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Stable v Workers' Compensation Regulator[2024] QIRC 274

Stable v Workers' Compensation Regulator[2024] QIRC 274

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Stable v Workers' Compensation Regulator [2024] QIRC 274

PARTIES:

Stable, Laura

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2021/160

PROCEEDING:

Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:

26 November 2024

HEARING DATES:

12 October 2022 to 14 October 2022, 20 October 2022

SUBMISSIONS:

Appellant's closing submissions: 4 August 2023

Respondent's closing submissions: 30 October 2023

Appellant's closing submissions in reply: 13 November 2023

MEMBER:

Power IC

HEARD AT:

Brisbane

ORDERS:

  1. The appeal is dismissed.
  1. The decision of the Workers' Compensation Regulator is confirmed.
  1. Failing agreement on costs, to be the subject of a further application to the Commission.
  1. Liberty to apply.

CATCHWORDS:

WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – psychiatric or psychological injury – whether injury excluded under s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) – where injury arises from management action – whether management action is reasonable – appeal dismissed.

LEGISLATION:

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

CASES:

Briffa v Q-COMP (2005) 180 QGIG 70

Browne v Dunn (1893) 6 R 67 (HL)

Davis v Blackwood [2014] ICQ 009

Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027

Jones v Dunkel (1959) HCA 8

McDonald v Q-COMP (No. 2) (2008) 188 QGIG 180

Murphy v Workers' Compensation Regulator [2022] QIRC 264

Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301

Rossmuller v Q-COMP [2010] ICQ 4

Simon Blackwood (Workers' Compensation Regulator) v Mahaffey [2016] ICQ 010

Workers' Compensation Regulator v Langerak [2020] ICQ 2

APPEARANCES:

Ms M.J Brooks of Counsel instructed by Holding Redlich

Mr S.P Gray of Counsel directly instructed by the Respondent

Reasons for Decision

  1. [1]
    Ms Laura Stable ('the Appellant') appeals a decision of the Workers' Compensation Regulator ('the Respondent') to deny her application for compensation relating to an injury pursuant to s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the Act').

Issue for determination

  1. [2]
    The issue to be determined is whether the Appellant suffered a personal injury within the meaning of s 32 of the Act. Section 32 of the Act provides:

32 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;
  1. 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—
  1. a personal injury;
  1. a disease;
  1. a medical condition, if the condition becomes a personal injury or disease because of the aggravation;
  1. loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing;
  1. death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury;
  1. death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease;
  1. 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. reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
  1. the worker's expectation or perception of reasonable management action being taken against the worker;
  1. 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. [3]
    This appeal to the Commission is by way of a hearing de novo upon which the onus of proof falls on the Appellant.[1] The Commission must be satisfied that the worker has suffered an injury within the meaning of the Act.[2]
  1. [4]
    The Appellant must prove, on the balance of probabilities,[3] that the claim is one for acceptance. That is, that the Appellant suffered an injury; the injury arose out of, or in the course of her employment with the employer; and the employment with the employer was a significant contributing factor to the injury.
  1. [5]
    The Appellant must also prove that her injury is not excluded by the reasonable management action provision of s 32(5) of the Act.
  1. [6]
    The parties are in agreement that the Appellant was a worker, that she sustained a psychological or psychiatric injury, and that the injury arose out of her employment with the employer.
  1. [7]
    After carefully considering all of the evidence in this matter, on the balance of probabilities, I find that the Appellant's injury is excluded due to the operation of s 32(5) of the Act.
  1. [8]
    My reasons follow.

Background

  1. [9]
    The Appellant commenced employment at the school in 2020 as a teacher working in Grade 1.[4]
  1. [10]
    The Deputy Principal that had management responsibility for the Prep and Grade 1 classes was Ms Kelly Uittenbosch and the Principal at the school during the relevant period was Ms Deborah Hansen.
  1. [11]
    The Appellant was advised towards the end of Term 4 in 2020 that the composition of her grade 1 class for 2021 included Student A, Student B, and Student C who had each previously displayed challenging behaviours.
  1. [12]
    The Appellant sought medical assistance at a visit to Dr Takako Kobayashi, General Practitioner, for symptoms related to irritable bowel syndrome ('IBS') on 8 January 2021.
  1. [13]
    The Appellant taught her allocated class, that being Class 1S, from 27 January 2021, the commencement of Term 1, until 12 April 2021.
  1. [14]
    On 25 March 2021, Dr Michele Calvird, Psychiatrist, provided a work capacity certificate providing a provisional diagnosis of adjustment disorder with depressed and anxious mood.
  1. [15]
    Dr Calvird described the mechanism of injury as:

Exposed to marked traumatic experiences in workplace due to students' aggression, without sufficient extra measures/support being put in place by school management for her/others' safety.[5]

  1. [16]
    On 12 April 2021, Dr Kobayashi issued a work capacity certificate diagnosing the Appellant's IBS as stress induced and her adjustment disorder as being due to anxiety and depression.
  1. [17]
    The Appellant lodged an application for compensation with WorkCover on 12 April 2021 for her diagnosed psychiatric/psychological injury.
  1. [18]
    The diagnosis of adjustment disorder due to anxiety and depression developed over the period from December 2020 to 12 April 2021 at which time Dr Kobayashi diagnosed the adjustment disorder.
  1. [19]
    It is common ground that the Appellant's injury arose from stressors related to both management action and non-management action.
  1. [20]
    The non-management action stressors can be summarised as matters relating to the Appellant having Students A, B, and C in her class. The management action stressors are associated with the support provided by the employer in assisting the Appellant to manage the challenging behaviour of those three students.
  1. [21]
    The Appellant contends that the injury is not excluded by the operation of s 32(5)(a) which provides that an injury does not include a psychiatric or psychological disorder arising out of reasonable management action taken in a reasonable way by the employer in connection with the worker's employment.
  1. [22]
    The Respondent's position is that the Appellant's injury arose out of reasonable management action taken in a reasonable way and so is not compensable.

Stressors

  1. [23]
    The Appellant outlined 65 stressors in her Statement of Facts and Contentions ('SOFC') with the stressors divided into stressors related to management action and those related to non‑management action.
  1. [24]
    At the commencement of the hearing, the parties advised the Commission that it was accepted that the Appellant's injury arose out of a combination of stressors involving both non-management action and management action.
  1. [25]
    The Appellant submits that the composition of her Grade 1 class and the lack of support she received from management were significant contributing factors to her injury, and that each of the management action stressors arose out of management action that was either not reasonable or not reasonably taken.
  1. [26]
    I have adopted the Appellant's characterisation of stressors into the following two categories[6]:
  1. Non-management action stressors related to:
  • the behaviour of Students A, B and C (stressors 2-8, 10-54, 57-60);
  • the Appellant receiving automated emails from OneSchool advising her of multiple major incidents involving the challenging students that had occurred in her absence (stressor 9);
  • the parent teacher interviews (stressor 55);
  • the Appellant was informed that Student A would no longer be participating in the LEAP program for the duration of term 1 and term 2 (stressor 56); and
  • the reports from other students they felt unsafe in the classroom (stressor 63).
  1. Stressors related to management action (stressors 1, 9, 56, 61, 62, 64 and 65):
  • the Appellant learning that Student A, Student B and Student C would be in her Grade 1 class in 2021 (stressor 1);
  • insufficient classroom support to prevent or mitigate against incidents caused by Student A, Student B or Student C occurring (stressor 61);
  • insufficient classroom support to ensure a safe classroom for the students of 1S (stressor 62);
  • insufficient classroom support to ensure a safe workplace for the Appellant (stressor 64); and
  • insufficient support to ensure the Appellant was able to deliver teaching to an effective level while Student A, Student B and Student C were present in the classroom (stressor 65).

Evidence

  1. [27]
    The Appellant called the following witnesses to give evidence –
  1. i)
    Ms Laura Stable, the Appellant;
  1. ii)
    Dr Takako Kobayashi, general practitioner; and
  1. iii)
    Dr Michele Calvird, psychiatrist.
  1. [28]
    The Respondent called the following witnesses to give evidence –
  1. i)
    Ms Vanessa Miell, inclusion teacher at the school;
  1. ii)
    Ms Felicity Gill, a Grade 1 teacher at the school;
  1. iii)
    Ms Kelly Uittenbosch, Deputy Principal at the school; and
  1. iv)
    Ms Deborah Hansen, Principal at the school.

