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  4. Duggan v Workers' Compensation Regulator - [2023] QIRC 309

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Duggan v Workers' Compensation Regulator[2023] QIRC 309

Duggan v Workers' Compensation Regulator[2023] QIRC 309

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Duggan v Workers' Compensation Regulator [2023] QIRC 309

PARTIES:

Duggan, Cornelius

(Applicant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2020/20

PROCEEDING:

Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:

27 October 2023

HEARD AT:

Brisbane

HEARING DATE:

19 April 2021

20 April 2021

21 April 2021

MEMBER:

Hartigan DP

ORDER:

  1. The appeal is dismissed.
  1. Should the Regulator wish to make an application for costs, such an application is to be filed in the Industrial Registry within 28 days of this decision.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – psychiatric or psychological injury – whether Appellant's injury was excluded pursuant to s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 – whether Appellant's personal injury arose out of, or in the course of, reasonable management action taken in a reasonable way – determination of date of injury – management action reasonable – appeal dismissed.

LEGISLATION:

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

CASES:

Kuenstner v Workers' Compensation Regulator [2016] QIRC 083

State of Queensland v Q-COMP [2010] ICQ 6

Allwood v Workers Compensation Regulator [2017] QIRC 88

Davis v Blackwood [2014] ICQ 9

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

APPEARANCES:

Mr T. O'Brien counsel instructed by Optimum Legal for the Appellant

Mr C.J. Clark counsel directly instructed by Ms A. Schultz from the Workers' Compensation Regulator

Reasons for the Decision

Introduction 

  1. [1]
    Mr Cornelius Duggan appeals a decision of the Workers' Compensation Regulator ("the Regulator"), dated 19 February 2020, confirming the decision of WorkCover to reject his application for compensation in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ("the WCR Act"). Mr Duggan claims that he has suffered a psychiatric or psychological injury whilst employed by Brisbane Catholic Education ('BCE').
  1. [2]
    Mr Duggan commenced employment on a full-time basis with BCE as a Groundsmen at the St Martin's Catholic Primary School at Carina on or about 15 May 2017. Mr Duggan had been working as a contractor at the school assisting the then Groundsman prior to this time.
  1. [3]
    In or around November 2018, Mr Duggan was the subject of an informal complaint made by a teacher at St Martin's (Ms WT)[1], to the Principal, Mr Geoffrey Sullivan. The substance of the complaint was that Mr Duggan had complimented Ms WT on her appearances and that this made Ms WT feel uncomfortable ('the first complaint).
  1. [4]
    In response to the first complaint, Mr Sullivan directed Mr Duggan to, amongst other things, not approach or speak to Ms WT unless it is an emergency; and be mindful of being near Ms WT's classroom.
  1. [5]
    On or around 25 June 2019, Ms WT made a written formal complaint regarding Mr Duggan to Mr Sullivan ('the second complaint').
  1. [6]
    On or around 27 June 2019, Mr Sullivan approached Mr Duggan whilst Mr Duggan was performing his duties to inform him of the further complaint.
  1. [7]
    The substance of the further complaint was provided verbally to Mr Duggan by Mr Sullivan on 29 June 2019. The further complaint included fresh allegations that whilst performing work at St Martin's, Mr Duggan had made Ms WT feel uncomfortable on two separate occasions.
  1. [8]
    Mr Duggan contends that he suffered a psychiatric or psychological injury.
  1. [9]
    Mr Duggan further contends that the injury was caused by the making of the complaint and/or the management action associated with informing him of the complaint that was unreasonable.[2]
  1. [10]
    On 25 July 2019, Mr Duggan's general practitioner issued a workers' compensation medical certificate diagnosing depression and anxiety.
  1. [11]
    The mechanism of the injury was described on the medical certificate as "stressful circumstances at work – accusation of harassment, no attempt at resolution". The medical certificate indicated that there was no functional capacity for any type of work until 25 October 2019. The reason for this was nominated as "due to poor handling of patient's case, there has been extreme and ongoing stress resulting in a significant depression and anxiety".
  1. [12]
    The Regulator accepts that Mr Duggan is a worker, that he has an injury and that he suffered the injury in the course of his employment. The Regulator however contends that the injury was caused by reasonable management action taken in a reasonable way and, consequently, it is excluded as an "injury" by the operation of s 32(5) of the WCR Act.

The WCR Act and relevant principles

  1. [13]
    The onus rests with Mr Duggan to satisfy the Commission on the balance of probabilities, that he was a worker who suffered a psychiatric or psychological injury that arose out of or in the course of his employment, and that his employment was a significant contributing factor to the injury and the injury did not arise out of, or in the course of, any of the circumstances set out in s 32(5) of the WCR Act.
  1. [14]
    Section 32 of the WCR Act relevantly states:
  1. Meaning of injury
  1. An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
  1. However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies.
  1. Injury includes the following—
  1. a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;
  2. an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation—
  3. loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing;
  4. death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury;
  5. death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease;
  6. death from an aggravation mentioned in paragraph (b),  if the employment is a significant contributing factor to the aggravation.
  1. For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.
  1. 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;
    1. (b)
      the worker’s expectation or perception of reasonable management action being taken against the worker;
    1. (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
  1. [15]
    While a number of factors could contribute to a worker's psychiatric or psychological disorder, the worker's application for compensation will only be accepted if their employment was a significant contributing factor to their disorder.[3]
  1. [16]
    Section 32(5)(a) of the Act only operates to remove a psychological disorder from the statutory definition of "injury" where reasonable management action is taken in a reasonable way.[4]

Management Action

  1. [17]
    Mr Duggan's submission included a submission that advising Mr Duggan of the complaint was not management action.
  1. [18]
    In Allwood v Workers Compensation Regulator ('Allwood') Deputy President O'Connor (as his Honour then was) observed that:[5]

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

Reasonable Management Action

  1. [19]
    The Regulator contends that the action was reasonable management action. In Davis v Blackwood it was observed that:[6]

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.

  1. [20]
    In State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator,[7] Deputy President Merrell summarised the relevant principles in respect of the application of s 32(5)(a) of the Act:[8]

[25]  The determination of whether the management action is reasonable and whether such action was taken in a reasonable way is evaluative as well as judgemental. Whether the management action is reasonable and whether such action was taken in a reasonable way will be an inquiry of fact to be determined objectively.

[26]  Reasonableness does not necessarily equate with 'industrial fairness' although considerations of 'fairness' will always be relevant. An imperfection in management action may not justify the characterisation of the management action as unreasonable. Management action need only be reasonable; it does not need to be perfect. Instances of imperfect but reasonable management action may, in the appropriate circumstances, be considered a blemish and management action does not need to be without blemish to be reasonable.

[27]  Reasonable, in the context of s 32(5) of the Act, means reasonable in all the circumstances of the case. It is the reality of the employer's conduct that must be considered and not the employee's perception of the employer's conduct.

[28]  However, the reasonableness of action by management has to be considered '… in connection with the worker's employment' which requires consideration of all disparate elements which contribute to the injury. In an appropriate case, that consideration may require a global view of the management action to determine if the action was reasonable. However, simply because a large number of stressors are nominated does not mean a consideration of the impact of the stressors on a global basis is justified.

[29]  Such a global view may be justified where there are repetitive blemishes joined by subject matter, time and personality in a discordant workplace housing.

