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Grace v Workers' Compensation Regulator[2021] QIRC 285

Grace v Workers' Compensation Regulator[2021] QIRC 285

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Grace v Workers' Compensation Regulator [2021] QIRC 285

PARTIES:

Grace, Julie Elizabeth

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO.:

WC/2018/229

PROCEEDING:

Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:

20 August 2021

HEARING DATES:

13 and 14 October 2020

SUBMISSIONS:

Respondent's closing submissions: 24 February 2021

Appellant's closing submissions: 12 March 2021

Respondent's closing submissions in reply: 26 March 2021

MEMBER:

HEARD AT:

Power IC

Gympie

ORDERS:

  1. The appeal is allowed.
  1. The decision of the Regulator dated 6 November 2018 is set aside.
  1. The application for compensation made by the Appellant is one for acceptance.
  1. I will hear the parties as to costs.

CATCHWORDS:

WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – appeal against decision of workers' compensation regulator – psychiatric or psychological injury – whether injury excluded under s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) – where injury arises from management action – whether reasonable management action taken in a reasonable way – reasonable management action not taken in a reasonable way – appeal allowed

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003 (Qld), s 32

CASES:

Allen v Workers' Compensation Regulator [2018] QIRC 41

Allwood v Workers' Compensation Regulator [2017] QIRC 88

Bowers v WorkCover Queensland (2002) 170 QGIG 1

Cronin v Workers' Compensation Board of Queensland (1997) 156 QGIG 100

Davis v Blackwood [2014] ICQ 009

Delaney v Q-Comp Review Unit (2005) 178 QGIG 197

Department of Education & Training v Sinclair [2005] NSWCA 465

Kuenstner v Workers' Compensation Regulator [2016] QIRC 83

Ms SB [2014] FWC 2104

Prizeman v Q-Comp (2005) 180 QGIG 481

Read v Workers' Compensation Regulator [2017] QIRC 72

WorkCover Queensland v Kehl (2002) 170 QGIG 93

Yousif v Workers' Compensation Regulator [2017] ICQ 4

APPEARANCES:

Mr M.D. White of Counsel, instructed by CMB Lawyers, for the Appellant

Ms M.J. Brooks of Counsel directly instructed by the Respondent

Reasons for Decision

  1. [1]
    Ms Julie Elizabeth Grace ('the Appellant') appeals a decision of the Workers' Compensation Regulator ('the Respondent') dated 6 November 2018, confirming the decision of WorkCover Queensland to reject the Appellant's application for compensation in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the Act').
  1. [2]
    The Appellant claims that she suffered a psychiatric or psychological injury on 13 April 2018 whilst employed as a Young Women's Support Worker at Community Action Inc. ('Community Action'), a not for profit organisation.
  1. [3]
    The primary question to be determined in this appeal is whether the Appellant suffered a personal injury within the meaning of s 32 of the Act. At the date of injury, s 32 defined the meaning of an 'injury' in the following terms:

32  Meaning of injury

  1. (1)
    An injury is personal injury arising out of, or in the course of, employment if—

…

  1. (b)
    for a psychiatric or psychological disorder—the employment is the major significant contributing factor to the injury.

…

  1. (5)
    Despite subsections (1)…, injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—
  1. (a)
    reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
  1. (b)
    the worker's expectation or perception of reasonable management action being taken against the worker;

…

  1. [4]
    The onus is on the Appellant to satisfy the Commission, on the balance of probabilities, that:
  • she was a worker;
  • she suffered a psychiatric or psychological injury;
  • the injury arose out of, or in the course of, her employment;
  • her employment was a major significant contributing factor to the injury; and
  • the injury did not arise out of, or in the course of, any of the circumstances set out in s 32(5) of the Act.

Background

  1. [5]
    The Appellant's case as outlined in her statement of facts and contentions claims that as a consequence of a meeting held with her Manager during which an email from the CEO was read out to her, the Appellant sustained a workplace injury. This meeting followed an incident on the previous day in which the Appellant was involved in an interaction with officers of the Queensland Police Service ('QPS') regarding an unidentified Indigenous man on the street.
  1. [6]
    On 13 April 2018, Ms Georgianna Manthey, Youth Services Manager, requested that the Appellant come into her office after which Ms Manthey closed the office door. During the meeting, Ms Manthey asked the Appellant if she had seen her emails for the day, to which the Appellant replied that she had not. Ms Manthey proceeded to read to the Appellant an email that the CEO, Ms Judith Brauer, had sent to the Appellant the previous day. The email stated:

Dear Julie,

I am writing to advise that I have received a formal complaint from the Police regarding an incident that occurred outside of Centrelink/Coles today where you interjected on Police business – between officers and an indigenous man. QPS have taken offence to your comments.

Your behaviour has reflected poorly on Community Action and has the potential to be detrimental to relations with Police. I refer you to the Code of Conduct that requires staff to ensure that their personal conduct is at all times professional and does not reflect on the reputation of Community Action.

The organisation expects all staff members, when at work, to act professionally and to treat all stakeholders with respect, including our colleagues from Qld Police.

Please ensure that an incident like this does not occur again.

Judy Brauer

  1. [7]
    Following this meeting, the Appellant went back to her desk and had a brief interaction with her co-worker, Ms Jolene Ostergaard.
  1. [8]
    The Appellant commenced sick leave from 17 April 2018 and submitted that she has not been able to return to work due to the injury she sustained as a result of the events of 13 April 2018.
  1. [9]
    The Appellant contends that as a consequence of the meeting on 13 April 2018, the Appellant sustained a workplace injury in the course of her employment, namely, a psychological injury diagnosed initially by her treating General Practitioner, Dr Anthony Kirk, and confirmed by Dr Paul Cadzow, Psychiatrist, in a medical certificate/report to be an adjustment disorder with anxiety and depressed mood.

Medical evidence

  1. [10]
    The Appellant first saw Dr Kirk in relation to her injury on 18 April 2018, who subsequently referred the Appellant to Dr Cadzow.
  1. [11]
    Dr Cadzow provided a written report and gave oral evidence to the Commission. In his report, Dr Cadzow states:

Ms Grace's employment is the major significant contributing factor to her psychological injury.[1]

  1. [12]
    Further, Dr Cadzow states the cause of the Appellant's psychological injury was as follows:

Ms Grace has developed an Adjustment Disorder with Mixed Anxiety and Depression, due to her managers' response to a complaint made against her. Ms Grace's has never seen the complaint made against her, but from what she can tell in the responses her organisation has made to her Workcover claim, the complaint appears to be at complete odds to Ms Grace's experience of the interaction with the police officer and at odds with Ms Grace's historic approach to her role. She denies that she was combative or disrespectful to the police officer, rather, the police officer was aggressive towards Ms Grace. Ms Grace states that the majority of their interaction involved her advising the police officer of local resources which might have helped young man. The entire interaction was over within minutes, and apart from Ms Grace pausing to observe like other shoppers and gesturing to the young man to see if he was okay, was driven by the police officer's actions.

The aspects of the process which contributed to her psychological injury include; the experience of the complaint being accepted and Ms Grace being reprimanded by the CEO and her manager, and Ms Grace being given a warning, without the complaint being assessed by even asking Ms Grace's side of the story; the assessment apparently being passed on incorrect assumptions of who the Aboriginal man involved was; and the lack of procedural fairness and natural justice afforded to her, which was particularly aggravated by being referred to her organisation's Code of Conduct and policies, which spelled out a process at odds with Ms Grace's experience of this complaint process; the evident lack of confidentiality in the process in that a work colleague expressed the same misapprehension about the man involved and made a cryptic comment about whether Ms Grace would return to work after the reprimand…[2]

  1. [13]
    In cross-examination, Dr Cadzow accepted that the narrative of events as outlined in his expert report in which the Appellant described the police officers as 'appearing to stand over' the young man at the bus stop, and Constable Odette Reid being 'puffed up aggressive and indignant' and interacting with the Appellant 'in an authoritarian way and attempting to dominate' the Appellant, was based on the reporting of the Appellant.[3] Dr Cadzow also accepted that the Appellant understood Ms Brauer was not happy with what happened in her interaction with the police officer, but he did not think that particular realisation could trigger similar symptoms in the Appellant. 
  1. [14]
    Dr Cadzow's evidence was that what was so unsettling for the Appellant was that she did not receive a 'collegiate' response to the situation from Ms Brauer, such as if Ms Brauer had called her by phone to ask what had occurred, rather than a meeting held where she felt she was being reprimanded.[4]
  1. [15]
    Dr Cadzow's evidence was that it was not the reaction to the interaction with the police officer, but rather what occurred afterwards which was a feeling that the Appellant would not be able to work autonomously anymore with disadvantaged people in complex situations 'because she wouldn't be backed up if she made a difficult call'.[5] Dr Cadzow gave evidence that the Appellant had acknowledged to him that if she had been given a chance to talk about what had happened, she would have accepted a reprimand, but because she received a reprimand without any chance to talk about it, it was unsettling for her.
  1. [16]
    The Appellant was examined by Ms Kate Fitzpatrick, Psychologist, on 11 May 2018, with Ms Fitzpatrick reporting on 9 June 2018 that the Appellant reported multiple stress reaction symptoms including cognitive, physical and emotional symptoms.
  1. [17]
    The report provided by Ms Fitzpatrick, dated 7 August 2019, states the following in answer to a question posed by the Appellant:

In your opinion, was Ms. Grace's employment the major significant contributing factor to her psychological injury?