Appellant's evidence

  1. [29]
    The Appellant gave evidence that she had not received any special education training or any inclusion training, and that she has undertaken further training on her own initiative in the area of understanding students with autism and training in non-violent communication.[7]
  1. [30]
    The Appellant also gave evidence that she had not received any specific training on the OneSchool program, which collected information on all students' personal information, results, incidents, and family information.[8]
  1. [31]
    The Appellant's evidence was that OneSchool behaviour records included both major and minor incidents, but that not all minor incidents were recorded due to the paperwork involved.[9]
  1. [32]
    At the beginning of 2021, the Appellant took on a leadership role at the school at the request of Ms Hansen.[10]
  1. [33]
    The Appellant outlined her understanding of the funding arrangement for students, stating that the school received additional funding to support students who were verified as having a diagnosed condition.[11]
  1. [34]
    The Appellant stated that she worked closely with an inclusion teacher, Ms Miell, in 2020 because the Appellant's class contained a student with a verified autism diagnosis[12] and Ms Miell was able to support both the verified student and another unverified student throughout 2020.[13]
  1. [35]
    The Appellant's evidence regarding the process of verification was broadly consistent with the evidence given by Ms Miell, Ms Uittenbosch, and Ms Hansen in that more funding is made available to the school to support students who are verified as having a diagnosis.[14]
  1. [36]
    The Appellant gave evidence that she began to develop concerns in 2020 about her ability to manage her class for 2021, acknowledging the limited support available, and began to experience symptoms of IBS.[15]
  1. [37]
    The Appellant gave evidence that after she learned that Students A, B, and C were to be in her class in 2021 she had a discussion with Ms Miell who reassured the Appellant that the class would be fine, that she would have support, and compared Students A and B to the challenging students the Appellant had in 2020.[16] The Appellant contends that Students A and B were 'nothing' like the challenging students she had in 2020.[17]
  1. [38]
    The Appellant gave evidence that she spoke with Ms Uittenbosch and Ms Hansen[18] regarding her proposed class for 2021 and was told that there would be support for her and that she was the best person for these students.[19]
  1. [39]
    The Appellant gave evidence that the impact of the behaviours of Student A, Student B, and Student C on her ability to teach was that her class was in a 'heightened' state constantly and that she would say to the administrative team that she could not do her job as the children could not learn if they did not feel safe.[20]
  1. [40]
    The Appellant stated that she would regularly tell Ms Hansen and Ms Uittenbosch in casual conversations about the situation in her classroom[21], stating –

I would just go and speak to them and they would just say to me, you're doing a great job, you're the best person for this job, you – you know, you're – you know, you're so good with these kids and you know, you know, you – you just – you know, you're so good with these kids, you – you – you – you really – you're doing a really great job and that's all we can ask of you and, you know, you're doing great and like, they would just reassure me by, like, just that, like, giving me praise and I'm like, I said even, like, I don't want praise, like, I need help, like, I need some – I said what else could I do? And they're like, you know, you're doing everything right and I'm like, yeah, but give me another strategy, like, I even asked them, like, but what else could I do? Like, they didn't give me anything else.[22]

  1. [41]
    The Appellant gave evidence that she had sent a text message to Ms Hansen on 5 March 2021 stating that she was desperate to speak with Ms Hansen.[23]
  1. [42]
    The Appellant stated that in the subsequent conversation with Ms Hansen on 6 March 2021, she advised the following –[24]
  • all of the Grade 1 teachers were struggling;
  • she was starting to feel that the job was not worth her life;
  • she cared deeply for her students' welfare and needed more support to be able to do her job; and
  • the support she was getting was not enough.
  1. [43]
    In response, the Appellant gave evidence that Ms Hansen stated –[25]
  • how wonderful the Appellant was and that she was doing a great job amongst a series of platitudes;
  • Student A would be going to LEAP three days a week in Term 2 which may alleviate some of her classroom stress; and
  • in response to the Appellant's comment about how poorly the students were doing and how this must reflect on her as a teacher, Ms Hansen stated "we can only do what we can do", and the Appellant should lower her expectations and in effect stop being a perfectionist.
  1. [44]
    The Respondent submits that the Appellant overstated the severity of the conduct by Students A, B, and C in her SOFC and proceeded to exaggerate her oral evidence. The example given by the Respondent was the Appellant's response to questions regarding the number of times she had to evacuate the entire class in 2021. The Respondent notes that the Appellant initially stated that she could not recall how many times the class had been evacuated, and after being prompted as to whether it was two times, ten times, twenty times or a hundred times, the Appellant stated that 'it was probably getting close to 10 times. Probably around 10. Definitely, I mean, even not – if it wasn't a full evacuation, like, I was definitely having to move them to the safe area in the classroom almost daily.'[26] The Respondent submits that there were four occasions when the classroom had to be evacuated and students had to be moved to a safe area in the classroom on eight occasions.
  1. [45]
    The Respondent further submits that the Appellant's evidence was prone to overstatement and as such it is appropriate to view her as an unreliable reporter. One example involved the Appellant stating the following –

