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Murphy v Workers' Compensation Regulator[2022] QIRC 264

Murphy v Workers' Compensation Regulator[2022] QIRC 264

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Murphy v Workers' Compensation Regulator [2022] QIRC 264

PARTIES:

Murphy, Conrad

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2019/32

PROCEEDING:

Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:

13 July 2022

HEARING DATE:

22 June 2020

23 June 2020

24 June 2020

25 June 2020

1 December 2020

MEMBER

Hartigan IC

HEARD AT:

Bundaberg and Brisbane

ORDERS:

  1. The appeal is dismissed.
  1. The Appellant is to pay the Respondent's costs of the appeal.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF THE WORKERS' COMPENSATION REGULATOR – ENTITLEMENT TO COMPENSATION – appellant employed as a classroom teacher – appellant co taught a composite class with a teaching team consisting of two other teachers – where composite class the appellant co taught had varying learning and behavioural needs – where decision was made to restructure the teaching team so that another teacher would spend less time in the classroom on certain days ('the decision') – where decision was communicated to appellant in a meeting – where appellant suffered a psychiatric injury – where appellant claims injury arose due to the stressor of an excessive teaching workload arising out of the decision – whether appellant's injury arose out of, or in the course of, appellant's employment – whether the appellant's employment was the major significant contributing factor to the injury – whether the appellant's injury is excluded by operation of s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) – where appellant sought to nominate an alternative stressor outside his Statement of Facts and Contentions – whether Commission can consider the appellant's alternative stressor – where appellant is restricted to arguing his case as put by his Statement of Facts and Contentions – where appellant has not successfully established that the sole stressor of 'excessive workload' was evident on the material before the Commission – where the sole stressor identified by the appellant was not causative of the injury – consideration of the appellant's alternative stressor in case the findings are not correct – whether the injury is excluded from being compensable because the injury was reasonable management action taken in a reasonable way – consideration of 'management action' and 'reasonableness of management action' – where decision and the communication of the decision to the appellant amounts to management action – where management action was reasonable and taken in a reasonable way in the circumstances of the case – where appeal dismissed – review decision of the respondent confirmed – appellant to pay the costs of the respondent

LEGISLATION:

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

CASES:

Davis v Blackwood [2014] ICQ 009

Delaney v Q-COMP Review Unit [2005] ICQ 007

Gilmour v Workers' Compensation Regulator [2019] QIRC 022

Kuenstner v Workers' Compensation Regulator [2016] QIRC 083

Lawton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 099

Prizeman v Q-COMP [2005] ICQ 043

Simon Blackwood (Workers' Compensation Regulator) v Adams [2015] ICQ 001

State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2020] QIRC 097

WorkCover Queensland v Kehl [2002] ICQ 021

Yousif v Workers' Compensation Regulator [2017] ICQ 004

APPEARANCES:

Ms J. Clymont of Counsel instructed by Holding Redlich Lawyers for the Appellant

Ms L. Willson of Counsel directly instructed by Ms S. Godfrey of the Respondent

Reasons for Decision

Introduction

  1. [1]
    Mr Conrad Murphy appeals a decision of the Workers' Compensation Regulator ('the Regulator'), that confirmed a decision of WorkCover to reject Mr Murphy's application for compensation in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the Act'). Mr Murphy contends that he suffered a psychiatric or psychological injury whilst he was performing his duties as a primary school teacher employed by the Department of Education and Training, at the Gin Gin State School ('the school').
  1. [2]
    Mr Murphy nominates that his psychiatric and psychological injury arose due to the sole stressor of an excessive teaching workload in 2018.[1]
  1. [3]
    Mr Murphy's primary contention is that his injury arose solely out of the excessive teaching load which he contends that he was subjected to in 2018. Mr Murphy further contends that the injury did not arise out of, or in the course of, management action. Mr Murphy argues that staffing issues are only relevant to his injuries because his teaching load (at least in part) was affected by staffing decisions. It is argued on Mr Murphy's behalf, that that does not constitute a causal relationship between management action and the injury.[2]
  1. [4]
    However, Mr Murphy argues, in the alternative, that if it is found that his injury did arise out of, or in the course of, management action, then the injury is not excluded by s 32(5) of the Act.
  1. [5]
    The relevance of these matters is that the Regulator contends that, Mr Murphy is restricted to his case as outlined in his Statement of Facts and Contentions and that the excessive teaching load is the sole stressor to his injury. The Regulator argues that Mr Murphy can not rely on an alternative stressor in circumstances where he has nominated that the sole stressor for the injury was an excessive workload.
  1. [6]
    The matters raised will require consideration of a number of issues including whether Mr Murphy's case is restricted to the stressor he has identified, and what conduct, if any, constitutes management action in the context of this matter.
  1. [7]
    Ultimately, I have formed the view that Mr Murphy's case is restricted to the stressor nominated by him in his Statement of Facts and Contentions filed in the Industrial Registry on 14 June 2019.
  1. [8]
    I will address this matter further, following my consideration of the relevant evidence and Mr Murphy's contention that excessive workload was the sole stressor of his injury.

Legislative framework

  1. [9]
    Section 32 of the Act defines the meaning of 'injury' and, so far as it is relevant, is 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. (a)
    for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury; or
  2. (b)
    for a psychiatric or psychological disorder—the employment is the major significant contributing factor to the injury.
  1. (2)
    However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies.

…

  1. (5)
    Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—
  1. (a)
    reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;
  2. (b)
    the worker’s expectation or perception of reasonable management action being taken against the worker;
  3. (c)
    action by the Regulator or an insurer in connection with the worker’s application for compensation.

Examples of actions that may be reasonable management actions taken in a reasonable way—

  • action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker
  • a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker’s employment

The issues

  1. [10]
    The onus rests with Mr Murphy to establish that he has suffered an injury in accordance with the meaning of s 32 of the Act. The Regulator accepts that Mr Murphy has established that he is a 'worker' within the meaning of the Act and that he has suffered a 'personal injury' within the meaning of the Act.
  1. [11]
    Accordingly, the following four issues remain to be resolved:
  1. (a)
    Did the injury arise out of, or in the course of, Mr Murphy's employment?
  1. (b)
    Was Mr Murphy's employment the major significant contributing factor to the injury?
  1. (c)
    Is the injury excluded from the operation of the Act because the injury arose out of, or in the course of, management action taken by Mr Murphy's employer in connection with Mr Murphy's employment?
  1. (d)
    If so, was the management action reasonable and taken in a reasonable way?
  1. [12]
    As noted above, the Regulator accepts that Mr Murphy suffered a personal injury. The attendance records from Mr Murphy's treating general practitioners were tendered by consent,[3] and the general practitioners were not called to give evidence. The Regulator accepts[4] that prior to 13 July 2018, Mr Murphy had no previous history of a psychiatric or psychological injury.
  1. [13]
    The nature of the medical evidence, with respect to the cause of the personal injury is relevant to my consideration of the matter.
  1. [14]
    The accepted evidence is that the injury arose on 13 July 2018, when Mr Murphy attended a consultation with Dr Johana Muller at the Gin Gin Family Medical Centre. Dr Muller recorded the following notes:

Surgery consultation

Recorded by Dr Johana Muller Visit date: 13/07/2018

Recorded on 13/07/2018

works at junior school - primary school.

currently work loaded and was doing up to 10 hours per day

class size 5 above limit.

lots of behavioural issues.

patient sleepinga lot withdrawing from contact, lump in thorat. pressure in head.

  • Eats regularly because diabetic.

At times suicidal ideation. no fixed plans. says he would not slef harm as family close.

talks to his mom.

has contacted the union. is seeing the union contact in the next 10 days.

he wishes to see hw union helps with situation I offered referral to mental health but no guns.

Shares a property with his mother

Reason for visit:

Anxiety/Depression

Actions:

Letter printed.

Letter written re. QLD Work capacity certificate.

Surgery consultation

Recorded by: Ms Kerry Jones Visit date 16/07/2018

Recorded on: 16/07/2018

Actions:

Work Cover Certificate imported from Dr Johana Muller re 13.4.18 – 7.9.18

Surgery consultation

  1. [15]
    On 20 July 2018, Mr Murphy attended on the Gin Gin Family Medical Centre again, however, on that occasion, Mr Murphy saw Doctor Riazal Ali. Dr Ali recorded the following notes from that attendance:

Recorded by: Dr Riazal Ali Visit date: 20/07/2018

Recorded on: 20/07/2018

History:

Has been having some issues at work – with being overloaded by principal and head of special school as well.

Teaches Yr 4-5-6 as well and has special students as well.

Has seen Dr Muller and noted given work cover cert.

Due for review on 3/8/18.

Noted notes from Dr Mullers consult visit.

Pt says other teachers have been having issues with principal but not game to speak up. Advises he could not take it/put up with it anymore.

Has contacted his unions and says no success with sorting things out.

Advises has contacted Assistant Regional Director (ARD) in BNE and seeking meeting next week

Today found out about Employee Assistance scheme as well

Examination:

General:

BP (sitting): 110/70

Diagnosis:

Work stressors

Management:

Long discussions on work stressors, coping mechs, strategies and relaxation strategies as well as. Advised con't pursuing issues through ARD.

Discussed role of counselling and referrals to psychologist and seeking this through EAS as well through Education Qld. Says is aware but very hesitant to seek help – says they would be of no help.

Advised in such situation – this could become a long drawn out process – I would strongly recommend seeking counselling through EAS.

Advised if no luck – then strongly consider referral to private psychologist next visit

Review interval:

2 wks

…

  1. [16]
    The above extracts reveal that, both Dr Muller and Dr Ali recorded that Mr Murphy stated that he was being overloaded with work. In summary, Dr Muller took the following history from Mr Murphy:
  1. (a)
    Mr Murphy was working up to ten hours;
  1. (b)
    that the class size is five above the limit; and
  1. (c)
    that there are lots of behavioural issues.
  1. [17]
    During the course of the hearing, there was no evidence led by Mr Murphy with respect to 'working up to 10 hours'. However, the evidence did address the class size and behavioural needs of the students. I will consider those matters further below.

Relevant background

  1. [18]
    Mr Murphy was, at the relevant time, 48 years old. At the age of 15 years, Mr Murphy was seriously injured in a motorcycle accident, which resulted in him becoming a paraplegic from the chest down. Mr Murphy is wheelchair bound and he mobilises with a manual wheelchair.
  1. [19]
    At age 27, Mr Murphy graduated from teaching and travelled abroad. Mr Murphy taught variously in New Zealand, Brazil and Columbia. Upon returning to Australia, Mr Murphy commenced relief work until he was offered a full-time permanent position at Wallaville State School. He taught at Wallaville State School for approximately eight to nine years.[5]
  1. [20]
    Mr Murphy commenced employment as a teacher at the school in 2016. Initially, Mr Murphy taught a year five and six composite class of approximately 27 or 28 students.[6]
  1. [21]
    In 2017, Mr Murphy continued to teach a year five and six composite class. In that year, Mr Murphy also achieved a higher classification level of Senior Teacher.
  1. [22]
    Ms Maureen Coleman commenced as the principal of the school in 2017.
  1. [23]
    It was common ground that, at or around this time, Education Queensland encouraged schools to implement an existing inclusive education policy that required students who had previously been taught in the special education stream to be integrated to a general classroom environment.
  1. [24]
    Ms Coleman's evidence was that, whilst there had been an inclusive education policy,[7] in or about 2016 or 2017, there 'was more of a push… to have students who have diverse learning needs in classrooms as opposed to being pulled out of classrooms.'[8]
  1. [25]
    Seemingly consistent with this policy, Mr Murphy was selected to teach a year four, five and six composite class in 2018. A number of students in this class had previously been in the special education stream. I will consider this class and the teachers allocated to teach this class in more detail further below.

