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  4. Schultz v Workers' Compensation Regulator - [2020] QIRC 208

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Schultz v Workers' Compensation Regulator[2020] QIRC 208

Schultz v Workers' Compensation Regulator[2020] QIRC 208

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Schultz v Workers' Compensation Regulator [2020] QIRC 208

PARTIES:

Schultz, Tautala Faanana

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2019/113

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulato

DELIVERED

EX TEMPOR ON:

24 November 2020

HEARING DATES:

16, 17, 18 September, and 24 November 2020

MEMBER:

Industrial Commissioner Dwyer

HEARD AT:

Brisbane

ORDERS:

  1. The appeal is dismissed.
  2. The Appellant pay the costs of the hearing.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL – reasonable management action – industrial fairness – actions of management reasonable in the circumstances.

LEGISLATION

Workers' Compensation and Rehabilitation Act 2003, s 32

Forensic Disability Act 2011

CASES:

Delaney v Q-COMP Review Unit [2005] QIC 11; (2005) 178 QGIG 197

Lawton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 99

APPEARANCES:

Mr C. Clark, Counsel instructed by Bennett and Philp Lawyers for the Appellant.

Mr P. Rashleigh, Counsel directly instructed by the Workers' Compensation Regulator, Respondent.

Reasons for Decision

The following reasons are taken from the transcript of the decision delivered ex tempore on 24 November 2020. The reasons have been subjected to minor editing including the addition of headings and footnotes.

          The Appeal

  1. [1]
    This is an appeal against a decision of the Workers' Compensation Regulator. The decision was dated 6 June 2019. The appellant is Ms Tautala Schultz. Ms Schultz sustained an injury on 2 October 2018 of a psychological or psychiatric nature.
  1. [2]
    The Regulator has conceded the key elements in respect of s 32 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act") have been met, namely:
  •    that Ms Schultz is a worker within the meaning of the Act;
  •    that she suffered a personal injury of a psychiatric nature;
  •    that the injury arose out of or in the course of her employment; and
  •    that her employment was the major significant contributing factor, which I note was the test under the relevant legislation at the time of injury.
  1. [3]
    There is no issue raised by the Regulator with respect to the fact that the injury arose as a consequence of management action taken on 2 October 2018, and that management action was in the form of a letter[1] and the actions of Mr Graeme Kirkup with respect to Ms Schultz's employment.
  1. [4]
    The only issue for determination is whether s 32(5) of the Act operates to exclude Ms Schultz's entitlement to compensation. The question, fundamentally, is whether or not the action taken was reasonable and/or whether it was taken in a reasonable way.