Absolutely. There is no other reason.[6]

  1. [18]
    Ms Fitzpatrick described the cause of the Appellant's injury as follows:

The inappropriate handling of a workplace complaint that was made against Ms Grace which she reported to me she has never seen. The lack of management inquiry, care, investigation and discussion around what had occurred. Ms Grace advised she was never asked for her version of events or given the benefit of the doubt. Ms Grace was totally unaware of there being an issue until she received what appeared to be a disciplinary letter from the CEO via email. This was exacerbated and compounded by there being no follow up by Community Action as regards Ms Grace welfare, wellbeing and mental health. This was especially distressing to Ms Grace after having been a loyal and hardworking employee for Community Action for many years and an advocate for social justice.[7]

  1. [19]
    In cross-examination, Ms Fitzpatrick confirmed that the comments in the report regarding the Appellant not being asked for her version of events were based on the report of the Appellant.[8]
  1. [20]
    Ms Fitzpatrick gave evidence that she did not think the Appellant got the opportunity to discuss her own actions with the employer and that the Appellant attended counselling because she was focused on the impact of what had occurred with her employment.[9] 

The Appellant's stressors

  1. [21]
    In Yousif v Workers’ Compensation Regulator,[10] President Martin determined that parties should be held to the position set out in their statement of facts and contentions. Accordingly, each stressor outlined in the Appellant's statement of facts and contentions will be addressed below.

Stressor A: The Appellant attended a meeting with Ms Manthey without any prior knowledge or warning of the agenda of the meeting

  1. [22]
    Ms Brauer emailed Ms Manthey at 4.32pm on 12 April 2018 and requested that she 'follow up' with the Appellant regarding the complaint from QPS and suggested she and Ms Andrea Mathews, Operations Manager, have a discussion first about how to handle the matter.[11]
  1. [23]
    Ms Manthey gave evidence that she allowed time for the Appellant to settle in the next day and read her emails before asking the Appellant to have a chat in her office,[12] and agreed with the Appellant's evidence that she did not give any indication why she wanted to meet with the Appellant.[13] 

Stressor B: The meeting with Ms Manthey was conducted behind a closed door without warning to the Appellant

  1. [24]
    The Appellant gave evidence that Ms Manthey sat down and stated, 'You might want to shut the door', to which the Appellant replied, 'Georgie if you think the door needs to be closed then close it'.[14] Ms Manthey denied this conversation occurred, giving evidence that she invited the Appellant into her office and then shut the door for privacy.
  1. [25]
    It was put to Ms Manthey that she had not told the Appellant it was to be 'one of those closed-door meetings', to which she replied that it was not her practice to do so.
  1. [26]
    Ms Manthey denied the Appellant's version of the conversation that took place prior to the door to her office being closed, but accepted she herself closed the door.[15]

Stressor C: The Appellant was not offered a support person to accompany her to the meeting

  1. [27]
    Both parties agree that this stressor occurred as described by the Appellant.
  1. [28]
    Ms Manthey gave evidence that she did not consider the Appellant needed to have a support person because the meeting 'was not a formal matter – it was an informal conversation' and 'the process we followed was informal'.[16]

Stressor D: Ms Manthey read out an email from Ms Brauer to the Appellant dated 12 April 2018. The email was disciplining of the Appellant in nature

  1. [29]
    Ms Manthey gave evidence that she recalled the Appellant said she had read her emails.[17] Ms Manthey's evidence was that she then proceeded to discuss the QPS complaint with the Appellant until it became apparent that the Appellant had not received the email. Ms Manthey's evidence was that the Appellant asked Ms Manthey to read out the email to her, which she then did.[18]
  1. [30]
    The Appellant gave evidence that she took from Ms Brauer's email that she was being disciplined and it was not to happen again.[19] The Appellant's evidence was that, as far as she knew, the organisation had not undertaken any process to determine the accuracy of what she had said happened on that day.[20]
  1. [31]
    Ms Brauer gave evidence that she was confident the police had given her an accurate account of what had occurred that day and it was her intention to remind the Appellant of her obligations under the Code of Conduct and to advise her not to engage in such conduct again.[21]
  1. [32]
    Ms Brauer agreed under cross-examination that she had decided the Appellant had made the offensive statement to the police, had behaved in a way that reflected poorly on the organisation, failed to act respectfully to members of the QPS and that her conduct had the potential to jeopardise the relationship between Community Action and the QPS.[22]
  1. [33]
    Ms Brauer stated that she had no reason to believe the QPS officer had not been offended by the comments made.
  1. [34]
    It was put to Ms Brauer that she was reprimanding the Appellant and by referring the Appellant to the Code of Conduct, she was indicating to the Appellant she had breached the Code of Conduct. Ms Brauer gave evidence that the Appellant was simply being reminded to be respectful at all times and ensure there was no repeated similar conduct.[23]
  1. [35]
    Ms Brauer denied the suggestion that she was giving the Appellant a warning to not do it again, stating that if it had been a warning the email would have stated it was an official warning.[24] Ms Brauer stated that there were policies around disciplinary procedures and that was a whole different process.
  1. [36]
    Ms Brauer gave evidence that, although she had sent the email to Ms Manthey and Ms Mathews prior to the email to the Appellant, it did not occur to her to tell the Appellant that she should expect a meeting the next day or that she could bring a support person.[25]
  1. [37]
    In response to the suggestion that Mr Brauer did not consider that she should offer the Appellant an opportunity to tell her side of the story, Ms Brauer stated the Appellant was given a chance to tell her side of the story the next day and that it was not going to change the fact that police were offended by the comments made.[26]
  1. [38]
    Ms Brauer gave evidence that this was not a workplace investigation and denied there was any bias attached to the process followed.[27]
  1. [39]
    Ms Brauer's evidence was that she could have gone through the formal complaints handling process rather than the process followed on this occasion.[28] She disputed that the Appellant had been denied a fair process, stating that the Appellant was provided with an opportunity to give her version of events and an opportunity for support.[29]
  1. [40]
    Ms Manthey gave evidence that, by referring the matter to her as Manager, the organisation was resolving the complaint because they reassure complainants that the complaint will be followed up.[30] Ms Manthey stated that if the Appellant had written out her concerns and taken them to Ms Brauer, there may have been some kind of investigation to compare the two statements of events, but the Appellant did not do so because she did not return to work.[31]
  1. [41]
    The Respondent refers to Ms Manthey's evidence that, even if the Appellant's version and the police officer's version were different, the Appellant had intervened in police business on the report of a formal person in the community and that should not have happened regardless of exactly what had been said.[32]
  1. [42]
    Ms Manthey gave evidence that the Appellant was treated with dignity, respect and kindness, and it was more supportive to take her through a more informal process rather than a disciplinary one.[33]
  1. [43]
    Ms Manthey conceded that if a formal process had been followed, then it had not been followed properly. However, she maintained that the Appellant had been treated fairly during the informal support offered.[34]
  1. [44]
    The Respondent submits that the evidence indicates that the email was not disciplinary in nature but rather an email containing a stern but informal reminder regarding the Appellant's conduct, in circumstances where Ms Brauer was confident the police had provided an accurate account and were indeed offended by the Appellant's conduct and no investigation was warranted.

Stressor E: Ms Manthey falsely stated 'we know who it was' in relation to the Indigenous man

  1. [45]
    The Appellant submits that, after reading the email from Ms Brauer, Ms Manthey stated that she knew that the Indigenous man involved in the incident was Maurie, a particular young person who would come to Community Action, to which the Appellant advised it was not.[35]
  1. [46]
    Ms Manthey denied having said to the Appellant, 'We know it was Morrie [sic]' but accepted she might have asked, 'Was it Morrie [sic]?'.[36]

Stressor F: Ms Manthey falsely stated the reason the QPS had been able to 'track' the Appellant back to the office

  1. [47]
    The Appellant stated that she had her sunglasses on during her interaction with police during the incident and after noting that Constable Reid had appeared not to recognise her, introduced herself.[37]
  1. [48]
    The Respondent submits this stressor did not occur in the manner described by the Appellant. Ms Brauer indicated in her email on 12 April 2018 that the police took the number plate of the ute and from that information established that it was registered to Community Action.

Stressor G: After the meeting, the Appellant returned to her desk and spoke to Ms Ostergaard in their shared office. It became apparent to the Appellant that Ms Ostergaard had been informed of the subject of the Appellant's meeting with Ms Manthey or the email from Ms Brauer to the Appellant

  1. [49]
    The Appellant gave evidence that after telling Ms Ostergaard she had been sent a 'scathing' email from Ms Brauer and what had occurred in relation to the Indigenous young man, Ms Ostergaard replied, 'Yeah, Maurie'. Ms Ostergaard denies making this statement and denied knowing about the email prior to the Appellant raising it.
  1. [50]
    Ms Ostergaard accepted she may have said words to the effect of, 'Well, see you Tuesday if you decide to come back' in jest, but denied it was in reference to the incident and stated that it was also possible the Appellant had made a similar comment.