Term one and Term two, 2018

  1. [26]
    At the end of the 2017 school year, Mr Murphy was advised of the proposed class structure for 2018. Mr Murphy was advised that he would be team teaching a year four, five and six composite class with Ms Jane Stebhens, and Ms Kellee Hutchinson.[9]
  1. [27]
    Ms Coleman's evidence was that she was the one who determined the class structure for the class that Mr Murphy was to team teach in 2018 on the basis that 'the students in the class were at a similar level that they could be put together…'.[10]
  1. [28]
    Ms Coleman's evidence was that she chose Mr Murphy as one of the teachers for that class as he was 'an experienced teacher' and that he 'had experience with quite a number of those students in the previous year...'.[11]
  1. [29]
    Ms Coleman further explains that she also allocated Ms Stebhens to that class 'for support for all of the students and particularly for the students with – with disabilities.'[12]
  1. [30]
    Ms Stehbens held the position of Head of Special Education Services. Ms Stebhens explained her role as follows:

Well, as head of special education, I’m the head of the hub. So I have Gin Gin State School, Wallaville State School, Maroondan State School, McIlwraith State School, Bullyard State School. So I also service those students. So I also talk to those teachers, help with the curriculum – individual curriculum plans with any students at those schools, do any verifications for those students, organise any support people, like an occupational therapist, physiotherapist. Prepare all that paperwork, liaise with the parents. So I do that for the students at Gin Gin State School as well as the hub schools.[13]

  1. [31]
    Ms Stehbens continued to hold the position of Head of Special Education Services during 2018 whilst she team taught the class with Mr Murphy on Monday, Tuesday and Wednesday during term one and term two. Ms Hutchinson team taught with Mr Murphy on Thursday and Friday. The timetable for term one and term two will be considered further below.
  1. [32]
    Ms Coleman advised the teachers, together with the teachers' aides of their classes for 2018 towards the end of term four in 2017.[14]
  1. [33]
    One of the issues that has been raised by the Regulator, was that Mr Murphy did not take any substantive steps to prepare for the commencement of the school year prior to term one in 2018. Ms Coleman explained that her expectation with respect to the preparation completed by a teacher prior to the commencement of the first day of the school year to be as follows:

Well, that certainly they would have some planning for, you know, a good period of time, as in – I – my expectation would be, say, four  weeks. So they would also have planning around the classroom routines, how they were going to implement [indistinct] management and all of those classroom organisational structures. A teacher would need to come in with that to – to start a school year and be prepared for teaching.[15]

  1. [34]
    Ms Stebhens evidence was that in preparation for the commencement of the class in 2018, she prepared the science for the whole of the first term prior to the commencement of the year as follows:

So I – I prepared the science for that first term for the whole – the whole of  the class and I arranged the groups and I – because I had thought that it would be easier for us to work – like, I tried to – I tried to develop the classroom for two weeks to model what – how it might look, how we might be able to manage all of these children with three of us in the classroom. So I prepared the science because I thought that was a good way – good hands on, doing some experiments with children.[16]

  1. [35]
    Ms Stebhens' evidence was that Mr Murphy had undertaken no planning for the commencement of that year.
  1. [36]
    Mr Murphy's evidence[17] was that the initial arrangements for teaching were that Ms Stebhens would teach science in the first two weeks of term one.
  1. [37]
    Mr Murphy considered the first two weeks to be 'a bit chaotic'[18] and that he 'wouldn’t really know what was happening until [he] got there that morning.'[19]
  1. [38]
    Mr Murphy further states that following the first two weeks, he and Ms Stebhens were supposed to be team teaching. Mr Murphy stated that team teaching was not working, and his evidence was in the following terms:

So after the two weeks we were supposed to be team teaching. That was the general idea of – of that class formation apparently and it just wasn’t working. We never had any time together to – to be able to plan together or team teach. So Jane said at the end of that first couple weeks, 'We’re going to split the class in half.' So she took half the students and taught them the maths and English in – in her room for the first two sessions. I took the other half of the class and I taught – taught them maths and English for my section of the class in my room in the first two sessions and then in the afternoon I was to teach all other subjects on my own.[20]

  1. [39]
    Mr Murphy gave limited evidence with respect to any proactive steps he took to contribute to team teaching in the class to 'make it work'. I infer from his evidence that he was not satisfied with being placed within the class.
  1. [40]
    Ms Stebhens prepared a document[21] she headed 'Initial Groups Term 1', whereby she grouped the students into four groups; the Rockets, Stars, Cyclones and Asteroids. The Rockets consisted of six students and the Stars, Cyclones and Asteroids consisted of nine students each. Ms Stebhens evidence was that she split the students into four groups for the following purpose:[22]

… And my idea had been that, for example, I would teach the rockets the science lesson but be able to pitch it at their level, while Conrad did another part of the science level with the next group and pitch it at that level. The teacher aide could be doing another activity, a hands-on activity or something else that I had that that group were possible, and the fourth group would be able to work independent. And I thought, for example, if we did science for an hour, that would be four 15 minute tasks. So you would only ever need to teach seven kids at a time. I personally believe that 15 minutes with seven kids is much more conducive to learning than trying to teach 29 and manage everybody – you know, be able to give everybody what everybody needed.

  1. [41]
    Ms Hutchinson, consequently, co-taught with Mr Murphy on Thursday and Friday during term one and term two.
  1. [42]
    Ms Hutchinson's evidence was that[23] for Thursday, she was appointed as a relief teacher to work with Mr Murphy. Ms Hutchinson did not prepare the lessons for Thursday, but rather, implemented the work plan that had been left by Ms Stebhens. On Friday, Ms Hutchinson worked with Mr Murphy and prepared and implemented the science component of the class curriculum.
  1. [43]
    Ms Hutchinson's evidence is that she found the behaviour management within the class to be 'very complex'.[24] Ms Hutchinson's evidence was that because of the complex needs of the children, it was difficult to conduct whole class teaching effectively.
  1. [44]
    Under cross-examination,[25] Ms Hutchinson agreed that Ms Stehbens had advised her that whole class teaching was not the preferred method of teaching for this type of class. Ms Hutchinson stated that whole class teaching was part of Ms Hutchinson's teaching style[26]and that whole class teaching was Mr Murphy's preferred teaching style.[27]
  1. [45]
    Ms Hutchinson gave evidence with respect to the support provided by Ms Stehbens as follows:

Now, it’s true to say that you received a lot of support from Jane, with suggestions and - - -?---All the time.

And planning about how improvements could be made with delivery of the curriculum?---Yes. There was always suggestions.

And would you agree that the planning for this particular class wasn’t set in stone and that adjustments could be made if the need arose?---Adjustments were always being made, yes.[28]

  1. [46]
    The term one and two timetable for the class was tendered into evidence.[29] It appears that these timetables came into effect following the first two weeks of term.[30] The timetable for term one and two depict the contact hours Mr Murphy, Ms Stebhens and Ms Hutchinson each had with the class and the level of support provided. With the exclusion of morning tea and lunch, each school day was divided into four time periods, being:
  1. (a)
    8.45am – 10.45am (period one);
  1. (b)
    11.30am – 1.00pm (period two);
  1. (c)
    1.30pm – 2.00pm (period three); and
  1. (d)
    2.00pm – 2.45pm (period four).
  1. [47]
    On Monday, period one consisted of 29 students with Mr Murphy and Ms Stebhens teaching, supported by a teachers' aide, Ms Greenslade. Period two consisted of 29 students and was taught by Mr Murphy, Ms Stebhens and supported by Ms Greenslade. Ms Russell, a general teacher aide who assisted with English rotations also attended in period two for 45 minutes. Period three consisted of 26[31] students and was taught by Mr Murphy who was supported by Ms Greenslade. Period four was a non-contact period as the students attended the languages other than English ('LOTE') class.
  1. [48]
    Tuesday's timetable replicated Monday's timetable.
  1. [49]
    In summary, on Monday and Tuesday, Mr Murphy co-taught with Ms Stebhens and was supported by Ms Greenslade for periods one and two. During period three, Mr Murphy taught 26 students for a period of 30 minutes and was supported by Ms Greenslade. Mr Murphy had no student contact during period four.
  1. [50]
    The Wednesday timetable was the same as Monday and Tuesday for periods one, two and three. During period four on Wednesday, the class consisted of 14 students who were taught religious education by a person who was not engaged within the teaching team. Mr Murphy was required to attend that class and to assist with supervision only.
  1. [51]
    On Thursday, Mr Murphy and Ms Hutchinson, supported by Ms Greenslade taught for period one up until 10.15am. At this time, the students attended a physical education class and the remainder of period one (approximately 30 minutes) would be non-contact for Mr Murphy. During period two, three and four, Mr Murphy and Ms Hutchinson, co-taught, supported by Ms Greenslade. In addition, Ms Russell attended to assist for 45 minutes during period two.
  1. [52]
    Friday's timetable was the same as Thursday, however the students attended music lessons at 10.15am instead of physical education.
  1. [53]
    Ms Hutchinson's evidence was that both she and Mr Murphy taught in the classroom together on Thursday and Friday and had the additional support of Ms Greenslade and Ms Russell variously on those days.[32]
  1. [54]
    In summary, an analysis of the timetable identifies that, except for 30 minutes on Monday, Tuesday and Wednesday when Mr Murphy taught alone, although supported by Ms Greenslade, he team taught for all other periods[33] with either Ms Stebhens or Ms Hutchinson[34] together with the support of Ms Greenslade and/or Ms Russell.
  1. [55]
    Although, it was Mr Murphy's evidence that when Ms Stebhens was in the classroom, Ms Greenslade and Ms Russell worked with Ms Stebhens and not Mr Murphy.[35]
  1. [56]
    Mr Murphy stated that in term two, the team-teaching arrangement between he and Ms Stebhens was altered so that Mr Murphy would teach half of the class maths in the first session, whilst Ms Stebhens taught the other half of the class English and that they would then swap the class around in the second session to teach the other half of the cohort.[36]
  1. [57]
    Accordingly, the evidence with respect to term two is that, mostly when Ms Stebhens was in the classroom with Mr Murphy, the students were divided between each of the two teachers in order for Mr Murphy and Ms Stebhens to teach half of the class co-hort whilst the other teacher taught the other half.
  1. [58]
    Mr Murphy's evidence was that he found term two challenging. His evidence is as follows:

…I was basically going home just exhausted at the end of the day. I had no emotional sort of ability left. I was – I was sort of feeling empty emotionally, becoming quite isolated within myself, didn’t – didn’t want to socialise, didn’t really mix with anyone, just worked, went home and that was about it, kept to myself just trying to – trying to get through that second term.[37]

  1. [59]
    Ms Stebhens gave evidence about the classroom arrangements and the view she took of the role Mr Murphy played. It was apparent from her evidence that Ms Stebhens felt a level of frustration with respect to how she perceived Mr Murphy was undertaking his role. Ms Stehbens' evidence included the following:

Well, what where they?---So I – well, I just don’t – there were a lot of times that I just felt like, “It’s Conrad. Step back and just let other people run the show.” As a senior experienced teacher, he should’ve been able to step up and make some decisions, have some conversations, be a team worker. With our teacher aides, you do need to tell the teacher aides what they need to teach. You need to give them a bit of an outline. You know, “I want you to take them for maths and I want you to do money. That means counting in fives. It means giving change to $5. It means recognising the notes.” You – a lot of – you can’t just send them out to the teacher aide.[38]

  1. [60]
    Ms Stebhens indicated the support she provided to Mr Murphy over term one and term two to be as follows:

…over term 1 and term 2?---I did all the homework sheets for the ICP kids, adjusted the homework sheets. Planned all [student name redacted] extra – the – you know, prepared the extra – the enlarged booklets and things that [student name redacted] needed to be able to write. Organised the teacher aide that was in the classroom. Organised the reading books. Collected the reading books. Organised the comprehension. Just – I just think it felt for me like it was me that was getting everything organised and getting how it was done and he was just turning up and being there. That was how I felt…[39]

  1. [61]
    Ms Stebhens' evidence was that she also prepared the report cards for the end of term two for all of the students in the class.[40]
  1. [62]
    Ms Crystal Hunt, who performed the dual roles of Head of Curriculum and Head of Learning Support, met with Mr Murphy during term two.
  1. [63]
    These meetings included:
  1. (a)
    a meeting on 22 May 2018 to go through information with respect to 'Show Me' papers;
  1. (b)
    a meeting on 12 June 2018 to report back following the previous meeting with the purpose to review Mr Murphy's work on the 'Show Me' papers;
  1. (c)
    a meeting on 19 June 2018, which was in the form of a group workshop with other teachers, Ms Hunt and Ms Stebhens, to consider specific learners in each of the teachers' respective classes with the support of Ms Stebhens, and to write down some strategies to help specific learners with their goals; and
  1. (d)
    a meeting on 25 June 2018 which was organised at Mr Murphy's request to discuss Mr Murphy's planning of his English units.
  1. [64]
    Ms Hunt explained that the 'Show Me' papers are a document used as a diagnostic tool within a classroom. She stated that, as every classroom, regardless of whether it was a multi-age classroom or not, has a variety of different learners. Diagnostic testing of the students assists teachers by providing them with information as to where each of the students sat within their co-hort, and whether there were any gaps in their knowledge. This information allows a teacher to better plan for each class.
  1. [65]
    Ms Hunt's evidence[41] was that the completion of the 'Show Me' papers was not mandatory, however it was strongly recommended that teachers adopt that model, or at least another form of diagnostic assessment.
  1. [66]
    Ms Hunt's evidence was that, following the meeting on 22 May 2018, she printed off copies of the 'Show Me' papers to assist Mr Murphy to complete the diagnostic testing.
  1. [67]
    Ms Hunt stated[42] that the purpose of the meeting on 12 June 2018 was for Mr Murphy to discuss with her the completed 'Show Me' papers. However, her evidence was that when Mr Murphy attended the meeting on 12 June 2018, that he had not implemented the 'Show Me' papers and had advised Ms Hunt that he had not got around to marking the students on the scale.
  1. [68]
    With respect to the group meeting on 19 June 2018, Ms Hunt noted that, one of the purposes of the meeting was to identify specific learners and to plan how such learners could meet their goals in the future. Ms Hunt's evidence[43] was that Mr Murphy had written down adjustments for five students and not the other students. Ms Hunt noted that Mr Murphy had a number of students in his class who required adjustments and that she thought that the meeting would have been the perfect time, as she and Ms Stehbens were both there to assist, and for Mr Murphy to ask for ideas of support in regard to the students who have significant needs.
  1. [69]
    With respect to the meeting on 25 June 2018, Ms Hunt's evidence[44] was that, prior to the meeting, she had sent Mr Murphy an anchor chart that they had worked on in the previous meeting, and that she had collated the anchor charts and put them into a document and sent them to Mr Murphy as well as to other teachers.
  1. [70]
    Mr Murphy was questioned with respect to the planning meeting, and he was asked as to why he did not do the planning for those students.[45] Mr Murphy's response was that:

It wasn’t required to be doing all of the planning at this meeting. It was a short, one-and-a-half hour meeting. There was simply a – a general overview and then they sat down with a tick and flick sheet for differentiation and my mind was basically on the next term, what was going happen. Jane was there. She didn’t come over and that was supposed to be her role in that meeting, to help the differentiation.[46]

  1. [71]
    Mr Murphy was cross examined[47] with respect to the planning following his meetings with Ms Hunt. Mr Murphy's evidence was that:

… it wasn't required of teachers to submit planning. My evidence is that these students were taught, they learnt what they needed, they passed their subject.[48]

  1. [72]
    Further, it was put to Mr Murphy that he did not conduct planning for several students.[49] Mr Murphy's response was that the meeting occurred after Ms Coleman and Ms Stebhens had advised him that the time was going to be reduced in term three, and that:

…I can honestly say my mind wasn’t functioning to the ability…[50]

  1. [73]
    Mr Murphy was further asked under cross-examination:

Are you saying that once you are told that the arrangements were going to be for term 3, you stopped doing work?[51]

  1. [74]
    Mr Murphy's response was:

I say that I, my mental health started deteriorating quite rapidly, yes.[52]

  1. [75]
    As referenced above, there was a meeting held between Ms Coleman, Ms Stehbens and Mr Murphy towards the end of the second term. This meeting occurred on 12 June 2018, the same day on which Mr Murphy met with Ms Hunt to discuss the completed 'Show Me' papers.[53]
  1. [76]
    During the meeting between Ms Coleman, Ms Stehbens and Mr Murphy, Ms Coleman advised Mr Murphy of a decision she had made to restructure the teaching team for the class in term three. The effect of the proposed changed for term three was that Ms Stehbens' time in the classroom would be reduced by 45 minutes during the morning and middle session on Monday to Wednesday.[54]
  1. [77]
    Mr Murphy gave evidence with respect to what he understood the decision to reduce Ms Stehbens' time in the classroom would mean to him as follows:

In the 45 minutes when she wasn’t going to be there? So in the first session, so that would be about an hour and a-quarter she wouldn’t have been there. So basically I would have had all of the students trying to teach them maths and English across years – I think it was 2 – year 2, 3, 5 and 6 were the levels I had to teach at based on their ICPs and chronological age and then in the second session I would have had them for half the time, 45 minutes and again maths and English would have been taught in that – in that timeframe the whole class with all those year levels at once.[55]

  1. [78]
    Mr Murphy states that he was not asked his views of the proposed change to the teaching team during the meeting, rather, that he was told of the change. He stated that 'it was clear that Jane and Maureen had spoken or worked it all out in detail. So, it was basically just calling me in, telling me and basically that was it, end of – end of meeting.'[56]
  1. [79]
    Mr Murphy’s evidence was that he told Ms Coleman and Ms Stehbens that the decision was 'ridiculous' and that 'we're only barely doing it with two teaches in there. I can't see how it's going to happen with one teacher.'[57]
  1. [80]
    Mr Murphy described the impact on him upon learning of the decision to reduce Ms Stehbens' time in the classroom in term three as follows:

Yeah. I really just was in a state of disbelief. I couldn’t believe that they were going to take time rather than add time. I would have thought the – the sensible thing would have been to add more time into that class rather than take away. At that point I was also finished – finishing off reports, which was a highly stressful time for the amount of work that needs to be done in the short time, trying to get those complex behaviour needs and – and year levels all finished within the right timeframe to report on. Yeah, I quickly – very quickly declined, just basically went on autopilot, just – all my thought was just to get through that term. Basically I – I didn’t want to even think about the next term as little as possible. It – I definitely withdrew a lot more, a lot more sort of feeling of anxiety, yeah, just – just basic shock, I would say, was a good way to describe it.[58]

  1. [81]
    Either during the meeting or on the following day, Ms Stehbens provided Mr Murphy with a draft timetable depicting how she proposed the class might be structured in term three.[59] Relevantly, Ms Stehbens' proposed class structure for term three identifies the other teacher and/or teachers' aides who would be present (in addition to Mr Murphy) as follows:[60]

Conrad

MONDAY

TUESDAY

WEDNESDAY

THURSDAY

FRIDAY

8:50 – 10:00

Anita[61]

Anita

Anita

Kellee[62]/Anita/Jane[63]

Kellee/Anita

10:00 -10:45

Jane/Anita

456M – Jane/Anita

456M – Maths

 

Non -contact

Kellee/Anita

10:50 – 1:30

Lunch

Lunch

Lunch

Lunch

Lunch

11:30–12:15

Anita

Anita

Anita

Kellee

Kellee/Anita

12:15 – 1:00

Elvwryn[64]/Anita/Jane

Elvwryn/Anita/Jane

Elvwryn/Anita/Jane

Elvwryn/Anita/Jane

Elvwryn/Anita/Jane

1:00 – 1:30

Lunch

Lunch

Lunch

Lunch

Lunch

1:30 – 2:00

Anita

Anita

Anita

Anita/Kellee

Kellee/Anita

2:00 – 2:50

Non- contact/

Special needs to High school

Non-contact

RE

Anita/Kellee

Kellee/Anita

Apart from the subject areas developed and implemented by Kellee, Conrad will develop and implement all other subject areas. The planning for these are to go to Jane so she can a) provide feedback on differentiation to be included in planning and implementation for the class and b) develop a program in literacy and numeracy for [seven students names redacted].

  1. [82]
    Following the meeting, Ms Stehbens sent a letter to Mr Murphy on 21 June 2018.[65] The letter is in the following terms:

Hi Conrad,

A component of my role is to provide feedback to teachers to enhance teaching quality across the school. This isn't a part of the position that I am particularly comfortable with however I feel it is an important part of all teacher development, and therefore I am doing what I can to do this.

I am putting my feedback in writing as I find it difficult to give you quality feedback which will assist you to enhance your teaching. I hope that by giving the feedback in this format it will allow you to reflect on your teaching and enable you to take the time to think about what I am saying.

This class is a difficult class. As individuals most of the kids are great kids, but as a group they are difficult. At the beginning of the year I envisaged that you, Anita and I would be able to manage this group of students and team teach. I believe we have done a pretty good job but I feel that it has not been done as well as it could have. As you know I am finding it very difficult to be a classroom teacher and fulfil my other responsibilities which have increased over the semester, •therefore it has become necessary for you to take full ownership of the class.

Yesterday you said you had been kept in the dark. I feel that for the last 6 months you have not taken ownership of the class. In the beginning I had hoped that I could lead by example to help you with ideas and ways to manage the special needs children and then I could support you in this role.

However I feel that you have not contributed to any management plans at all.

In the beginning I guess that was my fault because I was trying to support you and came in with a plan but I just feel that you don't make any effort to change what is not working. It is not fair if I have 14 special needs students and you have 14 mainstream, particularly when other classes have 30 or more students. in reality you have had all 29 on your own supported by an aide for 3 x 30 min sessions in the afternoons. It is obvious to me that having all 29 sitting in the room while you talk is not being effective. If you were watching from the back you would see that very few of the class are engaged with the learning. I know that the HASS is hard going with some but in 6 months I haven't seen you find or try a different way or differentiate in this session. I know I have changed routines several times but this is in an attempt to improve outcomes for the kids and make the best use of the resources that we have available and meet the needs of the students. Differentiation isn't just changing the work, it is seating arrangements and amounts of time, scheduled breaks, explicit teaching of expectations for each lesson. Teaching is not what it used to be. Within every class there are children requiring special treatment to meet their needs. Every class in the school has special needs children and difficult children, and nearly every class is full to capacity. Compared to some you are very well supported.

Currently there are 27 children at Gin Gin who are verified or waiting to be verified with 8 more children at other schools that also require verification updates and support. This does not include all the behaviour issues or ADHD students we have.

I cannot lead the 5 /6 class or make the decisions. You are an experienced senior teacher and need to take control of the decisions around learning for next term. You need to decide how the class room will be set up and where you want me to work from. When I am in the room, I would like a pod of desks that 6 children can sit at while I work with them, but you need to decide where that will be. Anita will continue to work at the kitchen unless you want to use that space. I plan on splitting the 10 kids I have into 2 groups and working with Anita. Yesterday I said I would do reading, writing and maths, but perhaps you want to do the reading with them and I do the spelling /phonics or something else. I will also prepare their homework. You need to work out the timetable and what you want me to teach and then work me into it. I will be doing the same with the other teachers. I will be going into their rooms and supporting the teachers with differentiation and the students who need help and they will need to timetable time for me to support.

You are right that the class together is difficult. Continuing with the teaching strategies that you have been using will not bring about the best results for these students. You need to change what you are doing and try some other options. Thursday and Friday are the only two days you have the whole class for the whole afternoon but you have Kellee. Why don't you try splitting them and you do HASS or health while she does science? Is there some way you could include dig technology or other subject areas into the sessions that I am not there for. Remember that you can mix up subjects you don't need to teach everybody the same thing at the same time. Set up a morning routine that has some independent task while you explicitly teach.

It is a challenging class, so extensive and differentiated planning is essential. To me it is more about time management and classroom environment management rather than the curriculum that will make a difference. It is a hard job to deliver the curriculum when the environment is not conducive to learning and engagement. You always have at least one Other adult (Anita) in the room to provide supervision and to assist with activities. You need to plan for this person to be actively contributing to the learning of students.

At our planning meetings we were filling in the differentiation sheet. There are a number of students other than special needs students who require differentiation —[four students names redacted]. I wasn't sure if you had missed these as you only completed one for [student name redacted]. You need to be planning for these students (both special needs and mainstream) and showing evidence of this planning. It is also a requirement of my position to liaise with teachers to verify that differentiation is occurring for all students in the classroom.

I would like to help modify your room to a way that will work for you. If you draw, write ore tell me what you want as far as furniture arrangement I am happy to do it for you. If you could work this out for next week we can have a tidy up and rearrange with the kids ready for next term. I have ICP's and parent interviews to get through next week and 9 verifications to get started so I can finish them in the holidays, Therefore I will only be in the classroom for the 45 mins each session. Maybe you can trial some ideas for next term.

I hope you can understand my position and will consider some of my recommendations.