… I just – they were in a position where they couldn't offer me any more support and because these kids didn't have [indistinct] like – they – they were not verified, so they didn't attract support so they could not give me any timetabled teacher aide or teaching time, so that means that the only support they could give me was if I called, they would come and get them and take them for a break, which means that I had to wait for an incident to happen, which meant I had to traumatise every student in my class every single day for that whole term because we couldn't afford for them to put another adult in my room, and that's okay because they still came when I called and I don't think that that's fair and – sorry.[27]

  1. [46]
    Although the transcript is somewhat unclear, the reference to having traumatised 'every student' in her class 'every single day for that whole term' is an overstatement. The documentary evidence in OneNote does not support a determination that an incident occurred every single day, or that every student was traumatised every single day. Notwithstanding this somewhat overstated evidence, I accept that Appellant's evidence as generally truthful. The Appellant presented as an honest, open, and forthright witness. The Appellant gave detailed and helpful evidence to the Commission, and while there were occasions in which the Appellant overstated particular situations,[28] these were not significant enough to warrant a conclusion that the Commission should consider the Appellant's evidence to be unreliable.

Ms Vanessa Miell

  1. [47]
    Ms Miell was an inclusion teacher at the school who also gave open and forthright evidence to the Commission and made reasonable concessions where appropriate.
  1. [48]
    Ms Miell gave evidence that she had a discussion with the Appellant regarding Students A and B after the Appellant became aware of class allocations. Ms Miell stated that she could not specifically recall the contents of the conversation but confirmed that she would have let the Appellant know that she had every confidence in the Appellant being able to manage the students.
  1. [49]
    Ms Miell gave evidence that the system in place at the time in 2020 and 2021 was that funding was made available for additional support for verified students, confirming that the Department verifies students only after a diagnosis is provided.[29]
  1. [50]
    Regarding the funding arrangement, Ms Miell gave evidence that the support that she was timetabled to provide was a result of the funded support.[30]
  1. [51]
    Ms Miell gave evidence that because the Appellant had a verified student in her class in 2020, support was timetabled for the Appellant's 2020 class in the form of Ms Miell's support as an inclusion teacher as well as inclusion teacher aide support.
  1. [52]
    In relation to the verification process, Ms Miell gave evidence that it is the Head of Inclusion who commences the verification process, usually upon information provided by a parent.[31]
  1. [53]
    Ms Miell gave evidence that the Appellant was incredibly talented and capable and was viewed as being a very competent teacher.[32]

Ms Kelly Uittenbosch, Deputy Principal

  1. [54]
    Ms Uittenbosch gave evidence that the Appellant approached her at the end of 2020 with concerns about the composition of her class in 2021.[33]
  1. [55]
    In response to the concerns raised by the Appellant, Ms Uittenbosch stated that she told the Appellant that she was a very capable teacher, that she would be good for the students, that she would be ok, and they would do whatever they could to support her.[34]
  1. [56]
    Ms Uittenbosch confirmed that the Appellant raised her concerns about the composition of the class with her several times[35] and gave evidence that the Appellant was a very capable teacher.[36]
  1. [57]
    Ms Uittenbosch gave honest and straightforward evidence about the relevant incidents.

Ms Deborah Hansen, Principal

  1. [58]
    Ms Hansen gave evidence that the Grade 1 teaching cohort included two beginning teachers and three experienced teachers. The Appellant was one of the experienced teachers.[37]
  1. [59]
    Regarding the provision of teacher's aide assistance, Ms Hansen stated that Prep classrooms typically have a teacher's aide for most of the day, but that in Grade 1 the teacher aides are deployed across the cohort for less time in each class.[38]
  1. [60]
    Ms Hansen gave evidence that the Appellant was a good and dedicated teacher.[39]
  1. [61]
    Ms Hansen's evidence regarding class allocation was that no teacher was allocated until the classes were set,[40] at which point the best teacher for the class is chosen by the school leadership team "based on experience, based on relationships, based on a whole range of different things."[41]
  1. [62]
    Ms Hansen agreed under cross-examination that she had suggested to the Appellant that she limit or minimise the other things she was doing as a teacher, such as supporting junior teachers with their curriculum planning and taking on the 'equity leader' role in order to cope better with her class.[42]

