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Singh v Workers' Compensation Regulator QIRC 3
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Singh v Workers' Compensation Regulator  QIRC 003
Singh, Surila Devi
Workers' Compensation Regulator
Appeal against decision
4 January 2019
4 June 2018, 5 June 2018, 6 June 2018.
APPEAL AGAINST DECISION - Psychiatric or psychological injury – whether injury caused by unreasonable management action
Workers' Compensation and Rehabilitation Act 2003 s 32
Mr R Singh, for the Appellant.
Mr P O'Neill of Counsel, for the Workers Compensation Regulator, directly instructed
- Ms Surila Singh (the appellant) appeals a decision of the Workers' Compensation Regulator made on 24 April 2017 rejecting her application for compensation arising from a psychological injury that she said she sustained during the course of her employment with the West Moreton Hospital and Health Service.
- The appellant has been employed by the West Moreton Hospital and Health Service in the capacity of an administrative assistant since 1996. She commenced work at Wolston Park before relocating to the Ipswich Dental Clinic in 2000. Around June 2006, the appellant was relocated to the Collingwood Park Dental Clinic because of prolonged interpersonal conflict occurring at the Ipswich clinic involving the appellant and two co-workers, and the appellant and her supervisor.
- During her time at the Ipswich clinic, the appellant had been involved in a series of incidents involving her co-workers and supervisor which gave rise to a number of complaints and counter complaints. Included in the complaints was a complaint by the appellant against her supervisor alleging impropriety in that it was claimed that the supervisor had improperly accessed dental care without cost to herself.
- The conflict ultimately led to a management conclusion that the only viable course of action was to separate the protagonists and to transfer some or all of the individuals to different work locations. Correspondence from the Acting Director of Clinical Support Services dated 1 June 2007 (Exhibit 4) disclosed that mediation had not been able to be initiated and that a decision had been made to separate staff. Pursuant to that decision the appellant was moved to the Collingwood Park Dental Clinic. While she remained at this clinic until 2016, she was asked on a number of occasions to relocate to the Ipswich clinic.
- A return of the appellant to Ipswich was first raised in 2012. The appellant said (T1-106) that she was asked how she would feel about working back at the Ipswich Clinic. In response she said that "it's in the best interests of everybody that I not be moved to the Ipswich Clinic because of all the past issues that happened there". However nothing came of the matter and the appellant continued to work at Collingwood Park until she went on sick leave in February 2015.
- Ms Betzold acted as support person for the appellant in the 2012 discussion. It was Ms Betzold's evidence that when the relocation was proposed the appellant said that she did not want to return to Ipswich because it would be detrimental to her mental health. She said that during the meeting the appellant got very upset and that this brought about the end of the meeting without any resolution. However, she was aware that the appellant was not subsequently moved back to Ipswich.
- Ms Betzold's recollection was that the reason the employer proposed the relocation was because Ipswich Central was the appellant's "place of original employment" (T2-90).
- On 24 February 2015, the employer again foreshadowed a relocation away from Collingwood Park. The matter was canvassed informally with the appellant and a meeting proposed for the following day. At the time the appellant was attending an education day at the Ipswich Hospital. The appellant reacted adversely to what she understood to be a discussion about relocation back to Ipswich, immediately commenced a period of sick leave, and did not attend the proposed meeting. The appellant remained off work until February 2016 when she attempted to return to work at Collingwood Park under a graduated return to work program.
- On 26 February 2015, the appellant claimed workers’ compensation benefits arising from a psychiatric injury that the appellant said that she sustained arising from the 24 February 2015 discussion and historical issues. A workers' compensation medical certificate prepared by the appellant's general practitioner on 25 February 2015 included a diagnosis of "severe stress/anxiety" and included a workers' stated cause of injury of "prolonged bullying and harassment at work".
- The appellant's claim was rejected by WorkCover on the basis that her circumstances were caught by the operation of s 32(5)(a) or (b) of the Workers' Compensation and Rehabilitation Act 2003 (WCR Act). A review application to the Workers' Compensation Regulator was unsuccessful with the review unit deciding on 7 September 2015 to confirm WorkCover's decision. No appeal was lodged against the review decision.
- The appellant remained off work until end of January 2016 when her general practitioner provided her with a graduated return to work medical certificate. The appellant emailed her supervisor on 1 February 2016, enclosed a copy of her return to work certificate and stated that she would be reporting to work at Collingwood Park the following day.
- The appellant subsequently presented for work on 4 February 2016 at the Collingwood Park clinic. However, she was requested not to commence work but to attend a meeting the following day (5 February 2016) with Dr Carr (Acting Director of Oral Health for the respondent) and Ms Rhea (HR Business Partner for the respondent). A further meeting was held on 29 February 2016.
- In these two meetings, the appellant was told that her position at the Collingwood Park Clinic no longer existed, that her position had transitioned back to the Ipswich Clinic, and that she needed to return to work at Ipswich or some other location. When the appellant declined to return to Ipswich, a process was implemented to assist the appellant to return to work at a different location. However this process was not successful and toward the end of June 2016 the appellant's status remained unresolved.
- On 26 June 2016, the appellant was directed by Ms Johnson (Divisional Nursing Director) to return to work at the Ipswich Dental Clinic. On 28 June 2016, the appellant lodged a workers' compensation claim. In a decision dated 24 November 2016, WorkCover decided that the appellant's claim was not one for acceptance. The appellant unsuccessfully sought to overturn that decision on review.
- The appellant has consistently maintained that her refusal to return to work at the Ipswich Clinic derived from the history of interpersonal conflict experienced during her employment at that facility between 2001 and 2006.
Scope of the appeal
- The respondent submitted that the scope of the appeal must be limited to a consideration of facts and circumstances arising between 2 February 2016 and 27 June 2016 when the appellant lodged her application for workers’ compensation.
- The effect of the respondent's submission was that the appellant's grievances relating to historical events occurring between 17 August 2001 and 1 February 2016 were not relevant to the determination of her workers’ compensation claim. The respondent said that neither the WorkCover decision dated 24 November 2016, nor the regulator's review decision dated 24 April 2017, gave consideration to the historical issues, and both decisions were restricted to a consideration of events occurring in 2016.
- In its decision dated 24 November 2016 WorkCover indicated that the appellant had identified the following events as causative of her psychological injury:
- Making it difficult to return to work;
- Temporary role and graduated return to work to the Ipswich clinic; and
- Push to move to the Ipswich clinic.
- In its review decision dated 24 April 2017, the respondent confirmed that WorkCover had investigated the events identified immediately above as matters which the appellant had nominated as being contributory to her psychological injury.