The contentions

  1. [21]
    A great deal of the relevant background is uncontentious in so far as it is largely contained within documentary evidence.
  1. [22]
    In or around October 2018, Mr Duggan was the subject of the first complaint. The first complaint was in the nature of Mr Duggan having made an unwelcome greeting to Ms WT. Mr Geoff Sullivan, the principal of the school, determined to deal with the complaint informally and did so by directing that Mr Duggan to not approach or speak with Ms WT unless it was an emergency.
  1. [23]
    Mr Duggan did not raise any concerns with respect to the issuing of the direction and seemingly complied with it until at least June 2019.
  1. [24]
    On 27 June 2019 Mr Sullivan approached Mr Duggan whilst Mr Duggan was working to advise that he was in receipt of the second complaint from Ms WT concerning two events. The first event concerned an allegation that Mr Duggan had been watching Ms WT whilst her class was rehearsing for the upcoming fete on 13 May 2019. The second event was that Ms WT had complained that Mr Duggan was adopting a "French voice" during the staff photo day on 6 June 2019.
  1. [25]
    The Regulator contends that during a meeting on 27 June 2019, Mr Sullivan, after advising Mr Duggan of the nature of the complaint, explained that Mr Duggan would be given an opportunity to respond to the complaint and Mr Sullivan further confirmed that he required Mr Duggan to continue to comply with the directive issued in October 2018.
  1. [26]
    On 1 July 2019, Mr Sullivan sent an email to Mr Duggan which was in the following terms:[9]

…

Further to our discussion last week regarding your interactions with [redacted] Ms WT I provide the following information:

  • As per my direction in 2018, you are to not approach or speak with [redacted] Ms WT unless it is an emergency
  • Be mindful of being near her classroom
  • Should you need to speak with [redacted] Ms WT about a school matter, please contact me so we can arrange
  • I also remind you of your obligations under the Catholic Education Archdiocese of Brisbane Code of Conduct specifically Section 20 which refers to professional behaviour between employees.

[redacted] Ms WT will be provided with correspondence that outlines that her concerns have been raised with you, and you have agreed to be professional and respectful in your interactions with her.

I wish to stress that the purpose of this process is to resolve these issues for the benefit of all concerned and that I am committed to supporting you in any way that we can to achieve this result.

This issue remains a confidential matter and only those within Brisbane Catholic Education with a need to know have been informed about it. You must keep the matter confidential and only speak about it or refer to it with your confidential advisors.

I would also remind you of our Employee Assistance Program who can be contacted on [redacted].

…

  1. [27]
    Mr Duggan responded in an email response to Mr Sullivan on 1 July 2019[10] as follows:

…

I have read and understood your said email. However, I have serious concerns about the conclusions drawn in paragraph two. Paragraph two implies my guilt and acceptance by me of the allegations that have supposedly been made.

As a result of your email, I feel compelled to state my concerns in relation to this unfortunate situation.

Chronology

I would like to clearly state my understanding as to what has occurred to date.

  1. You approached me during October 2018, and verbally informed me as to a concern that had been raised by [redacted] Ms WT about me.
  2. You informed me that the concern was due to [redacted] Ms WT becoming uncomfortable with a complimentary greeting i had allegedly given her.
  3. I voluntarily suggested that I would have no further contact in any way with [redacted] Ms WT, and would do everything in my power to avoid interactions with her; to which you agreed.
  4. Subsequently, you formally directed me to have no contact with [redacted] Ms WT.
  5. Since our conversation during October 2018, I have done the following to avoid contact with [redacted] Ms WT.
  1. a.
    Not spoken directly to her on any occasion;
  1. b.
    Walked in an alternative direction when I have encountered her;
  1. On 27 June 2019, you had a further verbal conversation with me, during which you informed me that [redacted] Ms WT had made a formal complaint about me.
  2. My recollection of the nature of the complaint as described by you is as follows:
  1. a.
    During the staff photo of June 2019, [redacted] Ms WT heard me speaking "French" to another member of staff and this caused her emotional distress;
  1. b.
    During May 2019, I entered the school half to perform work, and caused [redacted] Ms WT emotional distress as she had a class in there at that time (unbeknownst to me prior to entering the hall).
  1. On 28 June 2019, did request a copy of the complaint; which has not been received to date.
  2. On 28 June 2019, you and f had another verbal conversation (via telephone), wherein you informed me of the following:
  1. a.
    That you would provide me with a copy of the complaint;
  1. b.
    That Catholic Education had reviewed the complaint and determined "that it didn't rate on the radar;
  1. c.
    That in your own opinion the specifics of the complaint did not make sense.

Concerns

For the record, I have always been friendly, polite, civil and professional in all my dealings with members of staff. I have always complied section 20 of the Catholic Education Archdiocese of Brisbane Code of Conduct. I deny any allegations of impropriety by me towards [redacted] Ms WT. My conduct since October 2018 has been in an effort to avoid any possible interaction with her, tet alone any possible misinterpretation of such interaction.

From what has been communicated to me by you, have concerns as to the nature of the formal complaint  (identified at Item 7(a) and 7(b) above) as I consider it to be without substance.

As identified at Item 5 above* avoiding contact with [redacted] Ms WT has required me to become and remain hypervigilant as I try to perform my work duties. it has also resulted in interfering with the efficient performance of my work duties, as I have had to walk further around the school in order to avoid her, or I simply not enter an area because she is there.

As a result of this, I have experienced anxiety every day since October 2018. My anxiety has only increased since our conversation of 27 June 2019.

I have serious concerns that despite my ongoing efforts to avoid [redacted] Ms WT, I am finding myself in a position where I am hindered on a daily basis in the ability properly perform my job.

Duggan v Workers' Compensation Regulator [2023] QIRC 309I also find that despite my efforts since October 2018, [redacted] Ms WT concerns have escalated to a written complaint  which, from what I have been advised, is without substance. The tenor of your email, in particular the second paragraph, indicates to me that [redacted] Ms WT complaint  has been accepted by you as fact, in circumstances where:

  1. a)
    I do not know the precise nature of her allegations;
  2. b)
    I have been afforded no opportunity to respond to these allegations; and
  3. c)
    Your proposed resolution necessarily involves the traducing of my good name and character.

I have further concerns that given what appears to be an insubstantial complaint, were t to give the agreement as set out in paragraph two of your email, my best efforts would always be vulnerable to [redacted] Ms WT placing herself near me, or in a position from which she could hear my voice, and that this would give rise to further opportunity for complaint.

It is my suggestion that the school needs to implement a process whereby I am protected from [redacted] Ms WT, and her vexatious and insubstantial complaints.

Moving Forward

…

I highly value my role and contribution to the school, and have enjoyed my many years of involvement,

As you will have gathered by now, the initial concern and ultimate complaint  by [redacted] Ms WT has caused me significant distress; and I appreciate your recommendation of the Employee Assistance Program.

As a result of the above, I request the following:

  1. A letter from you or Catholic Education stating that the complaint by [redacted] Ms WT is   unsubstantiated; and
  2. A letter from you as to what processes the school will be implementing to ensure I am able to perform my work duties without interference or fear of further vexatious complaints from [redacted] Ms WT.

I have difficulty seeing how this matter could possibly be resolved without the provision of the items requested above. Further, please be advised that while I am agreeable to continued discussion of this issue, I would request that any such discussion be in the form of a formal meeting with a minimum of 48 hours' notice and that I be allowed a support person/legal representative.

I am agreeable to trying to come to a resolution, however you must understand such resolution cannot be dependant on my being placed in a continued position of blame and guilt.