Stressor H: Ms Manthey came to the Appellant's desk and without seeking the Appellant's permission, used the Appellant's computer to print off a copy of the Code of Conduct and checked the Appellant's emails

  1. [51]
    The Appellant gave evidence that Ms Manthey came into the office and asked if she could jump onto her computer and the Appellant answered, 'yes'. It was then discovered that the emails were not coming through. The Appellant stated that she asked Ms Manthey at this point to print her a copy of the Code of Conduct.[38]
  1. [52]
    Ms Manthey gave evidence that she provided the Appellant with a copy of the Code of Conduct when the Appellant attended her office at some stage during the day and requested one. [39]

Stressor I: At about 3.10pm, Ms Manthey said something to the Appellant about policy and procedure in open discussion with Ms Ostergaard present

  1. [53]
    The Respondent submits that Ms Manthey gave evidence that after feeling like she had given the Appellant all the support she could for the day by reminding her of the options for support regarding the matter, and seeing the Appellant was frustrated and agitated, Ms Manthey suggested the Appellant leave for the day, which she did.
  1. [54]
    Ms Manthey denied under cross-examination that she saw the Appellant again later in the afternoon.
  1. [55]
    Ms Manthey accepted that she may have responded to a request for information by the Appellant made in front of Ms Ostergaard, but denied having discussed the matter with Ms Ostergaard prior to her meeting with the Appellant.[40]
  1. [56]
    Ms Manthey was unequivocal in her response to the proposition that she had discussed the matter with Ms Ostergaard, stating that such a proposal was 'one hundred percent incorrect'.[41]

Respondent's submissions

  1. [57]
    The Respondent submits that stressors A, B, C, D, E and F are properly characterised as management action and does not dispute that the Appellant was not given prior warning of the meeting, or that it was conducted with the door closed and she was not offered a support person. The Respondent submits that the evidence is that Ms Manthey assumed the Appellant had already been made aware of the complaint by virtue of the email sent to her the day before.
  1. [58]
    The Respondent submits that the evidence the Appellant gave in relation to the interaction with the police was generally consistent with the evidence from Ms Manthey and the notes she made in relation to the Appellant's account to her on 13 April 2018. These accounts also accord with the account of events relayed to Ms Manthey and Ms Mathews in Ms Brauer's email of 12 April 2018. The accounts differ however, when the Appellant claimed in the meeting with Ms Manthey on 13 April 2018 that the police were lying and gave evidence in examination in chief that the version of events in the email as untrue, stating:

…I had been accused of something that was so far from the truth of the matter, and I hadn't been given the opportunity to respond and tell my side of the story.[42]

  1. [59]
    The Appellant's evidence was that she had been professional and respectful towards the police during her interaction with them.[43]
  1. [60]
    Under cross-examination, the Appellant confirmed she had become involved with police business by gesticulating to the young man and asking if he was okay.[44] The Appellant confirmed that she had asked Constable Reid, 'Are you racially profiling him?'.[45] The account of Ms Brauer in the email of 12 April 2018 indicated that the police officer concerned found this comment offensive.[46]
  1. [61]
    The Appellant acknowledged the officer was affronted and made a complaint as is her right but 'if she took that offensively, that’s her perception. I just asked a question'.[47] The Respondent submits that when it was put to the Appellant that there was very little in the email of Ms Brauer that was not correct the Appellant insisted the incident did not occur outside of Centrelink/Coles, that she did not make comments to the officer but rather just asked a question and there was no formal complaint even though the email referred to one.[48]
  1. [62]
    The Respondent submits that the Appellant suggested under cross-examination that the officer involved was perhaps motivated to make a complaint because she herself acted unprofessionally.[49]
  1. [63]
    The Respondent submits that the evidence is that Ms Brauer intended only to remind the Appellant of her obligations under the Code of Conduct and ask her not to engage in the conduct of the day before. The Respondent submits there is no evidence Ms Brauer or Ms Manthey intended to discipline the Appellant or engage in the formal complaints handling process. The Respondent submits that in those circumstances, the action of Ms Manthey of closing the door, not asking the Appellant if she needed a support person or giving her warning of the reason for the meeting is reasonable management action taken in a reasonable way.
  1. [64]
    The Respondent refers to the matter of Prizeman v Q-Comp ('Prizeman'),[50] in which the Appellant considered she was being accused of theft when in fact her employer was simply trying to get to the bottom of some monetary discrepancies. The Respondent notes that the Appellant's perception of what was taking place and what was in fact taking place does not change what is otherwise reasonable management actions into unreasonable management actions. The Respondent submits that while the Appellant's evidence is that she felt like she had been disciplined, and therefore denied the proper disciplinary processes, she was not in fact subject to any disciplinary process or action. Rather, she was reminded or counselled as to her responsibility to act professionally and abide by the Code of Conduct.
  1. [65]
    The Respondent submits that the fact the Appellant was upset by the action of being counselled or so reminded does not mean she has been disciplined. The evidence of Ms Manthey was that she considered the process undertaken to be a supportive one rather than a disciplinary one.
  1. [66]
    The Respondent submits that Ms Manthey told the Commission that she was not surprised by the Appellant's actions as 'she has very strong values around racism, around sexism, around ageism, so is just very human rights proud, and the fact that she acted on what she believed does not surprise me'.[51] Ms Manthey gave evidence that she was surprised that the Appellant had acted as she did during work hours.
  1. [67]
    The Respondent submits that much of the evidence given to the Commission by the Appellant is refuted by more than one witness and puts the evidence given by the Appellant in doubt. One example is that the Appellant claimed the meeting with Ms Manthey took place in the afternoon but the evidence from both Ms Manthey and Ms Ostergaard was the meeting occurred sometime in the morning before lunchtime. The Appellant also gave evidence that she returned to work after delivering a cake to find the office locked up and to have had a conversation with both Ms Manthey and Ms Ostergaard outside the workplace before they all left for the day. Both Ms Manthey and Ms Ostergaard gave evidence the Appellant left early and that neither spoke to the Appellant once she left.
  1. [68]
    Ms Manthey denied the Appellant's evidence that she said, 'we know it was Morrie [sic]', and gave evidence that she asked the Appellant if it was Maurie was involved. Contrary to the Appellant's evidence, Ms Ostergaard gave evidence that she did not assume it was Maurie who was involved in the incident and denied referring to Maurie at all.
  1. [69]
    The Respondent submits that the Appellant has shown no remorse for her actions, flatly denying she might have damaged the relationship between her employer and the QPS, or that she put the police work being carried on at the time at risk. The Respondent submits the Appellant's conduct warranted action from her employer.
  1. [70]
    The Respondent submits the actions of Ms Brauer and Ms Manthey allowed for the Appellant to provide her version of events to Ms Manthey and have them reviewed by Ms Brauer or someone else within the organisation. This opportunity did not present itself as the Appellant went on sick leave. The evidence of Ms Manthey was that if she had done so, there would have been an investigation if there were conflicting reports. The Respondent submits there was little conflict between the events described by the Appellant and that described by the police to Ms Brauer and any investigation would have resulted in the same outcome for the Appellant, or perhaps a worse outcome.
  1. [71]
    The Respondent submits that if the Commission finds the Appellant was disciplined rather than counselled as to her conduct, and the complaints and disciplinary process should have been triggered, then it is submitted that any deviation from those processes was merely a blemish and not one that resulted in any unfairness to the Appellant.
  1. [72]
    The Respondent notes that the organisation did not have a human resource team or an external human resource advisor to support its staff at the time. Ms Manthey told the Commission she had acted as manager of the service on several occasions before taking up the role permanently a couple of weeks before the events of 13 April 2018. She took over from Ms Mathews, who took up the operations manager role, and she reported to Ms Mathews. As manager, she was the line supervisor of the Appellant.
  1. [73]
    The Appellant submits that she was not aware of the email before the meeting with Ms Manthey, was not aware of the reason for the meeting and was not afforded the opportunity to have a support person with her. The Respondent submits this was because Ms Manthey had a reasonable expectation the Appellant had received the email, and because it was an informal supportive process being undertaken. It is submitted that even if the circumstances warranted the details being provided, that does not render the action unreasonable, and the Respondent submits the circumstances did not warrant it.[52]
  1. [74]
    The Respondent submits that, in any event, the Appellant was told what the meeting was about and the details of the complaint at the meeting; she was afforded the opportunity to give her version of events; she was also reminded she could access professional supervision for support. The Respondent submits this is nothing other than reasonable management action taken in a reasonable way.
  1. [75]
    Ms Manthey explained the role of 'professional supervision' as free confidential sessions with a psychologist of their choosing and which is offered to the staff whose work involves crisis youth support. She told the Commission it was not disciplinary in nature, was routinely taken up by the staff of the organisation and that the Appellant chose to use a psychologist who did not work with any other staff members.
  1. [76]
    Ms Manthey told the Commission she could see the Appellant was frustrated at what was occurring and she encouraged her to write down her version of events, write to or talk to Ms Brauer or Ms Mathews directly, or she could write to the board of the organisation, and she reiterated those possible actions to the Appellant when the Appellant returned to Ms Manthey's office multiple times during the day.[53] On one occasion, when the Appellant requested a print out of the Code of Conduct, Ms Manthey provided her with a copy of the document.
  1. [77]
    The Respondent submits Ms Manthey informed the Appellant that there was no disciplinary action at all and that the email was a gentle reminder of the Code of Conduct and that the disciplinary policy was not being engaged.[54]
  1. [78]
    The Respondent submits that the Appellant was disparaging of the experience of Ms Manthey in her evidence,[55] submitting that the Appellant was embarrassed to be meeting with Ms Manthey over the issue when Ms Manthey had only been her supervisor for a short time, although she denied this was the case.
  1. [79]
    The Respondent submits it was reasonable for Ms Brauer to refer the matter to Ms Manthey to deal with when Ms Brauer was not going to be available until the following Tuesday, and while the question was not directly asked, it appears that Ms Brauer might have undertaken to talk to the Appellant herself had she been available. It is submitted that she delegated that job to the Appellant's line supervisor because it was something she wanted done quickly in order to resolve the matter for the complainant and it could not wait until Tuesday.
  1. [80]
    The Respondent submits that looking at the actions of management overall,[56] the email being read out to the Appellant prior to her being able to give her version of events, along with the failure to tell the Appellant what the meeting was about, did not result in the Appellant being treated unfairly. On a global basis, the treatment of the Appellant in relation to her conduct on 12 April 2018 was dealt with in an inherently fair manner.