- These considerations were consistent with the stressors alluded to in the appellant's statement of facts and contentions. While the statement of facts included reference to events occurring prior to 2016, the statement of contentions was confined to events occurring between February 2016 and the end of June 2016 and indicated that the appellant's condition was caused by the following events:
- Interpersonal interactions with Dr Carr and Ms Rhea during the period shortly after being issued with a graduated return to work certificate and until June 2016;
- Meetings held on 5 February and 29 February 2016 between the appellant and Dr Carr and Ms Rhea convened to discuss the appellant's graduated return to work program;
- Management action associated with the February 2016 meetings which was neither reasonable, nor taken in a reasonable way;
- A management purpose or approach intended to intimidate the appellant and achieve her relocation from the Collingwood Park Dental Clinic to the Ipswich Clinic under the supervision of her former supervisor;
- A flawed internal investigation into the appellant's complaints arising from reliance on misleading information provided by Ms Rhea and Dr Carr.
- The approach taken by the applicant in the expression of her statement of facts and contentions, and the approach taken by the regulator to the scope of the appeal are substantially the same. Both propose that the inquiry is confined to the return to work discussions and arrangements in February 2016, and subsequent events up to the date of the injury and the lodgement of the workers compensation claim in June 2016. The historical considerations are relevant to the extent that they contribute to an understanding of the appellant's perspective of events which she said caused her to refuse to return to work at the Ipswich Clinic.
- The appellant proposed calling evidence from six witnesses. The respondent objected to the evidence of a number of witnesses on the basis that the evidence proposed to be adduced related to events or circumstances prior to 2016 and which could not be considered to be relevant to the determination to be made in the proceedings.
- Rulings on the respondent's objections resulted in the exclusion from the appellant's witness list of Ms Kristine Lewis and Dr Anna Kammradder. Evidence in the proceedings was given by the following witnesses:
For the appellant:
Surila Singh (appellant)
Ravendra Singh (appellant's husband)
Elizabeth Anderson (appellant's treating psychologist)
Dr Jataveda Mahapatra (appellant's treating psychiatrist)
Ms Susan Betzold (co-worker of appellant)
For the respondent:
Dr David Carr (Acting Director of Oral Health)
Ms Tanya Rhea (HR Business Partner)
Ms Joanne Johnson (Divisional Nursing Director)
Ms Kristine Fisher (Work Safety and Wellbeing Unit Officer)
- In an opening submission, Mr Singh on behalf of the appellant summarised the appellant's case by, in effect, asserting that the appellant's injury was caused by unreasonable management action that traced back to 2012 and involved persistent requests or demands that the appellant relocate back to the Ipswich clinic. It was the demands made in the first half of 2016 and the associated management action that caused the appellant’s injury.
- This course of management conduct was considered unacceptable in circumstances where the appellant believed that she was being asked to return to a hostile work environment in which she had been previously bullied and harassed by persons who remained employed in that same location.
- It was not in contention that the appellant had, during the two February 2016 meetings, fully articulated her concerns about returning to work at Ipswich. Her views were summarised in an email that she sent to Dr Carr and Ms Rhea on 8 February 2016 (Exhibit 8). In this email, the appellant recounted what she had told Dr Carr and Ms Rhea at the 5 February 2016 meeting:
I also informed you and Tanya about the fraud and the maladministration at the Ipswich Clinic. I had also informed about the Public Interest Disclosure in regards to the Fraud and maladministration which you were unaware of. Both my treating GP Dr Chetan Bhanot and my Psychologist, Ms Liz Anderson have also recommended that I should remain at the Collingwood Park Clinic and they both have given their reasons. I had also informed about my sufferings in regards to the smashing of my car windscreen, my tires being punctured and also a steel pipe was placed under my Car’s front structure after I had lodged a formal grievance in regards to the harassment and bullying and the fraud and maladministration.
- In her email, the appellant also stated that during the meeting, she or her husband had shown Dr Carr and Ms Rhea an extract from a medical report prepared by Dr Kovacevic in relation to an application made by the appellant for income protection payments. The extract quoted is set out below:
I believe Mrs Singh is currently capable to return to her previous role. The main issue for her is whether she returns to Collingwood Park clinic or to the Ipswich Clinic, it is my recommendation that Mrs Singh should remain at the Collingwood Park Clinic Given the extreme nature of personal harassment and persecution that she may have been exposed to at the Ipswich Clinic, I do not believe that she would be able to return back to that environment. Should that be attempted her health would deteriorate and she would be medically incapacitated for work.
- For the appellant, it was self-evident in these circumstances, that it was unreasonable for management to direct her to return to work at the Ipswich clinic. It was particularly unreasonable because the employer issued the direction notwithstanding that it was cognisant of medical opinions which advised against the return of the appellant to the Ipswich clinic.
- The conduct of Dr Carr and Ms Rhea in their management of the appellant’s return to work program was also considered unreasonable. It was the appellant’s perspective that discussions associated with the return to work program were never genuinely entered into by Dr Carr and Ms Rhea and were always intended to produce an outcome in which the appellant would be forced to return to work at the Ipswich clinic.
- The appellant had worked at Collingwood Park for approximately ten years and it was her view that she saw no evidence that the work that she performed was likely to be performed at a different location or by someone else. She was resolute in the view that Collingwood Park clinic definitely needed an administrative officer to manage the front desk.
- It followed that the appellant questioned the veracity of the respondent’s proposition that her position at Collingwood Park was no longer available. She did not accept that the organisational change factors relied on by the respondent were genuine and saw these alleged factors as part of a contrived rationalisation for a process intended to force her back to the Ipswich clinic. In her letter to Ms McKee dated 3 July 2016 (Exhibit 14), the appellant said that "the only change that has occurred is the records have gone electronic but everything else is the same".
- The appellant pointed out that the Collingwood Park clinic included a three chair surgery and generated its own administrative workload. She said that despite the establishment of the patient contact centre in Ipswich, patients continued to contact the Collingwood Park clinic direct. In part in this regard, the appellant was supported by the contents of a fact sheet (Exhibit 20) which explained that while certain incoming calls would be received by the new contact centre in Ipswich, some of the incoming calls would be redirected to Collingwood Park.
- The appellant also questioned why, if her position no longer existed, she was not offered a redundancy payment. The submission was that if the appellant’s position was redundant, she should have been either offered a transfer at level, deemed an employee requiring placement, or offered a redundancy package. However none of these options was canvassed with the appellant by her employer.
- The essence of the appellant's complaints about the approach adopted by management in the February 2016 meetings was communicated by the appellant to Ms Rhea in an email dated 3 March 2016 (Exhibit 9), in which the appellant relevantly stated that:
- Given what she had been through in her previous employment at the Ipswich clinic, she would not be able to tolerate working at the Ipswich clinic;
- Her general practitioner and her treating psychologist have both advised that she should not return to the Ipswich clinic;
- The respondent did not appear to understand the advice given by the appellant's treating team, nor had consideration been given to the opinion of Dr Kovacevic;
- She was disappointed with the way her case was being handled and that she believed that she was being victimised because she had lodged a WorkCover claim;
- She did not agree that there was no longer a need for administrative support at the Collingwood Park clinic.
