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Dorsett v Workers' Compensation Regulator QIRC 97
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Dorsett v Workers' Compensation Regulator
 QIRC 097
Workers' Compensation Regulator
Appeal against a decision of the Workers' Compensation Regulator
21 June 2019
10 – 14 September 2018
5 December 2018 (written submissions of Respondent)
8 February 2019 (written submissions of Appellant)
22 March 2019 (written submissions in reply of Respondent)
Caloundra Magistrates Court
WORKERS' COMPENSATION – APPEAL AGAINST DECISION – psychological injury arising out of employment – alleged bullying and harassment – inaction on the part of the employer – whether events occurred in the manner described – whether employment major significant contributing factor – Appeal dismissed.
Workers' Compensation and Rehabilitation Act 2003
Misevski v Q-COMP  ICQ 2 (C/2009/29)
Hardy v Simon Blackwood (Workers' Compensation Regulator)  ICQ 027
Mr. T. Nielsen, Counsel, instructed by Ms. T. Hilliard of Maurice Blackburn Lawyers
Mr. S. Gray, Counsel, directly instructed by Ms. C. Godfrey of Workers' Compensation Regulator
Reasons for Decision
- Mr Trent Dorsett appeals a decision of the Workers' Compensation Regulator ("the Respondent") dated 10 May 2017, in which it confirmed an earlier decision of WorkCover to reject Mr Dorsett's assessment for permanent impairment under the Workers Compensation and Rehabilitation Act 2003 ("the Act") in respect of a psychological injury claimed to have developed in the course of his employment as a Residential Care Officer ("RCO") with the Department of Communities, Child Safety and Disability Services Queensland ("the Department").
- The appeal is made under s 550 of the Act.
- Mr Dorsett contends his psychological injury arose out of, or in the course of, his employment with the Department as a result of bullying by Ms Janett McNamara, Direct Service Team Leader, and Ms Vicki La Fave, Team Leader.
- In his amended statement of facts and contentions, Mr Dorsett maintains that during the period April 2015 until December 2015 (inclusive), he was subject to workplace bullying resulting in a diagnosis of depression, anxiety, Post Traumatic Stress Disorder ("PTSD") and dissociative disorder. Moreover, that his employer failed to take any reasonable management action in response to complaints he made in respect of the bullying, or alternatively, that any management action that was taken was not taken in a reasonable way.
- The Respondent does not dispute Mr Dorsett is a worker within the meaning of the Act and that he suffered a personal injury, but maintains the injury has not arisen out of, or in the course, of his employment with the Department; and/or that Mr Dorsett's employment is not the major significant contributing factor to his injury.
- In the event the Commission determines Mr Dorsett has suffered a personal injury, which arose out of, or in the course of his employment and his employment is the major significant contributing factor to his injury, then the Respondent maintains Mr Dorsett's injury has arisen out of, or in the course of, reasonable management action taken in a reasonable way by the Department in connection with his employment.
- In those circumstances, the Respondent maintains Mr Dorsett's injury is withdrawn from being a compensable injury within the meaning of the Act.
- The relevant part of the legislation is set out below:
32 Meaning of injury
- (1)An injury is personal injury arising out of, or in the course of, employment if—
- (a)for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury; or
- (b)for a psychiatric or psychological disorder—the employment is the major significant contributing factor to the injury.
- (5)Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—
- (a)reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
- (b)the worker's expectation or perception of reasonable management action being taken against the worker;
- (c)action by the Regulator or an insurer in connection with the worker's application for compensation.
Examples of actions that may be reasonable management action taken in a reasonable way—
- action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker
- a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment
Issues To Be Determined
- The appeal to the Commission is conducted by way of a hearing de novo. The questions to be answered in the determination of the appeal are:
- (i)Did Mr Dorsett's depression, anxiety, PTSD and dissociative disorder arise out of, or in the course of, his employment? and
- (ii)If Mr Dorsett suffered an injury arising out of, or in the course of, his employment, was his employment with the Department the major significant contributing factor to the injury?
- If the answer to (b) is 'yes', then is the injury not compensable by virtue of it arising out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with his employment?
- For the Appellant:
- Trent Dorsett, Residential Care Worker, Disability Services;
- Lisa McKenzie – partner of Trent Dorsett;
- Dr Dhara Contractor, General Practitioner; and
- Anne Berquier, Psychologist.
- For the Respondent:
- Peter Dalgleish – Administration Officer, Rosters;
- Vicki La Fave – Team Leader;
- Janett McNamara – Direct Service Team Leader;
- Sharon Foley – Residential Care Officer; and
- John Wyss – Manager, Strathpine and Maroochydore Service Centres.
Mr Dorsett's Employment – nature of work undertaken
- At the time he sustained an injury, Mr Dorsett was employed as an RCO with the Department.
- The work arrangements which form the backdrop in the appeal comprise of care being provided by RCOs to older males with intellectual impairments, illness or disabilities within a residential care environment.
- In his role as an RCO, Mr Dorsett was required to provide care and supervision to three male clients at a home on the Queensland Sunshine Coast commonly referred to as Tallow Wood Drive. His duties extended to domestic tasks such as tidying and cleaning the residential care home, as well as caring responsibilities which included ensuring the residents of the house had access to meals, health care, and a clean and safe environment.
- For the period during which he maintains he was bullied, Mr Dorsett's position was predominantly based in Tallow Wood Drive. He commenced the role from on or around March 2015.
- Subject to leave, rostered days off ("RDO") and placements in other residential homes or respite, Mr Dorsett worked according to a rotating roster with a combination of six to eight, 12-hour night and day shifts over the course of a fortnight.
- For example, Mr Dorsett would work a day shift, followed by two consecutive night shifts, followed by three RDOs, returning to work for another day shift. Mr Dorsett would generally work the shift on his own, attending to the men who resided in the home and undertaking a series of duties set down by the relevant supervisor.
- The rotating roster setting out the days and hours of work generally consisted of ten lines (five fortnights). It was not uncommon for Mr Dorsett or other RCOs to have three to four RDOs within a fortnight.
- To satisfy the "hours of work" requirements in the relevant underpinning industrial instrument, Mr Dorsett and his colleagues would work a shorter shift at least once a fortnight. For the period during which Mr Dorsett maintains he was bullied, he worked an estimated combination of 101 day and night shifts over a period of approximately nine months (252 days) from 1 March 2015 until 12 December 2015.
- Mr Dorsett, along with his fellow residential care colleagues, would also be rostered to backfill shifts at Tallow Wood Drive, respite or in other residential care homes to cover annual leave, training and absences by other staff.
- From time to time, Mr Dorsett might also undertake a role in a different location to the Tallow Wood Drive. For example, in June 2015 Mr Dorsett undertook a resource officer role for approximately two weeks in Maroochydore.
- Other permanent RCOs who worked at the Tallow Wood Drive with Mr Dorsett included:
- Sharon Foley;
- Karen Arnold;
- Rob Williamson;
- Tony Yarrow; and
- Yvonne Hume.
- Ms Janet McNamara was a Team Leader for Tallow Wood Drive and Mr Dorsett's immediate supervisor. Her role involved mentoring and providing guidance to RCOs in the performance of their duties. Ms McNamara would move between Tallow Wood Drive and other residential care homes for which she was responsible. At times, she worked from the Maroochydore head office when warranted.
- Ms McNamara told the Commission she would visit Tallow Wood Drive about once a week, depending on what the needs of the clients were within the house. She provided the Commission examples of tasks she undertook which included reviewing the Housebook (record of events and activities at the house), developing plans for the future needs of the house and its residents, ensuring designated tasks were undertaken by RCOs and supporting the residents with medical appointments and health plans.
- Analysis undertaken by the Respondent of the Housebook provided to the Commission during the proceedings in which both RCOs and Ms McNamara were required to record their attendance at the house indicated that, during the period 1 March 2015 until 12 December 2015, there were approximately eight occasions out of an estimated 252 days where Ms McNamara attended Tallow Wood Drive and was possibly present at the same time Mr Dorsett was rostered on for a day shift or a team meeting.