Appellant's submissions

  1. [81]
    The Appellant submits that the only direct evidence before the Commission of the Appellant's dealings with police officers on 12 April 2018 comes from the Appellant herself. No witnesses were called by the Respondent who were present and could attest to what actually transpired during this interaction.
  1. [82]
    The Appellant submits that under cross-examination, Ms Brauer accepted that at the time of sending the email, prior to having had any discussions with the Appellant to ascertain her side of the story, she had already reached the conclusion that the Appellant had made offensive statements to the police, had acted unprofessionally, had behaved in a way that reflected poorly on Community Action, had failed to act respectfully to members of the QPS and had the potential to jeopardise Community Action's relationship with the police. Ms Brauer accepted that it was necessary to refer the Appellant to the Code of Conduct and should not let an incident like that occur again.
  1. [83]
    Ms Brauer did not accept the proposition that by asking the Appellant 'not to do it again', she was providing a warning to the Appellant. The Appellant submits, putting to one side the nomenclature that appeared particularly important to Ms Brauer around 'official warnings', it is difficult to characterise the statement as holding any other meaning when coming from a CEO to one of their employees.
  1. [84]
    The Appellant submits that the thought did not cross Ms Brauer's mind to advise the Appellant in her email that she should expect to have a meeting with Ms Manthey the following day to discuss the incident, despite having already arranged with Ms Manthey for such a meeting to take place prior to sending the email.[57]
  1. [85]
    Ms Brauer accepted she did not offer the Appellant the opportunity to bring a support person to the meeting with Ms Manthey[58] and conceded she had not filled in a complaint and appeals form in respect of the complaint as outlined in Community Action's complaint handling policy.[59]
  1. [86]
    Ms Brauer could not recall whether the details of the complaint passed on to the board of Community Action made any reference to the Appellant's version of events.[60]
  1. [87]
    The Appellant submits that when the proposition was put to Ms Brauer that she could have followed an alternative process that afforded the Appellant an opportunity to present her version of events before a determination as to her conduct was made, Ms Brauer conceded that, with hindsight, such a process could have been followed, but that she was nonetheless entitled to have made her decision based on the fact that the police were offended by the Appellant's comments.[61]
  1. [88]
    The Appellant submits that Ms Manthey accepted, in the context of a workplace investigation, that it would come across as an act of bias for a person to hear one side of events and not the other, and then make a decision based solely on what one party had said.[62]
  1. [89]
    The Appellant submits that on the whole, Ms Manthey's evidence was that, despite the fact that the complaint had come in as a formal complaint, the process that was followed thereafter by Community Action was informal.[63] This, along with the fact that elements of the complaints process were carried out by Ms Brauer, was used to explain why some of the organisation policies and procedures were not followed in circumstances where they were said not to apply.[64]
  1. [90]
    In response to the question of whether the Appellant was treated fairly by the process undertaken by Community Action, Ms Manthey's response was, 'If it comes to a formal process, no, but if it comes to informal support for a staff member, one hundred percent she was treated fairly'.[65]
  1. [91]
    The Appellant notes that in the meeting that Ms Manthey stated, 'There's been a formal complaint made against you by the Queensland Police Service' and that the email contains the subject line 'Formal Complaint from the Police'.
  1. [92]
    The Appellant submits the following description with respect to her immediate response to being read the email:[66]
  1. (i)
    A formal complaint from the police was a very big deal in her world;
  1. (ii)
    she felt completely intimidated by it, because she thought nothing she did the day before warranted a formal complaint.
  1. (iii)
    She felt that she was being accused of allegations that she had been unprofessional and disrespectful toward police, when she knew this had not been the case;
  1. (iv)
    she took the statement in the email 'Please ensure that an incident like this does not occur again' to mean that she was being disciplined, and that her conduct was not to happen again;
  1. (v)
    she summarised her response to being read the email as follows:

I was devastated. I was totally demoralised. I felt I had been given no opportunity to talk about what had transpired from my point of view, no right of reply. I felt that the police officer had been completely believed without my being asked anything and that Judy Brauer had accepted her version of events. And I felt quite abandoned that they didn't have my back on any level, and had shown no regard to me in terms of my professionalism in light of knowing me and having worked with me for quite some time, and I'd never been performance managed, and my appraisals - work appraisals were always very positive - over and above. So I was very shocked. And I could feel myself going into shock. And then it got worse from there.

[footnotes omitted]