- After 3 March 2016 the appellant was also aggrieved by the failure to identify a suitable position at a location other than Ipswich and by Ms Johnson's decision on 27 June 2016 to direct her to return to work at Ipswich. It followed from the appellant's perspective that management acted unreasonably in:
- Ignoring or not assigning sufficient weight to historical issues;
- Not responding to the medical opinions of her general practitioner, her psychologist, and Dr Kovacevic all of which recommended against a return to work at Ipswich;
- Failing to ensure that the appellant secured a place in a location other than Ipswich;
- Victimising the appellant for making a WorkCover claim in 2015;
- Not allowing a return to work at Collingwood Park and in erroneously concluding that there was no longer a need for an administrative position at Collingwood Park;
- Directing her to return to work at Ipswich.
- The appellant declined to accept that there was a reasonable basis for the respondent's decision to direct her to relocate to the Ipswich clinic. For her, neither the effluxion of time, changes in personnel at the Ipswich clinic, the relocation of the clinic to new premises, or the measures taken by the respondent to mitigate against any adverse outcomes, justified the decision to direct her to work at the Ipswich clinic.
- While it was conceded that the appellant has sustained a personal injury in the form of an adjustment disorder, the respondent maintained that the timing of the injury and events giving rise to the injury were matters in issue in any determination about causation.
- The respondent did not accept that the injury occurred in the course of employment nor that the employment was the major significant contributing factor to the 2016 injury. This position was adopted because the respondent believed that it was more likely than not that the appellant's injury was causally connected with the event at work on 24 February 2015, and not the events associated with the return to work in the first half of 2016. It followed in the respondent's view that the appellant did not sustain a fresh psychiatric injury arising from work related issues occurring in 2016.
- The respondent argued that the medical evidence did not support the appellant's claim that she suffered a fresh injury in June 2016. The respondent submitted that the medical evidence demonstrated that the appellant had not recovered from the injury that she sustained in February 2015 when she made her claim for compensation in 2016; that she was already suffering from a psychiatric injury prior to the events in 2016; and that she could not have, and has not sustained a psychiatric injury caused by events that have occurred in 2016.
- The respondent also submitted that it was evident from a review of both the 2015 and 2016 WorkCover decisions that the appellant had, in part, attributed her 2015 injury to the same historical issues which were canvassed in respect to her 2016 injury.
- In the event that the respondent's primary submission was not accepted, the respondent contended that the appellant’s injury was excluded by the operation of either section 32(5)(a) or (b) of the WCR Act, or both of those sub-sections. That is, the respondent submitted that if it were held that management action did cause a psychiatric injury, the management action was reasonable and reasonably taken.
- In the first instance, the respondent submitted that management conduct associated with the two February 2016 meetings was reasonable for the following reasons:
- (i)Management explained to the appellant why a return to work to Collingwood Park could not be accommodated;
- (ii)Management gave the appellant an opportunity to articulate her reasons why she should not be returned to the Ipswich clinic;
- (iii)When the appellant said that she did not want to return to Ipswich, management encouraged a discussion about work opportunities at locations other than Collingwood Park and Ipswich, and the processes to be followed to facilitate applications for such positions;
- (iv)Management showed a willingness to work with the appellant's treating medical team to address the obstacles the appellant raised as preventing a return to work at Ipswich and to explore the possibility of a soft or graduated return to work at the Ipswich clinic.
- Secondly, the management action after the February meetings was also reasonable. In circumstances where a position at Collingwood Park was no longer available and the appellant did not want to return to Ipswich, management actively engaged with the appellant and others in a process intended to identify a suitable alternative position.
- The respondent argued that a decision to relocate the appellant could not be considered unreasonable in circumstances where the appellant was always liable to transfer and where it was open to management to require the appellant to relocate to another facility within the health service district if circumstances necessitated such a move.
- Finally, the respondent considered that Ms Johnson's direction to return to work at Ipswich was reasonable in circumstances where the appellant had not provided access to medical reports or medical practitioners, where extensive change had taken place since the appellant last worked in the Ipswich clinic, and where the employer was prepared to make all reasonable adjustments to support the appellant in a soft return to work at Ipswich.
Matters in contention
- The key questions to be answered in the resolution of the appeal are:
- (i)Whether the injury reported by the appellant on 28 June 2016 was a fresh injury, or the same injury that was subject to an unsuccessful workers compensation claim lodged with WorkCover on 26 February 2015?
- (ii)If the appellant sustained a fresh injury or an aggravation of a pre-existing injury in the first half of 2016, was the injury caused by management action?
- (iii)If the injury was caused by management action, what was the relevant management action?
- (iv)Was the relevant management action reasonable and taken in a reasonable way?
- I turn firstly to a consideration of management action associated with the proposed return to work of the appellant in the first half of 2016. If the appellant cannot establish that the relevant management action was unreasonable or taken in an unreasonable manner, it is not necessary to determine the other issues in contention, and the appeal must fail.
February 2016 return to work meetings
- On 1 February 2016, the appellant's treating general practitioner provided the appellant with a graduated return to work medical certificate. The certificate (Exhibit 2) stated that the appellant was fit for a graduated return to work from 2 February 2016. The certificate also stated that the appellant should commence work on the basis of five hours a day for two days a week at the Collingwood Park Clinic. Each fortnight thereafter, and until 17 June 2016, a further certificate was issued in essentially the same terms.
- After receiving the 1 February 2016 certificate, the appellant provided a copy to her supervisor and subsequently presented for work at the Collingwood Park clinic on 4 February 2016. However, the appellant was asked not to commence work and requested to attend a meeting the following day to discuss her return to work arrangements. Mr Singh attended this meeting as well as the subsequent meeting held on 29 February 2016.
- The management invitation to attend a meeting before the appellant commenced work was, I think, inevitable in circumstances where on the previous occasion (February 2015) that management tried to discuss the issue of work location with the appellant, she immediately commenced a period of sick leave and the discussion never took place.
- I accept the respondent's submission that the 5 February 2016 meeting had been convened in circumstances where:
- The appellant had been absent from work for almost twelve months;
- The medical certification provided by the appellant indicated that she was only fit to return to work at the Collingwood Park Clinic. Given that this position was no longer available it was appropriate for Ms Rhea and Dr Carr to meet with the appellant and try to resolve a viable return to work plan; and
- Prior to the meeting, Ms Rhea took the step of telephoning the appellant's treating psychologist to ensure that the appellant was medically capable of attending such a meeting.
- It was Dr Carr's evidence that prior to the 5 February 2016 meeting he prepared an agenda with the assistance of Ms Rhea (Exhibit 19). He used the agenda to guide his discussion with the appellant. Ms Rhea said that the aim of the meeting was to inform the appellant that her role at Collingwood Park had transitioned back to the Ipswich Dental Clinic and that this was where the appellant would be required to commence her graduated return to work.