…

  1. [28]
    On 2 July 2019, Mr Sullivan confirms receipt of Mr Duggan's letter. Mr Sullivan advises that he is away that day but can discuss the matter further via phone, and that he will be in contact, "regarding the issues listed in your letter dated I July 2019".
  1. [29]
    On 2 July 2019, Mr Duggan attends upon General Practitioner Dr Michael Linden of the Cavendish Road Medical Practice. Dr Linden issues certification advising Mr Duggan is suffering from a medical condition and is unfit for work.
  1. [30]
    Mr Duggan contends that it was within this context that the injury occurred and nominates the date of injury as 2 July 2019.
  1. [31]
    The Regulator contends that the injury occurred later in time and nominates 27 July 2019 as the date of the injury. Accordingly, the date of the injury is one of the issues I must determine in this proceeding.
  1. [32]
    Mr Duggan contends that he suffered an injury namely a psychological injury in the form of depression and anxiety and that the illness was caused by the following:
  1. the first complaint and/or alternatively, the second complaint advised; and/or
  1. the issuing of the directions by Mr Sullivan; and/or
  1. Mr Duggan’s steps in complying with the directions; and/or
  1. The meeting between Mr Sullivan and Mr Duggan on 27 June 2019; and/or
  1. Mr Sullivan’s email dated 1 July 2019 email.
  1. [33]
    However, during the course of the hearing a number of the nominated stressors were abandoned by Mr Duggan through his legal representation as follows:

Well, primarily, our case is that the very making of the complaint has caused the injury, consistent with the finding of Dr Chalk at exhibit 25. Alternatively, our case is that the injury was caused by management action taken by Mr Sullivan. That action was not reasonable management action, and it was not taken in a reasonable way. That is our case.[11]

  1. [34]
    Given the evidence that was adduced, including the medical evidence, the abandonment of several of the earlier nominated stressors was sensible.
  1. [35]
    Accordingly, the stressors relevant for my consideration are:
  1. the second complaint; and
  1. the management action taken and whether it was taken in an unreasonable way with respect to the second complaint.
  1. [36]
    The Regulator accepts that the medical evidence supports that any injury sustained by Mr Duggan arose from management handling of the complaint.[12] The Regulator further contends that management's handling of both complaints amounted to reasonable management action taken in a reasonable way so as to exclude the injury sustained by Mr Duggan by the operation of s 32(5) of the Act.  Relevantly the Regulator relies on the following:[13]
  1. Mr Sullivan's initial response to both complaints, being the direction for Mr Duggan to not be near Ms WT unless it was an emergency, was entirely reasonable and appropriate, noting that Ms WT is a classroom teacher and Mr Duggan a groundsman;
  1. Mr Duggan was on sick leave from 2 July 2019. Mr Sullivan 's initial plan to meet Mr Duggan upon his return from sick leave to address the concerns raised in his letter of 1 July 2019 was reasonable and appropriate;
  1. In response to communication from Mr Duggan, Mr Sullivan attempted on several occasions to arrange a meeting to discuss his concerns.  On each occasion this request was refused by Mr Duggan.  Rather, Mr Duggan demanded the matter be resolved by the provision of a letter from Mr Sullivan stating that Ms WT's complaints were unfounded; and
  1. The facts that Mr Sullivan did not comply with Dr Duggan's preference that the issue be resolved by the immediate production of a letter by Mr Sullivan confirming that Ms WT's complaints were unsubstantiated does not render the management action as unreasonable.
  1. [37]
    In this regard, the Regulator contends the events took place after 2 July 2019 are relevant. That includes the action that took place between 2 July 2019 to 27 July 2020.
  1. [38]
    On 3 July 2019 Mr Sullivan emails Mr Duggan and acknowledges his sick leave certification. He advises that during the Appellant's period of leave he intends to speak further with Ms WT and, "once you return from leave I hope to meet with you to resolve this matter".
  1. [39]
    On 19 July 2019 Mr Duggan writes to Mr Sullivan and again requests provision of the two letters in accordance with in his prior communication of 1 July 2019. Mr Duggan expresses that in his view, "I have difficulty seeing how this matter could possibly resolve without the provision of these requested items". Mr Duggan requests they are provided by 26 July 2019. 
  1. [40]
    In response to Mr Duggan's request Mr Sullivan writes:[14]

"Thanks for your email. I'm really sorry to hear you're still unwell.

As per my last email to you, I was hoping to be able to have a discussion with you when you returned to school next week. We really do need to discuss your concerns in order to resolve the situation, however it's not appropriate to do so while you're away sick".

…

  1. [41]
    Mr Sullivan then proposes a meeting occur on 23 July 2019. He requests if such time is not suitable Mr Duggan suggest an alternate date and time.
  1. [42]
    On 20 July 2019 Mr Duggan advises he will not participate in a meeting advising he, "cannot see the benefit". Rather he maintains his request for the production of the two letters, and reiterates his request for them to be provided by 26 July 2019.
  1. [43]
    On 23 July 2019, Mr Sullivan writes to Mr Duggan confirming he cannot provide the two letters as requested. He identifies in full the concerns raised by Ms WT in June 2019, and reiterates his commitment to resolving these concerns informally. Mr Sullivan also proposes that the matter proceed by way of either a face to face meeting, or a written response, and invites Mr Duggan to advise of his preference.
  1. [44]
    On 25 July 2019, Mr Duggan was issued with a Workers' Compensation Medical Certificate by General Practitioner Dr Peter Joseph. Dr Joseph records a diagnoses "Depression. Anxiety". He reports this injury was caused by, "accusation of harassment, no attempt at resolution".
  1. [45]
    On 1 August 2019, Mr Duggan submitted his application for compensation.

Witnesses

  1. [46]
    Mr Duggan gave evidence on his own behalf and relied on the expert evidence of Dr Chalk.
  1. [47]
    The Regulator relied on the evidence of Mr Sullivan.

The first complaint – evidence of the witnesses

  1. [48]
    Mr Duggan gave evidence on a date in October 2018 he was mowing on the oval when he was approached by Mr Sullivan.
  1. [49]
    His evidence was that when Mr Sullivan approached him he knew "something was up" as Mr Sullivan "never comes to talk to me when I'm out in the field".
  1. [50]
    Mr Duggan stated that Mr Sullivan advised him that there had been a complaint by Ms WT that Mr Duggan had complimented her in some way. Under cross-examination, Mr Duggan accepted that Mr Sullivan had told him that Ms WT had felt uncomfortable regarding some comments Mr Duggan had made about her appearance.
  1. [51]
    Mr Duggan's evidence was that Mr Sullivan told him he was to avoid Ms WT as follows:[15]

---If I had to talk to her, because that was a possibility because of the fact that I deal with all the teachers all the time, if I had to interact with her at any time, I had to have at least another person there with me and go through that sort of process. I wasn’t to approach her. I wasn’t to go near her. I wasn’t to have anything to do with her.

  1. [52]
    Mr Duggan's evidence was that Mr Sullivan had indicated that the complaint was not very serious.[16]
  1. [53]
    Mr Duggan gave evidence that he complied with the direction issued by Mr Sullivan but found it difficult because he was not certain when and where he might come across Ms WT during the working day.
  1. [54]
    In response to a question with respect to how it had made him feel to comply with the direction Mr Duggan responded:[17]

---I got through it because I needed the job. I’ve got two kids at school, or I did at that time, and I needed the job. So, I thought, well, these are the rules. I wasn’t happy but I’ll do exactly what I am required to do to keep the job. He asked me to do it, he’s the boss – fine. I told him I would never talk to her ever again.

  1. [55]
    Mr Sullivan's evidence was that he had met with Ms WT and the school guidance counsellor during which Ms WT had raised some concerns about comments Mr Duggan had made about her appearance that were of concern to her.
  1. [56]
    It was initially agreed that Ms WT would have a conversation with Mr Duggan in order to raise her concerns. However, following the meeting with Ms WT emailed Mr Sullivan and requested that he raise her concerns with Mr Duggan.
  1. [57]
    Mr Sullivan's evidence was that, as the manager of the school he felt obliged to raise the concern with Mr Duggan following his conversation with Ms WT.
  1. [58]
    Mr Sullivan's evidence was that it was within this context that he approached Mr Duggan and spoke to him.
  1. [59]
    Mr Sullivan's evidence was that when he raised the concerns Mr Duggan did not appear to refute them.
  1. [60]
    Mr Sullivan's evidence was that following the meeting there was agreement between Mr Sullivan and Mr Duggan that Mr Duggan would not approach Ms WT.
  1. [61]
    Under cross-examination Mr Sullivan accepted that he directed Mr Duggan to not approach or speak with Ms WT unless there is an emergency.
  1. [62]
    Mr Sullivan accepted that complying with the directive, given the employment relationship between Mr Duggan and Ms WT "makes it challenging".
  1. [63]
    The first complaint provides the context to the matter. However, consistent with Dr Chalk's view, the first complaint played no role in the causation of Mr Duggan's injury.

