of her.[72]
  1. [133]
    Although I accept Mr McDonald more than likely did make a comment similar to or along the lines of that described by Ms Wicks, there is no evidence to support that he said it with malice or with the objective of manipulating her into thinking she did not deserve her salary or for the other reasons proposed by Ms Wicks.
  1. [134]
    The evidence indicates Ms Wicks was paid $8,000 above the median rate for a graphic designer in 2014 and more than $15,000 in 2015. It is not uncommon for managers and employees to engage in discussion and even banter when it comes to negotiating a yearly salary increase. In Ms Wicks' case, it may not have been the most ideal comment to make, but I do not accept it was bullying, particularly in circumstances where Ms Wicks' evidence was given through the prism of her perception she was being bullied not just in relation to this issue, but many other areas. 
  1. [135]
    In reply submissions, Ms Wicks' representative pointed to comments contained in transcript arising out of a series of conversations covertly recorded by Ms Wicks from 16 November 2015 onwards, in support of the position that Ms Wicks had been bullied and/or that management has mishandled her complaints. The conversations took place at different times between Ms Wicks, Dr McKee, Ms Austin and Mr McDonald from 16 November onwards. The latter three Capilano staff were unaware they were being recorded by Ms Wicks.
  1. [136]
    In particular, much was made of some recorded comments by Dr McKee's to Ms Wicks in respect of Mr McDonald's approach to management and communication. In the context of Ms Wicks raising her complaint to Dr McKee, it is the case that he did make some comments on 16 November 2015 about elements of Mr McDonald's management style that he thought could be improved. Essentially, this boiled down to a view that Mr McDonald could potentially improve his communication with his employees.
  1. [137]
    Having considered the transcripts and Dr McKee's oral evidence, I accept he made the comments about Mr McDonald's communication style in circumstances where he genuinely wanted to appear sympathetic and supportive of Ms Wicks.
  1. [138]
    Dr McKee told the Commission he was surprised when Ms Wicks came to see him. His evidence was that he wanted to be supportive and helpful towards Ms Wicks. In my view he was a credible witness.
  1. [139]
    I accept he genuinely held Ms Wicks in high regard and wanted to do what he could to resolve her concerns, even if this meant trying to find some common ground in terms of her concerns about Mr McDonald's approach to managing employees.
  1. [140]
    Ms Wicks was a long-term employee within the organisation who had years of experience in terms of overseeing the graphic design aspects of the Capilano brand. It makes sense that the Managing Director would want to do what he could to ensure an employee such as Ms Wicks felt valued and heard.
  1. [141]
    In those circumstances, I am of the view that there is limited, if any, material or comments in the recorded conversations[73] which would support Ms Wicks' position that she was bullied by Mr McDonald.
  1. [142]
    Likewise, having reviewed all of the remaining evidence before the Commission, I am not persuaded Mr McDonald's engagement with Ms Wicks through the period from July 2015 to November 2015 could be characterised as bullying.
  1. [143]
    At worst, Ms McDonald could be described as an ambitious and effective manager within Capilano who was keen to get on with the job and who perhaps, according to Dr McKee, could afford to spend more time refining or improving his communication skills when it came to engaging with employees.
  1. [144]
    To the extent that Ms Wicks' injury arose as a result of Mr McDonald's alleged bullying or mistreatment of her, I am of the view that it arose out of her perception that she was being bullied, but that her perception about how those events unfolded is not entirely aligned with the reality of how the events unfolded. To that extent, I concur with the Respondent's submissions that Ms Wicks' injury, insofar as the bullying complaint is concerned, did not arise out of, or in the course of, her employment, and her employment was not a, or the, significant contributing factor.

 Consideration and Conclusions – Workload Stressor

  1. [145]
    Instead, in the absence of any other evidence pointing to an alternative cause of her injury, I find that Ms Wicks' psychological injury arose on or before 11 November 2015, in response to her concerns about managing her workload.
  1. [146]
    In addition to the medical evidence, of significance in this regard are Ms Wicks' comments to the Commission in relation to her appointment with Dr Trace on Wednesday, 11 November 2015, where she said "I just couldn’t cope with the workload anymore and I had a meltdown and I went to see my GP."[74]

Was the management action (or inaction) reasonable and taken in a reasonable way?

