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The Arts Centre v Workers' Compensation Regulator QIRC 117
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
The Arts Centre v Workers' Compensation Regulator and Anor  QIRC 117
The Arts Centre
Workers' Compensation Regulator
Appeal against decision
22 August 2019
18 March 2019, 19 March 2019, 20 March 2019
APPEAL AGAINST DECISION – Psychiatric or psychological injury – whether injury caused by unreasonable management action.
Workers' Compensation and Rehabilitation Act 2003 s 32
Mr P O'Neill of Counsel, for the Appellant, instructed by Clayton Utz.
Mr P Rashleigh of Counsel, for the Workers' Compensation Regulator, directly instructed.
- The Arts Centre (the appellant) appeals a decision of the Workers' Compensation Regulator made on 6 July 2017 which concluded that Ms Robyn French's (the second respondent) claim for compensation was one for acceptance.
- The second respondent sustained a psychiatric injury during the course of her employment with the Arts Centre. She consulted with her doctor on 19 December 2016 and was issued with a Workers' Compensation medical certificate. She lodged an application for compensation with the self-insurer, CityCover, on 20 December 2016.
- The Arts Centre, which is now designated as the Home of the Arts, is an entity which is wholly owned by the Gold Coast City Council. The facility is an entertainment venue including cinemas, art galleries, banquet facilities, meeting rooms and a theatre.
- The second respondent has been employed by the Arts Centre as an accounts coordinator in the finance section of the organisation since 2005. At the time of her injury, she was employed in a job share arrangement with Therese Norman. Under the job share arrangement, the second respondent worked on Monday, Wednesday and Friday of each week, while Ms Norman worked on Tuesdays and Thursdays.
- The following witnesses gave evidence in support of the appeal:
Ms Kylie Ellis (HR Advisor)
Ms Anna Carroll (Director-Cultural Precinct)
Ms Bernadette Grogan (Ticketing and Services Manager)
Mr David Collins (Director-Corporate Services)
Ms Karen Anderson (Line Manager)
Dr John Chalk (Consultant Psychiatrist)
- The following witnesses gave evidence for the respondents:
Ms Robyn French (Second Respondent)
Dr Mark Whittington (Consultant Psychiatrist)
Dr Corne Mareﹶ (General Practitioner)
Matters in Contention
- The appellant made the following concessions which narrowed the issues for determination:
- It was conceded that the second respondent was a "worker" pursuant to s 32 of the Workers Compensation and Rehabilitation Act 2003 (the Act);
- It was conceded that the second respondent had sustained a personal injury which was psychiatric in nature but noted that it was uncertain of the diagnosis of the condition;
- It was conceded that the second respondent's injury arose out of, or in the course of her employment with the Arts Centre and that her employment was the major significant contributing factor to her injury.
- Given the concessions, the principal issue for determination is whether the injury sustained by the second respondent is excluded from s 32(1) of the Act by the operation of s 32(5) of the Act. The determination of this question requires the identification of events or stressors which caused the decompensation of the second respondent.
- In this regard, the second respondent claims that her injury was caused by management action associated with events at work occurring in November and December 2012, and in particular, management action or inaction occurring between 2 December 2016 and 12 December 2016. In her application she identified stressors as "workplace pressure"; "unrealistic deadlines" and "work overload". In her application for compensation on 19 December 2016, the applicant said that the stressful events started on 2 December 2016 and were still continuing at the time that she made her application. This was the pivotal period within which she claimed management failed to adequately address a developing situation in which a large backlog of work had accumulated, and the second respondent was under increasing pressure to meet an important financial reporting deadline.
- In submissions, the respondents said that unreasonable management action was demonstrated by, or stemmed from, the following factors:
- (a)It was obvious to management that there had been a build up of work because of the second respondent’s late access to Enta;
- (b)The training in respect of Enta was at best 2 hours;
- (c)Management knew that the second respondent was struggling to meet deadlines that had been imposed;
- (d)There was little or no assistance offered up until 12 December 2012 when the second respondent found herself in a perilous situation. She was unwell both mentally and physically;
- (e)It is not until 12 December 2016, in a meeting at a time when the second respondent was vulnerable, that she was asked to tell management who might assist her;
- (f)The second respondent was a worker who had performed her duties to a satisfactory standard for 12 years prior to her leaving work. She had coped with previous systems changes;
- (g)It was too little too late, and fanciful, to suggest that assistance could not have been provided earlier without the second respondent’s imprimatur;
- (h)As at 12 December 2016, the second respondent knew only of a small extension and was not told of the duration of the extension.
- The appellant however submitted that the second respondent's injury arose out of, or in the course of, reasonable management action which was identified as follows:
- (a)The decision by management to replace the older and obsolete iTheatre and SRO programs with more modern software, Artifax and Enta;
- (b)The training and instruction provided to staff including the Second Respondent about the new systems;
- (c)The extensive assistance available from Enta representatives that was put in place by the employer;
- (d)The steps taken in particular by Mr Collins to ensure that information about the new systems was provided to the finance team and feedback was sought from them including the second respondent;
- (e)The assistance provided to the second respondent by Ms Anderson and Mr Collins;
- (f)The offers of additional assistance and/or training made to the Second Respondent by Ms Anderson and Mr Collins; and
- (g)The extension of the deadline for November reporting from 9 December 2016 to on or about 23 December 2016.
- In early 2016, management at the Arts Centre decided to implement two new software programs, Artifax and Enta as a part of a significant overhaul of systems and procedures. Artifax came online on 1 November 2016 and Enta came online on 11 November 2016.
- Artifax is a venue and events management system that is used to manage and book the different type of events hosted by the Arts Centre. Artifax replaced a program that had previously been used called iTheatre. Enta is a ticketing software system that is used predominantly by the Arts Centre’s Box Office team. Enta replaced the SRO ticketing system.
- The Arts Centre and its management relied upon the expertise of Enta Australasia and Artifax Event for the establishment of the new systems, error identification and resolution, and for staff training.
- In her Workers' Compensation claim the second respondent identified her stressors as workplace pressure, unrealistic deadlines and work overload. Her stressors had also been explained in her complaint letter of 12 December 2016 where she referred to:
- The introduction of two new computer systems at one of the busiest times of the year had impacted on her ability to do her job to the usual standard;
- Errors in reports produced by Enta required manual adjustments and the manual inputting of data which was a slow and time consuming process, and was the cause of a large back up of work;
- The failure of management to understand the relevant circumstances and to respond in a helpful manner when concerns were raised.
- The second respondent was assessed by Dr Chalk at the request of the self-insurer on 10 January 2017. He provided his report to the self-insurer on 12 January 2017 (Exhibit 16). As part of the assessment, Dr Chalk was asked to comment on the significance of two stressors which had been identified by the self-insurer:
- The overall changes in the workplace including new management staff and new box office ticketing and event management systems;
- The action of management staff Karen Anderson and David Collins relevant to concerns reported to them by the claimant.