Jane

  1. [83]
    Mr Murphy did not respond to this email either in writing or verbally.
  1. [84]
    Ms Stehbens was asked why she sent Mr Murphy this letter. Ms Stehbens' response provides some insight into the level of support Ms Stehbens was attempting to provide to Mr Murphy. Ms Stehbens' evidence was as follows:

Well, the reason I sent a letter is because I’m not very good at speaking to people. I get quite emotional and I’m not very good at – I walk away often and go, “I should’ve said, I should’ve said.” So I thought best if I put it in writing because that way I’ve got time to think about what I needed to say. I felt at the end of that term that that what should’ve – although it was a difficult class with the group of kids with three adults in that room and running it in the way I hoped it would run as a team with us working together, I thought it would be pretty simple, really. And I had felt at the end of the term that Conrad wasn’t participating. He wasn’t trying to be a team. It felt like lots of times he just sat back and let it happen. Thursday and Friday when Kellee was in the room, there was times when I walked into the classroom and she’s teaching science to 29 and he’s just sitting there watching it happen with behaviour going on. And I – I guess, I was frustrated by the situation, so I wrote a letter saying that and trying to offer, “How else can I help you?” Like, what else is going to make this situation that we’re in because that – that year – year 5/6, not only was it heaving in SWD kids. It was just heavy in kids, so - - - Right. And what was some the key messages you wanted to send to Conrad in that letter?---I guess that I wanted to work as a team. I wanted him to do more helping with the planning, more contribution. I was trying to acknowledge to him that, you know – that it was a difficult class, like, with some of the kids, that it wasn’t – that it wasn’t because of him that it wasn’t working. That it – like, as in, you know, it was  a difficult class. So I was trying to acknowledge that and provide some support. But I wanted him to do more. I needed him to step up and be an experienced senior teacher. I mean, what I wrote there is what I would tell a prac student.[66]

  1. [85]
    Ms Stehbens' evidence was that Mr Murphy had the support to 'step up and do more in the classroom'. Relevantly, Ms Stehbens' evidence was as follows:

Because I feel like he’s had the experience to be able to do that. We had – at the time, that year, we had head of curriculum, Crystal. Both our – Danielle, our current HOC, Danielle Hartmann is – is a very knowledgeable HOC. Crystal was a very knowledgeable – knowledgeable HOC, very prepared to help us. Like I said, those anchor charts and planning for me was new and different and I really had to work hard to get my head around how to do that. The new inclusive policy, putting into the planning about differentiation was something new for me as well. And I just – yeah. I just felt like it wasn’t how it could’ve been.[67]

  1. [86]
    On 28 June 2018, Ms Stehbens emailed Mr Murphy a draft timetable for term three for the days she would be teaching with Mr Murphy. Her evidence was that she and Ms Hunt prepared the timetable to assist Mr Murphy with some suggested ideas about how the class might look, although Ms Stebhens made it clear to Mr Murphy that he did not have to use the draft timetable.[68] The draft timetable for term three prepared by Ms Stehbens was as follows:[69]

MONDAY

TUESDAY

WEDNEADAY

8:50 – 9:00

ROLL & RULES

PARADE

ROLL & RULES

9:05 – 9:20

Half group – HASS – explicitly teach

Half group – HASS – explicitly teach

9:20 – 9:25

Whole group – brain break

Whole group – brain break

9:30 – 9:45

Maths box/ HASS workbook/ literacy/ cards / dig tech/ independent work from another subject area

Maths box/ HASS workbook/ literacy/ cards / dig tech/ independent work from another subject area

9:45 – 10:00

[four students [names redacted] work with Anita on eg. Counting. Anita will need to be given explicit instruction on what to teach in this time

Whole group maths warm up/ number talk / number investigation – based on data from show me papers

[four students names redacted] work with Anita on eg. Counting. Anita will need to be given explicit instruction on what to teach in this time

Whole group maths warm up/ number talk / number investigation – based on data from show me papers

[four students names redacted] work with Anita on e.g. Counting. Anita will need to be given explicit instruction on what to teach in this time

Whole group maths warm up/ number talk / number investigation – based on data from show me papers

Maths is 3 x 15 mins rotation

10:00 – 10:15

JANE MATHS 10 X ICP

Conrad explicitly teachers core content

JANE MATHS 10 X ICP

Conrad explicitly teachers core content

JANE MATHS 10 X ICP

Conrad explicitly teachers core content

10:15 – 10:30

Prepare a booklet that students can practice skills independently

Prepare a booklet that students can practice skills independently

Prepare a booklet that students can practice skills independently

10:30 – 10:45

Maths 300 game linked to core content from last week

Maths 300 game linked to core content from last week

Maths 300 game linked to core content from last week

10:45 – 11:30

11:30 – 11:45

Explicitly teach the spelling rule and phonic (Krystal will model what this will look like)

(Anita could do the same with [student name redacted] and co. but you would need to plan what it is she is delivering)

Explicitly teach a reading strategy

Anita could do the same with [student name redacted] and co. but you would need to plan what it is she is delivering)

Explicitly teach grammar concept

Anita could do the same with  [student name redacted] and co. but you would need to plan what it is she is delivering)

11:45 – 12:00

Unit plan English – bias, subjective language, transcripts, discussions

12:00 – 12:05

BRAIN BREAK – eg GO NOODLE

12:05 – 12:15

Continue Unit plan as above

12:15 – 12:30

Jane 10 x ICP

Writing

Phonics

Spelling

Conrad –spelling

Jane 10 x ICP

Writing

Phonics

Spelling

Conrad – reading

Jane 10 x ICP

Writing

Phonics

Spelling

Conrad – writing linked to unit plan. Eg Give them a transcript that they will annotate with explicit teaching from you.

12:30 – 12:45

Elvwryn – reading

Elvwryn – writing. Elvwryn will review yesterday's writing and take them through an editing list. 

Elvwryn  - review the spelling rule and hands on spelling eg dictation that you will have prepared for her

12:45 – 1:00

Indep – daily writing – 7 steps mini writing tasks cards. Give them the characters the setting etc and have them a sizzling start

**Indep – spelling(a spelling booklet / task sheet/ grammar / editing sheet

Indep – reading comprehension cards

1:00 – 1:30

1:30 – 1:50

1:40 – 2:00

Have set games with set group so that students know who they are working with, where they are work. They should be to come in and go straight to their area and start the game.

Have set games with set group so that students know who they are working with, where they are work. They should be to come in and go straight to their area and start the game.

Have set games – maths, spelling, vocab with set group so that students know who they are working with, where they are work. They should be to come in and go straight to their area and start the game.

2:00 – 2:30

LOTE

LOTE

RE??

2:30 – 2:50

  1. [87]
    After being advised of the decision to alter Ms Stehbens' time in the classroom in term three, Mr Murphy continued to teach until the end of term two. It was during this period at the end of term two, that Mr Murphy attended the planning meetings referred to above and received the emails from Ms Stehbens with the attached letter[70] and the draft timetable.[71] Mr Murphy's evidence is that he felt that he started to decline following the meeting.
  1. [88]
    Mr Murphy gave evidence with respect to his mental state over the mid-year break between term two and term three as follows:

Over the mid-year break between term 2 and term 3 could you describe to the Commission, please, how your mental state was?---Horrible. It – basically I was sort of playing things over in my head a lot trying to think how on earth this was going to work, how behaviours were going to be managed, how I was going to actually teach them what they needed to learn. I don’t think I went out at all. I didn’t – I couldn’t go to the shops at all. I had to get my mother to go to the shops. I – I only sort of – if I had to go out, I would only go out maybe later when there wasn’t anyone around sort of thing. I didn’t see anyone, yeah, just spent basically most of the time just making notes and trying to figure out a way to make this work, but basically, yeah, sliding deeper and deeper into depression, anxiety, stress, yeah, suicidal thoughts.[72]

  1. [89]
    Mr Murphy's evidence was that once he started to have suicidal thoughts, he made an appointment to see his general practitioner to 'get some time off on stress leave'.[73]
  1. [90]
    As noted above, the agreed date of the injury was 13 July 2018, the day Mr Murphy first saw his general practitioner. A medical certificate was issued for a condition described as anxiety/depression. An application for workers' compensation benefits was lodged and Mr Murphy did not return to teach at the school until semester one 2019.[74]

Did the Appellant's personal injury arise out of, or in the course of, his employment?

  1. [91]
    As noted above, the stressor identified by Mr Murphy in his Statement of Facts and Contentions, is that the injury arose out of, or in the course of, his employment due to the stressor of an excessive teaching workload in 2018. Mr Murphy's Statement of Facts and Contentions identifies the sole stressor in his list of stressors as follows:

List of Stressors

7.  The sole stressor causing the Appellant to suffer stress and anxiety was an excessive teaching workload, due to the number of students and the challenging needs and behaviours of the mixture of students he was required to teach, in the 2018 academic year.

  1. Although WorkCover and the Regulator assumed that a 'lack of and withdrawal of support' was a stressor for the Appellant, this is incorrect. The Appellant’s stressor remained as the excessive teaching workload. The effect of the change in teaching staff at the end of the first semester of 2018 was that the Appellant’s excessive teaching workload was to continue, would not reduce, and would worsen in the second semester of 2018. However, the change in teaching staff was not, in and of itself, a stressor for the Appellant.

(emphasis added)

  1. [92]
    In support of this position, Mr Murphy contends that he had an excessive teaching workload on the following basis:
  1. (a)
    the number of students exceed the recommended maximum number in accordance with the certified agreement;
  1. (b)
    there were varying learning levels amongst the students, including behavioural issues and special needs;
  1. (c)
    there was an excessive and unreasonable workload; and
  1. (d)
    lack of and withdrawal of support.

Sole Stressor – Excessive Teaching Workload: Number of students exceeding recommended maximum number as per the certified agreement

  1. [93]
    Mr Murphy contends that the number of students in the composite class exceeded the recommended maximum number of students in accordance with the terms of the relevant certified agreement and consequently resulted in an excessive teaching workload in the 2018 academic year.
  1. [94]
    In this regard, Mr Murphy argues that, in 2018, the school created a composite class of students in years four, five and six. There were also children in the class who were in the age group of years four, five and six, but who were taught according to individual education plans at a year two level or a year three level.
  1. [95]
    The facts identified by Mr Murphy in his Statement of Facts and Contentions in support of his argument that he had an excessive teaching workload were as follows: 
  1. In 2018, the School created a composite class of students in years 4, 5 and 6. There were also children in the class who were in the age group of years 4, 5 and 6 but were taught according to Individual Education Plans at year 2 level or year 3 level.
  2. The class also had a large number of students with differentiated learning needs.
  3. According to clause 2.1.2 of the Certified Agreement, the Department is committed to following the class size targets. The class size target for prep, years 1-3 and years 11-12 is 25 students per teacher. For years 4-10, 28 students per teacher.
  4. According to clause 2.1.3 of the Certified Agreement, the class size targets for composite classes are informed by the relevant year level target. Where composite classes exist across cohorts (e.g. year 3/4) the class target would be the lower cohort target.
  5. Pursuant to clauses 2.1.2 and 2.1.3 of the Certified Agreement, the Appellant’s class should have had a maximum of 28 students.
  6. At some point during the semester, the Appellant’s class had a total of 31 students, breaching clause 2.1.2 of the Certified Agreement.
  7. The number of students recommended by the Certified Agreement should only be exceeded in exceptional circumstances or as part of the Day 8 staff allocation.
  8. The Appellant’s class exceeded the recommended maximum number of students after the Day 8 staff allocation. He was not informed of any exceptional circumstances.
  9. As a result of the class having a class size above the recommended maximum, the Appellant experienced significant stress.
  1. [96]
    The reference to the 'Certified Agreement' in Mr Murphy's Statement of Facts and Contentions is a reference to the Department of Education State School Teachers' Certified Agreement 2016 ('the Certified Agreement').
  1. [97]
    Mr Murphy seeks to rely on clause 2.1 of the Certified Agreement, which relevantly states as follows:

2.1  Class Sizes

2.1.1  Schools will be funded for staffing in accordance with a student/teacher ratio based on established class size targets. The parties acknowledge the fundamental importance of class size contributing to the learning outcomes of students and the health and welfare of teachers.

2.1.2  Accordingly, the Department is committed to the following maximum class size targets:

Prep, Years 1-3, Years 11-12………………………………………25 students per teacher

Years 4-10………………………………………………………….28 students per teacher.

2.1.3  The class size targets for composite classes are informed by the relevant year level target. Where composite classes exist across cohorts (e.g. year 3/4) the class target would be the lower cohort target.

2.1.4 Classroom teacher numbers are allocated for the purpose of facilitating class size target achievement as part of the school Day 8 staffing allocation. Classes in excess of these maximum target sizes should only occur in exceptional circumstances.

2.1.5  Where there is the possibility of class sizes in excess of these targets, the class arrangements shall be the subject of a timely, collaborative and consultative process with staff in accordance with the consultative principles contained in this Agreement including through the Local Consultative Committee (LCC) in schools required to have one.

  1. [98]
    Clause 2.1.2 of the Certified Agreement is couched in aspirational terms, such as 'committed' and 'targets', rather than prescriptive terms imposing a positive obligation on the Department.
  1. [99]
    In any event, given the class was a composite class, of years four, five and six, the class size target, in accordance with the Certified Agreement, is 28 students per teacher.[75]
  1. [100]
    Mr Murphy contends that the class size contributed to the teaching load making it excessive.
  1. [101]
    Mr Murphy relies on exhibits 26 and 27, which identifies the number of students enrolled in the class at the beginning of each term. Relevantly, exhibit 26 identifies that there were 29 students enrolled in the class at the commencement of term one and exhibit 27 identifies that there were 31 students enrolled at the commencement of term two. Mr Murphy contends these exhibits are evidence that the school enrolled students beyond the target size for that class.
  1. [102]
    The Regulator contends that, instead, the class rolls[76] that were taken at the commencement of class each morning and afternoon is the best evidence of attendance in class by the students. The class rolls referred to by the Regulator identified that, for instance, in the afternoon, several students regularly left the class. The evidence led in relation to these absences is that some students left regularly to attend appointments and others joined other classes.[77]
  1. [103]
    The Certified Agreement refers to the class size target by reference to a ratio of students to teacher. The evidence indicates that for a majority of the teaching time, Mr Murphy was not teaching the class alone. During term one and term two, Mr Murphy co-taught with another teacher, (either Ms Stehbens or Ms Hutchinson) except for the times when Ms Stehbens was absent from the classroom, for example, for period three on Monday, Tuesday and Wednesday. The evidence was[78] that during period three on Monday Tuesday and Wednesday, Mr Murphy taught 26 children and was supported by Ms Greenslade, a teacher's aide.
  1. [104]
    The evidence supports a conclusion that for the majority of Mr Murphy's teaching time, he either co-taught with Ms Stehbens or Ms Hutchinson, and that teaching team was further supported by Ms Greenslade or Ms Russell.
  1. [105]
    Mr Murphy ultimately submitted[79] that it is not necessary for the Commission to make specific findings as to whether the class size breached the Certified Agreement in order to find that the management of the class was unusually demanding.
  1. [106]
    Accordingly, I make no finding as to whether the class size 'breached' the target set out in the Certified Agreement.
  1. [107]
    Further, I do not consider that the evidence supports a finding that the class size itself created an excessive workload in the circumstances of this matter, as Mr Murphy taught the class variously as part of a teaching team with two other teachers and two teachers' aides. The consequence of this is that Mr Murphy was for the majority of his working day, teaching well less than the full cohort of the class and was at all times, supported by others in the teaching team.