- At the relevant time, Ms McNamara reported to Ms La Fave, who worked predominantly at the Department's regional head offices located in Maroochydore and Strathpine. Ms La Fave is a Service Manager for Disability Services.
- Although Ms McNamara was the designated Team Leader for the RCOs at Tallow Wood Drive, Ms La Fave was responsible for human resource related matters associated with Tallow Wood Drive staff. For example, if it was necessary to initiate or resolve a disciplinary matter or sign off on an upcoming final roster, Ms La Fave appears to have been the main decision-maker in respect of such matters for the RCOs at Tallow Wood Drive.
- Mr Dorsett told the Commission that Ms La Fave did not attend Tallow Wood Drive very often. Ms La Fave said she made a habit of giving the houses a call on a regular basis, but did not visit Tallow Wood Drive very often, other than when she was with Ms McNamara. When she called, she would speak to one of the residents or a staff member depending on who would pick up the phone.
- Ms La Fave reported to Mr John Wyss, Manager of the Strathpine and Maroochydore Service Centres.
- Communication between Mr Dorsett, Ms McNamara, Ms La Fave and his fellow RCOs and supervisors was predominantly by phone, other than at shift handover, team planning days or when Team Leaders or supervisors attended the residential home. There was no computer installed at the house. Information or documentation required by the RCOs or residents was delivered by mail and also via a fax machine located within an office at Tallow Wood Drive.
- On each shift RCOs were also required to fill in relevant details about their shift in the Housebook, which included headings such as 'Staff On Duty', 'Cash Balances', 'Appointments/Activities/Visitors', 'Significant Behaviours/Incidents', and 'Verbal Communication'.
The Medical Evidence
- In a report dated 24 August 2016, Dr Dhara Contractor, a GP at the Cooroy Family Practice, described Mr Dorsett's injury in the following terms:
The objective clinical findings and diagnosis for Mr Trent Dorsett…are as: Generalised anxiety disorder, adjustment disorder, insomnia, ?PSTD and panic attacks.
As per notes in patient file and my consults since april this year, his diagnosis with PTSD and dissociativity seems consistent with the stated causes.
- Mr Dorsett submits the date his symptoms commenced was on or around 15 May 2015, with the date he first met with a medical practitioner in respect of the claimed injury being nominated as 13 July 2015.
- According to medical records obtained from the Cooroy Family Practice, Mr Dorsett attended an appointment on Thursday, 9 July 2015 with Dr Iqtidar Ali Bangashy. The record for the appointment includes:
1 week General: Fevers, Lethargy
CVS: No chest pain.
Respiratory: No dyspnea. Cough. Greenish Sputum.
Reason for contact:
RTI (Respiratory Tract Infection)
- Following this appointment, Mr Dorsett was asked to return in four days for a follow-up and issued with a medical certificate. During the proceedings Mr Dorsett told the Commission he had been feeling stressed and unable to sleep in the lead up to the appointment due to the pressures of work.
- Mr Dorsett attended the follow up appointment with Dr Bangashy on Monday, 13 July 2015. The record for the appointment includes:
Feeling slightly better
Still have coughing
Phlegm clearing up
Day 4 of Abx today
- In addition to Augmentin Duo Forte, Mr Dorsett was also prescribed Temazapam during the appointment to address some sleeping difficulties he was experiencing.
- Mr Dorsett told the Commission that at the time of the appointment he linked his sleeping challenges to night shift work, because he did not want to admit to anyone that he was having problems at work.
- According to the final rosters for this period, along with an analysis of rosters undertaken and submitted by the Respondent, Mr Dorsett was rostered at Tallow Wood Drive in June 2015 for a maximum of three shifts in the latter part of the month in circumstances where he was undertaking a relieving position elsewhere.
- An analysis of attendance for Mr Dorsett in the month of July 2015 has him attending work for three shifts from 2 July to 4 July 2015 and then off on a combination of RDOs and sick leave through to 16 July 2015.
- Mr Dorsett did not attend any further appointments at the Cooroy Family practice until 29 September 2015. The reason for the visit is noted as "Sinusitis". Under the heading 'Reason for Contact', Dr Bangash has noted "URTI – Viral, Viral Infection". Mr Dorsett was provided with prescriptions for both Augmentin Forte and Temazepam during the appointment.
- On 10 November 2015, Mr Dorsett again attended the Cooroy Family Practice. The records of the appointment note:
came in to discuss about insomnia
unable to sleep during day time
tried temazepam but not helping much
gets 1-2 hrs sleep with it and then wakes up
Reason for contact:
Insomnia – shift-work-related
- On 7 December 2015, the Department forwarded correspondence to Mr Dorsett by registered post inviting him to attend a meeting with Mr Wyss and Ms La Fave on 15 December 2015.
- Although it is not entirely clear on the evidence exactly when the registered letter was retrieved from the post office, Mr Dorsett told the Commission he only became aware of the upcoming meeting during a phone call with Ms La Fave on the afternoon of 11 December 2015. Ms La Fave's evidence is that she contacted Mr Dorsett by phone on that day to check to see if he was aware of the upcoming meeting.
- Mr Dorsett left work early on the same day and at approximately 4.00pm on 11 December 2015, attended an appointment with Dr Kenyon-David at the Cooroy Family Practice. At the conclusion of the appointment, Dr Kenyon-David provided Mr Dorsett with a standard medical certificate and in his records, noted:
... major dtress (sic) issues at work (disability services) works 12 hr shifts limited time off so needs cert will probably need to change jobs but usually enjoys it.
- Dr Kenyon-David was not called to give evidence about what transpired during the 11 December appointment, however Mr Dorsett's evidence was that he attended upon the doctor because he was feeling stressed and anxious. According to Mr Dorsett he told Dr Kenyon-David this was because of "work issues" and he "was feeling bullied at work".
- It is not clear whether Mr Dorsett mentioned to Dr Kenyon-David in the 11 December appointment that he had been contacted by Ms La Fave earlier in the day and advised he had been sent correspondence requesting his attendance at a meeting on 17 December. In any event, I am satisfied that Mr Dorsett was aware of the request to attend the meeting with Ms La Fave and Mr Wyss before he attended the medical appointment.
- According to the practice records, Mr Dorsett continued to obtain medical certificates in support of his absence from work after 11 December 2015. On 7 January 2016 Mr Dorsett was formally referred to a psychologist, Ms Anne Berquier.
- In a report dated 24 February 2016, Ms Berquier noted:
Trent reports he was consistently bullied and assaulted on several occasions by other staff at his workplace for at least the past year. He fulfils the DSM5 criterial for Post-Traumatic Stress Disorder
- In a further report dated 2 August 2016, Ms Berquier noted:
Trent reports that he was consistently bullied and assaulted on several occasions by other staff at his workplace for at least one year…He states that the bullying from his manager and team leader commenced in April 2015 and continued until he ceased working. He reports that he was experiencing severe anxiety, depression, sleep disturbances and irritability during this time and that the symptoms gradually worsened until he was unable to go back to work. He fulfills the DSM5 criteria for Post-Traumatic Stress Disorder. His symptoms include active avoidance of situations associated with his workplace, extreme anxiety and frequent panic attacks, hypervigilance (especially in crowded situations) flashbacks, sleep disturbances and suicidal ideation. Trent also experiences frequent periods of total dissociation associated with stress. The periods of association can last from hours to days…. Trent’s symptoms are consistent with a reaction to extreme and sustained bullying.
- Under the heading of 'History and Background Information' in a further report prepared by Ms Berquier dated 30 June 2018, the psychologist noted Mr Dorsett had reported:
- ceasing work due to a 'nervous breakdown' which he stated was associated with ongoing bullying at his workplace;
- being consistently bullied and physically assaulted on several occasions by other staff at his workplace for at least a year;
- experiencing severe anxiety, depression, sleep disturbances (insomnia and nocturnal teeth grinding) …the symptoms worsened until he was unable to go back to work;
- a co-worker throwing a plate of hot food on him, verbally abusing him and spitting on him;
- multiple incidents of verbal abuse and passive aggressive behavior towards him;
- advising management of the incidents, but that 'nothing was done' to address the problems; and
- following his complaints, he stated that the behavior of some of his co-workers worsened and that his supervisor began to 'micro-manage' his work.