- In his report, Dr Chalk opined that the overall changes in the workplace mentioned in the stressors listed were the principal cause of the second respondent's condition and that he did not think that management action had been of seminal importance in the genesis of the second respondent's condition. While there is scope for differences about the meaning the words "management action", I am not of a view that, in so far as the operation of s 32(5) of the Act is concerned, Dr Chalk's opinion is consistent with the history that he took from the second respondent.
- On the history given to him, Dr Chalk said that the second respondent described a "plethora of difficulties in the workplace over a fairly discrete period of time", and alluded to some changes in her management involving the presence of two temporary managers. He noted that the second respondent felt "over a period of time completely snowed under with the volume of work, and quite clearly felt that her pleas for assistance were unanswered". He reiterated the proposition in his evidence in the proceedings when he said that the second respondent had left him with the impression that management to whom she reported "had not responded to what she regarded as her legitimate concerns".
- In a file note (Exhibit 17) of a conversation with the appellant's lawyers, Dr Chalk confirmed that the second respondent told him that she felt overwhelmed by the changes that had occurred after her return from long service leave, that she felt that she had not been trained on the new systems, and that these factors coupled with the workload that she experienced after the introduction of the new systems, caused her to decompensate.
- In the same file note, Dr Chalk identified the stressors as the introduction of new software systems, the impact of those systems on the second respondent's workload, and the second respondent's feeling that she was not properly prepared for the changes. In relation to change, Dr Chalk opined that he suspected that the second respondent did not deal with change well and that in circumstances where she found the new systems difficult and did not believe that she was sufficiently well trained, she was unable to cope.
- I am satisfied that the second respondent has consistently reported on the events that caused her to decompensate, and that the principal stressors were associated with management action taken or not taken in relation to the introduction of Enta, her workload, and her requests for an extension of the financial reporting deadline.
- The effect of the second respondent's evidence was that late access to Enta, inadequate training on Enta, and errors in Enta reporting contributed to delays and backlogs and caused her to fail to meet the 9 December 2016 deadline relative to the preparation of financial reports.
- The second respondent's part-time status in which she only worked three days a week exacerbated her predicament, as did some scheduled leave commitments. The effect of these working arrangements was that after getting access to Enta some time on 23 November 2016, the second respondent worked on 25 November 2016 but then did not return to work until 2 December 2016 when she expressed concern about the deadline to Ms Anderson.
- Matters crystallised on Monday 5 December 2019 when the second respondent was told by Mr Collins that the deadline for financial reporting would not change. In response, the second respondent said that she could not meet the deadline.
- I accept that the failure to meet the deadline would have been a matter of concern for the second respondent and a cause of stress. Consistent with such a view, the second respondent attended on her general practitioner on Tuesday 6 December 2016 and reported symptoms of depression.
- As I follow the evidence, despite her visit to the doctor on 6 December 2016, the second respondent returned to work as normal on 7 December 2016 and 9 December 2016. On 9 December 2016, Ms Anderson told the second respondent that a small extension of the deadline had been approved, but did not specify the duration of the extension. Ms Anderson also confirmed that the second respondent needed to get the outstanding work done.
- Around 8.30 am on Monday 12 December 2016, the second respondent handed a letter to Ms Ellis in which she, in effect, asked management to address the "very tight timeframe for the end of month cut off". Ms Ellis said that when she delivered the letter the second respondent was teary and genuinely upset. Ms Ellis formed the view that the second respondent wanted her circumstances known and that she wanted the letter passed on to management.
- After leaving her letter with Ms Ellis, the second respondent commenced work until 11.30 am when she attended Enta training until 1.30 pm. It was not until 3.30 pm that Ms Anderson approached her at her desk and commenced a conversation about the second respondent's circumstances. Not long after that discussion ended, the second respondent went home and never returned to work after that date.
- The reporting of symptoms of depression on 6 December 2016 led the appellant to suggest that the date of decompensation should be correctly identified as 6 December 2016, however in my view, after a consideration of all the medical evidence, I prefer a conclusion that the date of decompensation was 12 December 2016.
- The consultation records of the Harbour Town Day/Night Surgery are in the evidence as Exhibit 33. The records disclose that, over the relevant period, the second respondent attended on a general practitioner on 19 November 2016, 6 December 2016, 10 December 2016, 13 December 2016, 19 December 2016, 30 December 2016, 6 January 2017, 15 January 2017 and 31 January 2017.
- The second respondent said that she had been attending on her general practitioner since early November 2016. She said that when she first attended on the doctor she told her that she was under a lot of pressure at work. On the medical records this consultation took place on 19 November 2016 and the records do not include any reference to workplace issues. However, entries in the record of the next consultation on 6 December 2016 confirm that the second respondent was tearful, reported workplace stress and bullying and "discussed all issues". A reason for the visit was identified as "depression".
- Work was not mentioned in the notes of the visit on 10 December 2016, but on 13 December 2016, entries in the consultation notes describe the second respondent as crying and very distressed and record that the crying was related to work and that the second respondent was "unable to cope". An entry also recorded that the applicant was "unable to face manager".
- At the next consultation on 19 December 2016 the second respondent was issued with a Workers' Compensation medical certificate by Dr Mare. The certificate included a diagnosis of "stress due to work related deadlines in workplace". No date of injury was included but the worker's stated cause of injury referred to "work related deadlines arranged on 2 December 2016". The consultation notes included entries stating that the second respondent was tearful and crying, that she was "very distressed by unfair deadlines put in by new managers", and noted that she had written a letter to management.
- The letter referred to in the consultation notes was the letter that the second respondent had written on Sunday 11 December 2016 and which she handed to Ms Ellis at 8.30 am on Monday 12 December 2016.
- The consultation record dated 30 December 2016 noted that the second respondent was seeing a psychologist while the record of the consultation on 15 January 2017 confirmed that the second respondent had seen a psychiatrist. A referral to Dr Whittington was provided on 31 January 2017.
- The second respondent first consulted Dr Whittington on 7 February 2017. Dr Whittington's report of that date noted the letter written by the second respondent on 11 December 2016 and stated:
On 12/12/16 she wrote a letter to HR (which she gave me a copy) detailing the escalation of symptoms, workload and how after twelve years she was unable to cope with the demands of her job. At this point I believe she had a work related breakdown which would be described as an Adjustment Disorder with Anxious Mood.
- This diagnosis of the second respondent's condition may have been complicated by the fact that at the time of onset of depression the second respondent was also suffering from a "hypothyroid" condition which, of itself, may have contributed to symptoms of anxiety and depression. Notwithstanding this, it was not in dispute that the second respondent's employment was the major significant contributing factor in the development of her psychological injury.