The second complaint and subsequent steps – evidence of the witness

  1. [64]
    Mr Sullivan's evidence was that from about March 2019 Ms WT continued to raise concerns with respect to Mr Duggan as well as other concerns not related to Mr Duggan.[18]
  1. [65]
    Mr Sullivan considered it was not necessary to raise Ms WT's ongoing concerns with Mr Duggan until he received a written complaint made on a BCE complaint form contained in an envelope marked "confidential" from Ms WT dated 25 June 2019.[19]
  1. [66]
    The complaint was in the following terms:[20]

…

  1. If the complaint is about another person, details of staff member to whom the complaint relates

Staff Member's Name: Con Duggan

Role/Position: groundsman

School/Office location: St Martin's Catholic Primary School, Carina

  1. Details of Complaint

…

See attached form.

…

Details of Complaint – 2019

2019

I didn't seem to have any issues with Con this year until recently.

Monday 13/5/2019

I had taken my [redacted] to the Dominic Centre for a dance lesson. This was to go over the dance that they were learning for the fete.

There were only the Year [redacted] in the hall. At one point, Con came into the hall and stood on phone went out and came back in a number of times. As one point he stood for about 3 minutes and appeared to be just watching. He was in the hall for about 15 minutes.

Thursday 6/6/19

It was about 8am when we were doing staff photos on this day. Con was there and I heard him doing his French voice and talking in that way to some of the other staff. Whilst he didn't say anything directly to me, it made me feel quite uncomfortable as this is what he was doing to me in 2018.

Conclusion

I would like Con to stay away from me. If he is around me, he needs to remain professional and not make inappropriate remarks about me or my appearance. If we need to have a conversation, I would like there to be a third person with us.

…

  1. Outcome being sought to resolve the complaint

I would like Con to stay away from me. If he is around me, he needs to remain professional and not make inappropriate remarks about me or my appearance. If we need to have a conversation, I would like there to be a third person with us.

  1. Describe any action that has been undertaken to resolve the complaint

I understand the principal (Geoff) spoke to Con, however there have been further instances where he has made me feel uncomfortable.

…

  1. [67]
    It is not in dispute that prior to the development of the injury, Mr Duggan was not provided with a written copy of the complaint.
  1. [68]
    Mr Sullivan's evidence was that upon receiving the written complaint he assessed the complaint in accordance with the complaint management procedure as follows:[21]

---I did. I did. Because there was – there were some comments that had been addressed with Mr Duggan previously. There were others that needed some clarification but in assessing the complaint I didn’t believe that it was of a nature that needed to be addressed in a formal sense, in a formal – and so I – the complaint management procedure actually has a flow chart. I followed the flow chart and with the information that I’d received and had previously dealt with, with Mr Duggan, I decided to apply the informal management procedure.

  1. [69]
    Consequently, the evidence is, which I accept, Mr Sullivan decided that the second complaint would be dealt with in an informal manner pursuant to the complaint management procedure.
  1. [70]
    Mr Sullivan also gave evidence with respect to his decision-making process as follows:[22]

---I – I decided as well – there was probably a third element to my decision in that the nature of and the ability to do so on that assessment but I knew that [redacted] Ms WT, from [redacted] Ms WT perception, she felt aggrieved by what she had experienced but I also wanted to address it in a way that left Mr Duggan’s dignity intact. That it was a way to say, “Look, there’s this concern”, and we would work through a response with that.

  1. [71]
    After making this determination Mr Sullivan's evidence was that he then went and spoke to Mr Duggan.
  1. [72]
    Mr Duggan's evidence confirmed that Mr Sullivan indicated to him, later in the day, that the complaint was not considered serious and was not "on BCE's radar".[23]
  1. [73]
    Several meetings occurred on 27 June 2019, the second last day of term.
  1. [74]
    The first meeting occurred when Mr Sullivan went to the groundsman's shed at the school. Mr Duggan was working in the shed. Mr Sullivan states that he told Mr Duggan that he had received a complaint from Ms WT. His evidence was:[24]

– I remember discussing that I’d received the complaint that it had raised issues previously raised or had addressed issues previously raised and there were two new elements to it which were the Dominic Centre matter with the dance card lesson and also the – the photos, the school photo day, where - - -

That’s specified in the complaint?---It’s specified in the complaint, where [redacted] Ms WT heard what she relayed in this complaint as someone speaking in Mr Duggan or heard him doing his French accent or French voice in a way that he speaking to some other staff.

  1. [75]
    Mr Sullivan's evidence was that he advised Mr Duggan that he would support him through the process and that he could see him at anytime and bring someone with him if he required. Mr Sullivan reiterated the earlier directive to avoid contact with Ms WT.
  1. [76]
    Mr Sullivan's evidence was that Mr Duggan was calm albeit a little defensive during this meeting.
  1. [77]
    Later in the day Mr Duggan came to Mr Sullivan's office and discussed the matters further. Mr Sullivan's evidence about these discussions were as follows:[25]

---I’ve got to clarify. We did have two meetings that day. So where I gathered some of this information is, again – I can’t be certain that it was in that one or when he came back to see me in my office that afternoon and his reaction was some clarity, actually, which was what I was hoping for and it was a conversation – and I was able to – I 45 feel at the time I was able to – I felt at the time I was able to talk to Con quite openly, that the first matter, which was the Dominic Centre, we referred to and, again, meeting A/meeting B, that there was a scratch on the floor and I remember having conversations and we had an issue. The floor of the Dominic Centre was a rubber – rubber playing surface. It was a basketball court that has that surface that’s sprayed. It can tear. I didn’t know it could tear until one happened there. And that there was an issue with the floor at the time in the Dominic Centre and we spoke about that and 5 that, to me, made sense because we’d had multiple conversations about engaging different contractors to fix it, whether we painted the whole surface or how we – how we dealt with that. So that, to me, made a lot of sense. And the second one was when I said about the staff photos, I remember Mr Duggan saying, “That wasn’t a French accent or a French voice, it was Italian. I was talking to the Italian teacher”.

  1. [78]
    Mr Sullivan described Mr Duggan's demeanour in the second meeting as more agitated and that he wanted Mr Sullivan to know that he was feeling annoyed.
  1. [79]
    Mr Duggan's evidence was that during that meeting he asked for a copy of the complaint and Mr Sullivan said he would give it to him on the following Monday. Mr Duggan describes himself as agitated. He says he "started to swear, I lost the plot…".[26]
  1. [80]
    In his evidence, Mr Duggan seemed upset that Mr Sullivan had chosen to first approach him about the complaint whilst he was working in the groundsman's shed.
  1. [81]
    Mr Sullivan also gave evidence that he spoke to Mr Duggan on the following day, Friday 28 June 2019. This day was the last day of term.
  1. [82]
    During the conversation on 28 June 2019, Mr Duggan asked for a copy of the complaint.
  1. [83]
    Mr Sullivan's evidence was that he was unsure as to whether it was appropriate to provide Mr Duggan a copy of the complaint and wanted to check the detail with BCE's employee relations team. Specifically, he wanted to enquire about how much information "to give somebody other than verbal comments around the nature of the complaint".
  1. [84]
    On Saturday 29 June 2019 at 3.18pm Mr Duggan sent a text message to Mr Sullivan as follows:

Hi Geoff, I'm sorry for the interruption to your break. I wanted to know if you were still able to afford a copy of the complaint to me as we discussed on Friday.