- In the same report, Ms Berquier reported a diagnosis of PTSD.
- Mr Dorsett's evidence during the proceedings did include any reference to being spat on by a coworker or being physically abused. That aside, Ms Berquier maintained that even if that particular allegation was not correct, she stood by her opinion in circumstances where:
… there were multiple incidents of verbal abuse, micromanaging, having rosters changed, keys going missing, being sort of ignored or having his opinion consistently dismissed in meetings, being ridiculed…by his manager and his team leader.
- Ms Berquier confirmed Mr Dorsett had described being abused on multiple occasions by a coworker, his Team Leader and his manager. Her evidence was that Mr Dorsett told her he reported the behaviour to management, but that nothing was done to address the conduct. Her impression was that the conduct of his coworkers and manager worsened after he complained.
- Ms Berquier confirmed that the bullying behavior, the failure of management to act and the worsening conduct of his coworkers and manager as reported to her by Mr Dorsett were all important considerations in her diagnosis of PTSD. She maintained that if the Commission were to find Mr Dorsett was not subject to the treatment as described by him, Mr Dorsett would still fulfill the diagnostic criteria of PTSD "but then there would be a huge question mark about why he had post-traumatic stress disorder".
The Events (Stressors)
- Mr Dorsett's case is that he sustained his injury over a period of time due to repeated bullying and harassment by Ms McNamara and Ms La Fave from April 2015 until December 2015. Mr Dorsett also maintains the Department failed to respond to complaints he made in respect of their conduct.
- In his 'Form 132A Application for assessment of permanent impairment', the conduct complained of includes:
The worker was subjected to repeated and deliberate workplace harassment at the hands of his Team Leader (Janet McNamara) and his Service Manager (Vicky La Fave). The claimant was verbally bullied, verbally abused, wrongfully accused of being a liar, and belittled in front of the co-workers. The conduct complained of occurred on multiple occasions between April 2015 and December 2015. At various times and on multiple occasions the claimant:
- Was wrongly labelled a liar, including in the presence of work colleagues;
- Was called stupid, including in the presence of work colleagues;
- Was told "you are a fucking liar" and "it's game on";
- Was told to "harden the fuck up" in the presence of work colleagues in a team meeting;
- Was told "I have brought bigger men than you to their knees";
- Had the following statement directed to him at a team meeting – "anyone with a brain or common sense or living in the real world please put your hand up";
- Had his work roster continually changed without notice;
- Was referred to as lazy, and not a team player to his work colleagues;
- Complained on several occasions to his area manager John Weiss, yet nothing was done.
- Mr Dorsett maintains the estimated date his symptoms commenced was on or around 15 May 2015, with the date he first met with a medical practitioner in respect of the claimed injury being nominated as 13 July 2015.
- An amended statement of facts and contentions filed by Mr Dorsett sets out the events or circumstances leading to the onset of his injury under the following headings:
- Missed team planning day
- Roster Changes
- Team meetings; and
- Denial of natural justice regarding complaints by Ms McNamara.
- In respect of the denial of natural justice stressor, Mr Dorsett (in his written submissions filed 8 February 2019) acknowledged the Commission does not need to deal with this stressor or event in circumstances where "it is conceded there is no evidence that at the relevant times the Appellant was aware of any breach of natural justice and therefore it could not be causative of his injury".
Roster Changes – Limited Notice
- In his amended statement of facts and contentions, Mr Dorsett submits his roster was changed with very little forewarning and that Ms McNamara and Ms La Fave were responsible for his work roster.
- Although Mr Dorsett contends he was able to accommodate a number of last minute changes, on the occasions where he made reference to having prior personal commitments, he maintains that Ms McNamara said words to the effect of "who fucking cares".
- During the proceedings, Mr Dorsett's evidence did not elaborate on, nor extend to the comments allegedly made by Ms McNamara as referenced in his amended statement of facts and contentions.
- Instead, he told the Commission he would receive a phone call from another employee in the house enquiring as to why he was not present for his shift, in circumstances where he was rostered on that particular day. He also moved away from his original position that Ms McNamara could influence his roster.
- His evidence was that he raised concerns about last-minute roster changes with Ms La Fave, rather than Ms McNamara in May 2015, right up to October 2015. He described how he would ask Ms La Fave why his roster had changed and why he was not informed. He would then be told that it was his responsibility to call the house and check his roster.
- Mr Dalgleish, a long-term, experienced rostering officer within the Department, gave evidence about the procedures and processes he followed when rostering staff, including Mr Dorsett. During the proceedings, the Commission was also provided with a copy of the Department's 'Shift Rostered Procedures and Practices' manual.
- Mr Dalgleish told the Commission that he, Ms La Fave and other representatives from the Department would regularly convene to discuss rosters, leave requirements and other related matters with a view to finalising rosters for the residential houses they oversaw. According to Mr Dalgleish, the roster planning occurred within a cycle whereby discussions would commence around six weeks ahead of the finalisation of the final roster.
- Annual leave, sick or other leave aside, full-time RCOs, including Mr Dorsett, were required to work 80 hours per fortnight, which generally consisted of six 12-hour shifts and one 8-hour shift. As part of the rostering process, Mr Dalgleish was also required to comply with the relevant underpinning industrial instrument to ensure RCOs received adequate days off, along with the requisite breaks between shifts.
- As best I understand it, the team at Tallow Wood Drive worked on a rotating roster whereby they were provided with anywhere between four and six weeks' notice of their indicative upcoming roster cycle.
- According to Mr Dalgleish, he would prepare a roster preference sheet which would then be faxed to various residential houses, including Tallow Wood Drive, some weeks before the final roster was formalised.
- Employees would be requested to nominate (on roster preference forms sent to the house) any proposed changes (including upcoming personal commitments or other requested absences) and then return the sheet to Mr Dalgleish. He would then meet with Ms La Fave and other representatives to finalise (among others) the Tallow Wood Drive house master roster, where the preferences expressed by RCOs on the returned form, as well as leave requests were considered.
- Staff were generally required to sign the roster preference form but, in Mr Dorsett's case, Mr Dalgleish's evidence was that it was uncommon for Mr Dorsett to sign the form.
- The final roster would then be faxed to Tallow Wood Drive by Mr Dalgleish, at least five days ahead of the commencement of the fortnight in which the first shift commenced. Another hard copy would also be mailed to Tallow Wood Drive.
- Mr Dalgleish's evidence was that staff generally had a good understanding of their upcoming shifts many weeks in advance. Moreover, changing shifts at the last minute happened "very infrequently". He explained that a good reason would need to have been provided by a supervisor to change a shift, given the Department's robust approach to the preparation of rosters and the associated rules.
- During cross-examination, Mr Dalgleish explained to the Commission that RCOs would also be rostered (during a roster cycle) in the 'spare' line or the 'back fill leave' line. The purpose of this line was to make provision for a staff member to be rostered to cover absences of other staff taking annual leave either in their designated house or in another house.
- He explained that it was not always the case that there would be available shifts for staff rostered on the spare line in the house they would normally work, which would occasionally result in an employee being rostered in another house. Although employees would generally have knowledge of upcoming rostered days and times, it seems possible they may not be aware of where they might be required to work until closer to the time.
- Ms Sharon Foley, another RCO working at Tallow Wood Drive, explained that once the roster preference sheet was completed and sent back to Mr Dalgleish, a final roster would then be faxed to the house which reflected the upcoming shifts for the coming fortnight. The final roster would then be placed in a folder in an office desk and up on the inside of the door in an office located at Tallow Wood Drive.
- Although a final roster would be faxed to the house and placed up on a board, historically, at times, there does appear to have been some reliance on the roster preference forms that were sent out prior to the finalisation of the master roster by at least two of the RCOs.
- That aside, Ms Foley told the Commission she would take steps to obtain a copy of the master roster to inform herself of which shifts she was required to work in the event the final roster differed from the roster preference sheet. Alternatively, she would contact an RCO at the house or call Mr Dalgleish to confirm her upcoming shifts.