- Dr Whittington identified the date of decompensation as 12 December 2016. Dr Mare said that she diagnosed the second respondent with a "depressed mood" on 6 December 2012. This diagnosis was made by reference to the workplace history provided and the second respondent's presentation on the day. The medical record of the second respondent's attendance on a different general practitioner on 13 December 2016, is consistent with a conclusion that the second respondent decompensated on 12 December 2016.
- Dr Chalk assessed the second respondent on 10 January 2017. In his report dated 12 January 2017 he opined that the second respondent had developed her condition over a brief period of time in November 2016 and into early December 2016.
- There were significant changes in management or supervision of the finance team between September 2016 and December 2016.
- The second respondent went on long service leave for seven weeks from 15 July 2016 until 2 September 2016. Whilst the second respondent was away on long service leave, her line manager of five years, Ms White, resigned her employment from the Arts Centre with effect from 22 July 2016.
- As a consequence of the resignation of Ms White, an acting manager, Ms Laila Kesavan was employed from an employment agency in the role of Finance Manager. On the evidence, Ms Kesavan served in the role from late July 2016 to 13 September 2016. The second respondent had worked with Ms Kesavan between 2 September 2016 and 13 September 2016.
- Ms Kesavan's departure from the organisation had been announced by the general manager in an email to the leadership group and the finance team, including the second respondent, on 13 September 2016 (Exhibit 4). In her email the general manager included comment on the workload confronting the finance team at that time and said that the "accounts team are under considerable stress at the moment due to a backlog in work and staff shortages". Reference was also made to the expected appointment of the Director of Corporate Services within four to six weeks, and to the use of a "3 day temp" who may be able to increase her days at work to five.
- Mr David Collins was appointed as the Director Corporate Services at the Arts Centre on 10 October 2016. A short while earlier, Ms Karen Anderson had been employed on a temporary contract as the acting Finance Manager of the Arts Centre. Mr Collins said that he was the direct line manager of the second respondent when he "was there" and that Ms Anderson "had a share of the operational responsibility on a day-to-day basis".
- The effect of Ms Anderson's evidence was that she was not supervising the finance team during the October to December 2016 period. She said that she was on a temporary contract to perform another role when she was asked to stay and provide assistance to Mr Collins. She said that, from the finance team's perspective, the team members would see themselves as reporting to either Mr Collins or to herself. She said that with some things the staff would approach her, and with other things they would see Mr Collins.
- The effect of Ms Anderson's evidence was that she had no involvement with the planning or implementation of the new systems and that she did not become aware of the changes until several weeks after she commenced work at the Arts Centre. She said that she had been principally engaged to assist in the preparation of end of year budgets and financial reports and that she had nothing to do with the new systems until the training started.
- Ms Anderson said that she participated in training related to the introduction of the new systems. She recalled that training on Enta for the finance team involved a two hour session on 10 November 2016, and telephone contact with the training providers.
- There was a significant discussion in the evidence about the nature and extent of training provided to ensure that staff were able to efficiently manage the transition to the new systems, and were proficient in the use of the new programs. The discussion was prompted by complaints made by the second respondent about the adequacy of training.
- Ms Carroll, who was part of the executive management team, had oversight of the new systems project, and had over-arching responsibility for its implementation. She gave extensive evidence about the training regime that was proposed, and said to have been implemented, to support the introduction of the new systems. In terms of the delivery of training, it was Ms Carroll's evidence (T1-27):
… In some instances, particularly with the ticketing system with the box office staff, we then evaluate the training after and say well, they were the expected outcomes, tell me if you got them so that I could keep going back to the company if I didn’t think that that was on track. There were a series of manuals that were for that Enta system that came as well. So just distributing those to people that we know and then, as I said, the endpoint was also – for an ongoing sense, for – because you know, training prices are still – it’s not just at the moment inputting, it’s ongoing – we had videos of all those things, like how to book a venue, how to sell the tickets, so we had training manual – video modules done, so that we had both those resources for staff.
- While Ms Carroll's evidence supported a conclusion that the systems changes were guided by an overarching framework and approach to training, it did not, for the most part, address the very specific circumstances associated with the training arrangements relevant to the second respondent's work, and which are relevant to the determination of the appeal.
- In this regard it was the second respondent's evidence that she had no complaint about the adequacy of training associated with the Artifax system. Her complaint was confined to the adequacy of the training associated with the Enta system where it was not in dispute that the only structured training provided to the appellant was that provided on 10 November 2016 and 12 December 2016. The significant difficulty for the second respondent however was that only one training session had been conducted before Enta went live and, that the learning outcomes from that training session were insufficient to allow her to productively use Enta when it went live.
- The appellant did not directly contest the second respondent's view that the training delivered on 10 November 2016 was of limited practical value. What the appellant pointed out was that this training was always intended to be high level training and that the more detailed and hands-on training was not planned until approximately four weeks later.
- Evidence in support of the appellant's explanation was provided by an email in the evidence as Exhibit 28 which had been sent to the finance team by Ms Carroll on 9 November 2016. In the email she explained that the training would be at a very high level and would provide an introduction to the system. Ms Carroll also said that further detailed training would be delivered in a month's time when real data was available in the system. Ms Carroll's email had concluded with the sentiment that attendees at the 10 November 2016 session should not be concerned if they are not an "expert" in the system after training and that further training would follow.
- Whether, in retrospect, this approach to training was the most effective having regard to the predicament of the second respondent and the time constraints within which she worked, is a matter for consideration. It is also a consideration that the planned method of delivering training may have presumed that all staff would have access to Enta when it went live, and would have been able to practice on the system, and to get familiar with the system, before the second training session.
- I accept that when the second respondent got access to the Enta system on 23 November 2016, the high level training would not have equipped her to perform the day to day functions and in circumstances where she had not been provided with a "how to" manual or with training videos, she would have had to rely substantially on the Enta phone support service in trying to navigate her way through the system and to understand how to use the features of the system. Consequently, it can be accepted that the second respondent would have experienced difficulty in using the system and her progress towards clearing her backlog and meeting deadlines would have been significantly compromised. She explained her predicament in the following terms (T2-70):
Why was it slow going?---Because at the very start when I started to – when I got log on to print out the reports I was ringing John from Enta saying, “How do I do this?” and he’d talk me through it. It was a major ticketing system, so it wasn’t easy – well, it wasn’t just like you log on and this is what you do. I had no fact sheets, I had no videos or anything like that. Like, Artifax. I had only an email for support that I was ringing John saying, “How do I do this?” and he was telling me how to do that. So - - -
- It was in this context that the appellant argued that other learning opportunities were made available to the second respondent. The submission was that, in addition to the scheduled class room training sessions on Enta, training extended to participation in Skype sessions where live training was able to be delivered at the staff member’s desk (Exhibit 11), direct telephone communication with Enta trainers, and to finance team discussions about the report writing capabilities of Enta. It was not in dispute that a telephone assistance service was available and had been accessed by the second respondent after 23 November 2016. However, no evidence of the availability of a Skype facility was adduced.