  1. [85]
    Mr Sullivan responded to Mr Duggan's text message as follows:[27]

Hi Con, can you leave it with me until Monday as I just want to check something. I wasn’t able to do this yesterday. Heading in Monday morning so will see you then. Regards, Geoff. I can give you a call, talk through what I was waiting on if that helps.

  1. [86]
    Later that afternoon, Mr Sullivan and Mr Duggan had a telephone conversation. Mr Duggan says that this conversation occurred on 28 June 2019. However, given the text message exchange, I consider it more likely that this conversation occurred on 29 June 2019. In any event, no matters of significance turn on whether the conversation occurred on 28 or 29 June 2019.
  1. [87]
    During the telephone conversation, Mr Sullivan states that he read out the details of the complaint (relating to the school hall and photos) to Mr Duggan and they discussed it.
  1. [88]
    It was during this conversation that Mr Sullivan confirmed that he was attempting to allay Mr Duggan's concerns about the nature of the complaint and to reassure Mr Duggan that "we would work through this process…".
  1. [89]
    Mr Sullivan emailed Mr Duggan on 1 July 2019 and a copy of that email and Mr Duggan's response is referred to above. It was in Mr Duggan's response email of 1 July 2019 were Mr Duggan demanded the provision of two letters.
  1. [90]
    Mr Sullivan was asked about his response to that demand and his evidence was as follows:[28]

---I remember reading that thinking that it had obviously escalated but I also was confused where it was going as well because I had always maintained a close connection with Mr Duggan regarding these concerns and that I was always willing to enter into dialogue with him and that that was always going to be open and possible. I looked at the requests and I actually decided that I needed advice on how to address those two requests because that was certainly not something I had encountered before and wasn’t willing to make a judgment on without advice from our employee relations/legal team.

  1. [91]
    Mr Sullivan responded to the email by indicating that he would be in contact regarding the issues in Mr Duggan's letter.
  1. [92]
    Mr Duggan's evidence was that he wanted Mr Sullivan to provide the two letters to protect him. The evidence is that from 1 July 2019 Mr Duggan's position was that he would not be content unless Mr Sullivan provided him the two letters he requested. Under cross-examination Mr Duggan accepted that the demand for the two letters continued to be the stance he adopted moving forward.[29]
  1. [93]
    On the same afternoon, Mr Sullivan reviewed a text message and voicemail message from Mr Duggan who advised that he would be going on medical leave.
  1. [94]
    Mr Sullivan called Mr Duggan upon receiving the messages to check on Mr Duggan's wellbeing.
  1. [95]
    On 3 July 2019, Mr Sullivan sent Mr Duggan an update in the following terms:[30]

Thanks for the advice in respect of your medical leave that you need to take time off and get well and I understand this needs to be your priority during this leave. During your leave I intend to speak further with [redacted] Ms MT about the current matter during the first week of term 3. Once you return from leave, I hope to meet with you to resolve this matter.

  1. [96]
    On 8 July 2019, Mr Sullivan sent Mr Duggan a text message in the following terms:

Hi Con, I've been thinking of you and hope you're okay. Best wishes, Geoff.

  1. [97]
    Mr Sullivan gave evidence of meeting Mr WT on 18 July 2019. He created a record of that conversation. A relevant extract[31] of the record is as follows:

The purpose of our meeting was to discuss your concerns around recent situations where you had felt uncomfortable in Con's presence, though there was no direct interaction. I also said that I wanted to set my expectations on future interactions between the both of you. You sought outcomes in that Con would be directed to stay away from you, remain professional, not make any inappropriate remarks to you and only interact directly with you with a third person present. In 2018, you raised concerns with me regarding interactions con had with you. At that time we satisfactorily resolved the situation and put in place measures to ensure your desired out comes were met an you felt comfortable in the workplace. The new instances you raised in June did not involve direct interaction with you, though you said you felt uncomfortable. Based on this, I believe the measures were put in place in 2018 are still relevant and appropriate.

We spoke about the need to strike a balance between your concerns towards Con and his ability to perform his job, which requires him to be able to move freely around the school grounds. We agreed that it was a reasonable expectation that Con could move freely around the school grounds, so long as there was no direct interaction with you and no inappropriate comments were directed towards you. It might mean that there would be times you both may be working within the same area and in these situations, I would expect both of you to act professionally towards each other.

During our conversation you agreed that the expectations were reasonable. You also said that you would escalate your complaint if there were any future concerns regarding your interactions with Con. I was in agreement and said that I would expect you to let me know immediately if there were any future concerns.

…

  1. [98]
    Mr Sullivan's view of the potential resolution of the complaint, following his discussion with Ms WT was as follows:[32]

From the perspective of – from my perspective, after meeting with [redacted] Ms WT, I believed that it was certainly heading in the right direction that there was an acceptance there that Mr Duggan needed to be able to be in different places at different times and that if she had any further concerns that she would raise those directly with me. We did talk about that the previous – so, as I mentioned earlier, the complaint was really in those two parts prior to – sorry. Prior to me discussing that – the issue with Mr Duggan in 2018 and then that those things were – I believe the measures put in place were satisfactory and she agreed with that and then that these were addressed – these concerns. So I do believe that [redacted] Ms WT was accepting of what I spoke with her about at that time. It was, at least from my perspective at that time, moving in the right direction.

  1. [99]
    On 19 July 2019 Mr Sullivan received a further letter[33] from Mr Duggan:

…

I refer to my email of 1 July 2019 and your email in response dated 2 July 2019, and I also refer to my sick leave certificate which expired on the 19 July 2019. I write to advise that I will be providing you with a further sick leave certificate in due course.

In my email of 1 July, I raised a number of issues. Your response on 2 July advised me that you would be in contact with me about the issues that I raised.

I confirm that to date you have not contacted me about the situation created by [redacted] Ms WT. The issues I raised further in the 1 July email I requested the following:

  1. A letter from you or Catholic Education stating that the complaint by [redacted] Ms WT is unsubstantiated; and
  2. A letter from you as to what processes the school will be implementing to ensure I am able to perform my work duties without interference or fear of further vexatious complaints from [redacted] Ms WT.

I confirm that I have difficulty in seeing how this matter could possibly resolve without the provision of the requested items.

…

  1. [100]
    Mr Duggan accepted that Mr Sullivan could not speak to him about the matter whilst he was on sick leave.[34]
  1. [101]
    Mr Duggan did not provide Mr Sullivan with a medical clearance indicating that Mr Duggan was fit to participate in the process and accordingly, the proposed meeting to resolve the matter did not eventuate.
  1. [102]
    Instead, on 25 July 2019, Mr O'Brien of Counsel wrote to BCE on behalf of Mr Duggan as his representative placing them on notice of an industrial dispute.[35] The dispute was described as follows:

…

The grievance is about unreasonable management action taken by Mr Sullivan following vexatious complaints made about Mr Duggan by [redacted] Ms WT. The dispute is concerned with correspondence from Mr Sullivan to Mr Duggan dated 23 July 2019 and the circumstances and correspondence preceding the 23 July 2019 letter, dating back to October 2018.

The unreasonable management action has adversely affected Mr Duggan's health and continues to do so.