- Under cross-examination, Mr Dorsett confirmed a roster would be placed up on a board but later, during re-examination, seemed to suggest he relied on the earlier roster preference document as a guide for his upcoming shifts rather than the master roster.
- In any event, it seems that at the very least, Mr Dorsett would have been able to access a roster preference document reflecting an indicative roster four to six weeks prior to the commencement of any of the shifts set out in the draft.
- I accept, having regard to Mr Dalgleish's evidence that a master roster would then be faxed to Tallow Wood Drive five days before the commencement of the first shift for the relevant fortnight. In the event an RCO was unable to view the master roster at the house due to prior leave or other absences, it was open to an employee to contact another RCO at the house or to call Mr Dalgleish to enquire about upcoming shifts.
- In respect of the last minute changes to his roster, Mr Dorsett told the Commission things became quite bad around April/May 2015 and September/October 2015. He maintained his roster was changed monthly and that he had regularly raised his concerns with Ms La Fave. Mr Dorsett told the Commission Ms La Fave's response had been to advise him it was his responsibility to ring the house and check the roster.
- Ms La Fave confirmed her involvement with the rosters extended to attending the meetings at head office to discuss staff replacement and the finalisation of the master rosters. She was quite clear that she did not have any discussions with Mr Dorsett where he would ring and complain about his roster being changed at short notice.
- During cross-examination, Mr Dorsett was taken through each of the roster preference sheets and the final rosters for the period from 1 April 2015 through to 11 December 2015. Other than where Mr Dorsett was called in to cover a shift where a colleague was unwell, he was unable to identify or point to regular instances where his roster was changed at the last minute by either Ms La Fave or Ms McNamara.
- Despite this, during the proceedings Mr Dorsett continued to maintain his position that his roster would be changed at the last minute and that he had raised concerns with Ms La Fave.
- The difficulty I have with Mr Dorsett's position is that there is limited evidence to support the claim that his rosters were changed at all, let alone with little forewarning.
- For example, having reviewed the final rosters provided to the Commission, along with the analysis of the rosters provided by the Respondent, I was only able to identify two occasions (13 May 2015 and 30 September 2015) in the period 1 March 2015 to 12 December 2015 where Mr Dorsett was called into work, possibly at late notice, to cover for Karen Arnold, another RCO, who rang in sick on both occasions. To that extent, Mr Dorsett acknowledged that rosters can change when someone rings in sick and another employee is required to cover the shift.
- On a small number of other occasions, it is evident that the final roster differed from the earlier roster preference sheet, in that, for example, an RDO was swapped to a day shift or an eight-hour shift was extended to a twelve-hour shift. As far as I can tell, these changes were reflected in the final rosters sent to the house five days before the commencement of the roster.
- For the most part, I am satisfied Mr Dorsett would have been aware of such changes given he was rostered on other shifts at the house in or around the same period and/or because it was open to Mr Dorsett to contact the house and enquire about his roster, in the event it differed between the roster preference sheet and the posted final roster. For example, Ms Foley was able to recall Mr Dorsett contacting the house to enquire about his upcoming shifts.
- I was also unable to identify any materials during the proceedings which supported the stressor described in Mr Dorsett's amended statement of facts and contentions, whereby he submits Ms McNamara said words to the effect of "who fucking cares" in response to his raising concerns about his prior personal commitments.
- If anything, during the proceedings Mr Dorsett moved his focus away from Ms McNamara (in respect of her alleged involvement in the last minute changes to his roster) and instead said he raised his concerns with Ms La Fave.
- Ms La Fave's evidence was that she had not received any calls where Mr Dorsett complained about last minute changes to his roster.
- Her account, in my view, seems entirely credible in circumstances where:
- I have only been able to identify a very small number of changes to Mr Dorsett's roster for the period 1 March 2015 to 12 December 2015;
- the processes followed by Mr Dalgleish and others to develop and maintain the final roster were quite rigorous; and
- it is clear it would have been difficult for Ms La Fave or Ms McNamara to regularly change Mr Dorsett's roster at the last minute, without a good reason and without others, including Mr Dalgliesh, becoming aware of it.
- As such, I am not persuaded that Mr Dorsett contacted Ms La Fave and regularly complained about last minute changes to his roster, or indeed that the changes occurred in the manner described in his amended statement of facts and contentions. Likewise, there is no evidence before the Commission that Ms McNamara said words to the effect of "who fucking cares" in conversations with Mr Dorsett about his rosters.
Missed Team Planning Day
- Mr Dorsett maintains he was chastised and reprimanded by Ms La Fave over the phone for not attending a team planning day, which he says was brought forward to a date when he was on annual leave and without his knowledge.
- Ms McNamara's evidence was that the team planning dates were generally set down at the beginning of the year by management and it was not her job to change the dates.
- During the proceedings, Mr Dorsett confirmed the team planning day occurred once or twice a year and was generally attended by the Team Leader and all other employees who worked at Tallow Wood Drive.
- He acknowledged that for this to happen, all staff who ordinarily worked in the house would have to be rostered off on a particular day in order to attend. Moreover, that it would be a challenge to change the meeting date at the last minute, due the way staff rosters would be impacted. Likewise, Ms Foley confirmed that the manner in which staff were rostered would have made it difficult to change the date at short notice.
- Mr Dorsett was able to recall that Ms McNamara had asked him to place an A4 sheet up on a board within Tallow Wood Drive listing the date of the team planning day and requesting staff write down their ideas as to what should be placed on the meeting agenda.
- Mr Dorsett's evidence during the proceedings was that he received a telephone call from Ms La Fave towards the end of his annual leave. He recalled her asking, "why weren't you here?", being a reference to the team planning day. He recalled advising her that he thought the team meeting was in another week, on a different day. According to Mr Dorsett, Ms La Fave responded "no, not true. Jannette told me you knew the date".
- Mr Dorsett's partner, Ms Lisa McKenzie, told the Commission she remembered him receiving a phone call, but told the Commission she could not really recall the words he said. She thought the call may have been made on a Monday or a Tuesday, but was not entirely sure. Her evidence was that Mr Dorsett told her the call was in relation to a meeting he missed while on holidays.
- On the materials provided to the Commission, the team planning day that is the subject of this stressor was held on Wednesday, 22 April 2015. On the analysis provided to the Commission, 22 April 2015 was the final day in a twenty-one day block of combined recreation leave and RDOs taken by Mr Dorsett during the month of April 2015. According to the rosters provided to the Commission, Mr Dorsett returned to work on 23 April 2015.
- I accept Mr Dorsett missed the planning day because he was on recreation leave. Having regard to the evidence from Mr Dalgleish about rostering and the need to plan well in advance given the process undertaken for developing a roster, I accept the dates and times for team planning days were set down and communicated to the employees at Tallow Wood Drive well in advance. There are no materials before the Commission that indicate the meeting date was changed or brought forward while Mr Dorsett was on annual leave and without his knowledge.
- I also accept it would have been difficult for Ms La Fave or Ms McNamara to change the date or bring it forward in circumstances where the rosters were planned well in advance and where other casual staff or RCOs from other locations had to be specially rostered to fill shifts while the Tallow Wood Drive staff attended their planning days.
- This approach is also consistent with Mr Dorsett's evidence that he was requested ahead of the meeting to place up a form for RCOs to record suggestions about content for the meeting agenda, as well as Ms McNamara's evidence that the dates for the planning meeting were set down at the beginning of the year by management.
- As such, I am unable to accept the planning day was brought forward without Mr Dorsett's knowledge and in the manner described by him.
- Although it is plausible that at some point Ms La Fave, another staff member or resident may have enquired about Mr Dorsett's absence in circumstances where some importance was attached to the planning days, I am not persuaded, on the materials before the Commission, that Mr Dorsett was chastised and/or reprimanded by Ms La Fave over the phone for not attending the team planning day in the manner set out in the amended statement of facts and contentions.