Background

  1. [5]
    Turning to the facts. Ms Schultz is employed as a forensic disability officer and clinician with the Forensic Disability Service, which is part of the Department of Communities, Disability Services and Seniors, which I will refer to throughout the rest of these reasons as 'the Department'.
  1. [6]
    At the relevant time, Ms Schultz was employed at a secure facility at Wacol that housed a number of persons who were being held there pursuant to orders of the Mental Health Review Tribunal. These were typically persons who had a history of criminal behaviour but lacked the competence to stand trial for their actions.
  1. [7]
    Ms Schultz held an appointment under the Forensic Disability Act 2011 as a 'senior practitioner with limited powers'. The effect of this appointment was that it gave Ms Schultz certain additional powers by comparison to, for example, a forensic disability officer with respect to the management of clients in the facility, including such things as authorising restraint.
  1. [8]
    The facility at which Ms Schultz worked housed approximately six to seven clients, with four to each unit. One client, who was identified in these proceedings only as 'JPH' for confidentiality reasons, had a criminal history dating back to 1998. It was primarily related to property offences but also included a number of assaults.
  1. [9]
    The Individual Development Plan ('IDP') in relation to JPH, which is in evidence as Exhibit 3, identifies him as having a complex array of medical conditions that affected him. The IDP outlines a detailed personal history and a detailed history of his problematic behaviours.
  1. [10]
    The IDP that is in evidence is dated 28 September 2018, although I understand from the evidence[2] that there are previous IDPs which are updated from time to time. However, for the purposes of this matter we have relied on the IDP that was dated 28 September 2018.
  1. [11]
    This IDP identifies (at page 6) a need for a 3:1 ratio for Limited Community Treatments ('LCT'), which are effectively approved outings under conditions of supervision. The IDP identified JPH as an ongoing risk of absconding. It also identifies a propensity for aggressive behaviour and a sexual preoccupation with children[3].
  1. [12]
    On 29 September 2018, which was a Saturday, Ms Schultz was rostered to work. Near the commencement of her shift she acceded to a wish expressed by JPH to attend the swimming pool for a swim.
  1. [13]
    There was some evidence with respect to the swimming pool, and to the extent that it is relevant, it was not regarded as being within the secure complex in which JPH was housed, but it was within a broader secure complex and had to be accessed by a short walk along a path and then through a locked gate. In accordance with the appropriate protocol, Ms Schultz developed a limited community treatment, which I will refer to as ‘LCT’ for the remainder of these reasons.
  1. [14]
    Ms Schultz developed an LCT for this proposed outing[4]. She subsequently presented this LCT to the shift coordinator, Mr Troy King, for his review. He signed it as having reviewed it, and in turn submitted it to Ms Debra Ison, who was the clinical team leader. Ms Ison was then responsible for approving the LCT.
  1. [15]
    I note that there are a number of emails in evidence in which the details of the LCT were described to Ms Ison, who was not at work, and she approved the LCT via email. It appears from the language in those emails she was quite willing to do so[5]. Later that day, Ms Schultz, in accordance with the LCT, accompanied by another forensic disability officer (Mr Popow) escorted JPH to the pool.
  1. [16]
    While there is some conjecture about whether Mr King offered a third staff member to assist them in this LCT, it is uncontroversial that the LCT plan proposed a 2:1 ratio and that they proceeded on that basis.
  1. [17]
    As I indicated, the pool was in another complex but was still within a relatively secure compound and only a relatively short walk. I also note that trips to the pool, including trips with JPH to the pool, were not a novel event.
  1. [18]
    There were a number of behavioural incidents on the trip to the pool that Ms Schultz acknowledged in her evidence. These  were described as: an incident on the way to the pool where JPH stopped to inspect something on the ground. Ms Schultz described this as fairly typical behaviour for JPH. I accept that and note, as an aside, that Ms Schultz appeared to have a very detailed knowledge and understanding of JPH.
  1. [19]
    At the pool things worsened a little in that there was evidence that JPH went into the bathrooms, locked himself in the toilet, and had to be removed from there with the assistance of Mr Popow.
  1. [20]
    On the way back to the facility JPH nominated that he wanted to walk the long way back. He was allowed by Ms Schultz to do so. Some distance from the gates of the facility, JPH refused to cooperate and refused to continue moving towards the facility
  1. [21]
    At some point during this incident JPH also picked up a stick and began to sharpen it on the concrete path. Ms Schultz then left JPH with Mr Popow while she travelled what she says was a relatively short distance back to the facility[6]. At this point, the ratio was now 1:1 with Mr Popow and JPH.
  1. [22]
    JPH then absconded. He was retrieved sometime in the following 24 hours by the Queensland Police Service.
  1. [23]
    Subsequent to these events on 29 September 2018, the incident was reported up the management chain and the inevitable investigation was commenced.
  1. [24]
    As part of the early steps of the investigation, Mr Graeme Kirkup, the Centre Director and Administrator, issued correspondence on 2 October 2018 to Ms Schultz which is now in evidence as Exhibit 10. The correspondence relevantly provided:

I am at this time revoking your appointment as Senior Practitioner with limited powers and as authorised practitioner under the Forensic Disability Act 2011. I'm doing so based on information currently available to me in regard to events that transpired on 29 October[7] 2018 in support of JPH and, specifically, your conduct and decision-making in regard to risk assessment, LCT planning and approval, and conduct of escort of JPH during an LCT event.