…

Medical Evidence

  1. [103]
    Mr Duggan's evidence was that he attended his medical practitioner on 2 July 2019.
  1. [104]
    An extract from those notes records the following history taken by his general practitioner on 2 July 2019:[36]

…

History:

working as a groundkeeper

note on medication and phx cardiac issues

allegedly made a comment about a colleagues jewellry [sic]

she was offended

some work issues with Cath Ed

feels under duress

under M adsett [sic] cardiac issues

…

  1. [105]
    Mr Duggan was issued with a medical certificate stating he was not fit for work until 19 July 2019.
  1. [106]
    The attendance on 2 July 2019 is important as Mr Duggan contends that 2 July 2019 is the date of the injury. Under cross-examination Mr Duggan accepted that when he first saw the Doctor on 2 July 2019 he did not make mention of any impact on his mental health.[37]
  1. [107]
    Relevantly, these notes, while referring to the complaint and that Mr Duggan "feels under duress", do not support a conclusion that Mr Duggan was suffering the claimed injury as at 2 July 2019.
  1. [108]
    On 18 July 2019, Mr Duggan returned to the same practice but saw a different doctor who recorded the following notes:

…

History: 1. Terrible ongoing circumstances at work – in Oct 2018, as a single couteous [sic] gesture, he complemented a teacher on the jewellery she was wearing – no underlying agenda of sexual harassment, just a spontaneous gesture of one-off courtesy

BUT this has triggered a process of official warning, not to come into physical/visual/auditory contract of that teacher

Con is distressed, humiliated, despondent

has been off work

Low labile mood, depressed

Counselled

Start Zoloft

Offred [sic] referral to a Psychologist

[redacted]

[redacted]

Rx Doxy 100mg 2 wks, Celestone-M crm

…

  1. [109]
    In the consultation on 18 July 2019, Mr Duggan reports feeling "distressed, humiliated, despondent… low mood, depressed". During the course of this consultation the Doctor prescribed Zoloft and referred Mr Duggan to a psychologist.
  1. [110]
    This record is consistent with the symptoms of the claimed injury. Similarly, the attendance on 24 July 2019[38] is also consistent with the claimed injury:

…

History: Despondent re. workplace incident and the ongoing process

Can't face returning to work

Zoloft helping mood

Long counselling session

To see a Psychologist - access to Psychologist via Catholic Education at no cost

Will increase Zoloft to 100mg after 2 weeks

Treatment/Plan: Zoloft Tablets 50 mg Tablets deleted

Zoloft Tablets 100mg Tablets 1 tab mane after breakfast

…

  1. [111]
    Dr Chalk, psychiatrist, gave evidence and expert reports prepared by him were tendered into evidence.[39]
  1. [112]
    Dr Chalk's first report of 10 October 2019 diagnosed Mr Duggan as having developed an adjustment disorder with anxious mood and he expressed the following opinion:[40]

I am of the view that his employment is the major contributing factor in causing his condition and that his condition has arisen primarily as a result of how management handled the complaint, although clearly the management action would not have occurred had the original complaint not emerged.

  1. [113]
    In a second report[41] prepared by Dr Chalk on 25 January 2021 he was asked to examine Mr Duggan and provide an opinion with respect to further questions.
  1. [114]
    Relevant to Dr Chalk's response to these questions is the following history recorded by Dr Chalk:[42]

…

Essentially, there was an initial complaint that he had inappropriately complimented one of the female teachers and this was delivered to him by his boss, Jess Sullivan. He was told to avoid the teacher and he did that for nine months. Apparently, a formal complaint was then raised in 2019, the basis of which was that he had been in a hall where this teacher was because the principal had asked him to do a job; he had appeared in a staff photograph and the teacher could "allegedly hear me talking".

Mr Duggan reported, in the aftermath of this, he described "losing the plot". He went off work and applied to WorkCover…

…

  1. [115]
    Dr Chalk was asked to respond to five questions. Relevantly, question four and Dr Chalk's response to it are as follows:[43]

…

  1. Whether any of the individual actions taken by is employer against our client as detailed in the Appellant's Statement of Facts and Contentions were enough on their own accord to meet the definition of injury as contained in the Workers Compensation and Rehabilitation Act 2003 (in particular the making of the second complaint) or whether his condition was caused by a combination of all the factors together.

In my view, his difficulties have arisen as a consequence of the confluence of factors described. Whilst I think that Mr Duggan was certainly vulnerable and having some difficulties prior to the second event, in my view, it was the second event that was the catalyst for his clear decompensation and the development of his adjustment disorder.

…

  1. [116]
    The confluence of factors that Dr Chalk is referring to is not directly nominated by him. However, it can be inferred that they are those factors referred to in the question posed to the Doctor. I consider that Dr Chalk was at pains to make clear that Mr Duggan's injury did not arise from the matters associated with the first complaint. Here, he describes the "second event" as being the catalyst for the injury.
  1. [117]
    On 12 February 2021, Dr Chalk provided a third report.[44] The third report was very brief and only addressed one question posed by Mr Duggan's lawyers. Mr Duggan's legal representatives posed the following question:

…

  1. In further clarification of your report dated 25 January 2021, can you please advise whether in your professional opinion, was the making of the second complaint against Mr Duggan the major contributing factor to the injury suffered?

…

  1. [118]
    Dr Chalk responded:

Yes.

  1. [119]
    At first instance, the third report appears to be direct evidence that supports a conclusion that the making of the second complaint (on its own without the confluence of management action) was the major contributing factor to the injury. However, the report does not detail what Dr Chalk considered the phrase "the making of the second complaint" to encompass. Relevantly, it is not the case that Dr Chalk tried to retract his earlier opinion that "his condition has arisen primarily as a result of how management handled the complaint". Indeed, this view was repeated by Dr Chalk under cross- examination as follows:[45]

In June of 2019?---That was the complaint in June of 2019 which was – and in the  aftermath of that I saw him and thought he’d developed an adjustment disorder and that the way in which it had been handled had been a significant factor leading to the development of his problems.

…

That continues to be your opinion. Is that so?---Yes. I thought that he developed problems at that time and the way in which it was handled was a significant issue. Yes

  1. [120]
    On 22 October 2019, Dr Joseph provided a report to WorkCover.[46] Relevantly Dr Joseph provided the following opinion:

"To summarize…

Precipitating work issue: accusation of sexual harassment and the subsequent management of this issue without satisfactory resolution. This has precipitated an acute anxiety and depression disorder (where there was non pre-existing)…".

…

 Date of injury

  1. [121]
    There is a dispute between the parties as to the date of the injury.
  1. [122]
    Mr Duggan contends that the injury occurred on 2 July 2019 and the Regulator contends that it is 27 July 2019.
  1. [123]
    A determination of the date of injury is necessary to determine the scope of the appeal.
  1. [124]
    In nominating 2 July 2019 as the date of the injury Mr Duggan points to his attendance on his general practitioner that day who provided him with a medical certificate.
  1. [125]
    However, the clinical notes from that attendance do not support that date as the date of injury. Relevantly, although the complaint is referred to and Mr Duggan describes feeling "under duress" there is no particularisation of symptoms consistent with the injury.
  1. [126]
    Further, I am not satisfied that the evidence of Mr Duggan established that he was suffering symptoms that supports a conclusion that the date of injury is 2 July 2019.
  1. [127]
    In contrast, the consultation on 18 July 2019, does record Mr Duggan reporting symptoms consistent with the claimed injury. It is reported that Mr Duggan is distressed, humiliated, despondent and presents with "low labile mood, depressed". On this occasion, Mr Duggan was prescribed Zoloft, and referred to a psychologist.
  1. [128]
    On this evidence I consider the date of injury to be 18 July 2019. Whilst the Regulator relies on 27 July 2019, it does so because that is the date on which Dr Joseph issued the "Workers' Compensation Medical Certificate".
  1. [129]
    On the evidence however, I consider that Mr Duggan's date of injury is consistent with his presentation to Dr Joseph on 18 July 2019.
  1. [130]
    Consequently, I have determined that the date of injury is 18 July 2019. Consequently, the evidence the parties relied on during the course of the hearing that post-date 18 July 2019 will not be relevant to my consideration of the cause of the injury.