Ms Felicity Gill

  1. [63]
    Ms Gill was employed at the school as a Grade 1 teacher.
  1. [64]
    Ms Gill gave evidence that the Appellant had informed her of problems she was experiencing with Student B. Ms Gill confirmed that Student B was very disruptive, would pull things off walls including resources and the work of other students, was non-compliant, and did not follow instructions.[43]
  1. [65]
    Ms Gill gave evidence that the issue of student behaviour was raised in 2021 in collaborative learning meetings.[44]
  1. [66]
    Ms Gill stated that she had discussed with the Appellant the issues they were having with their classes and had informal discussions about the lack of support they were receiving from the school.[45]

Other witness matters

  1. [67]
    Ms Rowena Lewis and Ms Natasha Prince were each a Head of Inclusion at the school.
  1. [68]
    Ms Hansen gave evidence that the Head of Inclusion was involved in the process of composing the classes for 2021, including preparing the document that outlined the needs of the students across the school in terms of the number of different categories so the school could determine the range of students who had additional needs.[46]
  1. [69]
    The Appellant submits that a Jones v Dunkel[47] inference should be drawn following the Respondent's failure to call either Ms Lewis or Ms Prince to give evidence in this matter. Such an inference would be that the evidence of Ms Lewis or Ms Prince would not have assisted the Respondent.
  1. [70]
    In circumstances where the ultimate decision maker, Ms Hansen, was called along with the Deputy Principal who was involved with class allocation, I am not of the view that it was expected that the Respondent called Ms Lewis or Ms Prince. Accordingly, no such inference will be drawn.

Medical evidence

Dr Takao Kobayashi, General Practitioner

  1. [71]
    Dr Kobayashi was the Appellant's treating general practitioner who had been treating the Appellant for anxiety and depression for a number of years.
  1. [72]
    On 29 October 2018, the Appellant attended upon Dr Kobayashi who referred her to Dr Calvird, a psychiatrist, for treatment.[48]
  1. [73]
    The Appellant attended upon Dr Kobayashi on 11 September 2020 and outlined to him that she was not sleeping well, was grinding her teeth and had been unable to open her mouth the day before.[49] 
  1. [74]
    Dr Kobayashi gave evidence that the Appellant had previously suffered jaw pain and joint pain and that he thought it was stress related.[50]
  1. [75]
    The Appellant attended upon Dr Kobayashi on 8 January 2021 with a stomach-ache and diarrhoea.[51]
  1. [76]
    On 18 January 2021, the Appellant attended upon Dr Kobayashi and described having good days and bad days and that she thought stress towards school was causing her more anxiety.[52]
  1. [77]
    Dr Kobayashi recorded on 2 February 2021 the following[53] –

History:

diarrhoea still

stress++ a teacher of year 1 two students already suspended

  1. [78]
    On 24 March 2021, Dr Kobayashi referred the Appellant to Dr Calvird, stating[54] –

The last few months, she has been suffering from chronic diarrhoea, stool check, blood test colonoscopy were all normal, it seems to be stress related. She has no support too much workload, it is hard [for] her to cope with. [emphasis added]

  1. [79]
    Dr Kobayashi noted on 15 April 2021 the following[55]-

This problem is not only her problem but also school problem

unless her school changes nothing change she needs somebody to change this situation

leagal [sic] action may be another option to do so, she has no energy at a moment

…

mentally distressed by her students and lack of support from the school

I think the lack of support is more cause of problem [emphasis added]

  1. [80]
    The evidence of Dr Kobayashi indicates that the actions of school management were a significant contributor to the Appellant's injury.

Dr Calvird, Psychiatrist

  1. [81]
    Dr Calvird's medical records include a Doctor's Admission Assessment from the Belmont Private Hospital dated 11 January 2020 recording a diagnosis (DSM-IV) of major depressive episode – post natal exacerbation.[56]
  1. [82]
    I accept the Appellant's submission that the pre-existing history provides some background evidence regarding her psychological medical history, but it is of limited relevance to the issues to be determined by the Commission. The Respondent concedes that the injury arose out of the Appellant's employment at the school and there is no contention by the Respondent that the injury is an aggravation of a pre-existing condition. I accept that the medical evidence indicates that the Appellant has been relatively stable in terms of her symptoms from 2014 onwards. 
  1. [83]
    Dr Calvird's notes of the Appellant's attendance on 25 March 2021 outline a provisional diagnosis of an adjustment disorder with depressed and anxious mood and describe the mechanism of injury as follows[57] –