Sole Stressor – Excessive Teaching Workload: Varying learning levels, behavioural and special needs

  1. [108]
    Mr Murphy also argues that the workload was excessive because of the varying learning levels of the students, including some of whom had behavioural and special needs. The facts relied on by Mr Murphy in support of this is outlined in his Statement of Facts and Contentions as follows:
  1. In addition to the Appellant’s class containing more students than the recommended maximum as per the Certified Agreement, his class consisted of 13 students with special needs and an additional 3 students waiting on verification.
  2. The extraordinarily high number of students with special needs and behavioural issues presented a number of challenges for the Appellant. This caused him great stress.
  3. Many of the children had challenging behavioural issues, causing conflict within the classroom and a significant level of teaching skill, time and energy.
  4. The Appellant’s class composition was a new initiative at the school and was not manageable.
  5. The demands of teaching such a challenging mix of student needs caused the Appellant stress and anxiety.
  1. [109]
    The evidence was that the varying learning levels, behavioural issues, and special needs of the class resulted in the class being a demanding class. It appears to be accepted that the class contained high numbers of students with special and behavioural needs. I find that the class did contain a challenging mix of students with special and behavioural needs.
  1. [110]
    However, the evidence was also that Mr Murphy was not required to meet the demands of the class alone.
  1. [111]
    Mr Murphy co-taught with two other teachers, meaning he was supported in the classroom by one other teacher for most of the teaching time, except, as already discussed, when Ms Stehbens was absent. The organisation of the teaching team by Ms Coleman to include two teachers for a majority of the teaching day, supported by either Ms Russell or Ms Greenslade, recognises and addresses the greater demands of this class.
  1. [112]
    The evidence is that Ms Stehbens and Ms Hutchinson respectively undertook significant components of the workload whilst both in and outside of the classroom.
  1. [113]
    Ms Stehbens held a senior special education role within the school and undertook additional work for those students on an Individual Curriculum Plan ('ICP') within the class. In summary, there was evidence that Ms Stehbens wrote the ICP's for students in the whole class, prepared the homework sheets for the students on ICP's and prepared the English work booklets for relevant students. This was in addition to the work Ms Stehbens performed planning for classes on Monday to Thursday,[80] preparing the homework sheets and providing marks for the report cards.
  1. [114]
    In addition, the evidence was that Ms Stehbens took the lead in organising the class structure and making the necessary adjustments to the teaching methodology to address the special and behavioural needs of the class. This included organising the teachers' aides and providing them with the appropriate direction.
  1. [115]
    Ms Hutchinson's evidence was that on Thursdays, she co-taught with Mr Murphy and implemented the plan for the day left by Ms Stehbens. On Fridays, Ms Hutchinson again co-taught with Mr Murphy but was responsible for planning and delivering the science component of the student's curriculum.
  1. [116]
    During the hearing, there was no suggestion made by Mr Murphy that neither Ms Stehbens or Ms Hutchinson did not perform the work they said they did. I find that in addition to Mr Murphy being supported in the classroom, that both Ms Stehbens and Ms Hutchinson performed work outside of the classroom for instance, preparing worksheets and planning classes, which consequently resulted in a lessened workload for Mr Murphy.
  1. [117]
    It follows from this that, whilst the class was a complex class to teach, Mr Murphy was supported in the role of teacher. Mr Murphy had the support of a teaching team that included two teachers and was supported at various times of the day by at least one or occasionally two teachers' aides. 
  1. [118]
    Despite this, it appears to be Mr Murphy's perception that the teaching team was not effective. The following exchange under cross-examination highlights Mr Murphy's view about Ms Stehbens preparing all of the homework sheets for term one and two:

You did not do the homework sheets for term 1, did you?---No.

And you did not do the homework sheets for term 2?---No, she done it up before we talked about it - - -

Okay?--- - - - on one weekend.

So when you team taught with Jane, you didn’t do any homework sheet?---Well, I’d hardly say we team taught.

You didn’t do any homework sheets during the time that you were teaching with Jane, did you?---No.[81]

  1. [119]
    Further, Mr Murphy was asked questions under cross-examination as to whether he sought assistance from Ms Coleman or Ms Stehbens as follows:

All right. Now, in your evidence-in-chief, Mr Murphy, you were asked some questions about whether or not any of the management of the school asked you if you were coping or needed help and you said no, that they didn’t?---No.

Did you ever contact Maureen Colman and ask her for help in the way that you were doing your teaching?---No.

Did you ask – did you contact Maureen Colman and complain about the room setup or what was going on in any of your classes?---No.

Did you make any complaint to Jane, your team teacher, about the difficulties you were having - - -?---I told her - - -

- - - in class?---I told her at the start that there was a ridiculous mix.

But as the term 1 and the term 2 came about, you didn’t go to Jane and ask for specific help?---No. Obviously, she would have saw; she was teaching next to me.

You never said to Jane or Maureen that you were feeling stressed about your teaching workload?---No.

And you never said to Jane or Maureen that you simply can’t do the work?---No.[82]

  1. [120]
    I consider that Mr Murphy held a perception that greater demands were placed upon him, but I do not accept that the evidence supports a conclusion that the demands were unreasonable or excessive.
  2. [121]
    Other than relying on the evidence as to the mix of students in the class and their varying needs, Mr Murphy did not adduce any evidence to support his contention that he had an excessive teaching load.
  1. [122]
    I find on the evidence that the way in which the teaching team was structured, so that Mr Murphy taught the class as part of a teaching team with the support of teachers' aides, lessened the teaching load on Mr Murphy and assisted in addressing the special and behavioural needs of the students and the associated demands placed on the teachers in the class.
  1. [123]
    Whilst the evidence indicates that Mr Murphy did teach alone, but with the assistance of a teachers' aide for period three on Monday, Tuesday and Wednesday, I do not consider, when looked at wholistically, including the periods that Mr Murphy co-taught and those when he had no student contact, that the evidence supports a conclusion that Mr Murphy's workload was excessive.

Sole Stressor – Excessive Teaching Load: Excessive and unreasonable workload

  1. [124]
    Mr Murphy further argues that the workload was excessive and unreasonable due to the cohort of the class. Mr Murphy relies on the following facts outlined in his Statement of Facts and Contentions as follows:
  1. The Appellant was responsible for teaching a year 4, 5, and 6 composite class. In addition to being responsible for teaching these curriculums, a number of students in the Appellant’s class were on Individual Curriculum Plans (ICPs).
  2. The Appellant was responsible for 4 students working on year 2 ICPs and 7 students working on year 3 ICPs.
  3. The Appellant was effectively tasked with teaching 4 different year levels and curriculums, being years 2, 3, 5 and 6.
  4. Due to the composition of his class and the challenges it posed, the Appellant was unable to deliver teaching to an effective level.
  1. [125]
    Despite his assertion made in the Statement of Facts and Contentions, Mr Murphy's evidence was not that he was unable to deliver teaching to an effective level. Rather, Mr Murphy's evidence was that 'these students were taught, they learnt what they needed, they passed their subject.'[83]
  1. [126]
    There was no evidence led by Mr Murphy that he was unable to deliver teaching to an effective level. Whilst the evidence led by the Regulator was to the effect that Mr Murphy was resistant to alter his teaching style and to take ownership of the classroom to better address the special and behavioural needs of the class, there was no evidence led by the Regulator that Mr Murphy was unable to deliver teaching to an effective level.
  1. [127]
    Part of the evidence did deal with the most appropriate teaching style to be adopted when teaching a complex class such as this one.
  1. [128]
    Ms Stebhens, in addition to team teaching, held a specialist education role within the school. It is her evidence, which I accept, that group teaching is considered to be one of the preferred teaching methods when teaching a class with varying needs.
  1. [129]
    The evidence was that Mr Murphy's preferred style of teaching was a whole class teaching model with essentially the teacher teaching from the front of the class.
  1. [130]
    The evidence was that Mr Murphy did not take any leadership with respect to the structure of the class and the teaching method to be adopted. I accept that Ms Stehbens was the one who attempted to ensure the teaching method adopted best suited the class and made adjustments to this method when necessary. Mr Murphy's failure to proactively engage with Ms Stehbens in this regard indicates a general reluctance to alter his usual teaching methodology and style. I consider Mr Murphy's reluctance to proactively engage with Ms Stehbens with respect to the teaching methodology to reflect a broader dissatisfaction about being placed in the teaching team for this class in 2018, which was apparent from his conduct from the commencement of 2018.
  1. [131]
    The evidence also was that Ms Stehbens undertook a great deal of the work for the students on ICP's. Relevantly, the evidence included that Ms Stehbens conducted the ICP's, and prepared homework sheets for the students on ICP's. Whilst the evidence establishes that the class had a number of students at varying year levels on ICP's, the evidence also establishes that Mr Murphy did not have the sole responsibility for teaching and preparing class for these students. Mr Murphy was supported by Ms Stehbens in particular who undertook a significant part of the planning and preparation of work for the students.
  1. [132]
    Accordingly, I find that there is no evidence to suggest that Mr Murphy was unable to deliver teaching to an effective level due to the composition of the class and any subsequent challenges arising out of the behavioural and special needs of the students within the class. I do not consider that the number of students on ICP's in the class supports a conclusion that Mr Murphy had an excessive teaching load in all of the circumstances of this matter.

Sole Stressor – Excessive Teaching Load: Lack of and withdrawal of support

  1. [133]
    Mr Murphy argues that, following the meeting with Ms Coleman and Ms Stehbens and being advised that Ms Stehbens' time in the classroom was to be reduced, he considered he would have less assistance managing the class. Mr Murphy argues that it was his anticipation about how he would manage the class in term three that caused him to experience stress and anxiety. The facts relied on by Mr Murphy in support of this is contained in his Statement of Facts and Contentions as follows:
  1. At the end of first semester 2018, the Appellant met with Ms Maureen Coleman, the principal of the school, and was advised that Ms Stehbens’ timetable was changing and the amount of support she would be providing in the Appellant’s class the following term (Term 3) would be reduced.
  2. This meant that the Appellant’s teaching demand would increase in term 3 as he would have less assistance from Ms Stehbens in managing the class of students which exceeded the maximum number of students as per the Certified Agreement, with students at different learning levels coupled with a high number of special needs students and students with behavioural issues.
  3. The anticipation of managing the classroom in term 3 with less assistance caused the Appellant to experience symptoms of stress and anxiety.
  1. [134]
    It is Ms Coleman's decision, and in particular, being advised that he would have more time in the classroom without Ms Stehbens, that Mr Murphy points to as the reason for his rapid decline. Relevantly, Mr Murphy's evidence was that, whilst there was stress before, the decision made by Ms Coleman and conveyed to him was the 'key trigger' for his decline.[84]
  1. [135]
    Mr Murphy further explained that 'the fact that I would have the whole class without another teacher for those periods of time in the first and second session was huge'.[85]
  1. [136]
    I consider that the evidence above supports a finding that the decision made by Ms Coleman, and Mr Murphy's perception as to the effect that decision would have on him in term three, led him to feel stress and anxiety. I do not accept, however, that the decision to reduce Ms Stehbens time in the classroom amounted either to a withdrawal of support or to an excessive teaching load for Mr Murphy, as contended by Mr Murphy.
  1. [137]
    Further, I do not accept the component of Mr Murphy's contention that asserts that the class included the maximum number of students in the target ratio of teacher to students in the Certified Agreement. For reasons already stated, Mr Murphy earlier contends that no such finding with respect to the target need be made by the Commission. In any event, whilst the decision made by Ms Coleman would result in Mr Murphy being in the classroom for extra time on Monday, Tuesday and Wednesday without the support of another teacher,[86] that does not, on its own, lead to a conclusion that the class target ratio would be exceeded or that his workload would be excessive.
  1. [138]
    Additionally, this component of the contention is premised on the proposition that Mr Murphy's workload was excessive at the time the decision was communicated by Ms Coleman to him. For the reasons already outlined, I do not accept that proposition on the evidence before the Commission.
  1. [139]
    In addition to these conclusions, and with respect to Ms Stehbens spending less time in the classroom, I do not consider that the evidence supports a conclusion that there was a withdrawal of support to Mr Murphy following the meeting with Ms Coleman.
  1. [140]
    The evidence established that following the meeting, Ms Stehbens undertook steps to communicate with Mr Murphy about the class. Ms Stehbens offered her assistance and identified the work she would continue to perform in term three. In addition to that, Ms Stehbens and Ms Hunt drafted a proposed timetable for Mr Murphy to assist him in planning for term three.
  1. [141]
    Whilst Mr Murphy's perception of Ms Stehbens is that she was withdrawing support, I find that, whilst it is accepted that Ms Stehbens would spend less physical time in the classroom on Monday, Tuesday and Wednesday, that, in and of itself, does not support a conclusion that there was a withdrawal of support which led to an excessive teaching workload. I find that following the meeting, Mr Murphy was provided with support from both Ms Hunt and Ms Stebhens to assist him in the planning and implementation of the class during Ms Stebhens time outside the classroom.
  1. [142]
    Mr Murphy argues,[87] that it is not correct to draw the distinction between the cause of Mr Murphy's injury being as a result of his knowledge and perception of the plans for change in term three, rather than the excessive teaching workload in the 2018 academic year.
  1. [143]
    Mr Murphy contends that the significance of the 'plans for change in term three' was that it would increase the burden on Mr Murphy and his teaching workload in the 2018 academic year. Mr Murphy argues that the stress created by the 'plans for change in term three' was not a distinct factor, distinguishable in its effect on Mr Murphy from the issue of his workload. For the reasons already stated, I do not consider that Mr Murphy has established that he had an excessive workload at the time the decision was communicated to him. Further, I do not consider that there was a lack of or withdrawal of support which led to an excessive teaching load.
  1. [144]
    I consider the submissions made on behalf of Mr Murphy are strained in such a way so as to avoid nominating management action as a stressor for the injury. The stress that Mr Murphy states he felt can not be divorced, on the evidence, from the decision made by Ms Coleman and conveyed to Mr Murphy at the meeting, particularly given it was Mr Murphy's evidence that it was the communication of that decision and his perception of the impact that the decision would have on him in the classroom that was the 'major trigger' for the injury.
  1. [145]
    I do not consider that Mr Murphy has successfully established that the sole stressor of 'excessive workload' was evident on the material before the Commission. Consequently, I have determined that the sole stressor identified by Mr Murphy did not arise out of, or in the course of his employment and, consequently, his appeal must fail. If I am wrong as to this conclusion, I will consider whether the employment was the major significant factor of Mr Murphy's injury.