Stressors

The making of the second complaint

  1. [131]
    Mr Duggan relies on the making of the second complaint by Ms WT as the cause of his injury.
  1. [132]
    Mr Duggan argues that if the Commission accepts that the injury arose out of the making of the second complaint by Ms WT then s 32(5) does not apply because the making of the complaint does not constitute management action.
  1. [133]
    The Regulator contends however, that it is not the making of the complaint by Ms WT but rather how Mr Duggan was advised of it and the consequential process that was the cause of the injury.
  1. [134]
    The evidence is that Mr Duggan was advised of the existence of the second complaint by Mr Sullivan on 27 June 2019.
  1. [135]
    Mr Duggan's evidence was that Mr Sullivan only provided the general nature of the complaints from Ms WT at their first meeting on 27 June 2019 and that Mr Sullivan reminded Mr Duggan of the direction that remained in place.
  1. [136]
    Mr Duggan's evidence was that when he spoke to Mr Sullivan at a second meeting on 27 June 2019 he requested a copy of the complaint. Mr Duggan appeared frustrated with Mr Sullivan's response to that request. His evidence was as follows:[47]

---He told me that he was going to give me a copy of the complaint and that was on the Monday after, so it would have been somewhere in July – whatever – the next Monday. Because I’d – I’d texted him and said, “Look, can I actually get something? Even though we talked about getting a copy to me, can you actually do something about it and get it to me?” He didn’t actually get it to me so I let it go for the weekend, I became impatient. I thought, oh, well – I sent a text message and said, “Look, you know, I’d – I’d like to know what I’ve done, what I’m accused of. What – how can I fix this?” And I got nothing, except to say that he would get it to me next week. So, at that particular point in time – this is the start of the school holidays at that middle part of the year, so when I went to work the only people that were actually there essentially were the admin staff, a few teachers, Mr Sullivan, myself – and I set about getting a copy, and he said, oh, he’s just going to have to check with VCE to see if he can get it. And then it was a little later than that – was a case of, no, you get nothing.

  1. [137]
    Further, Mr Duggan described the meeting between he and Mr Sullivan in the shed as "not going very well".
  1. [138]
    Mr Duggan's evidence focused on his interactions with Mr Sullivan and his disappointment with those interactions. His evidence did not focus on the fact the complaint had been made but rather how Mr Sullivan dealt with it. It is clear by the demands made by Mr Duggan that he considered that Mr Sullivan should have dismissed the second complaint as vexatious as soon as he received it.
  1. [139]
    As noted above, Dr Chalk's evidence[48] was that Mr Duggan's complaint had arisen primarily as a result of how management handled the complaint although clearly the management action would not have occurred had the original complaint not emerged. Dr Chalk's evidence in this regard is consistent with the notes from Mr Duggan's attendance on his general practitioner on 18 July 2019 and Dr Joseph's subsequent report to WorkCover.
  1. [140]
    This opinion supports a conclusion that whilst the making of the second complaint forms the factual matrix to the matter it is the action in managing the complaint which as the cause of the action.
  1. [141]
    However, sitting alongside this opinion is Dr Chalk's third report[49] wherein he appears to express the view that the making of the second complaint was the major significant contributing factor to the injury suffered.
  1. [142]
    In expressing this opinion Dr Chalk did not resile from the opinion he expressed in his earlier report that management's handling of the complaint was the major significant contributing factor. He also repeated this opinion in cross-examination.
  1. [143]
    Accordingly, I do not consider that the intent of Dr Chalk's third report[50] was to disturb his earlier opinion with respect to the cause of the injury. I consider that Dr Chalk's view is that the injury arose out of management's handling of the second complaint. I consider such an opinion is consistent with the factual evidence I have referred to above.
  1. [144]
    The evidence does not support a conclusion that the injury was caused by the making of the second complaint.

Did the injury arise out of management action taken in a reasonable way by the BCE in connection with Mr Duggan's employment?

  1. [145]
    Mr Duggan contends that the management action that was taken was not reasonable and consequently the injury is not excluded by operation of s 32(5) of the WCR Act.
  1. [146]
    However, before I address that contention, Mr Duggan also argues that the action of advising him about the complaint was not management action.
  1. [147]
    Whilst the authorities referred to above acknowledge that the concept of management action does not encompass anything and everything a manager does, it does relate to actions undertaken in managing a workers' employment.
  1. [148]
    I consider that holding the meeting wherein Mr Duggan was advised of a formal written complaint about him amounts to management action. Such a meeting is different to the normal duties and incidents of Mr Duggan's employment. Accordingly, I consider the action to be management action.
  1. [149]
    At its best, I consider from Mr Duggan's submissions that he contends that the following management action was not reasonable:
  1. advising Mr Duggan of the complaint including by not providing him with a copy of the written complaint and holding the meeting in the groundsman's shed;
  1. advising Mr Duggan that the Directive issued in October 2019 should be maintained; and
  1. by not providing Mr Duggan with the two letters he demanded to "resolve the matter".
  1. [150]
    Mr Sullivan's evidence was that upon receiving Ms WT's written complaint he was required to consider and adhere to the management complaint procedure.
  1. [151]
    Mr Sullivan's evidence, which I accept was that because of the nature of the complaint, he considered that it was a complaint that could be dealt with informally pursuant to the BCE complaints management procedure.[51]
  1. [152]
    It was incumbent upon Mr Sullivan to place Mr Duggan on notice that a written complaint had been made. I accept the evidence of that the purpose of the meeting on 27 June 2019 was to notify Mr Duggan of the fact that a complaint had been made. Mr Sullivan's evidence, which I accept is that he advised Mr Duggan that he would have a further meeting with him about the complaint. Mr Sullivan did not seek a response from Mr Duggan at this time.
  1. [153]
    The evidence further supports a conclusions that during the meeting Mr Sullivan indicated to Mr Duggan that he did not consider the complaint to be a serious complaint. I consider it was appropriate and reasonable for Mr Sullivan to attempt to allay Mr Duggan's concerns about the complaint in this meeting.
  1. [154]
    I also accept on the evidence that during the meeting on 27 September 2019, that Mr Sullivan reminded Mr Duggan of the October 2019 direction and that it continued to apply. I consider that it was reasonable for Mr Sullivan to confirm the continuation of that directive in the context of a written complaint having been made. This action amounted to nothing more than maintaining the status quo.
  1. [155]
    Mr Duggan further contends that it was unreasonable for the meeting to take place in the groundsman's shed.
  1. [156]
    I consider it was appropriate for Mr Sullivan to go to the location where Mr Duggan worked (on school grounds) to discuss the matter. It was the case that no other person worked in the groundsman's shed and it was a familiar place for Mr Duggan and provided a confidential space to have the discussion. I do not consider that the choice of the location of the meeting to be unreasonable.
  1. [157]
    Mr Duggan contends that he was concerned that Mr Sullivan did not provide him with a written copy of the complaint in the meeting and that Mr Duggan followed this up by text message on 29 June 2019. Whilst the evidence was that Mr Sullivan was unsure as to whether he was permitted to provide a copy of the complaint (and that he was seeking advice about that process) to Mr Duggan he did in fact read out the particulars of the two events raised in the written complaint to Mr Duggan in a phone call on 29 June 2019. Accordingly, I am satisfied that as of no later than 29 June 2019, Mr Duggan had been verbally advised of the contents of the second complaint by Mr Sullivan. I consider Mr Sullivan's response to Mr Duggan's request to be advised of the contents of the complaint to be reasonable.
  1. [158]
    In any event, given that Mr Duggan advised that he was medically unfit to attend work on 2 July 2019 it would not have been unreasonable for a copy of the written complaint to be provided to him until he had been medically cleared to participate in the process.
  1. [159]
    As previously stated, on 1 July 2019 Mr Duggan wrote to Mr Sullivan and requested the two letters referred to above. This request required Mr Sullivan to take the steps requested in the absence of discussing the matter further with Mr Duggan. Indeed, it was Mr Duggan's position that he would not meet with Mr Sullivan until the two letters he requested were provided.
  1. [160]
    Mr Duggan accepted under cross-examination that the fact Mr Sullivan had not provided the two letters was having an impact on his mental health.[52]
  1. [161]
    Mr Duggan continued to request the two letters whilst he was on medical leave. I accept Mr Sullivan's evidence that it was not appropriate for him to deal with the substance of the complaints with Mr Duggan whilst Mr Duggan remained on medical leave.
  1. [162]
    Mr Sullivan's actions in this regard were not unreasonable.
  1. [163]
    It appears that Mr Duggan became focused on the provision of the two letters as a means to resolve the matter. However, Mr Sullivan had already indicated to him that he did not view the complaint as serious and that he was going to deal with it informally. To that end Mr Duggan was advised by Mr Sullivan that once he returned from leave he hoped to meet with Mr Duggan to resolve the matter.[53] In doing so, Mr Sullivan had properly put Mr Duggan on notice as to what procedural steps would be undertaken to resolve the matter. However, because of Mr Duggan's absence on medical leave the second complaint has yet to be resolved. I consider Mr Sullivan's actions in this regard to be unreasonable.
  1. [164]
    Ultimately, Mr Duggan's injury has arisen from management's handling of the second complaint. However, I have formed the view that the management action taken was reasonable management action. It appears that Mr Duggan is aggrieved that he has been subjected to a process arising from the making of the second complaint. Mr Duggan's injury was a consequence of reasonable management action taken in a reasonable way.