- Dr Carr said that he explained to the appellant why she could not be returned to work at the Collingwood Park clinic (T3-18):
… we talked about the changes that had been occurring within the Oral Health Service in the time that she’d been away, the administrative responsibilities, the moving to electronic record and that we were sort of progressing towards an administrative hub at the Ipswich Dental Clinic. We acknowledged the information that the return to work said that Mrs Singh could only be returned to the Collingwood Park Clinic, however, that the Collingwood Park Clinic wasn’t in the plan of having direct administrative support on that site.
- When the appellant said that she could not return to work at Ipswich, Dr Carr said that he asked the appellant to consider the terms of any return to work at Ipswich, and asked her to speak to her treating medical practitioners to determine if there was a viable return to work option including the Ipswich clinic. He also said that he would look at other options within the health service for administrative work.
- The essence of Dr Carr's evidence was that if the appellant, either alone or in conjunction with her treating medical practitioners, declined to consider a return to work at the Ipswich clinic, the only avenue for her to return to work was via a suitable administrative vacancy somewhere in the broader hospital and health service. This avenue might include a return to work in another capacity or a return to work initially in a temporary position.
- Mr Singh agreed that in the meeting the appellant was asked to detail her reasons for not wanting to return to the Ipswich clinic and that she was given the opportunity to provide her explanations about past events.
- Mr Singh said that the appellant told Dr Carr that she could not relocate to the Ipswich clinic because of the past history. The appellant said that she gave Dr Carr and Ms Rhea a "very detailed" explanation about why she could not work at the Ipswich clinic and that she relied on a medical report prepared by Dr Kovacevic to support her position. Mr Singh said that during the meeting he read out a part of Dr Kovacevic's report. The report itself however was not handed over.
- The appellant did not accept that Dr Carr had told her why her job no longer existed at Collingwood Park. The effect of her evidence was that the organisational change factors were not raised. She denied that electronic records, the Ipswich call centre, or sterilisation practices were discussed at the meeting. She also said that she did not recall Dr Carr discussing with her the circumstances associated with a return to work at Ipswich.
- The appellant denied that Dr Carr had asked her to discuss with her treating medical team possible arrangements that might facilitate or allow a return to work at the Ipswich clinic. She also denied that Dr Carr had asked her to give permission for him to contact her treating medical team to discuss a supported return to work at the Ipswich clinic. However, in an email dated 3 March 2016 the appellant said that she did discuss the request with her general practitioner, and it is more likely than not that if the request was not made in the 5 February 2016 meeting, it would have been made in the 29 February 2016 meeting.
- The 5 February 2016 meeting ended on the basis that a further meeting would be held in a couple of weeks time. The effect of Ms Rhea's evidence was that the meeting concluded on the basis that the respondent was unable to accommodate the restriction on work location included in the appellant's return to work certificate. She said that the appellant was encouraged to discuss the return to work arrangements with her treating medical team in a context where there had been changes in the Ipswich workplace and where the respondent was willing to support the appellant in her return to work.
- After the meeting, Dr Carr emailed the appellant with a summary of the meeting (Exhibit 7). In a lengthy response to the Dr Carr's email (Exhibit 8), the appellant referred again and quoted the extract from Dr Kovacevic's report, dealt with some of the historical factors, reiterated that both her general practitioner and Ms Anderson had recommended a return to work at Collingwood Park, referred to WorkCover's decision in relation to her 2015 workers compensation claim, and provided reasons why administrative support was required at Collingwood Park.
- In responding to the appellant's email on 11 February 2016, Dr Carr asked the appellant to provide an administrative skill set list for use in an exercise of matching the appellant's skills with administrative roles within the West Moreton Hospital and Health Service, asked for a copy of the appellant's resume and indicated that the process was to "discuss and provide this documentation to administration managers within West Moreton so that they can assist us in assessing other roles with West Moreton".
- The meeting on 29 February 2016 did not appear to progress much beyond what was achieved at the 5 February 2016 meeting. Both Mr Singh and the appellant said that they were confronted with a hostile attitude from management with Ms Rhea commenting at some point that "we are ready for whatever you want to do", or "bring it on". Ms Rhea denied adopting such an adversarial approach.
- Ms Rhea's evidence was to the effect that, from the respondent's perspective, there was a desire to reduce the influence of the historical difficulties, to gain an acceptance that a return to work would not occur at Collingwood Park, and to focus on developing a graduated return to work program that was achievable. She acknowledged that this approach caused the appellant some frustration and that it was difficult to retain a focus on the preferred return to work outcome. Ms Rhea confirmed that she and Dr Carr advocated a soft return to work at the Ipswich clinic in which the respondent would actively support the appellant in any integration process.
- When the appellant declined to consider a return to work at the Ipswich clinic, the appellant was told that the only available avenue was to explore the possibility of a return to work at some other oral health facility or in a suitable position, if available, in the broader hospital or health service. It was in this context that Ms Rhea continue to provide the appellant with copies of the weekly vacancy list and offered to assist the appellant in her endeavours to secure a placement in some other capacity or section of the hospital and health service.
- The effect of Mr Sing's evidence was that during the meeting on 5 February 2016, the appellant was told that Ipswich was the only option and that outside of this she would be given assistance in the preparation of a resume. When the appellant provided an updated resume and skills list, she would be provided with job vacancy notices to facilitate her applications for other positions.
- However, according to Mr Sing, Dr Carr made clear that it was not his "responsibility to source employment outside oral health and the only place they had the employment was in Ipswich Dental Clinic" (T1-49). Dr Carr said that it was more likely that he pointed out that he had little control over the fate of applications made outside the oral health section.
- It was Ms Rhea's evidence that when the appellant provided a copy of her resume and her skills list, she forwarded the information to several administrative coordinators within the health service and asked them if they had any roles available that would match the appellant's skills and experience and if they were able to accommodate the appellant on her graduated return to work program.
- Ms Rhea emailed the appellant with a summary of the key discussion points arising from the 29 February 2016 meeting at 5.14pm on 29 February 2016. The email included the following observations and statements:
During our meeting you expressed frustration with the delay in returning you to work. I would like to reiterate that David and I are very supportive of returning you to the workplace and we are committed to working with you to provide you with suitable options. At this point in time we can only offer you an immediate return to your role of Administration Assistant at the Ipswich Dental Clinic.
- Ms Fisher was employed by the respondent in the capacity of Work Safety and Well Being Business Partner. Ms Fisher had been involved in the management of the appellant's WorkCover claim from March 2015 to November 2015. Some attempts had been made during this period to assist the appellant to return to work. Ms Fisher said that the appellant resisted any attempt to return her to the Ipswich dental clinic and that some endeavours were made to place her in the Ipswich Hospital administrative pool. For her part, the appellant complained about Ms Fisher's failure to return her to work during 2015.
- Nothing however turns on Ms Fisher's role in the appellant's rehabilitation or return to work arrangements because the evidence supports a conclusion that Ms Fisher did not have any involvement with the appellant's attempt to return to work in February 2016. In this regard I accept Ms Rhea's evidence that Ms Fisher's involvement with the appellant was limited to matters occurring prior to February 2016 and did not extend to the 2016 graduated return to work discussions or matters related thereto.