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

  1. [146]
    Mr Murphy contends his employment was the major[88] significant contributing factor to the development to his injury. In this regard he argues that the injury arose due to the stressor of an excessive teaching workload in 2018.
  1. [147]
    The assessment as to whether Mr Murphy's employment was the major significant factor to his injury requires an examination of both factual and medical evidence.[89]
  1. [148]
    The medical evidence in this matter is limited to the Patient Health Summary notes of Mr Murphy's general practitioners,[90] and medical certificates dated 13 July 2018, 1 August 2018, 3 August 2018, and 24 August 2018.[91]
  1. [149]
    The Patient Health Summary notes are largely a recitation of the history given to the doctors by Mr Murphy. There was no medical evidence relied on as to the expression of an opinion as to the cause of the injury by a medical practitioner.
  1. [150]
    Whilst it has previously been found[92] that in reaching a determination as to whether the employment is 'the major significant contributing factor' to the disorder, the Commission can be assisted by evidence given by medical practitioners, it is the case in this matter that no evidence was given by a medical practitioner.
  1. [151]
    Accordingly, I will consider the matter by reference to the evidence that was tendered by consent during the hearing, together with the evidence given by the relevant witnesses.
  2. [152]
    The following principles[93] have previously been considered as relevant to the determination as to whether the employment is the major significant contributing factor to the injury:
  1. (a)
    the reference to "employment" in s 32(1) is to employment as a set of circumstances, that is to the exigencies of employment of the worker by the employer, and refers to what the worker in fact does during the course of employment;
  1. (b)
    the fact that an injury has been suffered arising out of, or in the course of, employment is not sufficient to establish that the employment has been "a significant contributing factor to the injury" (and hence "the major significant contributing factor") and there needs to be a more substantial connection between the employment and injury;
  1. (c)
    employment needs to be a "real effective cause" of the injury and not merely the setting or background in which the injury occurs;
  1. (d)
    if innocuous events which actually occurred were totally misconstrued by the claimant because of an existing condition, and the claimant imagined that other events or incidents had occurred, the claimant's employment could be said to be a contributing factor but not a significant (and hence not the major) contributing factor;
  1. (e)
    the operation of disturbed perception and reasoning upon objectively identified workplace issues (such as the presence of toxic compounds in the product with which a claimant was required to work) can be sufficient to make the causal connection between the disorder and employment;
  1. (f)
    where a claimant is mistaken about what their employer was asking them to do and becomes distressed on the basis of that misunderstanding such that there was no factual basis for their concern, or the workplace issues could be understood as pure fantasy, their employment would not be a significant contributing factor to the injury;
  1. (g)
    events that do not occur in the workplace cannot contribute to the development of a work related psychiatric or psychological condition.

(citations omitted)

  1. [153]
    There is no suggestion in the evidence that Mr Murphy had a pre-existing injury, or that there were other relevant stressors outside of his employment.
  1. [154]
    The evidence is that Mr Murphy attended on his general practitioner on 13 July 2018 and nominated workplace events as the cause of his feelings of stress and anxiety. Relevantly, Mr Murphy is recorded by Dr Muller as describing 'currently work loaded and was doing up to 10 hours per day', 'class size 5 above limit' and 'lots of behavioural issues'.
  1. [155]
    As already noted, there was no evidence that Mr Murphy was working up to 10 hours per day.
  2. [156]
    For the reasons referred to above, I have concluded that Mr Murphy did not have an excessive workload and consequently, I find that Mr Murphy's workload was not the major significant factor to his injury.
  1. [157]
    I consider this conclusion is supported by Mr Murphy's own evidence as to the cause of his injury.
  1. [158]
    Mr Murphy's evidence is that, following the meeting in which he was advised of the decision made by Ms Coleman, he started to decline. Mr Murphy describes the effect of being told that decision as variously the 'key trigger', the 'big trigger' and it was 'huge'.
  1. [159]
    I am satisfied that the decision made by Ms Coleman and conveyed to Mr Murphy and/or his perception as to the effect that decision would have on him in term three was the cause of and major significant contributing factor to the injury. This conclusion does not accord with Mr Murphy's case as to the cause of his injury and, again, I consider that the appeal must fail.
  1. [160]
    However, Mr Murphy contends that if I find against the stressor of 'excessive workload', that he relies on an alternative stressor.
  1. [161]
    I will consider whether Mr Murphy is able to rely on an alternative stressor beyond the sole stressor nominated by him further below.

The Appellant's alternative stressor

  1. [162]
    Paragraph 36 of Mr Murphy's Statement of Facts and Contentions relevantly states the following:

In the alternative, if the injury did arise out of, or in the course of, management action, the Appellant’s injury is not excluded by s. 32(5) of the Act, as:

  1. (a)
    Management action that subjected the Appellant to an excessive teaching load cannot be considered “reasonable”;
  1. (b)
    The decision to construct a three-grade composite class with special needs students was a novelty within the school and was commenced without due consultation, a graduated trial implementation or appropriate oversight and monitoring. This was not “reasonable”;
  1. (c)
    Management action that resulted in the Appellant’s workload being further increased for semester 2, 2018, is not “reasonable”;
  1. [163]
    During the course of the opening of Mr Murphy's case, it was stated that Mr Murphy's evidence was that management action was not involved in the development of his injury.[94]
  1. [164]
    Mr Murphy's case was opened, inter alia, in the following terms:

And perhaps without descending into submissions at this stage I should highlight it appears at least at this stage in proceedings and certainly from the appellant’s perspective that this is a case in which the principal contention will be, was there any management action at all involved in this injury? Certainly the appellant’s case is that there was not. (emphasis added)

  1. [165]
    This position further reflects paragraph 35 of Mr Murphy's Statement of Facts and Contentions which relevantly states:

The Appellant contends that his injury did not arise out of, or in the course of, management action. His injury arose solely out of the excessive teaching load to which he was subjected in 2018. To the extent that staffing issues are relevant to the Appellant’s injury, they are relevant only because the Appellant’s teaching load was (at least in part) affected by staffing decisions. That does not constitute the requisite causal or consequential relationship between management action and the injury.

  1. [166]
    The Regulator argues that Mr Murphy is bound by the case he specified in his Statement of Facts and Contentions, that is, the consideration of the sole stressor of excessive workload. Relevantly, the Regulator refers to the decision of Simon Blackwood (Workers' Compensation Regulator) v Adams[95] in which the then President, Martin J commented that it is an error for a tribunal, in cases where the boundary of the application has been set by documents such as Statement of Stressors, to go beyond that boundary when making findings.
  1. [167]
    Accordingly, the Regulator's primary submission is that the Commission is bound to determine the case as put by Mr Murphy, that is, that the sole stressor of excessive teaching workload arose out of, and in the course of his employment, and was the major significant factor to his injury.
  1. [168]
    The Regulator submits that it is not available to the Commission to consider other stressors, such as management action, because it falls outside the scope of the appeal. The Regulator further submits that Mr Murphy's appeal fails, on the basis that the evidence was clear from Mr Murphy himself, that it was his perception of the plan to remove Ms Stehbens for a period of time from the classroom in term three, which was the major contributing factor to his injury.
  1. [169]
    As noted by the Regulator, Mr Murphy did not seek to amend his Statement of Facts and Contentions to nominate a stressor in addition to the stressor of 'excessive workload' which he described as the 'sole stressor'.
  1. [170]
    The question arising from the above, is whether Mr Murphy is bound by his Statement of Facts and Contentions which identifies the sole stressor of 'excessive workload'. Further, what, if any, significance arises from Mr Murphy's contention that should it be found that the injury arose out of, or in the course of, management action, that he relies on the alternative stressor of unreasonable management action.
  1. [171]
    The role of a Statement of Facts and Contentions has been considered by the Industrial Court of Queensland[96]as follows:
  1. The Commissioner relied, in part, on the Statement of Facts and Contentions filed by the appellant. The role of such Statements was the subject of submissions and it will assist if their status is examined before the grounds of appeal are considered.
  2. In appeals brought to the Commission under the Act, it was once the standard practice for a direction to be given requiring the appellant to file and serve a Statement of Stressors. It is now the common practice for a direction to be given requiring the parties to file and serve Statements of Facts and Contentions. The legislative power to make such a direction is found in s 451(2)(a) of the Industrial Relations Act 2016 (IR Act). More detailed provisions are contained in r 41 of the Industrial Relations (Tribunals) Rules 2011. Rule 45 also provides that, among other things, the Commission may dismiss a proceeding if there is a failure to comply with a direction.
  3. In Blackwood v Adams, I referred to Statements of Stressors as setting “the boundaries of the application”. More recently, in Carlton v Blackwood2 I said:

“An appellant’s case has to be known before the hearing starts. The Commission cannot allow a case to “evolve” and place the respondent in the position of having to contend with the shifting sands of an undefined argument. If an appellant wishes to advance a different case, then that should be done by seeking an amendment to the Statement of Stressors or the document identifying the facts and contentions. The can then decide whether or not to allow such an amendment.”

  1. A Statement of Facts and Contentions is not attended with the same level of formality as pleadings in the traditional sense are. The Commission is relieved, by s 531 of the IR Act, of many of the strict rules which apply in the civil courts. But, the Commission is still in charge of its own procedure and may, consistently with the provisions of s 531, require parties to provide an outline of their respective cases. This is particularly important in appeals under the Act where the nature of injuries, their cause, and the times at which they were suffered are essential to the resolution of an appeal. It follows, then, that the Commission is entitled to rely on the Statement as a complete statement of a party’s case and, if an admission is made, to rely on that admission.
  2. Section 531 requires that the Commission be:

“… guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of—

(a) the persons immediately concerned; and

(b) the community as a whole.”