- Exhibit 10 is evidence that a discussion on the report writing capabilities of the Enta system was scheduled for 17 October 2016. On Mr Collins evidence, this discussion probably did not take place. Exhibit 20 is evidence that Enta reports were circulated to the finance team for review on 3 November 2016. However, there was little evidence about the learning experience, if any, associated with the discussion.
- The limitations on the effectiveness of the training delivered on 10 November 2016, was compounded by the failure to give the second respondent access to the Enta system until 23 November 2016. The reason for the delay was not adequately explained in the appellant's evidence. On the chronology, Enta went live on Friday 11 November 2016 and Mr Collins was informed on Monday 14 November 2016, that the second respondent did not have access to Enta. While Mr Collins said that he would address the lack of access as a priority, access did not eventuate and it was not until Ms Norman emailed Ms Carroll and asked that access be arranged, that access was arranged for the second respondent and Ms Norman on 23 November 2016.
- The appellant pressed the position that there was no contemporaneous evidence of the appellant complaining about a lack of training, and that the second respondent's complaint about the adequacy of training was contrived. The launch pad for the appellant's attack was an email that Mr Collins had sent to the finance team on 14 November 2016 (Exhibit 23) in which the following request was made:
For Enta, can you please provide feedback on the training provided and what training/ information you would like moving forward on the system. There have been some issues with Enta over the weekend, has this impacted any of ourwork? Further training from Enta will be provided, can you please advise what areas you would like this to concentrate on?
- This email was said to demonstrate that Mr Collins had liaised with the finance team for the purpose of soliciting their feedback on the new systems, and to identify further training or information needs. Matters arising were canvassed with the second respondent during cross-examination (T3-15):
No comment by you making criticism about the training, that it was insufficient, that it wasn’t what you expected, that you expected more or what you expected in your email response, was there?---No, there wasn’t. But I wanted access to Enta.
No, no. You were asked specifically, Mrs French, by Mr Collins to provide feedback on the training provided. That was your opportunity on a timely basis to express those concerns that you’ve indicated to the Commission to your manager. You agree with that?---Yes, I do.
Why didn’t you?---Because I wanted access to hands-on use the system log on. To use the system. And then what he had been telling me, this is the report, this is what you can do. As in, this is what it’s going to look like, use it. Hands-on.
See, I suggest to you the reason why you didn’t provide a response in that email is that the – your concerns or your alleged concerns about the quality of the training is something that you’ve brought to mind since you’ve left the employment?---No.
- The second respondent replied to Mr Collins' email on 14 November 2016 and told him that she did not have access to Enta and could not produce reports. She then told Mr Collins that "when I have access then I will be able to let you know what information I can or cannot get from their report".
- Mr Collins responded to the second respondent later in the day and thanked her for her feedback. He told her that he had requested access to Enta and hoped that access would be arranged as a priority. He also alluded to the benefits of self-taught familiarisation with new systems when he said that it was up to employees to "use and 'play' with Artifax to gain an understanding of what it can do".
- I prefer the second respondent's evidence around this issue. While the appellant tried to characterise the second respondent as someone more likely to obstruct change than to facilitate change, the appellant has misconceived the second respondent's predicament. Her principal and relevant complaint, which I accept as legitimate, was that when she finally got access to Enta, she had received inadequate training on the system and that this meant that not only did she have to contend with a backlog of work arising from the late access to Enta, she experienced more delays in understanding the functionality of Enta and in using the system to produce necessary reports, data and information.
- At the time that Mr Collins had sent his email on 14 November 2016, the second respondent could not have been expected to have any detailed discussion about user difficulties with the system. As she correctly pointed out, when she got access to the system, she would be able to respond in a meaningful way to Mr Collins' request for feedback.
- The important consideration for the second respondent, and which may not have been adequately appreciated by Mr Collins and Ms Anderson, was that the second respondent was a very experienced accounts clerk and she saw most of the relevant developments through the prism of the financial reporting deadline. She was aware earlier than Ms Anderson and Mr Collins, that the deadline would not be met. This was the fundamental cause of her stress and anxiety, and she believed that Ms Anderson and Mr Collins did not take meaningful steps to alleviate her concerns.
Meeting on Monday 5 December 2016
- The effect of Mr Collins' evidence was that he and Ms Anderson discussed a solution with the second respondent for the errors which arose from the duplication of bookings in Enta (T2-29):
The challenge that we had was that each day, more banking would arrive and if we hadn’t turned over, we became further behind. So Therese and I worked through a way to accelerate the processing of the – of the daily banking which would entail Karen Ande – Anderson who was the – the finance manager to actually correct the errors in the general ledger and [indistinct] entries straight into the system.
And did you have any discussion with Mrs French about that fix or – to the issue?---Yes, I did.
Okay. What was her response to that proposal?---Her response was that she didn’t support that, that she thought that that wasn’t the way to go that we needed to fix up everything on a daily basis before entered it into the accounting system.
Was that, in fact, what Mrs French was doing?---That was what she was attempting to do, yes.
What impact was that having?---Well, it took a lot – a lot longer to process the banking, to go through that way than the way that we had developed with Therese and with Enta.
Did you have a discussion with her about not adopting – did you have a discussion with Mrs French about her not adopting that approach on more than one occasion?---I can’t recall if it was more than one but we certainly had those discussions with her. We held meetings with her to discuss that.
- It was more likely than not that the meeting referred to by Mr Collins took place on Monday 5 December 2016 when Mr Collins convened a meeting to address particular issues with the finance team. It is here that there is a clear conflict in the evidence emerges about what steps should be taken to progress financial reporting activities despite errors in the Enta system.
- It was common ground that during the discussion Mr Collins had proposed a temporary remedy which involved the utilisation of reports from Enta which included duplicate bookings, but on the basis that adjustments would be made at a later date. It was also not in dispute that the second respondent did not favour this approach and argued against this course of action. The significant conflict in the evidence was over which approach was ultimately adopted.
- The effect of the second respondent's evidence was that when she and another member of the finance team questioned the validity or appropriateness of the temporary solution, Mr Collins conferred with Ms Anderson and they accepted that the second respondent should continue doing "what she was doing" (T3-17):
So just to be clear, you want the Commission to accept that in light of all of those circumstances that your method was extremely time-consuming. That Mr Collins had taken time to try and figure out a workaround to try and address the backlog at work. That you had been told to utilise that method. That there was a hard deadline coming up for the reporting and that the accounts were well behind. You want the Commission to accept that Mr Collins, at the team meeting on the 5th of December, said to you, "Just keep doing what you’re doing"?---That is exactly what happened.