- I accept that Dr Carr and Ms Rhea communicated to the appellant a clear preference for a return to work at the Ipswich Clinic. This was understandable in the context of operational decisions which had resulted in the removal of dedicated administrative positions from the satellite clinics and in the location of all administrative staff at the Ipswich Clinic. It was also understandable notwithstanding the appellant's equally clear preference not to return to work at the Ipswich Clinic given the effluxion of time and the changed circumstances bearing on the appellant's historical concerns.
- It was not unreasonable for the respondent to be direct and candid in spelling out the appellant's predicament which in simple terms was that if she did not accept the vacant position at the Ipswich Clinic, she would most likely have to return to work at a position outside of the Oral Health section which might be problematic for various reasons including that such an appointment fell outside of Dr Carr's jurisdiction and such an appointment may require substantial retraining.
- It was the respondent's submission that during the appellant's absence from work in 2015 and 2016, significant organisational change had been effected across the West Moreton Health District and the dental clinics within that health district. An effect of some or all of these changes was that the need for administrative functions to be performed at the Collingwood Park clinic had diminished and by the time the appellant indicated a willingness to return to work, her role was no longer required at Collingwood Park.
- In particular, the respondent pointed to the following changes which impacted on the appellant's role at Collingwood Park and supported the respondent's decision to remove her position from Collingwood Park:
- The introduction of electronic patient records removed one of the significant administrative duties of handling and locating paper patient records;
- The change to sterilisation procedures with the introduction of a centralised sterilisation section for surgical instruments located at the Ipswich Dental Clinic. For the satellite clinics including Collingwood Park this change meant that instrument sterilisation took place at Ipswich rather than on site as part of the duties of dental assistants. The change freed-up dental assistants to perform more administration tasks;
- The introduction of a central patient contact centre at Ipswich. The transfer of appointment calls to the Ipswich call centre took away a significant component of the administrative duties required to be performed at Collingwood Park;
- The establishment of an administrative hub at Ipswich.
- In his evidence, Dr Carr summarised the efficiencies generated by the organisational change initiatives in the following terms (T3-15):
… what was the impact of those collective changes but, in particular, the introduction of the electronic patient health records on Mrs Singh’s role in terms of her being an administration officer at Collingwood Park?‑‑‑So the – with the electronic records it decreased the amount of administrative workload, I guess, in those facilities. We had seen that in Ipswich over time. Where we were previously having to pull patients’ records, make up patient records in a paper-base – keep that all stored somewhere – all of those records were no longer required to be sort of pulled and retrieved and made up from an administrative process. So that does take up a fair amount of time in a day. That could be – depending on the size of the clinic – could be two or three hours of work that immediately would be removed once electronic records are implemented. So that – that would be probably the biggest component of the administrative workload that would change. If we’re looking at the sterilising processes, which were also implemented, and the contact centre processes – with the contact centre we had the ability to redirect calls from all of the facilities into that call centre hub. And that would remove direct patient contact to the individual facilities. Have a streamlined process where patients could be directed to any facility within the health service depending on where the appointments and need was.
- The appellant however contested the view that her role had been affected by significant organisational change. Her reasoning in this regard was set out in an email that she sent to Dr Carr and Ms Rhea on 3 March 2016 (Exhibit 9):
I said in the meeting, regardless of what you and David say in relation to my role at the Collingwood Park Dental Clinic, I am of strong belief that nothing much has changed with the role except that the Dental Assistants are being exploited as most days all three surgeries are running and the dental assistants are performing the admin duties to full capacity I was informed by staff on the day I called into the CWPark Dental Clinic that Management has installed a second computer at the Clinic due to the increase in the admin workload and that Dental assistants come out to help when the desk is busy. The front desk is still operational with patients arriving/phone and counter enquiries and the day to day admin duties. I also mentioned how one of the Dental assistants has mentioned to me that she has been performing the admin duties for more than 12 months and that she should be backpaid admin wages.
Electronic patient records
- Dr Carr said that the Ipswich dental clinic was the first clinic in the state to trial electronic health records. During his time with the respondent he was involved in progressing the implementation of electronic records across the health service district including Collingwood Park.
- The appellant conceded that patient records were not electronically stored as at February 2016 and she confirmed that she had been told that the Ipswich Dental Clinic and satellite clinics were to be the pilot for the introduction of the electronic patient records. She also recalled that she was told during the February 2016 meetings about a requirement that she undertake training in the new electronic patient management system.
- In his evidence, Mr Singh accepted that the appellant was told during the 29 February 2016 meeting that substantial organisation change, including the roll out of electronic patient records, necessitated the return of the appellant's position to Ipswich. Mr Singh also agreed that the appellant was told that she would be required to complete intensive training as part of her return to work, and that the training could only be delivered at the Ipswich Clinic.
- It was Dr Carr's evidence that a requirement for the health service to meet current infection control standards resulted in the establishment of a central sterilisation facility at Ipswich and the transfer of the sterilisation function from the smaller clinics to Ipswich. This meant that there was no longer a need for dental assistants to sterilise instruments on site at Collingwood Park, a process which Dr Carr said could take several hours a day.
- Neither the appellant nor Mr Singh accepted that there was a discussion in the 5 February 2016 meeting about the change in sterilisation procedures and the impact of these changes on both dental assistants and administration officers. Despite the denials, the appellant's understanding that administrative work was being transferred to dental assistants was evident in an email that she sent to Dr Carr and Ms Rhea on 3 March 2016 (Exhibit 9) wherein she expressed the view that the only significant change taking place at Collingwood Park was that dental assistants were being exploited by being required to perform administrative duties.
- A review of the dental assistants’ role description however contradicts the appellant's claim of "exploitation" in that the role description (Exhibit 1) provides that the duties of dental assistants' include administrative work. As such, I accept that the removal of the sterilisation function from the Collingwood Park clinic would enable dental assistants to perform additional administrative work.
Central contact centre
- Dr Carr said that the call centre reform followed similar reforms in other health services where a central facility handled patient calls from across all areas of the health service. He said that Metro South, Gold Coast, Metro North and the Sunshine Coast health services all had call centres which were using a centralised phone number and system.
- Dr Carr confirmed in his evidence that the contact centre commenced on 20 June 2016. The effect of the call centre was explained to some extent by a fact sheet in the evidence as Exhibit 20. Relevantly, the fact sheet established that not all patient calls would be redirected from Collingwood Park to the Ipswich call centre. The fact sheet disclosed that in the first instance all patient calls would be received by the call centre where some calls could be redirected to the individual clinics.
- All calls relating to emergencies, toothaches, denture repairs and other appointment requests would be responded to by the call centre. However general enquiries, cancellations, confirmations or rescheduling of appointments were calls that would be redirected to Collingwood Park. In this case, answering machines were to be installed at Collingwood Park to take any calls that were unable to be answered and in respect to which staff would call the patient back when available.