  1. It is consistent with the requirements of s 531 for a party in an appeal under the Act to set out its case by way of a Statement of Facts and Contentions. It alerts the other party to the case it will have to deal with and it identifies the issues which exist which, in turn, allow for a confinement of the matters in dispute. An appeal under the Act is not the time for a broad ranging inquiry into an unlimited number of complaints or grievances. The time and resources of the Commission are constrained and it is necessary for those constraints to be acknowledged in this way. Subject always to the Commission’s power to allow appropriate amendments (so that s 531 may be observed) a party will be bound by its Statement of Facts and Contentions and may not lead evidence which is not relevant to the identified issues. (footnotes omitted)
  1. [172]
    Accordingly, the role of the appellant's Statement of Facts and Contentions in an appeal of this nature is to outline the appellant's respective case, having regard, in particular, to the nature of the injury, the cause of the injury and the time at which the injury occurred. Following this, the Commission and indeed the other party, are entitled to rely on the Statement of Facts and Contentions as a complete statement of the appellant's case.
  1. [173]
    In this matter, Mr Murphy's Statement of Facts and Contentions, together with the opening of his case by Counsel, clearly state that it was Mr Murphy's contention that management action was not a stressor that he relied on.
  1. [174]
    It is seemingly in reliance of Mr Murphy's Statement of Facts and Contentions that the Regulator contends that Mr Murphy can not argue an alternative submission, that 'if the injury did not arise out of, or in the course of, management action, the Appellant's injury is not excluded by s 32(5) of the Act'.
  1. [175]
    Mr Murphy's alternative submission appears to be premised upon 'if there is a finding that the injury did arise out of, or in the course of, management action, than the management action was not reasonable'. Such a finding however does not accord with Mr Murphy's case that the sole stressor for the injury was excessive workload, and that Mr Murphy explicitly excluded management action from the sole stressor.
  1. [176]
    The onus of proof rests with Mr Murphy to establish[97] that he has an injury within the meaning of the Act. It is his case that excessive workload rather than management action was the cause of his injury. Indeed, Mr Murphy explicitly contends that management action was excluded from his nominated sole stressor.
  1. [177]
    The Regulator's Statement of Facts and Contentions deny that Mr Murphy sustained an injury in accordance with the Act, because, inter alia, 'the Appellant's personal injury has arisen out of reasonable management action taken in a reasonable way by the employer in connection with the Appellant's employment' and consequently contends that the injury is 'therefore excluded by the reasonable management action provisions of the Act'.
  1. [178]
    Mr Murphy contends that the Regulator's Statement of Facts and Contentions does not particularise what is alleged to have been the management action taken by the employer and consequently, the Regulator is not permitted to go beyond the Statement of Facts and Contentions.
  1. [179]
    The Regulator submits that:
  1. (a)
    Ms Coleman's decision is 'management action';
  1. (b)
    management action was specifically excluded as a stressor in the Appellant's Statement of Facts and Contentions; and
  1. (c)
    at law, the Appellant has not discharged his onus that it was in fact the workload being 'excessive' or that it was 'a major significant contributing factor' to
    Mr Murphy's injury as defined in his case.
  1. [180]
    The Regulator submits that the onus does not rest on it to establish that the injury was caused by, in these circumstances, the management action taken in a reasonable way.
  1. [181]
    It is Mr Murphy who has brought the appeal and it is he who seeks a determination that the injury was an injury within the meaning of the Act. In doing so, Mr Murphy has nominated the sole stressor relied upon as excessive workload. Indeed, Mr Murphy's contentions explicitly exclude management action as being a component of his nominated stressor.
  1. [182]
    It would be an error for this Commission to engage in a roving enquiry as to the cause of Mr Murphy's injury that goes beyond the case nominated by him.
  1. [183]
    For these reasons, I consider that Mr Murphy is restricted to arguing his case as contended by him, that is, that the sole stressor of the injury was excessive workload and in circumstances where he contends that management action is specifically excluded from the sole stressor.
  1. [184]
    On that basis, and for the reasons referred to above, Mr Murphy's appeal must fail because he has failed to discharge the onus on him to establish that the injury arose out of, or in the course of, his employment, namely an excessive workload in 2018 and that the workload was the major significant contributing factor to the injury.
  1. [185]
    However, if I am wrong as to this conclusion, I will consider whether the injury is excluded by operation of s 32(5) of the Act.

Is the injury excluded from being compensable because the injury was the consequence of 'reasonable management action taken in a reasonable way' by the Appellant's employer in connection with his employment?

  1. [186]
    The Regulator contends that if Mr Murphy suffered a work related psychiatric or psychological injury, the injury would be excluded by the operation of s 32(5) of the Act because it arose out of, or in the course of, reasonable management action taken in a reasonable way. As noted above, Mr Murphy's primary contention is that the action is not management action and accordingly, the exclusion in s 32(5) of the Act does not operate in the circumstances of this matter.
  1. [187]
    It is necessary to consider whether the action is management action before determining whether the action 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.

Is the action management action?

  1. [188]
    In order to address Mr Murphy's alternative stressor, I must consider whether the action amounts to management action.
  1. [189]
    In Mr Murphy's initial written submissions, he characterises the potential management action as falling into the two following categories:
  1. (a)
    teaching and other resources available to the Appellant; and
  1. (b)
    the change in teacher time for semester two 2018.
  1. [190]
    Mr Murphy ultimately contends that the action described by the two categories above do not amount to 'management action taken in connection with the Appellant's employment'.
  1. [191]
    The Regulator contends that the plan to change the classroom arrangement in term three was 'management action' as considered by s 32(5) of the Act.
  1. [192]
    In Gilmour v Workers' Compensation Regulator[98] ('Gilmour'), his Honour O'Connor VP considered the operation of s 32(5) of the Act and examined the meaning of 'management action' as follows:

[78] In Allwood v Workers' Compensation Regulator and Read v Workers' Compensation Regulator I had cause to examine the meaning of “management action” within the context of the Act. In Allwood, I wrote the following:

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.  This statement is informed by the reasoning of Doyle CJ, with whom Prior and Williams JJ agreed in WorkCover Corp (SA) v Summers.

In Summers, their Honours were called upon to construe the words "reasonable administrative action taken in a reasonable manner by the employer in connection with the worker’s employment" in s 30(2a) of the Workers Rehabilitation and Compensation Act 1986 (SA). I note the similarities of that provision to the one under consideration in this matter. In Summers, Doyle CJ wrote:

"The appellant argued that "administrative action" referred to "every instruction given by the employer or action taken by the employer which relates to the performance of the worker’s duties, whether directly or indirectly". That is how it was put in the appellant's outline. In his submissions counsel for the appellant said that administrative action embraced every instruction or action by the employer, indirectly or directly ….

I am unable to accept this submission.

If it is correct, it means that it becomes necessary to identify all instructions and directions given by the employer which did contribute or might have contributed to the stress, and then to examine the reasonableness of each one of them. That would be a daunting task, and I would hesitate to conclude that Parliament intended that it be performed. …if the stress resulted from instructions or actions of the employer (and presumably an implied instruction would be as good as an express instruction), then the claim would fail unless the instruction or action was unreasonable. Common sense suggests that many, and probably most aspects of a worker’s work could be related back to instructions given by an employer or action taken by an employer. It is clear that Parliament intended to restrict stress claims, but it is another matter whether it intended to go as far as this….

Moreover, the words chosen by Parliament — "administrative action" do not seem apt to embrace every instruction of and action by an employer. The expression chosen suggests that Parliament had in mind a particular type of action by an employer, and something other than a mere instruction or requirement that the worker perform her duties. In my opinion the appellant’s submission fails to give any effect to the adjective "administrative"."

Summers was considered by the Full Court of the Federal Court in Commonwealth Bank of Australia v Reeve. In that matter their Honours examined, amongst other things, s5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth). Gray J, in dismissing the appeal, wrote the following:

"The use of the word "administrative" in the exclusion is significant. In accordance with normal principles, it is not to be assumed that a word in a legislative provision has no function to perform. The word "administrative" must have been inserted to distinguish the kind of action to which the exclusion is directed from other kinds of action that might also be taken with respect to the employment of a particular employee. Such action that is not "administrative" could be operational, in the sense that it relates to the activities or business of the institution or enterprise in which the employee is employed. Thus, an instruction to perform work at a particular location, to drive on a particular route, or to perform particular duties would not be regarded as "administrative" action, but as operational action with respect to the employee’s employment.

Rares and Tracey JJ, also dismissing the appeal, stated that:

"It is one thing to contemplate disciplining an employee or taking steps under his or her contract of employment, and quite another to define or delimit or supervise the employment, job or task entrusted to the employee for him or her to perform or to give directions to him or her as to how and when he or she is to perform it. The former is comprehended by the expression "administrative action" in s 5A(1); the latter deals with the way in which the employee carries out the employment for which he or she was engaged. The latter is not "administrative action"."

In discussing the definition of "administrative" their honours wrote:

"The ordinary and natural meaning of “administrative” concerns the management of a body or enterprise as opposed to the task or job entrusted to a person who is subject to that management. "Administrative" has the following relevant dictionary meanings:

  • relating to administration (“administration” being defined as “the management or direction of any office or employment”) (The Macquarie Dictionary online);
  • pertaining to, or dealing with, the conduct or management of affairs (The Oxford English Dictionary online);

[79] I respectfully adopt the approach of Rares and Tracey JJ in Reeves. The exclusory action in s32(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. Therefore the management action said to enliven s 32(5) of the Act must be something different to the everyday duties and incidental tasks of the appellant's employment.

[80] In Davis v Blackwood (Workers' Compensation Regulator) Martin J, President, made the following observations concerning s 32(5)(a) of the Act:

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 consideration of what else might have been done but that will only be relevant to whether what was done was, in fact, reasonable.

[81] The management action said to enliven s 32(5) is in my view more akin to what might be described as operational, being the management and regulation of the appellant’s employment. The management action taken to address the “conduct” in the training session on 28 June 2016 would be of a different character fitting more readily into the definition of management action.

[82] Whilst it is clear that Parliament in enacting s 32(5) of the Act intended to restrict stress claims, it is another matter whether Parliament intended to enact a provision which would have the effect of making any instruction given by an employer or action taken by an employer, management action. As was observed by Rares and Tracey JJ in Reeves:

It is one thing to contemplate disciplining an employee or taking steps under his or her contract of employment, and quite another to define or delimit or supervise the employment, job or task entrusted to the employee for him or her to perform or to give directions to him or her as to how and when he or she is to perform it. (Emphasis added)

(footnotes omitted)

  1. [193]
    As noted above, his Honour O'Connor VP in Gilmour, after considering the relevant authorities and the operation of s 32 of the Act, held that 'management action' for the purpose of s 32(5) of the Act, must be something different to the everyday duties and incidental tasks of the appellant's employment.
  1. [194]
    Mr Murphy argues that neither the resources available to him during semester one nor the decision to reduce Ms Stehbens' time in the classroom in term three amounts to management action.
  1. [195]
    The Regulator submits that the plan to change the classroom arrangements in term three were actions specific to the management of Ms Stehbens and Mr Murphy to address specific concerns formed by Ms Coleman. It further submits that the decision to change the classroom arrangements in term three is 'management action' considered by s 32(5) of the Act.
  1. [196]
    On the basis that it is neither the case of Mr Murphy or the Regulator that the resources and support made available to Mr Murphy in semester one, are on their own, action that amounts to 'management action' for the purpose of s 32(5) of the Act, it is unnecessary for me to make a finding in this regard. I will, however, have regard to those matters when considering the context in which the decision was made by Ms Coleman.
  1. [197]
    The parties are however in dispute as to whether the decision made by Ms Coleman to reduce Ms Stehbens' time in the classroom, with the result that Mr Murphy would be required to work a greater portion of the teaching time as the sole teacher, amounts to management action.
  1. [198]
    Mr Murphy contends that the decision does not amount to 'management action' insofar as it relates to Mr Murphy as the decision had nothing to do with Mr Murphy's employment, but was made by Ms Coleman purely on the basis that Ms Stehbens needed more time to handle her other responsibilities as head of special education.
  1. [199]
    I find that the decision made by Ms Coleman to alter the teaching allocation for the class in term three, which was conveyed to Mr Murphy in a meeting with Ms Coleman and Ms Stehbens, was not action directed to controlling part of the everyday duties and incidental tasks of Mr Murphy's employment, but rather, was specific action regarding a specific issue, namely, the allocation of teachers within the teaching team for the class.
  1. [200]
    I am satisfied that the decision and the communication of the decision amounts to management action within the meaning of s 32(5) of the Act as it is a decision with respect to how the work is to be organised in terms of teacher allocation within the teaching team. It can not be said that the decision is directed to control Mr Murphy's everyday duties and incidental tasks in the classroom.
  1. [201]
    Mr Murphy argues that the decision is relevant only to Ms Stehbens' employment and is not relevant to Mr Murphy's employment.
  1. [202]
    I reject Mr Murphy's submission in this regard. The evidence is that Mr Murphy, Ms Stehbens and Ms Hutchinson were part of a team of teachers who taught the class. Whilst it was intended that, as a result of the decision, Ms Stehbens would spend less teaching time in the classroom on Monday, Tuesday and Wednesday, the effect of that decision is that Mr Murphy would be the only teacher present during Ms Stehbens' absence. The decision was connected to Mr Murphy's employment as it would have the effect of determining how his work was to be organised and structured.
  1. [203]
    It was clear from Mr Murphy's evidence that he considered the decision was connected to his employment. As already referred to above, it was Mr Murphy's evidence that he considered that being told of the plan to reduce Ms Stehbens' time in the classroom was the 'major trigger' for the injury.
  1. [204]
    I am satisfied that the action falls within the meaning of 'management action' in s 32(5) of the Act.