- Mr Collins' recollection was different. He said that he would have asked the second respondent to proceed in a manner consistent with what he was proposing and he denied telling the second respondent that she should continue consistent with her preference.
- While Mr Collins said that he would have asked the second respondent to implement his solution, Ms Anderson's evidence was more ambiguously expressed in that she did not have any particular recollection of what was said at the meeting. She did not recall telling the second respondent that she should continue doing what she was doing (T2-53). Neither Mr Collins or Ms Anderson gave explicit evidence to the effect that the second respondent was instructed to comply with an instruction, and did in fact do so.
- No evidence was adduced about which method of work was implemented by the second respondent after the 5 December 2016 meeting. If the second respondent's evidence is accepted, she must have continued with the status quo. What is known is that, whatever approach was adopted, and whatever work the second respondent did on 7 December and 9 December 2016, the deadline was not met and the stressors associated with the financial report deadline had not evaporated.
Financial reporting deadline
- The effect of the second respondent's evidence was that once the date for the board meeting was fixed, the deadline for inputs into the financial reports was set and that the deadline typically fell within the second week of the month. She said that subject to the date of the board meeting, the deadline could, for example, be the 9th, the 10th, or the 12th of the month. The second respondent would have known that the normal deadline for financial reporting in terms of her input for December 2016 would be between Friday 9 December 2016 and a day in the week commencing Monday 12 December 2016.
- Mr Collins's evidence was consistent with this. He said that the processing of data and related tasks were usually required to be finished within eight business days of the end of the month (meaning a deadline of either Friday 9 December or Monday 12 December in 2016). He said that initially there was no intention to change the deadline for December 2016, but at some subsequent time it was pushed back. The effect of his evidence in this regard was that the financial reports had to be concluded on 23 December 2016 and the processing and inputting of data had to be finished "a week or so" before 23 December 2016. This meant that the second respondent's work had to be completed no later than Friday 16 December 2016.
- The second respondent said that she told Ms Anderson that she was worried about the deadline when she got back to work on 2 December 2016. The effect of her evidence was that when she asked Ms Anderson when the deadline will be, she was told that the deadline would not change. The second respondent also said that she told Mr Collins in the 5 December 2016 meeting that she would not meet the deadline.
- In his evidence, Mr Collins agreed that when he told the second respondent in the 5 December 2016 meeting that the deadline for financial reporting would be 9 December 2016, she told him that she could not meet the deadline. He also agreed that the second respondent had warned earlier than this that the deadline may not be met (T2-29):
All right. Thank you. At any time during that period after Enta has come live, did Mrs French approach you to tell you that she was being stressed by her workload?---She spoke to us that she was having difficulty in achieving the – the – the deadlines that we had – had set.
- Mr Collins also accepted that he had been aware for a number of weeks that there was a backlog of work (T2-36):
Okay. And it’s then when Mrs French informed you that she was behind and she pointed to the piles of reports on her desk – do you remember that?---I don’t remember that incident but I’m – I’m – I’m aware. Mrs French made us aware prior to the 5th of December that there was a backlog in work. We’d been aware of that for a number of weeks.
- It was the second respondent's evidence that she again spoke to Ms Anderson about the deadline on 9 December 2016 (T2-73):
Did you have a conversation with Karen after that day?---I did, on the 9th.
All right. And what was that about?---I asked her if we could get an extension on the deadline because I said, "I haven’t made it," and she said, "There’s a small extension been approved," but she didn’t tell me what date.
All right?---But she said "small," and then she reminded me that I needed to get it done. "This is what it is, I need to do the financials and you need to get it done."
- The effect of Ms Anderson's evidence was that it was for Mr Collins to approve any extension. While she did not recall discussing any extension with the second respondent, she agreed however that a small extension of the deadline had been approved (T2-45):
In light of the difficulties that were experienced in November with the implementation of these two new systems, was there any extension, to your recollection, offered about the cut off for the completion of the accounts?---There was a small extension. I can’t remember the actual number of days, but we had to get reports out ready for the board. So we – I was instructed that I had to have reports ready by a specific time. So, yes, it just sort of moved back that everything had to be entered by a specific time.
- I conclude, on balance, that Ms Anderson told the second respondent that a small extension had been approved, but did not specify the duration of the extension. I accept that Ms Anderson may not have known the duration of the extension when she spoke to the second respondent, but it should have been self-evident that a failure to specify the duration of the extension was not likely to alleviate the pressure on the second respondent.
- In prosecuting its appeal, the appellant suggested that the second respondent's injury was better explained by reference to the second respondent's resistance to change and to her intransigence in rejecting offers of assistance, than by the prospect of unreasonable management action taken in an unreasonable way. In this regard, the appellant relied on the evidence of Ms Anderson and Mr Collins and also on the evidence of Dr Chalk.
- The appellant submitted that the second respondent's inflexibility and resistance to change had been identified in Dr Chalk's report where he noted the second respondent's "obsessional personality traits" (Exhibit 16). While the report was not self-explanatory on the subject, a file note (Exhibit 17) discloses that the appellant's lawyers put propositions on the subject to Dr Chalk in a pre-trial conference:
The observations of Mrs French's managers regarding Mrs French being quite structured in the way that she worked, in some ways fixated on doing things the way she had always done them and appearing to be resistant to change were provided to Dr Chalk. Dr Chalk confirmed that this behaviour would be consistent with what he was saying regarding the impact of those obsessional personality traits.
- In the same file note, Dr Chalk was reported as saying that he suspected that the second respondent did not deal with change well and that in circumstances where she found the new systems difficult and did not believe that she was sufficiently well trained, she was unable to cope.
- Mr Collins questioned the second respondent's level of support and co-operation for the changes. It was his impression that the second respondent was of the opinion that she did not believe it was appropriate to make both systems changes at the one time and also to make the systems changes at one of the busiest times of the year for the Arts Centre. Ms Anderson said in her evidence that (T2-43) the second respondent was not supportive of the system changes nor was she supportive of the timing of the changes.
- Mr Collins said that the second respondent was offered help (T2-30). He said that she was invited to work additional hours and told that external contractors could be brought in to assist in clearing the backlog and in accelerating progress toward meeting the financial reporting deadline. While the evidence lacked precision, it appeared that Mr Collins was saying that this assistance was offered in early December after the second respondent had returned from leave on 2 December 2016.
- Mr Collins said that the second respondent did not take up the offer of additional hours and did not accept the offer of external assistance. It was his evidence that the second respondent said that she was the best person to complete the job.