  1. [93]
    The Appellant's evidence was that she responded to Ms Manthey's recital of the email with the words 'That's not the truth'[67] after which Ms Manthey then leaned across the desk and stated, 'We know it was Morrie [sic]. And the reason they tracked you back to the service is because of the number plate on the work vehicle'.[68]
  1. [94]
    The Appellant then gave evidence that Maurie was a homeless Indigenous man who the Appellant had provided support to over the years as a former client of Community Action.[69]
  1. [95]
    The Appellant stated to Ms Manthey, 'Stop there. That's not true. It had nothing to do with Maurice. I've never seen – I’d never seen this aboriginal man before in my life'.[70]
  1. [96]
    The Appellant then recounted to Ms Manthey her own version of events from the day before, stating to Ms Manthey that she could not understand why Ms Brauer had not just given her a call to let her know of the formal complaint so that she could have told her version of events.[71] In response, Ms Manthey suggested to the Appellant that she should 'log it', which the Appellant took to mean that she should write out what had actually transpired herself.[72]
  1. [97]
    The Appellant submits that an exchange occurred with Ms Ostergaard in which the Appellant explained she had just received a scathing email from Ms Brauer about an incident between police and a young Indigenous man, to which Ms Ostergaard responded, 'yeah, Morrie [sic]'.[73] The Appellant denied Maurie was the individual involved.
  1. [98]
    The Appellant's evidence was that shortly thereafter, Ms Ostergaard packed up her desk to leave and said to the Appellant, 'Well, see you on Tuesday, if you come back'.[74] The Appellant submits that she described a feeling of shock and intimidation in response to this comment, as though Ms Ostergaard must have known the details of the complaint against her by the police.[75]
  1. [99]
    The Appellant submits that Ms Manthey held a discussion with the Appellant about policies and procedures, which the Appellant took to mean policies and procedures around their early meeting, which raised concerns for the Appellant in respect of confidentiality, given the matter appeared to be being openly discussed in front of Ms Ostergaard.[76]
  1. [100]
    The Appellant submits that in cross-examination of the Appellant, emphasis was placed on the reasonableness of the Appellant's conduct on 12 April 2018, founded in the most part on the premise that the Appellant had improperly interjected into police business.
  1. [101]
    The Appellant submits that in re-examination, the Appellant provided a chronology of her interactions with Constable Reid which makes it clear that the extent to which she may have interjected into police business was by inquiring of a young Indigenous man being spoken to by police whether or not he was okay, and that it was in fact Constable Reid who invited the conversation with the Appellant.[77]
  1. [102]
    The Appellant submits that, in any event, the principle focus for the Commission in the present case should be directed not at the reasonableness of the Appellant's conduct, but instead at the reasonableness of the management action taken by Community Action in response the following day.
  1. [103]
    The Appellant submits that subject to relatively minor variances, all witnesses broadly agreed on the key chronology of the events giving rise to this matter.
  1. [104]
    The Appellant distinguishes the decision in Bowers v WorkCover Queensland ('Bowers'),[78] submitting that Community Action did not simply miscarry a reasonable scheme they have reasonably implemented; they failed to carry a scheme altogether, making their management action entirely unreasonable.
  1. [105]
    The Appellant refers to the decision in Delaney v Q-Comp Review Unit,[79] in which the Commission stated that where a number of events occur in the course of management action that individually may be considered blemishes, the action of management may need a more global assessment.[80] The court went onto say that '[i]f the matters … had stood alone,… the description of them as a "blemish" would have been entirely open... The problem is that the events did not stand alone'.[81] Further, in Prizeman, the court stated that 'it is the reality of the employers conduct … which must be taken into account'.[82]
  1. [106]
    The Appellant submits that the reality of the Community Action's conduct in the present case is that the failings of the management action taken do not amount to a mere blemish. Community Action failed to act reasonably on multiple separate occasions, meaning that a more global assessment of the situation needs to be made, with both the email from Ms Brauer and the subsequent meeting with Ms Manthey individually constituting unreasonable management action and therefore as a whole, Community Action's actions amounts to an even stronger case for unreasonable management action.
  1. [107]
    The Appellant further submits that Community Action's failure to act in accordance with their own policies and procedures with regard to this matter is not a slight failing, deficiency or flaw and that, when considering the entirety of their course of action, was completely unreasonable.
  1. [108]
    The Appellant refers to the decision of Deputy President O'Connor in Allen v Workers' Compensation Regulator ('Allen'),[83] in which the Deputy President found that the failure to properly or fully inform the Appellant in that matter of the exact nature of the meeting prior to or at the commencement of the meeting was unreasonable.[84]
  1. [109]
    The Appellant submits that Ms Brauer made a decision to sanction the Appellant in response to the complaint received from Constable Reid, without conducting any form of investigation and without affording any procedural fairness to the Appellant.
  1. [110]
    The Appellant submits that similar to the case in Allen, despite Ms Brauer's or Ms Manthey's attempts to characterise the email as being a 'reminder of the Appellants obligations' or part of an 'informal process' to 'support rather than discipline' the Appellant, the truth of the matter is that it was a sanction. Any reasonable person in receipt of the email would have regarded it as such.
  1. [111]
    The Appellant submits that both the email and subsequent meeting with Ms Manthey amounted to an expression of disapproval on behalf of Community Action as to the Appellant's conduct in which she had engaged in the course of her employment.
  1. [112]
    The Appellant accepts that it was entirely appropriate for Ms Brauer to raise the complaint with the Appellant, however, submits the following factors which rendered the process to be undertaken in an unreasonable way:[85]
  1. (a)
    the Appellant was not at any time provided with advanced knowledge of what was to be discussed at the meeting of 13 April 2018;
  1. (b)
    Ms Brauer and Ms Manthey, contrary to the policies and procedures of CAI:
  1. (i)
    had not provided the Appellant with a copy of any formal complaint made against her by the Queensland Police Service; or
  1. (ii)
    to the extent the formal complaint was made orally, had not taken any steps to record that complaint in a Complaints & Appeals Form;
  1. (iii)
    had not taken any steps to investigate the complaint;
  1. (iv)
    had not afforded the Appellant procedural fairness and natural justice;
  1. (v)
    have not provided the Appellant with an opportunity to have a support person present;
  1. (vi)
    had not adhered to the very same policies and procedures that they had directed the Appellant to adhere to; and
  1. (vii)
    had breached confidentiality;
  1. (c)
    the Appellant was confronted with veiled allegations from Ms Brauer and Ms Manthey that:
  1. (i)
    she had brought the reputation of CAI into disrepute;
  1. (ii)
    she knew the indigenous man involved in the police interaction that she had observed;
  1. (iii)
    she was being untruthful in her version of events as to her interaction with Constable Reid;
  1. (iv)
    she lacked professionalism; and
  1. (v)
    she had potentially damaged CAI's relationship with the Queensland Police Service.
  1. [113]
    The Appellant submits that in circumstances where the complaint made against the Appellant was characterised as being 'formal' and coming from the QPS, suggested the Appellant had jeopardised Community Action's relationship with the police, and resulted in a referral to the Code of Conduct, contraventions of which could result in an employee's instant dismissal, the circumstances demanded nothing less than a fair and fulsome process.
  1. [114]
    The Appellant's feelings of helplessness, devastation and abandonment by her employer, when coupled with her fears as to what 'formal complaints' from the police existed in Community Action's records to which she had not been afforded access (as demonstrated by her letter to Community Action's President and Board dated 15 May 2018),[86] were objectively reasonable in the circumstances
  1. [115]
    The Appellant submits that she was wholly unsupported and utterly failed by Community Action's management action in the present case, and it was this management action that caused her psychiatric injury.

Respondent's submissions in reply

  1. [116]
    The Respondent submits that the Appellant was not being disciplined but rather counselled as to, or reminded of, what was expected of her in Ms Brauer's email. It is submitted that action falls into management action and it was reasonable management action taken in a reasonable way.
  1. [117]
    The Respondent notes the Appellant's submission that no witness was called by the Respondent to counter the Appellant's version of the events which occurred on 12 April 2018. The Respondent submits it was unnecessary for it to do so where there is no contest with respect to much of the Appellant's recollection. Any contested matters were dealt with in cross-examination.
  1. [118]
    The Respondent queries the submissions relating to the Appellant's evidence about the interaction with the young man, submitting that the Appellant was attempting to suggest that the actions of the Appellant were somehow justified or unable to be impeached.
  1. [119]
    The Respondent agrees with the Appellant's submission that there should be a global approach taken to consideration of management action.
  1. [120]
    The Respondent notes the Appellant's submission that there was a continual failure to act in accordance with their own policies and procedures and submits that these policies and procedures are not particularised and the continued values are not enumerated.
  1. [121]
    With respect to the case of Allen, the Respondent submits that the only similarity to this matter is that the Appellant was asked to attend a meeting with her employer. In Allen, the Appellant was erroneously told that the meeting was going to be about one thing, and found instead that it was about her role, performance, hour and salary.
  1. [122]
    The Respondent submits that there was no deception on the part of Ms Manthey when she invited the Appellant to her office for a chat. She had no reason to pretend the meeting was for one reason when it was really for another. Ms Manthey thought the Appellant had received the email from Ms Brauer. She commenced the meeting without subterfuge. There were no 'veiled allegations of wrongdoing and incompetence'. The 'allegations' here were clear, there had been a formal complaint from the police, they had taken offence, the Appellant's behaviour reflected poorly on the organisation, and it had the potential to damage relations with the QPS. The Respondent submits that those matters are substantiated on the evidence and in any event, Ms Brauer considered she could rely on the information from Constable Reid.
  1. [123]
    The Respondent submits that the evidence does not support a finding the Respondent breached the Appellant's confidence. Ms Ostergaard consistently denied knowing about the incident before the Appellant told her about it herself.[87] Ms Manthey also repeatedly denied discussing it with Ms Ostergaard.[88]

Consideration

  1. [124]
    The parties agree that the Appellant is a worker pursuant to s 11 of the Act and suffered a personal injury on 13 April 2018, being the psychological injury of adjustment disorder with mixed anxiety and depressed mood.
  1. [125]
    The medical evidence provided by the medical witnesses, Dr Cadzow and Ms Fitzpatrick, indicated that the stressors contributing to the injury occurred as a consequence of the Appellant's employment. The Respondent's submissions concede that the Appellant's injury arose out of, or in the course of, her employment.
  1. [126]
    I am satisfied that the Appellant suffered a personal injury that arose out of, or in the course of, her employment.
  1. [127]
    Accordingly, the remaining issues to be determined, on the balance of probabilities, are whether:
  • the Appellant's employment was the major significant contributing factor to the injury;[89] and
  • the injury arose out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with the Appellant's employment or the Appellant's expectation or perception of reasonable management action being taken against the Appellant.

Was the Appellant's employment the major significant contributing factor to her injury?