  1. [147]
    In written submissions, Ms Wicks' representative submits it is not alleged Mr McDonald set out to purposely harm Ms Wicks. Instead, it is argued he possessed a reckless indifference to her state of mind and wellbeing in circumstances where the business was expanding. In those circumstances, Ms Wicks' position is that this is not a case of management action taken in a reasonable way, but instead a clear case of management 'inaction'.
  1. [148]
    Ms Wicks' representative submits the medical evidence reinforces the challenges she overcame in raising her concerns with Mr McDonald in the first place, particularly in circumstances where according to Dr Burgess:

…her natural tendency has been towards introversion and an avoidance of conflict for fear that raise (sic) her own needs may elicit rejection and mistreatment by others.[75]

  1. [149]
    In contrast, the Regulator argues that Mr McDonald, in managing Ms Wicks and her workload in the period prior to her making a complaint on 16 November 2015, constituted reasonable management action taken in connection with Ms Wicks' employment.
  1. [150]
    I accept Capilano experienced a period of growth in 2015, which more than likely resulted in an increased workload for Ms Wicks in terms of her revisiting existing Capilano labels in conjunction with Mr Melia on a re-branding project.  
  1. [151]
    There is no question Ms Wicks took steps to raise concerns about her workload with Mr McDonald in late June or early July 2015. Notwithstanding the observations by Dr Burgess (above) in relation to Ms Wicks' fears about raising queries related to her own needs, other evidence before the Commission in respect of Ms Wicks' interaction with her managers indicates that she was able to raise concerns about her own circumstances when it suited. 
  1. [152]
    In response, Mr McDonald took steps to invite Ms Wicks to a meeting to discuss her responsibilities. Before attending the meeting he requested Ms Wicks prepare a flow chart which set out the bulk of her responsibilities.
  1. [153]
    Ms Wicks took the flowchart along to a meeting with Mr McDonald in early July 2015 where she highlighted some roles or tasks, predominantly administrative, which had previously been undertaken by another person within the marketing team who was no longer working at Capilano. 
  1. [154]
    Following the meeting, Mr McDonald took steps to arrange for Mrs McDonald to take over the tasks associated with creating the label spec sheets, providing the spec sheets to quality control and the printer, and filing the label spec sheet and labels in the relevant blue folders.
  2. [155]
    It is clear on the evidence that in the immediate period after Ms Wicks raised her concerns about workload with him, Mr McDonald also took steps to identify deadlines for projects including the Annual Report so that he could better manage the flow of work to Ms Wicks. He also arranged a meeting between himself, Ms Wicks and Mrs McDonald to discuss upcoming projects and workflow.
  1. [156]
    Although it is not entirely clear from either party as to when these discussions took place, I accept that Mr McDonald also made suggestions to Ms Wicks on steps or actions that could be taken to reduce or relieve her workload.
  1. [157]
    These suggestions predominantly focussed on Ms Wicks outsourcing further aspects of her work to either internal or external resources, and updating software on her computer so that it was easier for Ms Wicks to interact with and/or better utilise the services of external providers. There was no evidence presented during the proceedings by either party that suggested Ms Wicks was prevented or restricted in her ability to outsource work to external service providers.
  1. [158]
    Ms Wicks did not raise any further concerns about her workload with Mr McDonald after her initial meeting in July 2015, but she told the Commission that she was not happy with the suggestions made by Mr McDonald. For example, she did not think that outsourcing smaller labelling jobs would be useful in circumstances where the work involved in outsourcing it, in her view, was more time consuming than if she actually did the work herself.  
  1. [159]
    In my view, it is relatively clear that what Ms Wicks would have preferred was instead an administrative assistant who could follow up on fiddly administrative (and potentially time consuming) tasks associated with her role including chasing up codes, label details and other information. In turn, this would have given Ms Wicks additional time to attend to the more creative design elements of her role and potentially reduced her workload.
  1. [160]
    This was not an option for Mr McDonald or Capilano. As was pointed out in a subsequent meeting, the administrative tasks were also part of Ms Wicks' role.  Instead, Mr McDonald made attempts to transfer some of Ms Wicks' administrative responsibilities to Mrs McDonald, took steps to better manage the flow of work to Ms Wicks and made a series of suggestions to Ms Wicks in relation to outsourcing elements of her role.
  1. [161]
    I accept that notwithstanding the efforts on Mr McDonald's part, there may have still been occasions towards the end of 2015 where Ms Wicks was required to juggle competing priorities and manage urgent work requests. That aside, having considered all the materials before the Commission, I am not persuaded that the action taken by Mr McDonald in response to Ms Wicks' complaints about her workload (or inaction, as submitted by Ms Wicks) could be considered unreasonable in all the circumstances.
  1. [162]
    Mr McDonald arranged to formally meet with Ms Wicks as soon as she raised her concerns. He took steps to transfer a number of her responsibilities to another staff member and made further efforts to better understand upcoming workflow in an attempt to help better manage Ms Wicks' upcoming responsibilities. He also made suggestions around how she could relieve her workflow.
  1. [163]
    The steps taken by Mr McDonald could hardly be described an 'inaction'. The action he did take may well not have involved engaging an administrative assistant, but I accept he was genuinely motivated to make some changes and did make some attempt to relieve Ms Wicks' workload in circumstances where she was considered a long-term, valued employee of Capilano. Ms Wicks did not raise any further complaints. In those circumstances, it was reasonable for Mr McDonald to assume her complaints had been addressed.