Exposed to marked traumatic experiences in workplace due to students' aggression, without sufficient extra measures/support being put in place by school management for her/other's safety. [emphasis added]

  1. [84]
    Dr Calvird gave the following evidence about an entry on 25 March 2021 –

--Which is essentially a significant contributor to the injury, was that she felt that her employer was not giving her sufficient support in her workplace? --- Well, like – I think, yes. There was several things, but the fact is there was the behaviourally disturbed children that were putting themselves – putting other children at risk, and the fact that the workplace was not supporting her by following due process and putting things in place to reduce the risk and to – to try and stop the behaviours of those children.[58]  [emphasis added]

  1. [85]
    Dr Calvird's evidence was that the injury was the result of multiple factors described as the Appellant's belief that management was not following due process, her belief that the employer was not giving her enough support, and particular events including the behaviour of the students occurring in the workplace.[59]
  1. [86]
    Dr Calvird recorded the contributors to the Appellant's injury on 13 April 2021 as the following[60]-
  • Work stress+++
  • Work not following due process
  • The Appellant put in a vulnerable position at work with lack of help/support for aggressive/behaviourally disordered student
  1. [87]
    Dr Calvird's evidence confirms that the Appellant's belief that her employer had failed to appropriately support her in the workplace is closely linked to her claimed injury.

Date of injury

  1. [88]
    The evidence supports a conclusion that the injury developed over a period of time with symptoms commencing in December 2020.
  1. [89]
    I note that at the consultation with Dr Kobayashi on 8 January 2021, there was only reference made to IBS symptoms and a stomach ache, with no mention of mental health issues.[61] The consultations with Dr Kobayashi on 18 January 2021 and 2 February 2021 were again for IBS. The notes record the Appellant's stress towards school causing her anxiety and increased stress, although there was no diagnosis of a psychological or psychiatric injury at these consultations.[62]
  1. [90]
    At the Appellant's consultation with Dr Calvird on 25 March 2021, the Appellant provided a history of the issues at the school and reported that she could not cope and had been crying every night whilst debriefing with her husband.[63] Dr Calvird recorded a diagnosis of adjustment disorder with depression and anxious mood in the context of workplace stressors and not being supported by management.[64]
  1. [91]
    I am satisfied that the Appellant's injury developed over the period from December 2020 to 25 March 2021 when the psychological injury was diagnosed by Dr Calvird.

Non-management action stressors

  1. [92]
    To be satisfied that the injury arose out of the non-management stressors outlined at [26], it must first be established that the stressors occurred as contended.
  1. [93]
    The Appellant's stressors are outlined in the SOFC as 65 individual stressors. The Appellant's submissions have separated the stressors into distinct categories as outlined below.

Stressors 2-8, 10-54, 57-60 - the behaviour of Students A, B, and C

  1. [94]
    Although the stressors outlined in the Appellant's SOFC outline individual incidents involving Students A, B, and C, these incidents will be considered under the broad heading of 'the behaviour' of Students A, B, and C.
  1. [95]
    The documentary evidence in the form of the OneNote Behaviour Records for Student A and Student B broadly reflect the behaviours outlined in the SOFC, albeit with some differences.
  1. [96]
    The types of behaviour include aggressive and physical contact towards other students, staff, and the Appellant. Although the Respondent submits that the Appellant has exaggerated the conduct in her description of the stressors, there is no suggestion that the OneSchool Behaviour Records are not accurate.
  1. [97]
    I am satisfied that the stressors outlined in the Appellant's SOFC relating to the behaviour of Students A and B occurred as demonstrated by the documentary evidence in the OneSchool Behaviour Records. The documentary evidence regarding the behaviour of Student C,[65] indicates that on the balance of probabilities, these actions occurred as outlined in the Appellant's SOFC.
  1. [98]
    I am not persuaded by the Respondent's submission that the Appellant used exaggeration and hyperbolic language, particularly in her description of these stressors. The Respondent referred to the Appellant's description in her SOFC that a student was 'wrecking the classroom' whilst the OneSchool note outlined that Student B "…walked around kicking some chairs or otherwise 'gently' tipping the chairs over. He then picked them all up."[66] Although using the term 'wrecking' may be more dramatic than the language used in the OneSchool note, the difference is not so significant as to conclude the stressor has been based on an exaggerated description of the event.
  1. [99]
    The Personalised Learning document for Student A outlined the following –