Was the management action reasonable and taken in a reasonable way?

  1. [205]
    Mr Murphy contends that the management action was not reasonable for the following reasons:[99]
  1. (a)
    There was no consultation or discussion with the Appellant;
  1. (b)
    The decision was presented to his as a fait accompli;
  1. (c)
    His negative reaction was not taken into account;
  1. (d)
    There was no increase in the support to be provided to him in the absence of Ms Stehbens’ time in the classroom;
  1. (e)
    In circumstances where he was already known to be struggling, there was no consideration given to the increase in emotional burden this would cause for the Appellant;
  1. (f)
    Ms Stehbens’ email of 21 June 2018 to the Appellant was rude and demanding;
  1. (g)
    In circumstances where he was observed to decline in mood after that discussion and to express (to Ms Hunt in Ms Stehbens’ presence) that he was distressed about the change, no consultation or follow-up was ever held with the Appellant.
  1. [206]
    It has been held,[100] that the task of the Commission when applying s 32(5)(a) of the Act does not involve setting out what it regards as the type of action that would have been reasonable in the circumstances. 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; and sometimes, that may involve a consideration of what else might have been done, however, that will only be relevant to whether what was done was, in fact, reasonable.
  1. [207]
    A review of the relevant authorities distils the following principles to be applied when determining the reasonableness of management action:
  1. (a)
    it is the reality of the employer's conduct and not the employee's perception of it that must be taken into account when determining the reasonableness of the action;[101]
  1. (b)
    'reasonableness' means reasonable in all the circumstances of the case;[102]
  1. (c)
    whether the management action is reasonable and taken in a reasonable way will be an inquiry of fact to be determined objectively;[103]
  1. (d)
    reasonableness does not necessarily equate to 'industrial fairness', although considerations of 'fairness' will always be relevant;[104] and
  1. (e)
    management action need only be reasonable, it does not need to be perfect.[105]
  1. [208]
    I consider it was reasonable for Ms Coleman, as the principal of the school, to determine the operational needs of the school, including with respect to the teacher allocation for the teaching team in the classroom for term three.
  1. [209]
    The evidence was that Ms Coleman ordinarily allocated the teachers and teachers' aides to the various classes at the end of the school year. I consider it was reasonable for Ms Coleman to alter the teacher allocations towards the end of the semester in anticipation of the change taking place in term three.
  1. [210]
    The evidence was that Ms Coleman, as principal, would ordinarily allocate teachers to classrooms at the end of each school year. I find Ms Coleman's decision to alter the teaching allocation for term three to be consistent with how such decisions have historically been made by the principal.
  1. [211]
    I do not consider it unreasonable that the effect of the decision was that Mr Murphy would spend additional time in the classroom on Monday, Tuesday and Wednesday without Ms Stehbens. I consider that within the context of the way in which the teaching team was organised, including the division of labour between Mr Murphy, Ms Stehbens and Ms Hutchinson, together with the support of Ms Greenslade whilst Ms Stehbens was absent for the relevant time and Mr Murphy's experience as an experienced Senior Teacher, that the decision was reasonable.
  1. [212]
    The evidence was that Ms Coleman advised Mr Murphy of the decision toward the end of term two. The timing of the decision permitted planning and assistance to be provided to Mr Murphy prior to the end of term two. As canvassed above, following the meeting, Mr Murphy continued to work for several weeks until the end of term. During this time, Ms Stehbens and Ms Hunt offered Mr Murphy their assistance in planning and preparing for the intended change in term three. Mr Murphy attended several meetings with Ms Hunt in this regard. Ms Stehbens prepared a draft timetable and confirmed the work that she would continue to perform.
  1. [213]
    The evidence was that Ms Hunt and Ms Stehbens offered to assist Mr Murphy with the transition. The evidence also is that Mr Murphy only engaged in the meetings with Ms Hunt in a perfunctory manner and failed to engage with Ms Stehbens' offers to assist in any meaningful way. I consider that it was Mr Murphy's perception that the action was unreasonable rather than the reality of it. I find that both Ms Hunt and Ms Stehbens' offers of assistance to Mr Murphy to be genuine and to have been made with good intentions. I consider that it was Mr Murphy's perception that their actions were unreasonable rather than the reality.
  1. [214]
    For these reasons, I consider that the injury is excluded by operation of s 32(5) of the Act, as it was a result of reasonable management action taken in a reasonable way.

Conclusion

  1. [215]
    In this appeal, the onus was on Mr Murphy to establish that he suffered an injury within the meaning of s 32 of the Act. Mr Murphy has not discharged that onus.
  1. [216]
    I did not accept that the injury arose out of, or in the course of, employment from the sole stressor of excessive workload nominated by Mr Murphy. Further, I do not accept that the sole stressor nominated by Mr Murphy was the major significant contributing factor to Mr Murphy's injury.
  1. [217]
    For these reasons, I will dismiss the appeal.
  1. [218]
    For the sake of completeness, I further concluded that Mr Murphy was excluded from arguing an alternative stressor that went beyond his nominated case as pleaded in his Statement of Facts and Contentions.
  1. [219]
    However, if I am wrong with respect to this conclusion, I did consider the 'alternative stressor' of management action. I found that the decision to alter Ms Stehbens' time in the classroom and the effect that had on Mr Murphy's teaching time amounted to management action. I further find that the management action was reasonable and taken in a reasonable way. As such, the injury is excluded by operation of s 32(5) of the Act.
  1. [220]
    Mr Murphy must pay the Regulator's costs of the appeal.

Order

  1. [221]
    Accordingly, I make the following orders:
  1. The appeal is dismissed.
  1. The Appellant is to pay the Respondent's costs of the appeal.

Footnotes

[1] Appellant's State of Facts and Contentions filed on 14 June 2019, [34].

[2] Ibid, [35].

[3] Exhibit 1.

[4] Respondent's submissions filed 30 October 2020, [67].

[5] T1 – 12, l 32.

[6] T1 – 13, ll 23 – 24.

[7] T3 – 6, ll 30 – 31.

[8] T3 – 6, ll 32 – 33.

[9] T1 – 14, ll 4 – 5.

[10] T3 – 7, l 42.

[11] T3 – 8, l 4.

[12] T3 – 8, ll 20 – 22.

[13] T3 – 43, ll 16 – 24.

[14] T3 – 8, ll 27 – 29.

[15] T3 – 9, ll 9 – 14.

[16] T3 – 42, ll 35 – 41.

[17] T1 – 17, ll 33 – 34, ll 45 – 47.

[18] T1 – 18, ll 4 – 5.

[19] T1 – 18, ll 6 – 7.

[20] T1 – 18, ll 19 – 27.

[21] Exhibit 28.

[22] T3 – 44, ll 9 – 19.

[23] T2 – 15, l 46, T2 – 16, l 3.

[24] T2 – 16, l 5.

[25] T2 – 26, ll 14 – 15.

[26] T2 – 26, ll 1 – 2.

[27] T2 – 26, ll 23 – 24.

[28] T2 – 26, ll 29 – 37.

[29] Exhibit 11, see Schedule 1.

[30] T1 – 18, ll 19 – 20.

[31] The class number is reduced from 29 to 26 as three students attended other classes or activities at this time, see T3 – 10, ll 5 – 7.

[32] T2 – 22, l 29, T2 – 25, ll 13 – 14.

[33] Other than when students attended Religious Education, Physical Education and Music lessons.

[34] And on Wednesday period four with the Religious Education educator.

[35] T1 – 19, ll 23 – 28.

[36] T1 – 20, ll 28 – 35.

[37] T1 – 21, ll 27 – 32.

[38] T3 – 49, ll 24 – 32.

[39] T3 – 49, ll 40 – 47.

[40] T3 – 52, ll 16 – 25.

[41] T4 – 4, ll 34 – 41.

[42] T4 – 4, ll 42 – 46.

[43] T4 – 5, ll 22 – 29.

[44] T4 – 5, ll 46, T4 – 6, ll 1 – 7.

[45] T1 – 62, ll 29 – 30.

[46] T1 – 62, ll 31 – 35.

[47] T1 – 62, ll 15 – 16.

[48] T1 – 62, ll 15 – 16.

[49] T1 – 62, ll 20 – 21.

[50] T1 – 62, ll 22 – 23.

[51] T1 – 62, ll 25 – 26.

[52] T1 – 62, ll 26 – 27.

[53] [67] above.

[54] Although there is also evidence that it may have been for one hour and 15 minutes, see T1 – 23, l 28.

[55] T1 – 23, ll 27 – 34.

[56] T1 – 23, ll 44 – 47.

[57] T1 – 24, ll 3 – 4.

[58] T1 – 24, ll 20 – 30.

[59] Exhibit 5; see T1 – 25, ll 20 – 23.

[60] Exhibit 5.

[61] Ms Greenslade.

[62] Ms Hutchinson.

[63] Ms Stehbens.

[64] Ms Russell.

[65] Exhibit 17.

[66] T 3 – 52, l 29, T 3 – 53, l 8.

[67] T3 – 53, ll 12 – 20.

[68] T3 – 55, ll 29 – 35.

[69] Exhibit 19.

[70] Exhibit 17.

[71] Exhibit 19.

[72] T1 – 27, ll 1 – 10.

[73] T1 – 27, l 16.

[74] T1 – 10, ll 5 – 17.

[75] Clauses 2.1.2 and 2.1.3 of the Certified Agreement.

[76] Exhibits 8 and 9.

[77] See also [47] – [50] herein.

[78]At [47] and [49] above.

[79] Outline of Argument on behalf of the Appellant filed on 8 October 2020, [12(oo)].

[80] Ms Hutchinson's evidence was that Ms Stehbens conducted the planning for the Thursday's classes.

[81] T1 – 58, ll 15 – 26.

[82] T1 – 55, ll 13 – 34.

[83] T1 – 62, l1 5 – 16.

[84] T1 – 76, ll 1 – 3.

[85] T1 – 76, ll 14 – 16.

[86] However, Mr Murphy was still to have the support of a teacher's aide during this time.

[87] Submissions in reply on behalf of the Appellant filed on 23 November 2020 [3] and [4].

[88] This injury occurred prior to the 2019 amendment to the Act which removed the word 'major' from this section.

[89] Kuenstner v Workers' Compensation Regulator [2016] QIRC 083, [26].

[90] Exhibit 1.

[91] Exhibits 2 and 3.

[92] Davis v Blackwood [2014] ICQ 009, [51] per Martin J; Kuenstner v Workers' Compensation Regulator [2016] QIRC 083, [26].

[93] Kuenstner v Workers' Compensation Regulator [2016] QIRC 083, [27].

[94] T1 – 10, ll 20 – 23.

[95] [2015] ICQ 001, [19].

[96] Yousif v Workers' Compensation Regulator [2017] ICQ 004.

[97] On the balance of probabilities.

[98] [2019] QIRC 022.

[99] Outline of argument on behalf of the Appellant filed on 8 October 2020.

[100] State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2020] QIRC 097.

[101] Prizeman v Q-COMP [2005] ICQ 043.

[102] WorkCover Queensland v Kehl [2002] ICQ 021.

[103] Lawton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 099, [65] ('Lawton').

[104] Delaney v Q-COMP Review Unit [2005] ICQ 007.

[105] Lawton, [68].

Close

Editorial Notes

  • Published Case Name:

    Murphy v Workers' Compensation Regulator

  • Shortened Case Name:

    Murphy v Workers' Compensation Regulator

  • MNC:

    [2022] QIRC 264

  • Court:

    QIRC

  • Judge(s):

    Member Hartigan IC

  • Date:

    13 Jul 2022

Appeal Status

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

Cases Cited

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Belal Yousif v Workers' Compensation Regulator [2017] ICQ 4
2 citations
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Davis v Blackwood [2014] ICQ 9
2 citations
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Delaney v Q-COMP Review Unit [2005] ICQ 7
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Gilmour v Workers' Compensation Regulator [2019] QIRC 22
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Kuenstner v Workers' Compensation Regulator [2016] QIRC 83
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Cite 2 - [2016] QIRC 83
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Lawton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 99
3 citations
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Prizeman v Q-COMP [2005] ICQ 43
2 citations
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Cite 1 - [2005] ICQ 43
Cite 2 - [2005] ICQ 43
State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2020] QIRC 97
2 citations
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Cite 1 - [2020] QIRC 97
Cite 2 - [2020] QIRC 97
WorkCover Queensland v Kehl [2002] ICQ 21
2 citations
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Cite 1 - [2002] ICQ 21
Cite 2 - [2002] ICQ 21
Workers' Compensation Regulator v Adams [2015] ICQ 1
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Cases Citing

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Stable v Workers' Compensation Regulator [2024] QIRC 2742 citations
1

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