- Mr Singh accepted in his evidence that the appellant was told in the 5 February 2016 meeting that a call centre would be established at Ipswich which would take calls for all the clinics in the district.
- I am satisfied that the introduction of the call centre would be likely to diminish the number of incoming calls to the Collingwood Park clinic and diminish the administrative workload of the clinic.
- The effect of Dr Carr's evidence was that further efficiencies would be achieved through the establishment of an administrative hub at the same location as the call centre. The intention here was to locate the majority of administrative staff at the Ipswich clinic where the bulk of the administrative requirements were sourced and to allow a deployment or redeployment of administrative support across the various services to meet demand peaks (T3-16):
… the Ipswich Dental Clinic being the largest clinic had the bulk of the administrative requirements for the service. It also provided – or provides administrative support for the school dental program and all of their charts are stored at the Ipswich Clinic as well. So hubbing meant having the administrative staff in the one location which you could redirect them to assisting with the adult facilities where required. You could redirect them to being able to assist with the school program chart process, depending on what time of the year that was. There’s peaks and troughs with their workload. But also with the contact centre if there is a high level of calls you could redirect extra people to be taking those calls as well. So that was sort of the intent.
- Mr Singh accepted that the 5 February 2016 meeting included a discussion about the establishment of an administrative hub at Ipswich and that Dr Carr had said that all administration officers would work from Ipswich. The appellant's evidence was similar. She said that Dr Carr told her that she could not be returned to Collingwood Park "because all the admin workload has been moved to Ipswich".
- The appellant complained however that she was the only administration officer to be displaced, and she contested the respondent's version that administration officers employed at both Laidley and Collingwood Park clinics had been relocated to Ipswich. While the timing of events remained unclear, the issue was resolved however in Ms Johnson's evidence when she confirmed that, while the Laidley clinic did retain its administration officer for a period of time because of a security issue, this officer was relocated to Ipswich once the security issue was resolved.
- It did not appear to be in dispute that the appellant was subject to transfer and that the respondent had a legal right to transfer her across the various facilities in the district. She acknowledged in her evidence that she could be required by her employer to work at any of the oral health facilities operated by the respondent.
- I prefer the respondent's evidence associated with the organisational restructure. Sufficient has been said in both the documentary evidence and the oral testimony to support a conclusion that the organisational changes were significant and that an effect of the changes was to facilitate the removal of dedicated administrative positions from satellite clinics. While the appellant doubted that the changes warranted the removal of her position from Collingwood Park, her evidence in this regard was limited by the fact that she had been away from her workplace since early 2015, and she was in no position to provide any reliable evaluation of the effectiveness of the changes implemented or being implemented.
After the February 2016 return to work meetings
- On 8 April 2016, Ms Rhea emailed the appellant (Exhibit 10), provided a copy of the weekly vacancy list, and asked the appellant to indicate if there were any vacancies that she wished to be considered for.
- The appellant responded to this email on 25 April 2016 (Exhibit 10) and articulated a series of complaints about various matters and announced that she was copying Ms Johnson into the email and wanted her complaints investigated. Relevantly, she complained that despite Ms Rhea and Dr Carr advising her that she would be integrated back into the workplace, three months had elapsed and "you have only been sending me the weekly vacancy lists as if I was applying for a new job".
- Dr Carr responded to the appellant's 25 April 2016 email on 29 April 2016 (Exhibit 22) and informed the appellant that while he had kept his managers, including Ms Johnson, informed of her status, he and Ms Rhea remained her primary point of contact. He also told the appellant that "providing the IME information will assist us further in assessing the options available and what we can reasonably accommodate".
- The effect of Ms Rhea's evidence was that by 23 May 2016 she felt that all options had been exhausted and that she wanted to draw from the appellant a response which might indicate whether anything had been overlooked in the process thus far and to give the appellant the opportunity to correct misapprehensions or make further observations. These matters were addressed in an email sent by Ms Rhea to the appellant on 23 May 2018 in which she said inter alia:
Over the last few months the management of Oral Health Services and yourself, with some guidance from HR, have tried to come to some resolution regarding your work arrangements. To recap; you hold a substantive Administration position in Oral Health Services; this position is based at the Ipswich Dental Clinic. Approximately 10 years ago, fractures between yourself and some other members of staff resulted in you being temporarily relocated to the Collingwood Park Dental Clinic post resolution of the matter to allow some space to recover. I believe that this arrangement continued well beyond intended timeframes without disruption for some years as this arrangement was mutually beneficial.
The introduction of the electronic oral health record has changed the administrative workloads within Oral Health resulting in the provision of administration services via an Administration Hub at the Ipswich Dental Clinic. Further to this change the Sterilisation model at Collingwood Park and other outlying sites has transformed to comply with current best practice processes, resulting in the Collingwood Park Dental Clinic changing over to an offsite sterilisation model. This change necessitated the need for a trained Dental Assistant to perform the additional duties within the clinic which includes processing the incoming and outgoing instruments as part of the sterilisation process. Ultimately this has removed any need for administration staff at the outlying clinic.
You have explained that you are worried about returning to the Ipswich Dental Clinic due to your perception that you will not be able to associate professionally with staff who were involved in the matters that arose approximately 10 years ago.
It is my understanding that the staff members that were named in the original grievance have moved on from the workplace. I also believe that the Health Service took reasonable steps to resolve the matter at the time and you were afforded some space from the situation. The mutually beneficial arrangement was only ever a temporary arrangement and business requirements have changed. I understand that the impending return to Ipswich Dental Clinic may be daunting however; I am confident that the circumstances are very different now.
- In responding to Ms Rhea's email on the same day, the appellant disagreed with the proposition that staff involved in the historical dispute no longer worked at the Ipswich clinic. She said that as far as she was aware these staff were still working at the Ipswich clinic. She also asserted that she had mentioned this to Ms Rhea several times, both in conversations and also in writing.
Direction to attend work at Ipswich
- Ms Johnson, at the time of the return to work discussions during the first half of 2016, was acting Executive Director of Clinical Services at the Ipswich Hospital. Dr Carr reported to Ms Johnson and the status of the appellant was a matter discussed between Dr Carr and Ms Johnson in their monthly meetings.
- In her evidence the appellant said that because her graduated return to work was not progressing and the vacancy lists were not disclosing the existence of any suitable positions, she decided to escalate the matter to Ms Johnson. In this regard, Ms Johnson received an email complaint from the appellant on 23 June 2016 (Exhibit 12). The appellant's complaint largely comprised an historical dissertation but relevantly stated:
- That Dr Carr and Ms Rhea have tried to resolve her return to work, but a stalemate has been reached and it was not within the capabilities of either Dr Carr or Ms Rhea to bring the matter to a resolution;
- That dental assistants should not be required to complete administrative duties;
- She was being victimised for lodging a WorkCover claim in 2015;
- That she was aware that the Collingwood Park clinic was currently operating at full capacity and that considerable administrative duties were required to be performed.