- Although not clear as to dates and times, in his amended statement of facts and contentions, Mr Dorsett maintains he was accused of, or reprimanded by, Ms McNamara and Ms La Fave for:
- the unkept state of the premises, including kitchen and bathroom/toilet;
- the unkept state of the bedrooms of the residents;
- irregular blood sugar levels ("BSLs") of one of the residents, John ("Mr John");
- failing to monitor and adhere to the dietary needs of the residents; and
- permitting the residents to leave the premises at times when they were not permitted to do so.
Unkept state of the premises, including kitchen, bathroom/toilet and bedrooms
- Mr Dorsett told the Commission he recalled both Ms McNamara and Ms La Fave attending Tallow Wood Drive on the morning when he first returned from annual leave. He thought they attended the house around 8.00am after he took over from Mr Williamson, an RCO. His evidence was that they told him both bathrooms were messy, the house was disorganised and that Mr John's room was a mess.
- According to Mr Dorsett, he suggested they look at the roster and speak to whomever was on duty before him, to which both ladies replied, "just own it and just admit it – get on with it". Mr Dorsett maintains he was told to lift his game. He said he experienced similar, ongoing interactions with Ms McNamara and Ms La Fave after he returned from holidays, but more so with Ms McNamara.
- Ms McNamara did not remember attending the house on 23 April 2015, but explained that if she and Ms La Fave attended, it would have been recorded in the Housebook. That is, there is a space in the daily Housebook record for visitors to record their attendance and it was generally Ms McNamara's practice to make a note of her attendance.
- The Housebook provided to the Commission contains no record of Ms La Fave or Ms McNamara attending the house either separately or together on or around 23 April 2015. The Housebook record for the day shift completed by Mr Dorsett for 23 April 2015 notes:
John out of sorts this morning…John's Bed was an absolute mess – Wardrobe cleaned out, Clothes Folded, Whole Room and Bathroom Done.
- Ms McNamara denied attending the house with Ms La Fave and berating Mr Dorsett for its untidy state. Likewise, although Ms La Fave could recall an occasion on which she had attended the house when it was untidy (e.g. she recalled a chair being turned over, food left out in the kitchen and a pool of urine in the corner of the loungeroom), she said that Mr Dorsett was not at the house on that occasion.
- Ms La Fave also said it was unlikely that she would have been at the house at 8.00am given she had to drive from Strathpine. She explained the houses and the RCOs experienced a busy period in the morning while clients were having breakfast and getting ready and that she preferred to time her visits to the residential houses later in the day, once things had settled down.
- She also denied Mr Dorsett's claims she would attend the house and berate him, or accuse him of leaving the house untidy, noting that she spoke to staff in a polite and professional manner. Ms Arnold was also of the view that Ms La Fave conducted herself professionally when engaging with staff.
- In this regard, I note the team planning meeting minutes for Tallow Wood Drive dated 12 September 2015 contain a record of a discussion around daily household routines and concerns raised about the environment smelling and found to be generally unclean. The outcome or team decision in respect of this issue is noted as follows:
All staff are asked to ensure they refer to daily household schedule and task requirements while on shift. Janett has offered to assist – to be contacted to arrange times and dates. Janett has also offered to clean [individual's name] room on Tuesdays when he is completing the shopping or away from the environment – staff with Janett.
Irregular Blood Sugar Levels
- Mr Dorsett claims the first conversation he had with Ms McNamara about Mr John's BSLs was in April 2015. At the time, he said she indicated she was not happy.
- Mr Dorsett's evidence is that at the time he endeavored to explain to Ms McNamara that he was powerless to control Mr John's higher BSLs in circumstances where Mr John may have accessed food at other times when he was not on shift or not present, but that Ms McNamara did not believe him and said something like, "just fess up to it, own it" and "step up and stop being a liar". He could not recall if she swore at him on this occasion.
- Mr Dorsett maintains that his interaction with Ms McNamara in respect of Mr John's BSLs increased to the point where they were engaging on this issue every fortnight and then whenever he was on day shift. He said the interactions increased even more after September 2015. He recalled being spoken to in a loud and aggressive manner.
- He described how Ms McNamara would become quite angry during the discussions, telling him that he "had to own it and man up". At some point he thought she called him "a fucking liar" and that he had to pull his own weight in the team.
- In other evidence given to the Commission, Mr Dorsett later claimed that he did not have a lot of interaction with Ms McNamara after September 2015. In terms of how she conducted herself in the house when she visited during this period, he said, "she would just do stuff and just either watch quietly or – yeah – just sit there very quiet. It was quite off".
- It is not in contention that Mr John has Type 2 diabetes requiring insulin. Mr John's diabetes and the challenges that accompany the disease were complicated even further due to a propensity on his part to hoard food in his clothing, his bedroom and other areas of Tallow Wood Drive, such as the chicken pen.
- To assist Mr John to better manage his condition, Ms McNamara and Ms La Fave worked with Mr John's dietician and doctor to develop a Diabetes Complex Health Support Plan which, amongst other things, provided guidance to RCOs on reading and assessing Mr John's daily BSLs, administering insulin and maintaining a healthy diet for Mr John.
- Mr John's diabetes support plan required RCOs, among other things, to assist with checking his BSLs and administer insulin twice a day. For example, ten minutes prior to breakfast and dinner, RCOs would help Mr John to check his BSLs. Mr John was also assisted by RCOs to give himself insulin during the changeover period between the 12-hour shifts.
- Mr John's Diabetes Support Plan required his blood sugar to consistently fall between the levels of 4 and 10. To achieve this objective, RCOs were directed to review dietary guidelines and other information affixed to the pantry door and kept in the household folder. RCOs were also requested to remain near Mr John when he was eating and/or in the kitchen areas to address his challenges with hoarding and eating extra food that could in turn push up his BSLs to unacceptable levels. Staff were also provided guidance in respect of managing Mr John's consumption of alcohol, sugary drinks and other foods high in carbohydrates.
- Mr John's Diabetes Support Plan also provided for additional intermittent BSL tests to be taken if required. RCOs were requested to record the outcome in 'Records of Progress', a BSL recording sheet maintained in a blue folder on top of the filing cabinet.
- Ms Foley told the Commission that she had noticed on occasion that Mr John appeared to be exhibiting symptoms of high BSLs when she came on shift. To better understand what was happening with Mr John's BSLs and why he was exhibiting certain symptoms, she described how she would scroll back through the BSL history on the machine to get a better understanding of what was happening with his levels in the period before she came on shift.
- According to Ms Foley, as she was going through the history she observed that when Mr Dorsett was on duty, there was often a high reading first and then there was a low reading, but that Mr Dorsett would only record the low reading.
- As best I understand it, Ms Foley appeared to hold concerns about the accuracy of the readings Mr Dorsett was recording on the BSL recording sheet. She highlighted that it was important the readings were accurate given the seriousness of Mr John's diabetes condition and the health consequences for Mr John if the levels were not monitored and managed.
- Ms Foley explained that she raised her concerns about the accuracy of the readings with Ms McNamara. She also created a post-it-note so that all the RCOs in the house were aware the machine captured a history of readings, including time and date. She said she did this so that all the RCOs were aware that they could go back and check the levels, particularly in circumstances where they might have missed a reading because things were busy or they had forgotten to record it at the time.
- It is not entirely clear exactly when Ms Foley raised her concerns about the accuracy of the BSL readings with Ms McNamara. In an incident report dated 8 October 2015, Ms McNamara noted:
On Monday the 5th of October I was contacted by Sharon Foley asking me to call in as she had some work concerns… The issues were around staff member Trent Dorsett not following the client support plans and also household duties.
5th October 2015 On reviewing John's BSL recorded levels from both the entries made by staff on duty and also entries logged in the BSL machine it has been once again found that the records made by Trent have not been accurate to the machine reading, this has been brought to management’s attention not so long ago …
John has been seeing Rene Hilton as organized by his GP as his mml levels are a lot higher than normal. Rene has advised all staff that John should be supported to keep his levels within the 6 to 8 range or he may need a bigger amount of insulin which she would rather avoid for John's sake.