- Ms Anderson also said that the second respondent was offered additional staff to assist in addressing the backlog and additional workload. Ms Anderson said that when she offered the second respondent help, the respondent said that she did not want help, she wanted more time (T2-44):
Thank you. In terms of the – the backlog of work that Ms French was experiencing, are you able to assist us whether you had a conversation with her where any offers of assistance or proposals were made to her about that?---Yes. Yes.
Can you assist us as to, firstly, what was suggested by you?---We asked how much of a backlog she had. And we offered several times to get additional staff in to help with the entering.
And what was her response to that proposal?---She said that she didn’t need extra staff. She needed more time.
- The second respondent denied that she had been offered extra staff before 12 December 2016. She said that while she told Ms Anderson that she needed more time, she said this in response to demands or requests that the financial reporting deadline should be met, not in connection with an offer of extra staff.
- The effect of the second respondent's evidence was that she was not offered any assistance until the afternoon of 12 December 2016 when Ms Anderson asked her if another member of the finance team, Michelle, could assist. The second respondent denied that Ms Anderson also made an offer of external assistance.
- The second respondent said that she told Ms Anderson that Michelle could not assist in the relevant areas because she had no knowledge of the job. I accept the second respondent's explanation in this regard. I infer from the second respondent's evidence that she was well placed to exercise an opinion on what type of assistance would be effective and what type of assistance might be counter-productive. It was clear on her evidence that the addition of internal staff who had no previous experience in, or knowledge of, the role would not be useful.
- I am not persuaded to accept the appellant's evidence that the second respondent was consistently offered assistance, including external assistance. While Mr Collins and Ms Anderson said that they offered assistance, the evidence was often vaguely expressed and was not anchored by time and date. Logically, it would have been expected that additional resourcing would have been a topic for discussion in the 5 December 2016 meeting given that this was the only time that a meeting involving all relevant parties had been convened. But there was no evidence that the topic was introduced. Similarly, while Ms Anderson and the second respondent discussed the deadline on 9 December 2016, there was no evidence that extra resourcing was discussed on this occasion, notwithstanding that the deadline had not been met and that there would have been no certainty that the small extension offered would have been sufficient.
- Confidence in the appellant's evidence is also questioned by the apparent inconsistency in regularly asserting during the proceedings that temporary staff were offered, but then declining to adequately explain why management did not act to direct the engagement of temporary staff when the need for extra resourcing was clear. Such a need was particularly apparent after it was known on 5 December 2016 that the deadline may not be met, and when it became known around the same time that Ms Norman's services may not be available after Tuesday 6 December 2016. The issue was canvassed with Ms Anderson during cross-examination and her responses were not convincing (T2-49):
Why didn’t you get people in to help her? She needed more time. More people would have abated that fear, wouldn’t they?---We offered it several times.
No, no. Why didn’t you get people in?---We offered to help, and she refused it. But you’re the boss. You can get people in. This is somebody who’s having difficulty with timeframes?---I wasn’t the boss. David Collins was the boss.
You could’ve gone to Collins, couldn’t you, and said, "Look, we need – we need extra staff to get this done. Mrs French can’t get it done in the time so we need extra staff to get it done within the timeframe." You could’ve done that, couldn’t you?---And we did.
I beg your pardon?---We did. David and I discussed it and we’d offered more help.
Look, the simple matter of fact is that you could have, at any time, gone to Mr Collins and you could’ve got extra staff or contractors, as you did, to get that work done within a timeframe, couldn’t you?---I offered the help and did the best I could.
Answer my question, please?---Yes.
- In her letter dated 12 December 2016, the second respondent requested that the end of month cut off relating to the provision of data and information necessary for use in the preparation of end of month financial reports be extended. She said an extension was necessary for the following reasons:
- The introduction of two new computer systems at one of the busiest times of the year;
- Errors in the reports produced by Enta requiring manual adjustments and inputting of data which is a slow and time-consuming process;
- A large back up of work.
- The second respondent said in her letter that she had highlighted her concerns with management on several occasions but that she had found their response and their understanding of her situation unhelpful.
- In my view the complaint letter had been drafted in very measured terms and portrayed the second respondent's predicament with reasonable accuracy. While the contents of the letter may not have surprised either Mr Collins or Ms Anderson, the second respondent's presentation and demeanour when handing the letter to Ms Ellis was clearly a cause for concern.
- On all the evidence, the second respondent experienced a number of problems with Enta. Firstly, she had received limited training in Enta. Secondly, while Enta had gone live on 11 November 2016, the second respondent was not given access to the system until 23 November 2016 in circumstances where she had asked for access as early as 14 November 2016. As a consequence, she was not very familiar with the program when she got access to it and had to progress her own learning of the system with the assistance of telephone advice from the training provider. Finally, there had been a number of errors with the system which affected the second respondent's work.
- It was broadly not in dispute that the second respondent faced a large backlog of work, that her work had been complicated by the introduction of a new system, that errors in the Enta system had added to her workload, and that she had complained about her predicament. While the appellant's witnesses were not of a unanimous view, Ms Grogan agreed that the end of the year was a busy period for the Arts Centre.
- Mr Collins said that in the period after Enta went live, the second respondent "spoke to us that she was having difficulty in achievingthe deadlines that we had set". He also said that he was aware that she was unwell, but he was not aware that it was a stress-related issue. He acknowledged that there was a convergence of demands on the second respondent's time at the end of November and early December 2016. He said that (T2-36) that the second respondent had made him aware prior to 5 December 2016 that there was a backlog of work and that he had been aware of the backlog for a number of weeks.
- Mr Collins acknowledged in his evidence (T2-36) that the second respondent was confronted with a backlog of work; that she was behind in her work; that he had been aware of the backlog for a number of weeks; that the second respondent told him on 5 December 2016 that she would not meet the deadline; and that he declined to change the deadline (T2-36):
Yes. So there was a – accepting for the moment what I’ve asked you about the password, there’s a backlog of work to be entered, there’s the, if you like, the fixing up of the entries in Enta before completing the QuickBooks, and then there’s the fact that Ms Norman goes away and her duties fall to Mrs French, then there – you have to agree, there could be a backup – there’d be a backup of work there for her, wouldn’t there?---Yes.
All right. And that’s what she was saying in that letter, wasn’t it? "Look, the system’s created a problem for me. I’ve got all this workload that I haven’t got time to do because of the time set for the providing of the reports"; correct?---Yes.
All right. Now, do you remember there was a meeting on the 5th of December between yourself, Ms French, Ms Anderson, a Michelle Ros, and Stephanie, and Shelease, S-h-e-l-e-a-s-e? Do you remember?---Shelease, yes.
Okay. And you advised Mrs French that the cut-off date for the reports was the 9th of December?---I – I’ll take that as being said, yeah.
Okay. And it’s then when Mrs French informed you that she was behind and she pointed to the piles of reports on her desk – do you remember that?---I don’t remember that incident but I’m – I’m – I’m aware. Mrs French made us aware prior to the 5th of December that there was a backlog in work. We’d been aware of that for a number of weeks.