  1. [128]
    This assessment requires an examination of both factual and medical evidence.[90] Where alleged stressors are not proven on the evidence, even if they are referred to in the medical evidence, those stressors cannot be taken to have contributed to the injury.
  1. [129]
    I accept the Respondent's submission that at the date of injury, s 32 of the Act required the worker's employment to be the major significant contributing factor, rather than a significant contributing factor. As outlined by Neat C in Kuenstner v Workers' Compensation Regulator,[91] a number of factors could contribute to a worker's psychiatric or psychological disorder, however, the worker's claim will only be accepted if their employment was the 'major' significant contributing factor to their disorder.
  1. [130]
    The medical evidence reaches the required level, with Dr Cadzow giving evidence that, in his view, the Appellant's employment was the major significant contributing factor and Ms Fitzpatrick states that there was no reason for the injury to have arisen other than from the Appellant's employment. On this basis, I am satisfied that the Appellant's employment was the major significant contributing factor to the injury sustained.
  1. [131]
    The parties are in agreement that the Appellant was asked to attend a meeting with Ms Manthey without any prior knowledge or warning of the agenda of the meeting; that the meeting was conducted behind a closed door without prior warning; that the Appellant was not offered a support person to accompany her to the meeting; that Ms Manthey read out an email from Ms Brauer to the Appellant. Stressors A, B, C and part of D are therefore accepted as occurring in the manner alleged. However, the parties dispute whether the email and meeting were disciplinary in nature and the Respondent does not accept Stressors E, F, G, H and I occurred in the manner alleged by the Appellant.
  1. [132]
    With respect to stressors E to I, I note that parts of the Appellant's evidence were refuted by either Ms Manthey or Ms Ostergaard. The Appellant gave evidence that the meeting with Ms Manthey took place in the afternoon but the evidence from both Ms Manthey and Ms Ostergaard was the meeting occurred in the morning before lunchtime. The Appellant also gave evidence that she returned to work after delivering a cake to find the office locked up and had a conversation with both Ms Manthey and Ms Ostergaard outside the workplace before they all left for the day. Both Ms Manthey and Ms Ostergaard gave evidence the Appellant left early and that neither spoke to the Appellant after she left. On the basis that the evidence of Ms Manthey and Ms Ostergaard is consistent on these matters, I approach the Appellant's evidence with respect to the allegations outlined in Stressors E to I with some caution.
  1. [133]
    The Appellant alleges in Stressor E that Ms Manthey falsely stated 'we know who it was' in relation to the Indigenous man and in Stressor F that Ms Manthey falsely stated the reason the QPS had been able to 'track' the Appellant back to the office. Ms Manthey denies making both statements, but acknowledged that she may have asked, 'Was it Morrie [sic]?' during the conversation. I have no reason to doubt Ms Manthey's recollection and, given the Appellant's apparent confusion with respect to other events on this day, accept Ms Manthey's evidence with respect to these stressors. I accept that a dialogue occurred between Ms Manthey and the Appellant in relation to the identity of the Indigenous man. However, on the basis of Ms Manthey's evidence that she asked the Appellant if she knew who the man was, I am persuaded that it is more likely that Ms Manthey inquired as to who the man was rather than stated that she knew who the man was.
  1. [134]
    The allegation relating to Stressor G is that Ms Ostergaard had been informed of the subject of the email and meeting. The Appellant submits that this contention is evidenced by Ms Ostergaard's reply of, 'Yeah, Maurie' after the Appellant told her of the email. Ms Ostergaard denied making this statement and denied knowing about the email prior to the Appellant raising it. Ms Manthey gave clear and unequivocal evidence that the matter had not been previously discussed with Ms Ostergaard. The Appellant submits that Ms Ostergaard said words to the effect of, 'Well, see you Tuesday if you decide to come back'. Ms Ostergaard stated that she was not sure whether it was the Appellant or herself who made the comment, but that it was said in jest. Given Ms Ostergaard's recollection of this interaction was vague, I accept the Appellant's evidence that this statement was made, however, I am not of the view that it is indicative of Ms Ostergaard having any prior knowledge of the relevant incident. I am not persuaded that the allegation outlined in Stressor G occurred in the manner alleged.
  1. [135]
    The allegation relating to Stressor H is that Ms Manthey came to the Appellant's desk and without seeking the Appellant's permission, used the Appellant's computer to print off a copy of the Code of Conduct and checked the Appellant's emails. The Appellant's evidence was that Ms Manthey came into the office and asked if she could jump onto her computer and the Appellant answered 'yes' after which she asked Ms Manthey to print her a copy of the Code of Conduct. It was then discovered that the emails were not coming through to the Appellant's account. The Appellant's own evidence with respect to this stressor does not support the allegation as outlined.
  1. [136]
    The allegation relating to Stressor I is that Ms Manthey said something to the Appellant about policy and procedure at about 3.10pm in open discussion with Ms Ostergaard present. Both Ms Manthey and Ms Ostergaard gave evidence that the Appellant left early for the day and so no conversation was had in the afternoon. I accept Ms Manthey's evidence that she printed off a copy of the Code of Conduct after being requested to do so by the Appellant but denied having discussed the matter with Ms Ostergaard. I am not persuaded that the Appellant's confidentiality had been breached and accept Ms Manthey's evidence that she may have responded to the Appellant's requests for information openly however she had not discussed the incident with Ms Ostergaard separately.
  1. [137]
    As outlined above, the medical evidence from both Dr Cadzow and Ms Fitzpatrick confirmed that the Appellant's employment was the major significant contributing factor to the injury, with the stressors contributing to the injury primarily those regarding management responses to the police complaint (i.e. stressors A, B, C and D). The stressors that have not been accepted as outlined above are excluded from consideration, however even without those stressors the Appellant's employment remains the major significant contributing factor to her injury.

Did the injury arise out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with the Appellant's employment?

  1. [138]
    A personal injury is excluded from the definition of 'injury' under s 32(5) of the Act if it arises out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with the Appellant's employment or the Appellant's expectation or perception of reasonable management action.
  1. [139]
    The Respondent submits the Appellant's injury is excluded by s 32(5) of the Act because it arose out of, or in the course of, reasonable management action taken in a reasonable way.
  1. [140]
    Management action is directed at a worker's employment itself as opposed to action about everyday duties or tasks of the worker.[92] In Read v Workers' Compensation Regulator,[93] Deputy President O'Connor stated:

Management action does not embrace every instruction of and action by an employer. Rather, the expression contemplates a particular type of action by an employer, and something other than a mere instruction or requirement that the worker perform his or her duties. Management action must be something different to the normal duties and incidents of her employment as a Town Planner. In other words, it must be something more than what was part and parcel of her employment.[94]

  1. [141]
    In Allwood v Workers’ Compensation Regulator,[95] Deputy President O'Connor described 'management action' in the following terms:

The concept of management action in the context of a worker's employment, and for the purposes of the Act, is not so broad that it encompasses anything and everything that a manager does or says in the particular workplace, rather the expression 'management action' relates to those actions undertaken when managing the worker’s employment.

…

The exclusory action in s 32(5) of the Act was, in my view, intended by Parliament to relate to specific management action directed to the appellant's employment itself, as opposed to action forming part of the everyday duties or tasks that the worker performed in their employment…[96]

  1. [142]
    The stressors properly characterised as management action include the Appellant not being given prior warning of the meeting, that it was conducted with the door closed and the Appellant was not offered a support person. The action of Ms Brauer in sending the email to the Appellant was an act directed to the task of managing the Appellant's employment and as such is also considered management action.
  1. [143]
    In WorkCover Queensland v Kehl,[97] President Hall stated that 'reasonable' should be treated as meaning 'reasonable in all the circumstances of the case'. The medical evidence assists in determining the weight to be attributed to each of the stressors in this case. The evidence of Dr Cadzow provides that the stressors that contributed most significantly to the Appellant's injury were those relating to management actions following the police incident, specifically the email from Ms Brauer and the meeting with Ms Manthey. 
  1. [144]
    The question is then whether the action of Ms Brauer in sending the email to the Appellant and the action of Ms Manthey in conducting the meeting constitute reasonable management action taken in a reasonable way.
  1. [145]
    The task of determining the reasonableness of management action was considered by Martin J in Davis v Blackwood:[98]

…The task of the Commission when applying s 32(5) does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances. There may be any number of actions or combinations of actions which would satisfy s 32(5). The proper task is to assess the management action which was taken and determine whether it was reasonable and whether it was taken in a reasonable way. Sometimes, that may involve considerations of what else might have been done but that will only be relevant to whether what was done was, in fact, reasonable.

  1. [146]
    President Hall noted in Bowers that there may be blemishes in management action held to be reasonable, and:

The circumstance that a system of work or its implementation has miscarried does not necessarily lead to the conclusion that either the system of work or its implementation was unreasonable. Reasonable schemes reasonably implemented can miscarry.[99]

  1. [147]
    The Appellant referred to Department of Education & Training v Sinclair ('Sinclair'),[100] in which the court considered the failure to give details of the allegation would have greatly increased the stress factor of the employee's situation and in doing so, the actions of the management were unreasonable.[101] I accept the Respondent's submission that this matter can be distinguished from Sinclair as the Appellant received details of the allegation at the meeting with Ms Manthey.
  1. [148]
    The Appellant submits that despite having an exceptional employment history with Community Action and having never been performance managed in anyway, there was a clear bias held against her by her employer and she had been treated as though she was guilty of the claims made against her by Constable Reid from the outset.
  1. [149]
    The first of the management actions outlined as a stressor was the sending of the email by Ms Brauer. It is not disputed that the Appellant was not asked about her version of the incident of 12 April 2018 prior to Ms Brauer sending the email. The Respondent submits that the email was of a counselling nature rather than disciplinary and consequently, Ms Brauer was not required to offer the Appellant an opportunity to provide her version of the incident. I disagree. The email was drafted in such a way that any reasonable person would have read it as a disciplinary email rather than an act of counselling:

Dear Julie,

I am writing to advise that I have received a formal complaint from the Police regarding an incident that occurred outside of Centrelink/Coles today where you interjected on Police business – between officer and an indigenous man. QPS have taken offence to your comments.

Your behaviour has reflected poorly on Community Action and has the potential to be detrimental to relations with Police. I refer you to the Code of Conduct that requires staff to ensure that their personal conduct is at all times professional and does not reflect adversely on the reputation of Community Action.

The organisation expects all staff members, when at work, to act professionally and to treat all stakeholders with respect, including our colleagues from Qld Police.

Please ensure that an incident like this incident does not occur again.