 Conclusions

  1. [164]
    Having regard to all the evidence, particularly that of Ms Wicks' as to the history of events leading to the making of her Workers' Compensation application, I am satisfied that to the extent Ms Wicks' injury arose as a result of her perception that she was being bullied by Mr McDonald, these events did not occur in the manner in which they were perceived.  To that extent, I find Ms Wicks' injury did not arise out of, or in the course of, her employment, and that her employment was not the significant contributing factor to her injury.
  1. [165]
    I am satisfied, however, that Ms Wicks' injury arose in response to her concerns as to how her workload was being managed prior to 11 November 2015. That aside, I am also satisfied the steps Mr McDonald took to address Ms Wicks' concerns were entirely reasonable. On that basis, I find Ms Wicks' injury falls within the scope of section 32(5)(a) of the Act, such that it does not constitute "an injury" under the Act. 
  1. [166]
    In circumstances where I have found the date of injury to be on or before 11 November 2015, it is not strictly necessary for the Commission to deal with the remaining stressors, namely:
  • the failure of Capilano management to adequately respond to Ms Wicks' complaint (presented on 16 November 2015) about Mr McDonald's bullying conduct and concerns about her workload; and
  • the failure of management to ensure a mediation between Ms Wicks and her manager took place at the agreed time.
  1. [167]
    Due to change in position by Ms Wicks at the commencement of the proceedings in relation to the date of her decompensation, the Commission had the benefit of hearing evidence in respect of the two remaining stressors.
  1. [168]
    In my view, even if I were to be wrong in relation to the date of Ms Wicks' decompensation, the steps taken by Capilano management between 16 November 2015 and 24 November 2015 to address Ms Wicks' concerns about Mr McDonald's alleged bullying and her workload were entirely reasonable.
  1. [169]
    Dr McKee's responses and actions both during and after he met with Ms Wicks on the morning of 16 November 2015, when she handed over a written complaint, were entirely reasonable and in keeping with acceptable processes and practices associated with managing and investigating a formal bullying complaint. He was genuinely fond of Ms Wicks and wanted to show her that he was supportive and sympathetic when she came to his office to speak about her concerns.
  1. [170]
    I am also satisfied Ms Austin took appropriate steps to investigate the complaint in a manner which was objective and timely. This included interviewing Mr McDonald about Ms Wicks' complaints and seeking his responses in a formal setting.
  1. [171]
    The organisation also took steps to facilitate a "work in progress" meeting with Ms Wicks to determine what steps could be put in place to assist her to relieve her concerns about competing priorities and workload.
  1. [172]
    Ms Wicks initially also asked for Mrs McDonald to be moved away from where she was sitting and her employer agreed to her request.
  1. [173]
    Capilano then arranged for a mediation to take place between Ms Wicks and Mr McDonald at a mutually agreed time. The mediation was initially set down for 11am on 24 November 2015. Regrettably, a significant meeting in which both Dr McKee and Mr McDonald were involved ran overtime. The meeting involved a significant customer who had limited time, but who, at the last minute, was proposing to purchase a substantial amount of honey. Mr McDonald had been bought into the meeting with limited notice, to discuss the financials and commercials of such a purchase.
  1. [174]
    Ms Austin took steps to advise Ms Wicks the mediation would be delayed, but Ms Wicks left the building.
  1. [175]
    After considering the evidence of Ms Wicks, Dr McKee, Mr McDonald and Ms Austin in relation to the events of the morning of 24 November 2015, I accept it is more likely than not that Ms Wick left the building before the customer meeting concluded.
  1. [176]
    In my view, the decision to delay the mediation until the conclusion of the meeting with the customer was reasonable management action, taken reasonably, particularly in circumstances where Ms Austin had taken steps to advise Ms Wicks of the circumstances and the reasons for the delay.