12 December 2016
- Ms Ellis said that the second respondent approached her first thing in the morning on Monday 12 December 2016 and handed her a letter. Ms Ellis had not received any prior complaint from second respondent before 12 Dec 2016. She did not recall whether the second respondent made any specific request of her but said that the second respondent "just wanted it known and obviously wanted help. It was inferred that I would obviously send the letter on to management".
- Both the second respondent and Ms Ellis gave consistent evidence about what transpired during the conversation between them when the letter was handed over. Ms Ellis' version is set out below (T1-17):
Okay. And she told you that the doctor had instructed her to write the letter, that she was under much stress and it was doing her harm, and that her immune system wasn’t coping?‑‑‑Yes.
Thank you. The issues about the deadlines, you asked her if she’d brought up the issues with Karen and David regarding the deadline and also work overload?‑‑‑I believe so.
And she said she had many times?‑‑‑I believe so.
But that they just weren’t listening and at no time had they offered her any help?‑‑‑I – I don’t recall those exact words, but it’s entirely possible.
That was the effect of what she was saying. "Look, I’m having problems. I keep talking to them but they’re not helping me. They’re not doing anything to help me." Correct?‑‑‑I believe so.
Thank you. She told you that the pressures had built up because of the deadlines and that she couldn’t take it any more?‑‑‑I believe so.
Okay. She said it wasn’t a question of whether she could do her job, it was just the – she had no time to do her job; correct?‑‑‑Yes, about deadlines.
Yes. She said all she needed was time and that this needed to be addressed?‑‑‑Yes, I believe so.
Thank you. Now, you would have – your idea in contacting David Collins and sending the letter to both Collins and Karen Anderson was to make them aware of the situation in which Mrs French found herself?‑‑‑Yes.
The fact that she was stressed, that it was affecting her health and something needed to be done?‑‑‑Yes.
- Ms Ellis said that she had a conversation with Mr Collins about the matter immediately after her meeting with the second respondent and subsequently emailed him a copy of the letter at 9.52 am that morning (Exhibit 1). She also said that she provided Ms Anderson with a copy of the letter. The effect of Ms Ellis' evidence was that while she believed that she would have tried to discuss the matter with Ms Anderson, such a conversation may not have eventuated.
- Mr Collins' evidence was that he saw the letter some time before the start of training at 11.00 am. He said that he did not attempt to discuss the letter with the second respondent before training, nor did he take the matter up with her after training ended at 1.00 pm. His explanation for not approaching the second respondent (T2-31) was not convincing. He said that nothing precluded him from meeting with the second respondent, but that he wanted to speak to Ms Ellis first, that later in the day he became aware that Ms Anderson had spoken to the second respondent, and that he thought it would not be appropriate to talk to the second respondent because she had committed to coming in to work the next day.
- Mr Collins also said that he did not recall discussing the issue with Ms Ellis, but he believed that he spoke to Ms Anderson about the contents of the letter before 3.30 pm in the afternoon when Ms Anderson and the second respondent had a conversation. However, Mr Collins' evidence did not include any account of what was said in the conversation.
- Ms Anderson's evidence was that Mr Collins told her that the second respondent had provided a letter and that a copy of the letter would be provided to her. She was unsure in her evidence if she had read the letter prior to her discussion with the second respondent at or around 3.30 pm on 12 December 2016. She gave the following evidence about the discussion (T2-47):
To the best of your ability, and I know that it’s a long time ago now to cast your mind back, what can you recall were the issues that you discussed with Ms French in that conversation?---The issues were the backlog of work, how long it would take to get it up to, you know, the information entered, what additional resources we would need. We offered her additional resources to help with that backlog.
And, once again in relation to that offer on that day, what was Ms French’s response?---She said that she didn’t need help. She just needed time.
Was there any discussion that occurred during that conversation about somebody else from the finance unit that might be able to assist her?---Therese. We might have asked if Therese could come in on her days off. That would have been about the time, yep.
- While Ms Anderson referred to additional resources, she did not specify what she meant by additional resources and the only evidence about help for the second respondent was the reference to Ms Norman working on additional days. This offer of assistance from Ms Norman may not have been correct because Ms Norman was not working at the time, and the second respondent had said that Ms Anderson told her that Ms Norman would not be at work the following day.
- In cross-examination, Ms Anderson said that she asked the second respondent how she was going and asked if she needed more assistance. She accepted that the conversation would have included mention of the financial reporting deadline (T2-54):
You asked her whether she could give you a deadline for when she might be finished to give you the information that you require; do you remember that?---I don’t recall that but I know that I’d asked several times how much time she needed, when did she – when she would get the information done and how much additional help we would need and we offered to get additional help for her.
Just answer the question, please. Just answer my question. It was about when she could meet the deadlines; correct?---I don’t recall.
You don’t recall now. All right. Okay. But you recall it was all about the assistance you could give her?---Well, it was all together. People needed to get information into the system. We needed to find out how long it would take. We needed to find out how much assistance was required and we were there to offer help.
- The second respondent said that in the first instance Ms Anderson told her that Ms Norman would not be coming to work the next day (13 December 2016). The second respondent agreed that Ms Anderson asked her who could help her with her job, but she said that the offer of help only extended to another member of the finance team, Michelle Nicholas. The effect of the second respondent's evidence was that Michelle's assistance would be limited because she did not know the system but she acknowledged that Michelle had offered to do the banking and that this assistance would be appreciated (T2-76).
- The second respondent also said that Ms Anderson said that she did not understand "why it is taking so long", and that she wanted to know when the second respondent would be finished. The second respondent said that the conversation ended with the following exchange (T2-77):
And what did you say?---I told her I didn’t know. I was doing my very best with the resources I had. And – and I said, "I don’t know how – until I get into each day, I cannot tell you a time". And she then I had to do the financials for the end of the financial year. And I said, "Yes. I’m sorry. I know that you have to. But I’m doing the very best I can with what I’ve been given”. And then she said, “So you can’t tell me how much longer it’s going to take you?" And I said no.
All right. All right. So did she say anything to you about any assistance that they may give you?-Only Michelle.
- I accept that Ms Anderson's response to the second respondent's complaint should be understood in a context where Ms Anderson was engaged under a temporary contract in respect to which her principal function was to assist in the preparation of the financial reports and in the preparation of budgets. On her evidence, it is my view that there is a doubt about the extent to which, if at all, Ms Anderson was responsible for the supervision of the finance team, and whether she carried full responsibility for team members including training and development, allocation of duties, and personal health and welfare considerations (T2-42):
… What level of involvement during this part of the process, from early November when Artifax comes online and then Enta comes online on the 11th of November – what level of involvement were you having with Ms French in her role?---Well, as I said, I went there to basically do all the budgeting or help with the budgeting and the end of year accounts. Then when the – when Enta was implemented, well, then I was involved in the training of it. And that’s when I started to learn about what Enta was about and what it was replacing. So I was involved in the training
- The setting or background is that, towards the end of November 2016 the second respondent was required to meet a financial reporting deadline of 9 December 2016 in circumstances where she was confronted with a substantial backlog of work mainly associated with the introduction of the Enta system.