Judy Brauer

[emphasis added]

  1. [150]
    The email clearly indicates that Ms Brauer has accepted the version of events as given by the police, has indicated no intention to allow the Appellant to provide her versions of events, and has determined that the Appellant's actions have potentially breached the Code of Conduct.
  1. [151]
    The Respondent submits that, even if I determine that the email was disciplinary in nature, this was a mere blemish rather than unreasonable management action. The act of making a decision that a formal complaint about an employee was substantiated without providing the employee an opportunity to be heard cannot, in my view, be considered a mere blemish.
  1. [152]
    I note that one of the reasons given as to why Ms Brauer sent the email at that time was that she was not due to be back in the office until the following Tuesday. It is unclear to me why the matter had to be addressed in such an urgent manner as no evidence was led on this issue. Regardless, a fair process would have allowed for the Appellant to be respond to the complaint, even if the timeframe to do so was restricted.
  1. [153]
    The Respondent referred to Prizeman and submits that the fact the Appellant was upset by that action of being counselled or so reminded does not mean she has been disciplined. This matter can be distinguished from Prizeman on the basis that it was not merely the Appellant's perception that she was being disciplined or subject to unreasonable management action. On any reasonable analysis, the email was of a disciplinary nature. The email reprimanded the Appellant and warned her not to engage in the conduct again. The term 'warning' does not need to be used for the communication be considered as such. The Appellant's injury did not arise out of, or in the course of, her perception that she was being disciplined, rather it was a consequence of her actually being disciplined.
  1. [154]
    The Respondent submits that the versions of the incident were broadly consistent between the parties, and that irrespective of the Appellant's recollection, the fact remained that the police officer was offended. In my view, the versions of the event differed in some important aspects, particularly the manner in which the Appellant engaged with the Indigenous man and the method by which the police officer became aware of the Appellant's employment. The context in which the police officer felt offence was an important factor in determining whether the behaviour of the Appellant was one deserving of counselling, reprimand or a more severe disciplinary measure.
  1. [155]
    The email from Ms Brauer to Ms Manthey and Ms Mathews sent just prior to her email to the Appellant on 12 April 2018 outlined the details of the police complaint and states:

…

This is extremely poor behaviour, it reflects badly on the service and is really bad for service – police relations. This needs to be addressed with Julie. Obviously I'm not here tomorrow. I am going to send her an email – I will cc you both. It probably also needs to be followed up by you too Georgie (or both of you)…[102]

  1. [156]
    The email directs Ms Manthey (Georgie) to address the issue with the Appellant. It does not direct her to seek the Appellant's response to the complaint. The email indicates that the intention of the meeting with Ms Manthey was not to provide support to the Appellant, it was to ensure that the 'extremely poor behaviour' was addressed.
  1. [157]
    It appears that once Ms Manthey realised that the Appellant did not agree with the characterisation of the incident as outlined by Ms Brauer, she advised the Appellant that she should 'log it' or write down her version of the events. Ms Manthey gave evidence that if the Appellant had written out her concerns and taken them to Ms Brauer there may have been some kind of investigation to compare the two statements of the events, but the Appellant did not do so because she did not return to work.[103] I accept that this may have been the case, however a fair process should have allowed for the Appellant to be heard prior to a decision being made as to the appropriateness of her conduct. A process that is procedurally fair is not one that allows for the Appellant to be heard after a decision has been made and only if the employee raises concerns about the decision.
  1. [158]
    Ms Manthey gave evidence that she then offered the Appellant access to supportive services including 'supervision' which as I understand, it is a process through which employees can access support. Ms Manthey stated that the Appellant was treated with dignity, respect and kindness, and it was more supportive to take her through an informal process rather than a disciplinary one. I have no reason to doubt that Ms Manthey did treat the Appellant in a supportive manner, however, the decision to take a disciplinary course of action rather than an informal course had already been taken when Ms Brauer sent the email. 
  1. [159]
    Ms Manthey's suggestion to the Appellant that she simply 'log' her version was not, in my view, reasonable. I appreciate that Ms Manthey was in a difficult situation given that Ms Brauer had already determined that the events had happened as outlined in the email.
  1. [160]
    The Respondent refers to Ms Manthey's evidence that even if the Appellant's version and the police officer's version were different, the Appellant had intervened in police business on the report of a formal person in the community and that should not have happened regardless of exactly what had been said.[104] The Respondent submits that the Appellant has shown no remorse for her actions, denying she might have damaged the relationship between her employer and the QPS, or that she put the police work being carried on at the time at risk. The Respondent submits the Appellant's conduct warranted action from her employer.
  1. [161]
    The matter in issue is not whether the Appellant acted reasonably during the incident on 12 April 2018 or whether she has shown remorse. I accept that the complaint from the police warranted action from the Respondent. However, reasonable management action would have allowed for a fair process which would include providing the Appellant an opportunity to be heard. 
  1. [162]
    Dr Cadzow's evidence under cross-examination provides a relevant perspective on this point:

…the main thing that unsettled her wasn't actually the interaction with the police force, it was the experience afterwards where she suddenly felt that dealing with people with significant socio-economic disadvantage in complex situations, where she had previously had a degree of autonomy, that kind of feeling that - that wouldn't be possible for her work in that way anymore, because she wouldn't be backed up if she made a difficult call. So, the – the – like, at various points when she's talked to me about this … she has acknowledged that if there had been - if there'd been a chance for her to talk about what had happened, she would have accepted a reprimand. But it was defence of, that an incident happened and then she got a reprimand without any chance to talk about what had happened for her, that's what was so unsettling.[105]

[emphasis added]

  1. [163]
    Dr Cadzow's evidence above confirms that the Appellant was not injured because she thought that that her conduct was beyond reproach, rather, it was that she did not have a chance to talk about what had happened.
  1. [164]
    The importance of an employee being afforded the opportunity to be heard prior to judgment cannot be overstated. Allowing the employee to respond after judgment has been passed does not meet the requirements of procedural fairness.
  1. [165]
    Commissioner Hampton stated in Ms SB,[106] that as part of the test as to whether management action is considered reasonable, 'consideration may be given to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances'.[107]
  1. [166]
    The Code of Conduct provides the following:
  1. Failure to comply with the Code of Conduct is considered to be very serious and will be dealt with according to the Employee Disciplinary Policy or Employee Misconduct Policy and may result in instant dismissal and/or referral to relevant authorities, following appropriate investigations.

…

  1. The policy and procedures of Community Action Inc may not cover all situations which may arise. In the absence of policy direction, staff should:

…

  • Use common sense and professional principles, fairness and social justice to guide difficult of delicate judgements.

[emphasis added]

  1. [167]
    Given the serious consequences of breaching the Code of Conduct as outlined above, with the possible consequences including instant dismissal, it was imperative that the Appellant be afforded the opportunity to respond. The Code of Conduct also provides that staff, which include the CEO and Manager, use 'professional principles, fairness and social justice' to guide any judgements. The process used to address this complaint did not provide fairness to the Appellant.
  1. [168]
    The Community Action Inc Employee Misconduct Policy outlines an extensive procedure including an investigation into the conduct and provision for leave with or without pay whilst the investigation is carried out. The investigation process is outlined as follows:
  1.  It is a requirement of the investigation process that:
  • Allegations are specifically put to the employee,
  • Adequate opportunity is given for the employee to respond, and
  • The employee is interviewed.

Depending on the circumstances –

  • The allegations will be set out in writing, and
  • a formal interview will be conducted

OR

  • a formal interview will be conducted, and
  • the allegations will be confirmed afterwards in writing.
  1. [169]
    Whilst the Employee Misconduct Policy relates to matters involving allegations of serious misconduct, the process provides that employees be afforded the opportunity to respond to the allegations. I accept that the allegation in this matter was not one of serious misconduct, however, it was not reasonable to ignore all principles of procedural fairness because the conduct is less serious.
  1. [170]
    I note that Ms Brauer did not comply with the Complaints Handling Policy[108] by completing a complaints and appeals form and consequently, there was no 'complaint' made available to the Appellant. The Respondent submits that the complaint was handled 'informally' and as such, the formal requirements of Community Action's policies did not need to be followed. It seems to me that the tone of the email sent to the Appellant was not informal, particularly given that the subject line stated, 'Formal Complaint from Police'. Although Ms Brauer disputes that the email could be construed as a warning, it appears that the email was indeed a warning or a reprimand, particularly given the reference to the Code of Conduct and direction that the incident 'does not occur again'. A process in which a formal complaint is received and a decision is made that the complaint is substantiated without allowing the Appellant to be heard cannot be considered reasonable simply on the basis that it was couched as 'informal'.
  1. [171]
    I note the Respondent's submission that Community Action did not have access to specialist human resources advice at the time of the relevant incident. I accept that the decisions taken were done so without the benefit of this advice, and whilst this may explain why certain actions were taken, this does not render the actions reasonable. 
  1. [172]
    Ms Brauer did not engage in reasonable management action in that she did not provide the Appellant with the details of the complaint, did not provide the Appellant with an opportunity to respond to the complaint and made a decision as to the appropriateness of the Appellant's conduct prior to allowing the Appellant to be heard on the matter. This was not reasonable management action taken in a reasonable way and consequently, the Appellant's injury is not excluded from being compensable on the basis of s 32(5) of the Act.