Your appointments as authorised practitioner and as senior practitioner with limited powers will cease immediately today, 2nd October 2018, with further review of these appointments to occur pending an investigation of relevant matters by the Office of Director Forensic Disability.

Further and immediately, and also in regard your conduct and decision making in regard conduct of escort of JPH during an LCT event, I am directing that you not participate in any limited community treatments events as escort until further notice, pending the outcome of the investigation to be conducted by the Office of Director Forensic Disability.

  1. [25]
    Following receipt of this correspondence, Ms Schultz suffered a psychiatric injury and has not returned to work since. Her application for compensation and the subsequent review were rejected, leading to this appeal.

The evidence

  1. [26]
    There was extensive evidence dealing with the events of and around 29 September 2018. For reasons that will become apparent, it does not fall to me to evaluate the correctness or otherwise of the actions taken by Mr Schultz in respect of the outing with JPH on that day. However, for completeness, it is necessary to address some of the aspects of the evidence dealing with the incident.

Ratios

  1. [27]
    Firstly, on the issue of ratios with respect to the management of JPH, both Ms Schultz and Ms Ogilvie indicated that the recommended ratio, be it 3:1 or otherwise, were not strictly complied with[8].
  1. [28]
    Other witnesses also seem to confirm this practice, including Mr King[9] and Ms Ison[10]. I note that both Mr King and Ms Ison were prepared to sign off on the LCT on 29 September 2018 notwithstanding that the IDP recommended 3:1. I note in particular that Ms Ison had, in fact, signed off on that individual development plan only the day before.
  1. [29]
    To that end I accept that the practice, prior to 29 September 2018 at least, was that there was not a rigid adherence to the recommended supervision ratio as set out in the individual development plan.

The LCT plan on 29 September 2018

  1. [30]
    Secondly, if I could turn to the soundness or otherwise of the decision to do the LCT on 29 September 2018 with JPH.
  1. [31]
    Having considered the evidence I find that there is nothing that indicates that the idea and the initiation of the LCT plan was an exercise of poor judgment by Ms Schultz. On the contrary, it would appear that Ms Schultz had a good understanding of JPH and had a sufficient level of professional confidence in the decision to take him to the pool on that day.
  1. [32]
    I note also that, certainly prior to the incident that occurred later that day, there did not appear to be any particular objection by Mr King, who was at the facility that day and was charged with the responsibility of reviewing the LCT plan. I note also that Ms Ison signed off on it.
  1. [33]
    At least up until the point of the incident in the afternoon, or after the trip to the swimming pool, it was not only Ms Schultz but also Mr King and Ms Ison who appeared to have no difficulty with the decision to take JPH to the pool at a 2:1 ratio.
  1. [34]
    There were a number of incidents on the way to the pool, and they were dealt with in the evidence.The incidents described on the way to the pool, and at the pool, whilst being evidence of JPH's potential for being difficult, do not, on the evidence that I have heard, strike me as especially out of the ordinary for the management of an individual such as JPH, particularly given his array of medical conditions.
  1. [35]
    The pausing and the difficulty in getting him to move forward on the way to the pool, and even the difficulty at the pool where he locked himself in the bathrooms, are not, in my view, particularly out of the ordinary and not necessarily the sorts of things that might be 'red flag' events that might attract a need for Ms Schultz to call upon additional assistance at that time.
  1. [36]
    It would seem to me that up until the very last incident where JPH refused to cooperate, the situation was being appropriately managed by Ms Schultz. However, there was a critical incident which led to JPH absconding.
  1. [37]
    On leaving the pool, I note Ms Schultz was in radio contact with the facility[11], and she advised that she was returning the long way, which on the evidence I understand is an alternative path that takes a little longer. JPH was determined to go that way, and Ms Schultz allowed him to do so. It seemed from the evidence that at least at the point in time when they deviated onto that path, Ms Schultz was able to inform the facility of their whereabouts.
  1. [38]
    However, shortly after that, at some point where they were still some distance from the facility, JPH ceased cooperating. The evidence was to the effect that he sat down and that he would not keep moving forward[12]. Mr Popow described in his evidence that JPH then picked up a stick and began sharpening it on the concrete[13]. At this point the evidence, whilst not entirely clear, suggests that Ms Schultz left Mr Popow to return to the facility[14].
  1. [39]
    There is some conjecture about whether Ms Schultz was returning for notes or returning for assistance but either way, it is not particularly important overall. The fact of the matter is that Ms Schultz left Mr Popow with JPH at a location which I am satisfied on the evidence was no longer in her line of vision. That meant that the ratio for JPH was now significantly reduced to 1:1.
  1. [40]
    It is not controversial that JPH then absconded into some scrub area. Ultimately both Mr Popow and Ms Schultz (when she returned to the scene) lost sight of him and eventually, after a search, the Queensland Police Service were involved and ultimately retrieved him.
  1. [41]
    I pause to observe at this point that the outcome was probably optimum in this instance where JPH was recovered by the police without serious injury to himself or anybody else. The outcome could have been significantly worse. Mr Popow being left alone with JPH could have resulted in an injury to Mr Popow, particularly given that JPH was sharpening a stick on a concrete path. Also, as I have noted, the IDP identifies risk behaviours of JPH, including aggression and a preoccupation with child sex.
  1. [42]
    Had JPH come into contact with members of the public at some point when he absconded, there could have been a more serious outcome. In my view, at the point in time when JPH had absconded, there existed a significant risk to the public.