[Student A] demonstrates significant difficulties interacting positively towards peers and adults. He is unsafe for himself and others; he throws objects, runs around the room, flips upside down when on the carpet, he knocks into peers as he moves about the classroom; spits at people and on the floor.[67]

  1. [100]
    The OneSchool Behaviour Records for Student B outlined regular acts of physical aggression. On example was described as follows–

Refused to follow instructions – packing up and getting organised for the afternoon. Stood on the jellybean table, kicked of the books, threw a chair. DP was called. [Student B] escalated and began tipping over desks and throwing water bottles. [Student B] removed. Returned calmer but after packing his bags and realising that he didn't have a full card of stamps he began throwing a teddy and hitting people with it. Teacher moved students away. After the bell, Teacher and Student B had a chat about starting again tomorrow.[68]

  1. [101]
    Student B's Risk Evaluation Form outlines the following assessment of Student B –

[Student B] will engage in Physical Misconduct eg. pushing peers, throwing objects around the room and at peers.

[Student B] will engage in physical misconduct during most transition periods.

[Student B] will engage in engage in unsafe behaviours, eg leaving the classroom, slamming the door, hiding around the corner,

[Student B] will engage in this behaviour multiple times per session.

[Student B] will engage in disruptive and threatening behaviours towards peers and adults in the classroom.

[Student B] will engage in this behaviour several times per session.

[Student B] will engage in defiant behaviours.[69]

  1. [102]
    Student C's Student Plan records that Student C had 52 negative behaviour incidences in 2021 including 23 major incidents.[70]
  1. [103]
    The Student Plan for Student C included the following –

Impact: Difficulties with self-regulation. Difficulties with peer problem solving. Displays aggressive behaviour towards others. Requires frequent re-direction and cues to follow instructions.[71]

  1. [104]
    I am satisfied that the documentary evidence of the OneSchool records and the summary of students with multiple incidents between 1 January 2021 and 2 April 2021 document created by Ms Hansen[72] demonstrates that the incidents nominated by the Appellant as stressors arising out of the behaviour of Students A, B and C occurred as contended.
  1. [105]
    The documentary evidence along with the medical evidence establishes on the balance of probabilities that the behaviours of Students A, B, and C occurred broadly as outlined in the Appellant's SOFC and these stressors contributed to the Appellant's injury.
  1. [106]
    I am satisfied that, on the whole, the stressors related to the behaviours of Students A, B, and C were significant contributing factors to the Appellant's injury.

Stressor 9 - The Appellant receiving automated emails from OneSchool advising her of multiple major incidents involving the challenging students that had occurred in her absence.

  1. [107]
    There was no evidence that the Appellant received automated emails from OneSchool whilst she was absent from work.
  1. [108]
    This stressor has not been substantiated; however, I note that the medical evidence does not indicate that this was ever referred to as a stressor by the Appellant.

Stressor 55 – The parent teacher interviews

  1. [109]
    The Appellant gave the following evidence regarding the purpose of the first term parent teacher interview, conducted in late March 2021 –

... It's not about their level of achievement, but it's about their progress. So it's – it's about how they're progressing and how they're heading toward – how well they're going towards assessment. So we are constantly doing assessment in class and constantly, you know, looking at where the kids are at. And so the whole idea of the term 1 progress report is to see where they're at, because we don't give results until the end of term 2, like, formal results until the end of term 2, but we have done assessments in term 1. Certainly, we can give results.[73]

  1. [110]
    The Appellant gave evidence that she felt like a failure as a teacher during the parent teacher interviews because she had to tell multiple parents that they were going to have to focus on particular things and had to say placating things to parents.[74]
  1. [111]
    There was no evidence that parents complained or took issue with the Appellant's performance, however I accept the Appellant's evidence that parent teacher interviews were a stressor for her.

Stressor 56 – The Appellant was informed that Student A would no longer be participating in the LEAP program for the duration of Term 1 and Term 2

  1. [112]
    The LEAP program was described by Ms Hansen as an intensive program run off-site for the most challenging children.
  1. [113]
    The Appellant gave evidence that Student A attended the LEAP program for seven weeks in the middle of Term 1 and that Ms Hansen had told her that Student A would attend LEAP three days per week in Term 2.[75]
  1. [114]
    The Appellant stated that she was later told that Student A would not be attending the program in Term 2, describing this change as a massive stressor.[76]
  1. [115]
    Ms Hansen confirmed that Student A was not going to be able to attend LEAP in Term 2 and that nothing could be done by the school as the decision had been made by Metropolitan Behaviour Services.[77]
  1. [116]
    The evidence of the Appellant and Ms Hansen supports a conclusion that a decision was made that Student A would not attending the LEAP program in Term 2 and this was a stressor for the Appellant.