Conclusion

  1. [173]
    For the reasons outlined above, I have determined that the Appellant:
  • suffered a personal injury, that being a psychiatric or psychological disorder;
  • that the Appellant's personal injury arose out of, or in the course of, her employment;
  • that her employment was the major significant contributing factor to her injury; and
  • that the Appellant's injury is not excluded by operation of s 32(5) of the Act.

Orders

  1. [174]
    I make the following orders:
  1. The appeal is allowed.
  1. The decision of the Regulator dated 6 November 2018 is set aside.
  1. The application for compensation made by the Appellant is one for acceptance.
  1. I will hear the parties as to costs.

Footnotes

[1] Exhibit 6 – Medical Report of Dr Cadzow, page 4.

[2] Ibid pages 13-14.

[3] T1-50, LL17-19.

[4] T1-51, LL4-8.

[5] T1-51, LL25-30.

[6] Exhibit 7 – Report of Ms Fitzpatrick, page 2.

[7] Ibid.

[8] T1-55, LL15-17.

[9] T1-55, LL24-44.

[10] [2017] ICQ 4.

[11] Exhibit 8 – Email from Ms Brauer to Ms Manthey and Ms Mathews dated 12 April 2021.

[12] T2-32, LL18-23.

[13] T2-35, LL1-2.

[14] T1-10, LL6-8; LL20-21.

[15] T2-35 LL27-29.

[16] T2-35, LL34-46.

[17] T2-31, LL26-27.

[18] T2-31, LL23-34.

[19] T1-13, LL18-19.

[20] T1-19, LL11-13.

[21] T2-8, LL4-18.

[22] T2-13, LL27-41.

[23] T2-14, LL5-44; T2-22, LL1-2.

[24] T2-14, L46 – T2-15, L1.

[25] T2-15, LL33-42.

[26] T2-15, L41 – T2-16, L2; T2-23, LL27-35.

[27] T2-24, LL23-24; T2-25, L24; T2-25, LL43-45.

[28] T2-25, LL9-41.

[29] T2-26, LL1-11; T2-36, LL6-8.

[30] T2-41, LL38-42.

[31] T2-42, LL35-39.

[32] T2-42, L43 – T2-43, L2.

[33] T2-44, LL1-4; T2-45, LL35-36.

[34] T2-44, LL41-47.

[35] T2-31, LL39-41.

[36] T2-36, L38 – T2-37, L1.

[37] T1-7, LL42-44.

[38] T1-16, LL12-23.

[39] T2-32, LL15-21.

[40] T2-40, LL1-24.

[41] T2-40, L21.

[42] T1-17, LL17-18.

[43] T1-13, LL8-12.

[44] T1-24, LL24-36.

[45] T1-27, LL22-24.

[46] Exhibit 1 – Email from Ms Brauer to the Appellant dated 12 April 2018; Exhibit 8 (n 11).

[47] T1-32, LL3-4.

[48] Respondent's closing submissions, [21].

[49] Ibid.

[50] (2005) 180 QGIG 481 ('Prizeman').

[51] T2-31, LL9-14.

[52] Respondent's closing submissions, [93].

[53] T2-31, L42 – T2-32, L4.

[54] Respondent's closing submissions, [97].

[55] Ibid [98].

[56] Delaney v Q-Comp Review Unit (2005) 178 QGIG 197 ('Delaney').

[57] Appellant's closing submissions, [58]; T2-15, LL27-38.

[58] T2-15, LL40-41.

[59] T2-16, LL4-30; T2-23, LL1-5.

[60] T2-20, L35 – T2-21, L16.

[61] T2-24, L29 – T2-26, L4.

[62] T2-44, LL17-19.

[63] T2-35, LL44-46.

[64] T2-44, LL42-47.

[65] T2-44, LL34-40.

[66] Appellant's closing submissions, [50](k).

[67] Appellant's closing submissions, [50](l); T1-13, L32.

[68] T1-13, LL35-36.

[69] Appellant's closing submissions, [50](n); T1-13, L39 – T1-14, L17.

[70] Appellant's closing submissions, [50](o); T1-14, LL33-34.

[71] Appellant's closing submissions, [50](p)-(q); T1-14, LL12-46.

[72] Appellant's closing submissions, [50](r); T1-14, LL17-21.

[73] Appellant's closing submissions, [50](s); T1-14, LL17-21.

[74] T1-15, L43.

[75] T1-15, L43 – T1-16, L7.

[76] T1-17, LL1-30.

[77] Appellant's closing submissions, [52]; T1-45, L36 – T1-46, L18.

[78] (2002) 170 QGIG 1 ('Bowers').

[79] (2005) 178 QGIG 197.

[80] Appellant's closing submissions, [78].

[81] Delaney (n 56) 3.

[82] Prizeman (n 50) 1.

[83] [2018] QIRC 41.

[84] Ibid [93].

[85] Appellant's closing submissions, [99].

[86] Exhibit 5 – Appellant's letter to Community Action's President and Board of Directors dated 15 May 2018.

[87] Respondent's closing submissions in reply, [13]; T2-48, LL3-34; T2-50, LL9-14.

[88] Respondent's closing submissions in reply, [13]; T2-40, LL5-24.

[89] The injury occurred prior to the 2019 amendments to the Act, which removed the word 'major' from this section.

[90] Cronin v Workers' Compensation Board of Queensland (1997) 156 QGIG 100.

[91] [2016] QIRC 83.

[92] Allwood v Workers’ Compensation Regulator [2017] QIRC 88, [68] (O'Connor DP).

[93] [2017] QIRC 72.

[94] Ibid [10].

[95] [2017] QIRC 88.

[96] Ibid [60], [68].

[97] (2002) 170 QGIG 93, 94.

[98] [2014] ICQ 009, [47].

[99] Bowers (n 78) 2.

[100] [2005] NSWCA 465.

[101] Ibid [27].

[102] Exhibit 8 (n 11).

[103] T2-42, LL35-39.

[104] T2-42, L43 – T2-43, L2.

[105] T1-51, LL25-36.

[106] [2014] FWC 2104.

[107] Ibid [51].

[108] Exhibit 9 – Community Action Inc – Complaints Handling Policy.

Close

Editorial Notes

  • Published Case Name:

    Grace v Workers' Compensation Regulator

  • Shortened Case Name:

    Grace v Workers' Compensation Regulator

  • MNC:

    [2021] QIRC 285

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    20 Aug 2021

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
Allen v Workers' Compensation Regulator [2018] QIRC 41
3 citations
Jump To
Cite 1 - [2018] QIRC 41
Cite 2 - [2018] QIRC 41
Cite 3 - [2018] QIRC 41
Allwood v Workers' Compensation Regulator [2017] QIRC 88
4 citations
Jump To
Cite 1 - [2017] QIRC 88
Cite 2 - [2017] QIRC 88
Cite 3 - [2017] QIRC 88
Cite 4 - [2017] QIRC 88
Belal Yousif v Workers' Compensation Regulator [2017] ICQ 4
2 citations
Jump To
Cite 1 - [2017] ICQ 4
Cite 2 - [2017] ICQ 4
Bowers v WorkCover Queensland (2002) 170 QGIG 1
2 citations
Jump To
Cite 1 - (2002) 170 QGIG 1
Cite 2 - (2002) 170 QGIG 1
Cf Delaney v Q-Comp Review Unit (2005) 178 QGIG 197
3 citations
Jump To
Cite 1 - (2005) 178 QGIG 197
Cite 2 - (2005) 178 QGIG 197
Cite 3 - (2005) 178 QGIG 197
Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100
2 citations
Jump To
Cite 1 - (1997) 156 QGIG 100
Cite 2 - (1997) 156 QGIG 100
Davis v Blackwood [2014] ICQ 9
2 citations
Jump To
Cite 1 - [2014] ICQ 9
Cite 2 - [2014] ICQ 9
Department of Education & Training v Sinclair [2005] NSWCA 465
3 citations
Jump To
Cite 1 - [2005] NSWCA 465
Cite 2 - [2005] NSWCA 465
Cite 3 - [2005] NSWCA 465
Kuenstner v Workers' Compensation Regulator [2016] QIRC 83
2 citations
Jump To
Cite 1 - [2016] QIRC 83
Cite 2 - [2016] QIRC 83
Prizeman v Q-Comp (2005) 180 QGIG 481
2 citations
Jump To
Cite 1 - (2005) 180 QGIG 481
Cite 2 - (2005) 180 QGIG 481
Re SB [2014] FWC 2104
3 citations
Jump To
Cite 1 - [2014] FWC 2104
Cite 2 - [2014] FWC 2104
Cite 3 - [2014] FWC 2104
Read v Workers' Compensation Regulator [2017] QIRC 72
3 citations
Jump To
Cite 1 - [2017] QIRC 72
Cite 2 - [2017] QIRC 72
Cite 3 - [2017] QIRC 72
WorkCover Queensland v Kehl (2002) 170 QGIG 93
2 citations
Jump To
Cite 1 - (2002) 170 QGIG 93
Cite 2 - (2002) 170 QGIG 93

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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