The aftermath of the events of 29 September

  1. [43]
    Ms Ison gave evidence in the proceedings in respect of the actions that she took upon being informed of the incident where JPH had absconded. I was wholly unimpressed with the evidence of Ms Ison. In my view she was very defensive in her explanation of her actions, and her description of Ms Schultz's conduct was largely out of self-interest to protect herself and, to use the colloquial term, my view was that she was actively attempting to throw Ms Schultz ‘under the bus'. She did not appear, even some two years later, to accept responsibility for the incident, and this was notwithstanding that she had ultimately signed off on the LCT.
  1. [44]
    Further, Ms Ison involved herself immediately in the process of gathering information about the incident and involved herself in providing an administerial brief and other information to people who would subsequently come to investigate the matter. In my view, she inappropriately involved herself. Given she had authorised the LCT she should have stepped away from the process immediately after informing management of the incident.
  1. [45]
    However, to be entirely fair, my observation is that all three parties concerned with the incident i.e. Ms Schultz, Mr King and Ms Ison were somewhat keen in the immediate aftermath to secure their respective positions and to get their account of events on the record[15].
  1. [46]
    Subsequent to the immediate aftermath Mr Graeme Kirkup became involved. Mr Kirkup gave evidence on the final day of proceedings. He has been retired for approximately two years and seemed to broadly have difficulty remembering a great deal of the details that were relevant to his involvement in these proceedings. I do not draw any conclusions from that. I think that he is just simply in another mindset at this point in his life and has perhaps not really turned his mind seriously to these matters, notwithstanding the fact that he has been called to give evidence in the proceedings.
  1. [47]
    What was able to be gleaned from his evidence was that in his initial involvement in the matter he sourced information about the event or the incident from, amongst others, Mr King and Ms Ison.
  1. [48]
    And as I reflected above, Ms Ison was probably not the most objective person to be obtaining that information from. Ideally, Mr Kirkup ought to have identified that there was potential for problems with information that he sourced from Ms Ison given that she was potentially involved in a failing in the system that led to the absconding of JPH.
  1. [49]
    However, the question is: did the information from Ms Ison cause Mr Kirkup to act unreasonably in issuing the correspondence on the 2nd of October 2018?