 Orders

  1. [177]
    I make the following orders:

  1.  The appeal is dismissed.

  2. The decision of the Respondent dated 9 March 2017 is affirmed.

  3.  The Appellant is to pay the Respondent'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] T1-7-11.

[2] Exhibit 34.

[3] See Groos v WorkCover Queensland [2000] QIC 52.

[4] T1-48.

[5] Exhibit 34.

[6] Exhibit 8.

[7] Exhibit 12.

[8] Exhibit 14.

[9] [2015] QIRC 053.

[10] (2005) 180 QGIG 481.

[11] [2002] QIC 23.

[12] (2002) 170 QGIG 1.

[13] [2014] ICQ 009 at [47].

[14] [2006] QIC 16.

[15] Exhibit 43.

[16] T1-33.

[17] T1-31.

[18] T1-33-34.

[19] T1-41-42.

[20] Exhibit 28.

[21] T2-26.

[22] T1-104.

[23] T2-27.

[24] Ibid.

[25] Ibid.

[26] T1-101.

[27] Exhibit 29.

[28] Exhibit 30.

[29] T2-52.

[30] T2-53.

[31] T1-43.

[32] Ibid.

[33] T1-46.

[34] T1-48.

[35] Exhibit 8.

[36] T2-34.

[37] Ibid.

[38] Exhibit 19.

[39] Exhibit 8.

[40] Ibid.

[41] Exhibit 8.

[42] Ibid.

[43] Ibid.

[44] Ibid.

[45] Ibid.

[46] T1-119, T1-123.

[47] Ibid.

[48] Exhibit 31.

[49] Exhibit 34.

[50] Exhibit 33.

[51] T1-120.

[52] T1-122.

[53] T2-34.

[54] T2-61.

[55] T2-62.

[56] T2-63.

[57] T2-64.

[58] T2-68.

[59] T2-62.

[60] T3-23.

[61] T3-24-25.

[62] Exhibit 12.

[63] Exhibit 13.

[64] Exhibit 14.

[65] Submission on behalf of the Appellant at [13].

[66] Exhibit 13.

[67] Exhibit 14.

[68] T1-120.

[69] T1-123.

[70] Exhibit 45 (page 8).

[71] T1-40.

[72] Ibid.

[73] Exhibits 2-4.

[74] T1-48.

[75] Exhibit 12.

Close

Editorial Notes

  • Published Case Name:

    Wicks v Workers' Compensation Regulator

  • Shortened Case Name:

    Wicks v Workers' Compensation Regulator

  • MNC:

    [2018] QIRC 63

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    01 Jun 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
Bowers v WorkCover Queensland (2002) 170 QGIG 1
2 citations
Jump To
Cite 1 - (2002) 170 QGIG 1
Cite 2 - (2002) 170 QGIG 1
Davis v Blackwood [2014] ICQ 9
2 citations
Jump To
Cite 1 - [2014] ICQ 9
Cite 2 - [2014] ICQ 9
Groos v WorkCover Queensland [2002] QIC 52
1 citation
Jump To
Cite 1 - [2002] QIC 52
Groos v WorkCover Queensland [2000] QIC 52
1 citation
Jump To
Cite 1 - [2000] QIC 52
Kudryavtseva v Blackwood [2015] QIRC 53
2 citations
Jump To
Cite 1 - [2015] QIRC 53
Cite 2 - [2015] QIRC 53
MacArthur v WorkCover Queensland (2001) 167 QGIG 100
1 citation
Jump To
Cite 1 - (2001) 167 QGIG 100
Prizeman v Q-Comp (2005) 180 QGIG 481
2 citations
Jump To
Cite 1 - (2005) 180 QGIG 481
Cite 2 - (2005) 180 QGIG 481
Svenson v Q-COMP [2006] QIC 16
2 citations
Jump To
Cite 1 - [2006] QIC 16
Cite 2 - [2006] QIC 16
WorkCover Queensland v Kehl [2002] QIC 23
2 citations
Jump To
Cite 1 - [2002] QIC 23
Cite 2 - [2002] QIC 23

Cases Citing

Case NameFull CitationFrequency
Broadbent v Workers' Compensation Regulator [2023] QIRC 702 citations
Scott v Workers' Compensation Regulator [2021] QIRC 1102 citations
Weiss v Workers' Compensation Regulator [2020] QIRC 1112 citations
Wicks v Workers' Compensation Regulator [2021] QIRC 12 citations
1

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