- After deliberating on the matters raised in the appellant's complaint, and having consulted both Dr Carr and Ms Rhea, Ms Johnson decided to direct the appellant to return to the work at the Ipswich dental clinic on 4 July 2016. Correspondence to this effect was sent to the appellant on 27 June 2016 (Exhibit 13). In this correspondence, Ms Johnson demonstrated a complete understanding of the events that the appellant said prevented her from returning to work at Ipswich. In respect to these matters she pointed out that:
- The two co-workers in conflict with the appellant no longer worked at the Ipswich clinic;
- The complaint made by the appellant against her supervisor for improperly accessing dental treatment did not involve a PID;
- While the complaint was substantiated and the supervisor was required to repay the cost of treatment, it was relevant that the appellant had also been warned for accessing dental treatment in circumstances where no entitlement existed;
- That any risk of reprisal arising from the complaint could be managed.
- In evaluating the events occurring in the workplace ten years earlier, Ms Johnson concluded in effect that the stressors alluded to by the appellant had either been removed, or could be managed:
I believe sufficient supports have been undertaken to allay your concerns regarding the change to your workplace assignment in light of the historical events. This process of discussion was intended to relieve your anxieties about returning to the workplace and provide you with support. I am satisfied that all of your concerns have been addressed.
While I am aware of your personal circumstances, I have to carefully balance your needs as an employee with the operational requirements of the Health Service. Therefore, after carefully considering all of the information available to me, I am therefore directing you to return to the Ipswich Community Dental Clinic from 4 July 2016 in accordance with your restricted return to work certification.
- In her evidence in the proceedings, Ms Johnson more fully explained how the appellant's needs had been taken into account (T3-114):
What ‑ ‑ ‑?‑‑‑So the – for me, the two staff that were involved in the initial complaint that Ms Singh raised, was Ms Narelle Clark and Ms Julie Russell, and I confirmed that Ms Narelle Clark was no longer working there at Limestone. And I had been confirmed that Ms Julie Russell was also not working at Limestone clinic either. She was on maternity leave and – and there was no intention for her to come back to that site. So the primary staff that were involved in the original grievance were no longer working within that service. The complaint had been closed in 2005 by the CEO, Cam Lane, from the – the initial concerns that were raised by Ms Singh. And I know – just trying to think there – and I – we haven’t seen her work previously. It was at Ipswich Hospital Oral Health Service.
Yes?‑‑‑And the whole service had moved to a new location, to Limestone Street Oral Health. So it was a completely different environment there. I had also the opportunity to look – there was two A04s working at Limestone Oral Health Service, both Ms Kim Duxbury and Bridget Fell. There was an opportunity for Ms Singh to report to – not to Kim Duxbury. She could report to Bridget Fell. So I had considered that also. I was – I was aware – or wasn’t aware of any concerns in the last 10 years with Ms Kim Duxbury being still there as an A04, and – and Ms Singh being there at Collingwood Park. So I felt – thought it was – I had done my assessment and that it was a – I felt it was safe for Ms Singh to return back to Limestone Oral Health Service.
- On 3 July 2016, the appellant emailed (Exhibit 14) Ms Sue McKee, the Chief Executive of the health service, and informed her that she was aggrieved with the decision made by Ms Johnson, and asked her to review Ms Johnson's decision. On 7 July 2016, Ms McKee wrote to the appellant (Exhibit 15) and informed her that sufficient reasons had not been provided justifying the setting aside of Ms Johnson's decision. Ms McKee confirmed the direction that the appellant relocate to the Ipswich clinic and also decided to refer the appellant to the OH&S Team to provide oversight in relation to the relocation, including a consideration of reasonable adjustments.
- It is relevant to any evaluation of the reasonableness of Ms Johnson's decision that, other than the provision of the appellant's general practitioner's fortnightly template medical certificates stating that the appellant was fit to return to work at Collingwood Park for five hours a day on two days each week, the appellant had provided no other medical evidence supporting her claim that she could not return to Ipswich and importantly, in terms of the rehabilitation process, had denied the respondent access to her treating medical team.
- The respondent's evidence was that during the February 2016 meetings, the appellant refused a request that management be allowed to discuss the prospect of a graduated return to work at the Ipswich clinic with the appellant's treating medical team. While both the appellant and Mr Singh denied that such a request was made during the meetings, it could not be denied that requests were subsequently made by Ms Rhea in an email that she sent to the appellant on 29 February 2016 (Exhibit 9).
- In this email, Ms Rhea asked that permission be given to allow the respondent to contact her treating team "to discuss how best we could support you through a gradual integration into the Ipswich Dental Clinic".
- The effect of the appellant's response on 3 March 2016 was that she had discussed the request with her general practitioner and that his view was that he has already given his advice and that it was advisable that the appellant not return to the Ipswich clinic. The appellant also claimed that she had a discussion with Ms Anderson, and that she held the same opinion. However, this claim was contradicted by Ms Anderson's evidence in the proceedings when she stated that she had not been informed of the respondent's request.
- The appellant had also refused to provide the respondent with a copy of a report prepared by Dr Kovacevic in relation to an income protection claim which the appellant had relied on and referred to in the February 2016 meeting and in some email communications.
- Ms Rhea had asked for a copy of the report in an email dated 8 April 2016 (Exhibit 10), but the respondent declined to provide the report because she said that it included a lot of information of a personal nature. A further request made by Dr Carr on 29 April 2016 (Exhibit 22) was also unsuccessful despite Dr Carr telling the appellant that "providing the IME information will assist us further in assessing the options available and what we can reasonably accommodate".
- Without a copy of Dr Kovacevic's report Mr Johnson could not know how Dr Kovacevic arrived at his opinion and what history he relied on. Ms Johnson was not required to act on the report in these circumstances.
- Nor was Ms Johnson required to act on the medical certificates provided by the appellant's general practitioner in circumstances where the general practitioner did not appear to know that the appellant's position at Collingwood Park no longer existed and as a consequence his return to work plan was incapable of implementation.
- In the absence of supporting medical documentation, and in circumstances where the appellant refused to allow a return to work plan to be developed in collaboration with the respondent, Ms Johnson was required to adopt a common sense view to the appellant's claim that a return to the Ipswich clinic was not possible. In this regard it was not unreasonable for her to take into account such factors as the effluxion of time (ten years), the absence from the workplace of the two co-workers, and the nature of the complaint about the supervisor including the appellant's implication in a similar breach, in concluding that with reasonable adjustments and a supportive environment the appellant could be successfully returned to work at Ipswich.
- Evidence in the proceedings was given by the appellant's treating psychiatrist, Dr Mahapatra, and by her treating Psychologist, Ms Elizabeth Anderson. The appellant elected not to call her general practitioner to give evidence.
- The appellant did not attend on Dr Mahapatra until 29 July 2016 following a referral from the appellant's general practitioner on 28 June 2016. Dr Mahapatra said that the appellant was already taking anti-depressant and anti-anxiety medication prior to her attendance on him. He elected to continue the appellant on that medication and he entered a diagnosis of a major depressive disorder with some symptoms of post- traumatic stress disorder.