- However, maintaining Mr John's BSLs within an acceptable range was a priority for the Department well before October 2015. For example, in April 2015 Diabetic Training was included on the agenda for the team planning day. Ms McNamara was allocated the task of monitoring Mr John's BSLs, the results of which would be shared and discussed with his dietician at the next appointment. RCOs were also requested to document all fluid and food given to Mr John throughout the day.
- The May 2015 staff planning day minutes contained a note suggesting Mr John's BSLs were looking a lot better. The September 2015 staff planning day records included further references to Mr John's diabetes:
30th June 2015
Dietitian still concerned with Johns levels. Need to be below 10 at all times. Follow up appointment made – Janett to attend with all documentation.
23rd September 2015 Daily monitoring to be completed by Johns (sic) coordinator, DSTL and all staff.
- Multiple references to Mr John and issues associated with his diabetes such as diet, BSLs, appropriate levels of alcohol consumption and hoarding food are also contained in the minutes for the October team planning meeting fay.
- Mr Dorsett maintains that he took steps to address any concerns held by his supervisors in respect of Mr John's diabetes and BSL by cleaning out his room, ensuring the fridge and pantry were locked and keeping an eye out for food around the place. He maintained a record of such activities in the daily Housebook.
- Likewise, it is clear the other RCOs also maintained a record of similar activities they undertook in respect of Mr John when they were on duty. For example, an analysis provided to the Commission of the Housebook by the Respondent indicates RCOs made a note of either removing food or undertaking cleaning of some sort in the Housebook on 42 other occasions between 4 March 2015 and 29 November 2015.
Spoken to Inappropriately
- Mr Dorsett, in his amended statement of facts and contentions, maintains that when he defended his position and denied any wrong doing in respect of those events addressed above where he contends he was 'blamed', he was told amongst other things by Ms McNamara and/or Ms La Fave:
- harden the fuck up;
- fess up and tell the truth;
- stop being a soft cock;
- stop lying – you are a liar;
- just own up to it mate;
- take responsibility and stop blaming others;
- this is far from over;
- I'm sick of talking about you and your shit;
- I'm going to own you;
- I'm going to break you;
- you will respect my "authoriton"; and
- I have brought bigger men than you to their knees.
- On some occasions, Mr Dorsett also maintains that these comments were made in the presence of one or more of the residents.
- At times during the proceedings Mr Dorsett struggled to furnish the Commission with much detail to tie individual occasions to the specific comments that were made and, more specifically, whether it was Ms McNamara or Ms La Fave who made the comments.
- In the end, though, it was Ms McNamara to whom he attributed many of the comments.
- For example, in his evidence to the Commission, he referred to an incident that occurred in May 2015 relating to the purchase of a battery for a leaf blower that one of the residents at Tallow Wood Drive enjoyed using outside in the backyard or in the street.
- According to Mr Dorsett, he went to Bunnings to obtain a replacement, but he ultimately determined it was less expensive to buy a new blower rather than a replacement battery.
- In a later discussion about the blower with Ms McNamara, he maintains she said he did not have authority to buy the new blower and, in the same conversation, said "I just had to harden up, you know, to fess up, and not put blame on others and I had to respect her authoriton". At one point in the conversation about the blower and how buying a new one would be less expensive than a battery, Mr Dorsett maintains Ms McNamara said "I don't believe you. You are a liar".
- Mr Dorsett was unable to provide the Commission the context within which Ms McNamara said the words, "You will respect my authoriton". In her evidence to the Commission, Ms McNamara said she did not use the word "authoriton" and had never heard it. Her evidence was that she spoke to everyone, including Mr Dorsett, in a calm and professional manner. She maintained she was not hostile and also told the Commission she had never heard Ms La Fave speaking to Mr Dorsett in the manner described in his amended statement of facts and contentions.
- Likewise, Ms La Fave said she had not spoken to Mr Dorsett in such a manner. In her evidence, she stated that the making of such comments would breach the Code of Conduct and that, had Ms McNamara spoken in the manner Mr Dorsett contends, she would have discussed the Code of Conduct with her. Ms Foley told the Commission she observed Ms La Fave conducting herself in a professional manner with RCOs.
Blamed and Spoken To Inappropriately - Conclusions
- Although I am satisfied that all staff were reminded (at the very least) in September 2015 that they needed to ensure daily cleaning tasks were undertaken and that attention was concentrated on cleaning one of the resident's rooms, there is insufficient evidence before the Commission to indicate Mr Dorsett was specifically 'blamed' in the manner set out in his amended statement of facts and contentions.
- For example, the suggested indicative date and time in respect of the visit from Ms McNamara and Ms La Fave to Tallow Wood Drive where he was allegedly reprimanded does not align with the Housebook or any of the records contained in the Housebook.
- Ms La Fave's comments about not attending the houses (including Tallow Wood Drive) until after the busy morning period had concluded were entirely reasonable.
- It is plausible that Mr Dorsett was reminded or even directed by Ms McNamara in her capacity as supervisor to look at the cleaning or house schedule from time to time and ensure the activities were undertaken. Certainly, the September team meeting minutes reflect such an event. However, on balance, I am not persuaded Mr Dorsett was reprimanded in the manner described in his amended statement of facts and contentions.
- Again, although I am satisfied there was a significant level of focus and importance placed on the manner in which Mr John's BSLs were recorded, I am not satisfied that Mr Dorsett was directly reprimanded and blamed for the irregularities in Mr John's BSLs in the manner set out in his amended statement of facts and contention.
- I do accept that in various team meetings the issue was raised. It is plausible that at some point Ms McNamara may have spoken directly to Mr Dorsett and highlighted the importance of recording accurate levels. It is also plausible that Ms McNamara spent time talking to RCOs including Mr Dorsett about, among other things, Mr John's diet, how to maintain BSLs within an acceptable range, and the importance of adhering to cleaning schedules and other procedures.
- In his evidence to the Commission, Ms Dorsett maintained his discussions with Ms McNamara about the Mr John's BSLs commenced in or around April and continued every fortnight and then whenever he was on day shift. He said the interactions increased even more after September 2015. He recalled being spoken to in a loud and aggressive manner.
- Telephone calls aside, the difficulty I have with Mr Dorsett's evidence in respect of his recollection as to the regularity and way in which the BSL issues were raised directly with him, is that it does not align with the evidence relating to the number of visits Ms McNamara made to Tallow Wood Drive while he was working.
- That is, according to an analysis undertaken by the Respondent, in the period March 2015 until 12 December 2015, there were only eight occasions out of an estimated 252 days or 41 weeks where Ms McNamara personally attended Tallow Wood Drive and was possibly present at the same time Mr Dorsett was rostered on for a day shift or a team meeting, to have such discussions. Moreover, Mr Dorsett told the Commission that Ms McNamara stopped speaking to him in September 2015 which is at odds with his other evidence about the interactions occurring more frequently after September 2015.
- It is true that Ms Foley directly raised concerns about the accuracy with which Mr Dorsett was recording Mr John's BSLs, along with a number of other related issues with Ms McNamara. Certainly, an incident report was later prepared by Ms McNamara outlining concerns in respect of Mr Dorsett, some of which related to Mr John's BSLs and decisions he was taking in respect of Mr John's diet.
- One could go so far as to characterise the comments by Ms Foley and possibly Ms McNamara as "blaming" Mr Dorsett for, at a minimum, recording inaccurate readings. However, insofar as this appeal is concerned, as best I understand it, Mr Dorsett was not aware of the incident report or later attempts by Ms McNamara to raise concerns with her superiors about his performance in the role until after he had visited his GP complaining of bullying on 11 December 2015.
Team Meeting – 23 September 2015
- In his amended statement of facts and contentions, Mr Dorsett maintains he was humiliated and belittled in front of work colleagues at a team meeting on 23 September 2015. By way of example, he submitted that in response to a suggestion he made in relation to Mr John and the issue of his BSLs, Ms McNamara announced to those present at that meeting words to the effect "anyone with a brain or common sense living in the real world please put your hand up".
- In response to another suggestion made by Mr Dorsett when discussing a topic related to restrictions around Mr John's diet, he maintains (in his amended statement of facts and contentions) that Ms McNamara announced to those present at the same meeting words to the effect "what the fuck is this transition shit! Has anyone got anyone else got anything sensible or sane to say other than this shit coming out of his (Mr Dorsett's) mouth".