- The emergence of work-related pressures or stress is understood in a chronological context where the second respondent did not access Enta until some time on Wednesday 23 November 2016 and in circumstances where she had limited knowledge of the functional aspects of Enta and would have taken some time to become competent in its operation. She next worked on Friday 25 November 2016 before taking scheduled leave on Monday 28 and Wednesday 30 November 2016. She then returned to work on Friday 2 December 2016 by which time it would be not unreasonable to assume that her familiarity with Enta was less than optimum, and where she was also required to deal with the duplicate booking errors in Enta.
- The second respondent's part-time status and her limited working hours diminished her capacity to catch up on the backload and meet the financial reporting deadline. Her circumstances were exacerbated when she only worked on one day in the week ending 2 December 2016 because of annual leave, and when her job share partner was unable to work on Thursday 8 December 2016.
- It was understandable that when she returned to work on Friday 2 December 2016, she would have been concerned about her ability to meet the financial reporting deadline and I accept her evidence that she expressed her concern to Ms Anderson. Her anxiety would not have been significantly eased by management decisions taken the following week.
- The appeal turns on an evaluation of management's response to the circumstances causing the second respondent stress and anxiety. While management may not have been apprised of the extent or nature of the second respondent's psychological condition, they were aware of the backlog of work, and were aware on 5 December 2016 that the second respondent would not be able to meet the deadline.
- While Mr Collins was aware of the work backlog, knew that ongoing delays were caused by errors in Enta reports, and knew that the second respondent did not believe the deadline could be met, he did not agree on 5 December 2016 to change the deadline. While Mr Collins decision would have been based at least in part on a view that the processing of data might be faster under the temporary solution he advocated, I am not convinced by the adequacy of the management response.
- Whatever the outcome of the 5 December 2016 meeting, when the deadline arrived on 9 December 2016, the work had not been completed and management was obliged to extend the deadline. However, the management of this issue was flawed and rather than resolve a new deadline in a collaborative or consultative manner, the second respondent was simply informed that a small extension would be allowed, but told no more.
- In my view, the factual matrix supports the second respondent's version of events around backlogs and work pressures. Her failure to access Enta until 23 November 2016 contributed to her large backlog of work. When she did get access to Enta, she was inadequately prepared to use the system. Finally, it was not in dispute that particular errors were present in the reports produced by Enta. It was understandable that, at this point in time, the second respondent was concerned about her ability to meet the financial reporting deadline. Having articulated her concerns to Ms Anderson and Mr Collins, a matter for determination is whether the management response to the second respondent's circumstances was adequate or reasonable.
- Confronted with this factual scenario, the appellant prosecuted a dual defence. The appellant argued that adequate and reasonable support was provided by management and that if in some way this support failed to provide the remedy, it was the fault of the second respondent, not of management. In this regard, the appellant submitted that the second respondent should have expressed concern about any inadequacy in the training arrangements; that the second respondent rejected offered of assistance and that the second respondent was critical of the systems change and the timing of it and did not constructively assist in the transition.
- I am not persuaded to criticise the second respondent's conduct. Her reasons for maintaining that the deadline could not be met were valid and sustainable. Given her experience in the role, she was entitled to challenge or question the efficacy of the temporary solution suggested by Mr Collins and to advocate for an alternative course of action. Her complaint letter which summarised her concerns was measured and defensible. In my view the failure of the second respondent to meet the financial reporting deadline was not attributable to negative attitude or to resistance to change. A fairer characterisation of the factual matrix would bring into focus the failure of management to heed warnings over a period of weeks, and its failure to resolve the issues which were putting the deadline in jeopardy. Ultimately, it was management's responsibility to ensure that the deadline was met, and management always had the option of intervening and directing additional resourcing to achieve this goal.
- Other factors are relevant. The second respondent had been performing the same role for a number of years and would have been intimately familiar with the role, while both Mr Collins and Ms Anderson had only worked for the Arts Centre for a matter of weeks. Superimposed on this factor was the uncertainty associated with the scope of Ms Anderson's role. On the evidence, her temporary engagement was primarily directed at financial reporting and end of year budgets and it is doubtful whether she had any substantial responsibility for the day to day functioning of the finance team, for performance management and for monitoring the welfare of individual team members.
- The failure of management to take unilateral action to resolve the resourcing issue was not adequately explained in the evidence. Management always had the option of taking decisive action to resolve the issue and it was not clear why they did not act when it became clear that the deadline would not be met and when Ms Norman's continuing attendance was in doubt. Additionally, in my view, the factual matrix was not consistent with the evidence of Ms Anderson and Mr Collins that external assistance was consistently promoted as a genuine resolution of the relevant issues.
- The management response to the second respondent's letter was inadequate. While the letter may have repeated propositions known to management, it was expressed in measured and sensible terms and its purpose was to escalate an issue that the second respondent believed had not been appropriately handled. Absent the second respondent's presentation and demeanour, the complaint could have been progressed routinely. However, apprised as management was of the second respondent's condition, a more immediate response was required.
- The second respondent told Ms Ellis that she had been stressed and feeling anxious and that the stress had been impacting on her health. Ms Ellis said that the second respondent was "genuinely upset". Ms Ellis had formed the view that the second respondent wanted her predicament known and "obviously wanted help".
- Management had an immediate obligation to address the second respondent's welfare. In the end result, it was not until 3.30 pm in the afternoon that Ms Anderson stopped by the second respondent's desk and discussed the subject of additional help and what needed to be done to ensure the deadline was met. On the evidence, this discussion did not include any significant enquiry about the second respondent's health; involved an enquiry about internal assistance; and included a reinforcement of the business need to complete the financial reporting functions.
- The evidence of both Mr Collins and Ms Anderson in explaining why they did not respond to the second respondent's plight more quickly was inadequate. Neither of them appeared motivated to take responsibility to address the issue. Ms Anderson may not have thought that it was her responsibility, given the terms of her temporary employment contract, and her approach was broadly consistent with such a view.
- The appellant has not persuaded me that, on the balance of probabilities, the second respondent's claim for compensation should not be accepted because of the operation of s 32(5) of the WCR Act. The Appeal is dismissed.
- Published Case Name:
The Arts Centre v Workers' Compensation Regulator and Anor
- Shortened Case Name:
The Arts Centre v Workers' Compensation Regulator
 QIRC 117
22 Aug 2019