Reasonableness of management action

  1. [50]
    The list of stressors provided by Ms Schultz along with her statement of facts and contentions identifies two stressors. The first is the suspension of her powers, which is the action that is set out in the correspondence of 2 October 2018[16]. The second is that she was not given an opportunity to give her version of events in a timely fashion after the incident on 29 September 2018.
  1. [51]
    My view is that the action of Mr Kirkup needs to be considered in a broader (and quite important) context. A key function of the Department at this particular facility in Wacol is to ensure that clients like JPH are suitably contained for the protection of the public and for their own safety.
  1. [52]
    Any time the security of such a facility is breached, it is incumbent on the Department to take immediate steps to find out why, and to ensure that any failings identified are immediately addressed to prevent further risk or danger to the public. While it is fair to say that the preliminary information gathering by Mr Kirkup was less than ideal, and that the process may have on some level been tainted by Ms Ison's self-interest, it remains an objective fact in this matter that Ms Schultz left Mr Popow alone with JPH and that JPH absconded, thereby creating that risk.
  1. [53]
    There was, on any reading of those facts, a failure in the system on that day.
  1. [54]
    In the circumstances, where there had been such a failure in the system, it is my view that it was entirely reasonable and necessary for an urgent investigation to establish the cause or source of that failure. It is at this point that I think that Ms Schultz has, on some level, misunderstood the nature and effect of the actions of Mr Kirkup.
  1. [55]
    The language of the letter of 2 October 2018 is clear. I have set it out above but I will revisit it now with some emphasis.

I am at this time revoking your appointment as Senior Practitioner with limited powers and as authorised practitioner under the Forensic Disability Act 2011. I'm doing so based on information currently available to me in regard to events that transpired on 29 October[17] 2018 in support of JPH and, specifically, your conduct and decision-making in regard to risk assessment, LCT planning and approval, and conduct of escort of JPH during an LCT event.

Your appointments as authorised practitioner and as senior practitioner with limited powers will cease immediately today, 2nd October 2018, with further review of these appointments to occur pending an investigation of relevant matters by the Office of Director Forensic Disability.

Further and immediately, and also in regard your conduct and decision making in regard conduct of escort of JPH during an LCT event, I am directing that you not participate in any limited community treatments events as escort until further notice, pending the outcome of the investigation to be conducted by the Office of Director Forensic Disability.

(Emphasis added)

  1. [56]
    The letter is certainly in the nature of a preliminary view being expressed by Mr Kirkup. It refers to concerns about conduct and judgment, but it makes no allegations. It is not strictly disciplinary or even punitive in nature and it is, importantly, an interim position adopted by Mr Kirkup where he very clearly says the appointments will be reviewed pending an investigation of relevant matters.
  1. [57]
    Given that Ms Schultz was central to the events on 29 September 2018, it was, in my view, an entirely reasonable precaution to suspend her extended powers and limit her participation in LCT events. I say this because, at the time the letter was issued, all that was known was that Ms Schultz was involved at a decision-making level in the incident.
  1. [58]
    An investigation had to be conducted to establish, for example, whether there were any issues with her judgment or whether in fact she was simply following a procedure that had been adopted by those above her. Whatever the case, in the interim, in my view, it would have been untenable to leave Ms Schultz with that position of responsibility while important facts were being established by an investigation.
  1. [59]
    Even if it transpired after such an investigation that Ms Schultz was entirely blameless, if there was at the outset any question about her involvement that was unanswered, any question that went to e.g. her professional judgment, the Department, in my view, would have been dutybound to ensure that there was no risk to the public until that question was properly addressed. The only way to minimise the risk in the interim would be to suspend those responsibilities and powers granted to Ms Schultz.
  1. [60]
    For these reasons I consider that the decision to suspend Ms Schultz's powers, as confronting and as upsetting as I am sure it was for her, was a reasonable course of action by management in all of the circumstances.
  1. [61]
    I pause to note that industrial fairness might dictate that Ms Ison and Mr King be subjected to similar scrutiny. On the evidence, I cannot say for certain that they were not. Mr King gave some evidence about having been involved in an investigation and participating in two interviews. Ms Ison gave evidence about having received correspondence setting out an outcome to the investigation with respect to her involvement, although we are not aware what that was because she has not opened it. Her evidence, circumspect as it was, would suggest she was removed by way of transfer.[18]
  1. [62]
    In any event, for this matter I am only concerned with the reasonableness of the actions taken towards Ms Schultz. And as the former President observed[19], standards of industrial fairness are not the test for reasonable management action.
  1. [63]
    As to the second stressor, I note that Ms Schultz was very keen to initiate a debrief in the days following the incident. Her email of 1 October 2018[20] sets this out. The fact that she asked for, but did not get, a debrief as requested is of itself, in my view, not an unreasonable action by management.
  1. [64]
    The letter of the 2 October 2018 clearly refers to an investigation. Evidence of Ms Ison and Mr King suggested they participated in a formal investigation. I have no doubt that had she been able to, Ms Schultz would have had ample opportunity to present her version of events in an investigation. However, she decompensated immediately after receiving the letter on 2 October and, to my understanding on the evidence, she has not availed herself of an opportunity to participate further.
  1. [65]
    I accept that the entire experience arising from the incident on 29 September 2018 would have been confronting and upsetting for Ms Schultz. I have no doubt that she prided herself on her professionalism, and she impressed me as someone who had a genuine sense of concern and care for JPH, notwithstanding his many undesirable traits. I also accept that the actions of Ms Ison were not ideal and, to some extent, contributed to leading Ms Schultz into perhaps feeling isolated in the aftermath.
  1. [66]
    However, in all of the circumstances, in my view, the actions taken by management were necessary for very important reasons, they were reasonable and they were taken in a reasonable way[21].
  1. [67]
    In the circumstances I dismiss the appeal.
  1. [68]
    I Order:

1. The appeal is dismissed.

2. The Appellant pay the costs of the hearing.

Footnotes

[1] In evidence as Exhibit 10.

[2] Transcript, page 1-20, line 29-30.

[3] Page 6 of Exhibit 3.

[4] Exhibit 4.

[5] Exhibit 7 – see for example her comment "Happy swimming".

[6] Estimated variously to be 25-30m (Schultz – Transcript, page 1-32, line 5-10) and 50-70m (Popow – Transcript, page 2-63, line 35-40).

[7] Clearly a typographical error.

[8] Transcript, page 2-8, line 20-45.

[9] Mr King signed off on the LCT at a ratio of 2:1 and offered, but did not insist, on sending an extra staff member.

[10] Ms Ison signed off on the LCT at a ratio of 2:1, plus see transcript at page 2-28, line 25-30 "I now know…".

[11] Transcript, page 1-30, line 15-20.

[12] Transcript, page 2-63, line 35-40.

[13] Transcript, page 2-63, line 35-40.

[14] Transcript, page 2-64, line 25.

[15] See generally for example Exhibits 8, 9, 18 and 19.

[16] Exhibit 10.

[17] Clearly a typographical error.

[18] Transcript, page 2-24, line 4-42.

[19] Delaney v Q-COMP Review Unit [2005] QIC 11; (2005) 178 QGIG 197.

[20] Exhibit 8.

[21] See generally Lawton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 99 at [64] – [68].

 

Close

Editorial Notes

  • Published Case Name:

    Schultz v Workers' Compensation Regulator

  • Shortened Case Name:

    Schultz v Workers' Compensation Regulator

  • MNC:

    [2020] QIRC 208

  • Court:

    QIRC

  • Judge(s):

    Dwyer IC

  • Date:

    24 Nov 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Cf Delaney v Q-Comp Review Unit (2005) 178 QGIG 197
2 citations
Jump To
Cite 1 - (2005) 178 QGIG 197
Cite 2 - (2005) 178 QGIG 197
Delany v Q-Comp [2005] QIC 11
2 citations
Jump To
Cite 1 - [2005] QIC 11
Cite 2 - [2005] QIC 11
Lawton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 99
2 citations
Jump To
Cite 1 - [2015] QIRC 99
Cite 2 - [2015] QIRC 99

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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