- Ms Anderson had been treating the appellant since 2013 and had seen the appellant about once a month since 2015. According to the medical records of the Grand Medical Centre (Exhibit 17), during the first half of 2016 the appellant consulted Ms Anderson on 15 March 2016, 19 April 2016, 24 May 2016, 21 June 2016 and 11 July 2016. While Ms Anderson's records of these consultations are brief, they indicate that the appellant thought that, in the return to work process, the respondent was being inflexible or difficult and was trying to push her into resigning.
- The appellant relied on a report prepared by Ms Anderson on 7 March 2017 (Exhibit 16) to communicate Ms Anderson’s opinion that the appellant should not be relocated to the Ipswich clinic. In the report Ms Anderson noted that the appellant was very upset and concerned at the prospect that she would be moved back to the Ipswich clinic to "work alongside the same staff that was causing her the trauma and harassment when she was moved". Ms Anderson opined that it would be inadvisable, and she strongly recommended against, the appellant being asked to work at the Ipswich site. She also opined that the appellant's condition was "solely due to this long term harassment and bullying from her workplace management".
- The relevance of Ms Anderson's report in circumstances where it was not written until 7 March 2017, and where no other report was provided to the respondent in the first half of 2016, is doubted. However, Ms Anderson had expressed similar views to Ms Rhea in a telephone discussion on 3 February 2016. Ms Anderson's contemporaneous record of this discussion (Exhibit 17) is set out below:
Had a call from Tanya from west mortean hospital on 3 feb 2016 in regards to surilas ability to return to work and her mental health. Tanya is a HR consultant. Informed her that Surila should not be returned to her previous site and Ipswich while the other people who caused her the initial trauma still worked there as it would likely cause her too much distress, options would be to transfer her to another position, remove these people, have her work maybe on another floor all together or keep her at Collingwood park site and send out work to her. I informed that she should not be exposed to these previous co workers who were harassing and bullying her as it would distress her and caused her symptoms to return most likely
- Irrespective of when Ms Anderson's opinion was formed, Ms Anderson acknowledged in her evidence that the opinion may have been based on an incomplete history. In this regard, Ms Anderson accepted that she had not been informed, or adequately informed, about a number of changed circumstances relevant to any proposed relocation to Ipswich, including:
- That the Ipswich dental clinic no longer operated from the Ipswich hospital and now operates from new stand-alone premises in Limestone Street, Ipswich;
- That the two co-workers with whom the appellant was in consistent conflict, no longer worked at the Ipswich clinic;
- That the appellant would not be supervised by her former supervisor if she returned to the Ipswich clinic and she would have not have direct contact with her former supervisor;
- That organisational change factors necessitated a relocation of the appellant's position to Ipswich and the appellant's position at Collingwood Park no longer existed.
- The potential for these changed circumstances to modify Ms Anderson's opinion is demonstrated by reference to some of the adjustments that she had mentioned in her consultation note of 3 February 2016 including a suggestion that the two co-workers be removed from the Ipswich site and a suggestion that the arrangements be made for the appellant to work on a floor different to where the co-workers were located. It is clear that Ms Anderson would have been interested to know that the two co-workers were no longer a factor and that steps would be taken to separate the appellant from her former supervisor.
- It is a matter of concern that the appellant did not allow the respondent to engage in a discussion with Ms Anderson about a suitable return to work plan which would have taken into account the changed circumstances known to the employer and any reasonable adjustments advanced by Ms Anderson.
- It open to conclude that the appellant may have been attempting to ensure that the opinions expressed by her general practitioner and Ms Anderson were not able to be influenced or changed by a more complete history. A clear effect of the exclusion of the respondent from the opinion formulation process was that neither the appellant's general practitioner nor Ms Anderson had any reason to deviate from their initial opinion that the appellant should be returned to the Collingwood Park.
- Bickering about the detail of what was said or not said in the February 2016 meetings is not significant in circumstances where the appellant knew with precision soon after these meetings what her employer's position was. Emails sent by the respondent soon after the February 2016 meetings informed the appellant that her Collingwood Park position no longer existed, that there was a vacant permanent position at the Ipswich dental clinic available to facilitate her return to work, and that if she declined to work at the Ipswich clinic, she would need to return to work at some other location if a suitable position was available. If there was any doubt in the appellant's mind about what was said or not said in the February meetings, this doubt was resolved when she received the respondent's emails.
- If the respondent's evidence around operational change is accepted, and a finding is entered to the effect that by February 2016, the appellant's position at Collingwood Park either no longer existed, or would no longer exist in the immediately following few months, then management had no other option but to inform the appellant that her return to work could not be accommodated at Collingwood Park. Necessarily, the return to work discussion then had to focus on a return to work at Ipswich under conditions agreed with the appellant's medical team, or in the alternative the focus would turn to the identification of suitable positions within the oral health district or the wider West Moreton Hospital and Health service which might be able to accommodate the appellant's return to work.
- I accept the respondent's perspective that it was not unreasonable to expect that the appellant would engage, in conjunction with her treating medical team, in a constructive discussion about a supported return to work at the Ipswich clinic. The relocation to new premises, the removal of the co-workers with whom the appellant was in conflict, a commitment to manage any risk of reprisal, and a willingness to make other adjustments were factors justifying a conclusion that a return to work at Ipswich could be successfully managed.
- None of these considerations however resonated with the appellant and she steadfastly refused to consider a return to work at Ipswich. The difficulty for the appellant in these circumstances was that administrative jobs in the oral health district were all located in Ipswich, and she was therefore required to seek a return to work in some other part of the hospital and health service. However these lines of inquiry proved unproductive and in the appellant's own words a "stalemate" was reached. It was in this context that the respondent's attention returned to the viability of a placement at Ipswich and Ms Johnson turned her mind to whether a direction to return to work to Ipswich should be issued.
- A significant difficulty for the appellant remained her failure to provide reliable medical evidence in support of her position, her failure to allow access to her treating medical team, and her failure to adequately respond to or address the factors pointing toward the appropriateness of a return to work at Ipswich including the organisational change factors, the effluxion to time, and the absence of the co-workers.
- There appears to me nothing unreasonable about the way Ms Johnson went about evaluating the competing circumstances and in wanting to fairly balance the relevant operational considerations and the needs of the appellant. Ms Johnson was cognisant of the historical factors, she took into account the changes which mitigated the appellant's concerns about a return to work at Ipswich, and she committed to a supportive work environment and gradual return to work program which was sensitive to the appellant's concerns.
- In my view the appellant has not been able to sustain her claims that the management response to her general practitioner's return to work plan was attended by unreasonable management action or management action taken in an unreasonable way.
- Appeal dismissed.
- Published Case Name:
Singh v Workers' Compensation Regulator
- Shortened Case Name:
Singh v Workers' Compensation Regulator
 QIRC 3
04 Jan 2019