- In the same meeting, Mr Dorsett further maintains in his amended statement of facts and contentions that Ms McNamara said words to the effect of "I'm going to check up on you; it's game on".
- The team meeting minutes for 23 September 2015 list Ms La Fave, Ms McNamara, Ms Foley, Ms Arnold, Mr Williamson, Ms Hume and Mr Dorsett as attending. Within the meeting minutes under a heading dealing with practices around dietary support for Mr John, there is a record of:
Staff question exploring the options of leaving the pantry, fridge and freezer open during the day to lessen the restrictions on John and other clients and to see if this impacts on John's health in the area of diabetes.
- Under the heading 'Outcome or team decision', the minute taker has recorded:
Concerns – John's BSL levels may not be able to be controlled successfully and may impact on his health and wellbeing.
Vicki and Janett to seek advice from John's dietician and doctor.
- In a second note within the meeting minutes for 23 September 2015, there is a reference to Mr Dorsett locating food which has been hidden outside behind the sheds and in the chook pen.
- In another meeting, and likely at the meeting held on 21 October 2015, Ms McNamara was alleged to have told staff words to the effect that the men are here to lay down the law and the women are here to do the nice things. According to Mr Dorsett, when he voiced his disquiet at this edict, Ms McNamara responded to him words to the effect "harden the fuck up; that’s just how it is".
- The team planning meeting minutes for 21 October 2015 list Ms La Fave, Ms McNamara, Ms Foley, Ms Hume, Mr Williamson and Mr Dorsett as attendees. There is no reference to a differentiation between the roles of the female and male RCOs within the house. The minutes do contain a reference to correspondence from Mr John's dietician and staff discussions around his diet, weight, BSLs, drinking and alcohol. Staff are reminded of acceptable soft drink choices (diet coke) and amounts, and when standard alcoholic drinks are able to be consumed by Mr John.
- In the same minutes, RCOs are also reminded to refer to the daily household schedule and task requirements while on shift and to complete dietary recording sheets for Mr John in circumstances where it is noted that records are not being completed on a consistent basis.
- In her evidence to the Commission, Ms McNamara denied making these statements, highlighting that instead a decision was made by the group to take the suggestion back to Mr John's dietician to consider. Likewise, Ms La Fave denied making any such statement and confirmed Ms McNamara had also not acted in the manner described by Mr Dorsett.
- Although Ms Foley initially struggled to recall the specifics of the meetings in terms of the agenda content, she was quite clear the statements as alleged by Mr Dorsett were not made by Ms McNamara or Ms La Fave during the meetings. Ms Foley maintained Ms La Fave did not use that sort of language.
- In circumstances where Ms La Fave, Ms McNamara and Ms Foley, who were all present at the team meetings deny the comments alleged by Mr Dorsett were made in the manner described; where no other witnesses from the team meeting were called to give evidence about any comments that may have been made in the meetings; and where Mr Dorsett's evidence during the proceedings in respect of the comments was, at times, unclear or inconsistent, I have not been persuaded that the comments were made in the manner described by Mr Dorsett.
Lack of reasonable management action / management action not taken in a reasonable way
- Although he was unable to recall the dates, in his amended statement of facts and contentions, Mr Dorsett maintains he complained to Ms La Fave on several occasions in respect of bullying by Ms McNamara. Mr Dorsett claims he also complained to Mr Wyss about bullying by Ms McNamara, the involvement of Ms La Fave in some of the bullying, and a failure by Ms La Fave to respond to his complaints of bullying.
- In his evidence during the proceedings Mr Dorsett said he first spoke to Mr Wyss and Ms La Fave around May 2015 and that he recalled speaking to Ms La Fave over the telephone between May and September 2015. His evidence is that he tried to explain that he was experiencing difficulties being heard and having a non-biased conversation on what was happening in the house. He raised concerns about probably getting blamed for issues associated with the food and Mr John's BSLs, explaining that he could only control what occurred on his shift.
- Mr Dorsett claims that Ms La Fave's response was to call him a "fucking liar", he just had to own up, "fess up". According to Mr Dorsett, at some point Ms La Fave suggested it would be easier if Mr Dorsett just went away. She also rejected a suggestion from him about setting up mediation.
- In respect of his conversations with Mr Wyss, Mr Dorsett claims he had about four conversations with him, during which he explained that he felt like he was getting bullied by Ms McNamara. He also outlined the lack of professionalism he was experiencing.
- Mr Dorsett told the Commission that on each occasion Mr Wyss would advise him that he would speak to Ms La Fave about his concerns. He also recalled on a few occasions, Ms La Fave approaching him, generally about a day after he had spoken to Mr Wyss, indicating she had had a conversation with Mr Wyss and she was not happy about it.
- Ms La Fave's evidence was that Mr Dorsett never complained to her about the manner in which Ms McNamara was treating him. Moreover, she maintained she had never been contacted by Mr Wyss about any complaints Mr Dorsett had raised. Similarly, Mr Wyss said that Mr Dorsett never complained to him about the way he was being treated by either Ms McNamara or Ms La Fave. He was quite clear that he had also not held a conversation with either Ms McNamara or Ms La Fave about the way they were treating Mr Dorsett.
- Having considered the evidence of Mr Dorsett, Mr Wyss, Ms La Fave and Ms McNamara, I am not persuaded Mr Dorsett made a complaint or raised concerns with Mr Wyss or Ms La Fave in the manner set out in his amended statement of facts and contentions. Mr Wyss' evidence was quite compelling and straight-forward. He was very certain that he had not received a call from Mr Dorsett.
- It is plausible that from time to time Mr Dorsett may have spoken to Ms La Fave about Ms McNamara and any number of work-related topics.
- For example, in the wake of an interaction between Mr Dorsett and Ms La Fave in early October 2015 (that does not form one of the actual events which Mr Dorsett maintains led to the onset of his injury), there may well have been some discussions between the two about Ms McNamara.
- In the absence of any dates or specifics, however, it is just not possible to determine whether there was a lack of reasonable management action or management action not taken in a reasonable way on the part of Mr Wyss or Ms La Fave in respect of the events or stressors raised by Mr Dorsett.
- But, in any event, having considered the limited evidence of Mr Dorsett around what steps he took to raise his concerns, along with that of Mr Wyss and Ms La Fave, I am not persuaded Mr Dorsett made a complaint or raised concerns with either person in the manner set out in his amended statement of facts and contentions.
Consideration and Conclusions
- In Misevski v Q-COMP, Hall P found that in circumstances where allegations were found to be without substance, one consequence is that those transactions cannot have contributed to the development of the worker's psychological condition, writing: "A transaction which did not occur cannot have contributed to the development of anything".
- In Hardy v Simon Blackwood (Workers' Compensation Regulator), Martin P wrote:
…where a party identifies individual acts or circumstances as contributing to the development or exacerbation of a psychiatric illness, it is the role of the Commission to consider each of the stressors relied upon, to consider it in the light of the provisions of s 32(5) and to determine whether it can be regarded as responsible in some way, for the injury complained of. If, after that task is performed, the Commission determines that the stressors has the effect claimed by the worker, then there is no call to undertake any type of global assessment.
- To succeed in this appeal, Mr Dorsett bears the onus of proof, on the balance of probabilities, to prove he sustained an injury within the meaning of the Act.
- Mr Dorsett's representatives maintain his injury was caused by protracted bullying and harassment at the hands of Ms McNamara and Ms La Fave along with the failure by the Department to respond to complaints he allegedly made about that misconduct. A further claim about being denied natural justice has not been pressed by Mr Dorsett's representatives.
- Highlighting Ms Berquier's opinion that the symptoms complained of to his GP on 11 December 2015, and later, to his psychologist, were associated with the alleged work issues, it is submitted Mr Dorsett's injury arose out of, or in the course of, his employment and that his employment with the Department was a significant contributing factor.