Conclusion

  1. [165]
    As noted above, I was required to determine the date of the injury and whether the injury was excluded by the operation of s 32(5) of the WCR Act.
  1. [166]
    I have determined that the date of the injury is 18 July 2019.
  1. [167]
    Further, for the reasons referred to above, the injury is an excluded injury by operation of s 32(5) of the WCR Act.

Order

  1. [168]
    Accordingly, I make the following order:
  1. The appeal is dismissed.
  2. Should the Regulator wish to make an application for costs, such an application is to be filed in the Industrial Registry within 28 days of this decision.

Footnotes

[1] The Classroom teacher's name will not be used in these reasons and has been anonymised by the use of a pseudonym 'Ms WT'.

[2] T3 – 15, ll 37-41.

[3] Kuenstner v Workers' Compensation Regulator [2016] QIRC 083, [10].

[4] State of Queensland v Q-COMP [2010] ICQ 6, [21].

[5] Allwood v Workers Compensation Regulator [2017] QIRC 88 at [68].

[6] Davis v Blackwood [2014] ICQ 9, 47.

[7] [2020] QIRC 097.

[8] Citations omitted.

[9] Exhibit 6 - Email from Mr G. Sullivan to Mr C. Duggan, sent 1 July 2019. Letter from Mr C. Duggan to Mr G. Sullivan, dated 1 July 2019.

[10] Ibid.

[11] T3 – 15, ll 37 – 41.

[12] Respondent's Statement of Facts and Contentions at [25].

[13] Ibid at [26] – [29].

[14] Exhibit 18 – Emails between Mr G. Sullivan and Mr C. Duggan, dated 19 July 2019. Email attachment from Mr C. Duggan to Mr G. Sullivan, dated 19 July 2019.

[15] T1 – 14, l 46 – T1 – 15, l 3.

[16] T1 – 14, ll 32 – 35.

[17] T1 – 16, ll 23 – 27.

[18] See for example Exhibit 28 - Emails between, [redacted] Ms WT, Mr G. Sullivan and another, sent 17 March 2019.

[19] Ibid.

[20] Exhibit 33 – BCE Complaint Form. Complainant made by [redacted] Ms WT in relation to Mr C. Duggan, dated 25 June 2019.

[21] T2 – 21, l 44 – T2 – 22 l 3.

[22] T2 – 22, ll 41 – 46.

[23] T1 – 19, ll 14 – 19.

[24] T2 – 23, ll 16 – 24.

[25] T2 – 23, l 41 – T2 – 24, l 10.

[26] T1 – 19, l 16.

[27] T2 – 25, ll 41 – 45.

[28] T2 – 29, ll 4 –12.

[29] T1 – 37, ll 4 – 6.

[30] T2 – 30, ll 36 – 40.

[31] Exhibit 36 – Email from Mr G. Sullivan to [redacted] Ms WT, email subject titled "Record of our meeting on 18 July", sent 30 July 2019.

[32] T2 – 32, ll 10 – 20.

[33] Exhibit 8 – Letter from Mr C. Duggan to Mr G. Sullivan, dated 19 July 2019.

[34] T1 – 42, ll 26 – 27.

[35] Exhibit 20 – Letter from Mr T. O'Brien to Mr C. O'Neill, Letter titled "Re: Mr Cornelius Duggan, St Martins School and Notice of Dispute per. Diocesan Schools Agreement 2015-2019", dated 25 July 2019.

[36] Exhibit 14 – Document titled "CONSULTATION RECORD: Mr Cornelius Duggan", pages 3-9.

[37] T1 – 32, ll 34-37.

[38] Exhibit 14 – Document titled "CONSULTATION RECORD: Mr Cornelius Duggan", pg 3-9. 

[39] Exhibit 23; Exhibit 24; Exhibit 25.

[40] Exhibit 23 – Medical Report from Dr J. Chalk to Ms T. Trussler, dated 10 October 2019, pg 9.

[41] Exhibit 24 – Medical Report from Dr J. Chalk to District Court of Queensland, dated 25 January 2021.

[42] Ibid pg 3.

[43] Ibid pg 9.

[44] Exhibit 25 – Medical Report from Dr J. Chalk to District Court of Queensland, dated 12 February 2021.

[45] T2 – 7, l 45 – T2 – 8, l 2; T2 – 8, ll 8 –10.

[46] Exhibit 38 – Letter from Dr P. Joseph to Case Manager, dated 22 October 2019. Facsimile to Dr P. Joseph, sent 20 August 2019.

[47] T1 – 19, l 39 – T1 – 20, l 5.

[48] Exhibit 23 – Medical Report from Dr J. Chalk to Ms T. Trussler, dated 10 October 2019.

[49] Exhibit 25 – Medical Report from Dr J. Chalk to District Court of Queensland, dated 12 February 2021.

[50] Exhibit 25 – Medical Report from Dr J. Chalk to District Court of Queensland, dated 12 February 2021.

[51] Exhibit 34 – Brisbane Catholic Education Staff Complaints Management Procedure.

[52] T1 – 48, ll 1 – 3.

[53] Exhibit 17 – Email from Mr G. Sullivan to Mr C. Duggan, email subject titled "RE: Staff matter", sent 3 July 2019.

Close

Editorial Notes

  • Published Case Name:

    Duggan v Workers' Compensation Regulator

  • Shortened Case Name:

    Duggan v Workers' Compensation Regulator

  • MNC:

    [2023] QIRC 309

  • Court:

    QIRC

  • Judge(s):

    Hartigan DP

  • Date:

    27 Oct 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Allwood v Workers' Compensation Regulator [2017] QIRC 88
2 citations
Jump To
Cite 1 - [2017] QIRC 88
Cite 2 - [2017] QIRC 88
Davis v Blackwood [2014] ICQ 9
2 citations
Jump To
Cite 1 - [2014] ICQ 9
Cite 2 - [2014] ICQ 9
Kuenstner v Workers' Compensation Regulator [2016] QIRC 83
2 citations
Jump To
Cite 1 - [2016] QIRC 83
Cite 2 - [2016] QIRC 83
State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2020] QIRC 97
2 citations
Jump To
Cite 1 - [2020] QIRC 97
Cite 2 - [2020] QIRC 97
State of Queensland v Q-COMP [2010] ICQ 6
2 citations
Jump To
Cite 1 - [2010] ICQ 6
Cite 2 - [2010] ICQ 6

Cases Citing

Case NameFull CitationFrequency
Duggan v Workers' Compensation Regulator [2024] ICQ 134 citations
1

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