- Moreover, the actions of Ms McNamara, abetted and/or ignored by Ms Le Fave and Mr Wyss, were not reasonable. Further, the actions of Ms Le Fave and Mr Wyss in failing to respond to Mr Dorsett's complaints were not reasonable.
- The Respondent does not dispute Mr Dorsett:
- was a worker within the meaning of the Act; and
- suffered a personal injury, namely depression, anxiety, PTSD and dissociative disorder.
- It submits, however, that there is not only insufficient evidence to support the allegations of misconduct complained of by Mr Dorsett, but also that there is no evidence to support his allegations about either making complaints to Mr Wyss, or a failure on Mr Wyss' part to respond to those complaints.
- In those circumstances, Mr Gray, Counsel for the Respondent, submits the appropriate finding is that Mr Dorsett has not sustained an injury in accordance with the provisions of the Act.
- Ms Berquier provided her opinion on the basis of Mr Dorsett's report to her of multiple incidents of verbal abuse and passive-aggressive behaviour towards him and further accounts by him "that he was consistently bullied and assaulted on several occasions by other staff at his workplace for at least the past year". According to Ms Berquier, Mr Dorsett told her he raised concerns with management about the manner in which he was treated, but that nothing was done to address the problem.
- In circumstances where it was not the case that Mr Dorsett had been physically abused and spat on by his coworker (which was originally recorded by the psychologist as part of his work history), Ms Berquier maintained it would not change the opinion expressed in her report because:
…there were multiple incidents of verbal abuse, micromanaging, having rosters changed, keys going missing, being sort of ignored or having his opinion consistently dismissed in meetings, being ridiculed…by his manager and his team leader.
- Ms Berquier acknowledged, however, that her opinion in respect of Mr Dorsett's injury and its causation was contingent upon her being satisfied of the work events complained of, including that he was exposed to bullying and passive aggressive behaviour from his coworker(s), that no action was taken when he complained about the conduct; and that the poor treatment worsened after he complained.
- In the event the Commission were to find that Mr Dorsett was not subjected to the treatment as described by him, Ms Berquier opined he would still fulfil the diagnostic criteria of PTSD "but there would be a huge question mark about why he had post-traumatic stress disorder".
- Mr Dorsett's GP, Dr Contractor, based her opinion and diagnosis on file notes previously recorded by other doctors at the Cooroy Family Practice, her discussions with Ms Berquier, as well as her own observations of Mr Dorsett when treating him after 11 December 2015.
- In this regard, although Mr Dorsett maintains the symptoms of his injury first arose in July 2015, I note that it was not until 11 December 2015 – the day Mr Dorsett was advised by Ms La Fave that he had been invited to attend a meeting with Mr Wyss and herself – that there was any mention in his medical records of work-related issues.
- Other than the report provided by Ms Berquier, which is based on Mr Dorsett's account of the events after the fact, there is no other evidence before the Commission that Mr Dorsett's visits to the Cooroy Family Practice in the months between July and November 2015 were for any reasons other than those set out in the medical notes; namely, upper respiratory infections, sinusitis and challenges with sleep associated with undertaking shift work.
- In his amended statement of facts of contentions, Mr Dorsett submits that the persistent and cumulative effect of the stressors or events identified in the document were causative of his injury.
- The main events set out in the document, which have been previously addressed in this decision, include: (1) Missed Team Planning Day; (2) Roster Changes; (3) Blamed, (4) Being Spoken To Inappropriately; (5) Treatment in Team Meetings; and (6) No reasonable management action / management action not taken in a reasonable way.
- Other events that were raised during the proceedings to highlight Ms McNamara's alleged animosity towards Mr Dorsett included an apparent suggestion that the male workers were not pulling their weight in the house. Further, that Mr Dorsett was requested by Ms McNamara to remove his bicycle from the Tallow Wood Drive office, and her alleged annoyance about Mr Dorsett raising a concern about a general direction to RCOs about not taking residents out of the house on a Sunday.
- Although Mr Dorsett's representatives maintain all the events or stressors listed in the amended statement of facts and contentions was given "in a direct way" either during examination-in-chief or when the specific matters were traversed in cross-examination, my observations were somewhat different.
- That is, throughout the proceedings, and particularly during cross-examination, I observed Mr Dorsett retreat, on occasions, from his initial evidence-in-chief and/or the original description of the events in his amended statement of facts and contentions to the extent that it was, at times, difficult to identify a reliable timeline, or reconcile his description of the events with the original stressors provided to the Commission.
- To add to the confusion, at times, Mr Dorsett's account as to whether it was Ms McNamara, Ms La Fave or both ladies who were involved in a particular event varied between the amended statement of facts and contentions, the evidence-in-chief and, later, cross-examination.
- Moreover, many of Mr Dorsett's allegations lacked specific details in respect of dates, times and context. Conversely, the Respondent was able to provide materials to the Commission, including rosters and Housebook notes, which, on the face of it, appeared to contradict a number of the events or stressors as reported to Ms Berquier and which are said to have contributed to the onset of his psychological injury.
- In written submissions, representatives for Mr Dorsett maintain it was apparent from his behaviour at times during the course of his giving evidence that he was quite unwell, psychologically. Moreover, it is submitted that during the proceedings, the Commission was provided with uncontroverted evidence that Mr Dorsett has PTSD including disassociative episodes in response to stress, along with depression and anxiety.
- As part of Mr Dorsett's written submissions, the Commission has been requested to take into consideration his mental condition in construing his evidence and particularly in terms of assessing his credibility.
- The difficulty I have with this submission is that there was no medical evidence provided to the Commission during the proceedings that was directly relevant to Mr Dorsett's psychological condition and any implications that may flow from his condition in terms of its impacting his capacity to given evidence in a seemingly credible manner.
- Certainly, during the proceedings Mr Dorsett appeared to suffer from an intermittent stutter and it was necessary to take short breaks from time to time, but the Commission itself is not in a position, based on the materials before it, to determine the impact or otherwise of Mr Dorsett's psychological condition on his credibility in the absence of expert opinion. In the end, I am required to arrive at a conclusion having regard to all the evidence provided to the Commission during the proceedings.
- In that respect, in light of my conclusions above in relation to the alleged individual stressors or events complained of, I am unable to accept that the events reported to Ms Berquier, and Mr Dorsett's descriptions of the events, were factually accurate.
- Further, in circumstances where Mr Dorsett's evidence was often confused or unclear in respect of when and how events unfolded, I prefer the evidence of Ms McNamara and Ms La Fave who were quite clear that Mr Dorsett had not been treated in the manner he described. Likewise, Mr Wyss' evidence in relation to not receiving any calls or complaints from Mr Dorsett or Ms La Fave about his being bullied or mistreated was convincing.
- Although I accept that issues including the performance of duties around the house, attendance at planning days, the importance of accurately recording BSLs and the cleanliness of the Tallow Wood Drive were all matters that were directly raised with Mr Dorsett and other RCOs by Ms McNamara or Ms La Fave from time to time, there is insufficient evidence before the Commission that allows me to conclude these issues formed the basis of a sustained campaign of bullying against Mr Dorsett through the months of April to December 2015.
- Moreover, although it is clear that by the beginning of October 2015 the relationship between Mr Dorsett and Ms McNamara had soured to the extent that she was highlighting concerns about his performance and conduct to her superiors (which ultimately led to an attempt by his employer to meet with him and discuss its concerns), I am satisfied that Mr Dorsett was not aware, until the afternoon of 11 December 2015, that any disciplinary processes were afoot.
- Given my findings in respect of the inaccuracy of the manner in which the events or stressors were described to Ms Berquier by Mr Dorsett and an absence of any knowledge (on his part) of Ms McNamara's attempts to raise concerns about his conduct, it follows that these events could not have contributed to the development of Mr Dorsett's psychological condition.
- I make the following Orders:
- The appeal is dismissed.
- The decision of the Respondent dated 10 May 2017 is affirmed.
- The Appellant is to pay the Respondent's costs of and incidental to this appeal.
- Published Case Name:
Dorsett v Workers' Compensation Regulator
- Shortened Case Name:
Dorsett v Workers' Compensation Regulator
 QIRC 97
Member Knight IC
21 Jun 2019