Stressor 63 - Reports from other students they felt unsafe in the classroom

  1. [117]
    The OneSchool Behaviour records for Student A record a major incident on 9 February 2021 involving Student A –

While students were bobbed down, [Student A] began stomping on hands, shoulders, backs and a head. All students were okay but upset by the incident.[78]

  1. [118]
    The Behaviour Records for Student B record that on 25 February 2021, a student stated, 'I am worried he is going to hurt us', prior to the Appellant moving students outside.[79]
  1. [119]
    The Behaviour Records for Student B record that following an incident on 5 March 2021 a student approached the Appellant and said that she was feeling unsafe.[80]
  1. [120]
    The documentary evidence supports the Appellant's contention that students had reported feeling unsafe in the classroom and I accept the Appellant's evidence that this was a stressor.

Management actions stressors

  1. [121]
    The Appellant submits that the following stressors can be categorised as arising out of management action –

Stressor 1: The Appellant learning that Student A, Student B and Student C would be in her Year 1 class in 2021;

Stressor 61: Insufficient classroom support to prevent or mitigate against incidents caused by Student A, Student B or Student C occurring;

Stressor 62: Insufficient classroom support to ensure a safe classroom for the students of 1S;

Stressor 64: Insufficient classroom support to ensure a safe workplace for the Appellant; and

Stressor 65; Insufficient support to ensure the Appellant was able to deliver teaching to an effective level while Student A, Student B and Student C were present in the classroom.[81]

  1. [122]
    These management stressors will be considered below in the context of s 32(5).

Consideration of s 32(5)

  1. [123]
    The Appellant bears the onus of demonstrating that the injury is not excluded by reasonable management action provisions in s 32(5) of the Act. The parties are in agreement that there was no management action being taken by the school against the Appellant and accordingly there is no requirement to consider s 32(5)(b).
  1. [124]
    The Appellant submits that there are significant stressors that are not related in any way to management action that have played a more than significant role in giving rise to the Appellant's decompensation. In these circumstances, the Appellant submits that even if the Commission is satisfied that there are some aspects of the management action which have been taken reasonably, the Appellant is still entitled to succeed in light of the significant contribution to her injury made by the non-management action stressors.
  1. [125]
    I note the Respondent's submissions that the Appellant's SOFC outlined an extensive number of single incidents relating to non-management action stressors but summarised the stressors relating to management action. Whilst this may give the impression that the non‑management action stressors vastly outweigh the significance of the management-action related stressors, it is clear from the medical evidence that both the management action stressors and non-management action stressors were integral to the development of the Appellant's injury.
  1. [126]
    I also note that the agreement between the parties at the commencement of the hearing was that the injury arose from both management and non-management stressors.
  1. [127]
    In Davis v Blackwood,[82] ('Davis')  Martin P stated the following –

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

…

I agree with the reasoning of Hall P in Q-Comp v Hohn where he said that the mere occurrence of reasonable management action will not insulate a disorder from characterisation as an "injury". In cases such as this the Commission will be aided by expert evidence which can assist in the assignment of weight to the various factors which go to the creation of maintenance of a psychiatric disorder. If the evidence supports a finding that the psychiatric disorder results from the employment being a significant contributing factor then, when one turns to consider s 32(5), it is important to determine to what extent, if any, there is an overlap of reasonable management action and other employment factors.[83]

  1. [128]
    In Hardy v Simon Blackwood (Workers' Compensation Regulator),[84] ('Hardy') the Appellant nominated 49 stressors, describing particular stressors as 'major stressors'. President Martin determined that such as description was not relevant, stating –

… Whether it is described as a major stressor or a primary stressor or just, simply, a stressor, it is still one of the matters relied upon by Ms Hardy as having caused her injury. The fact that Ms Hardy had nominated some stressors as being more important than others does not change the circumstance that all of them had been nominated as causative.[85]

  1. [129]
    Applying the principle outlined above in Hardy, I do not accept that the non-management action stressors in this matter contributed any more significantly to the Appellant's injury than the stressors related to management action. The medical evidence indicates that the injury arose out of both management and non‑management stressors that occurred broadly over the same time period. In these circumstances, it is not the case that the management stressors should be given any less weight as contributing to the injury given the extensive overlap with the other stressors.
  1. [130]
    The Appellant's submissions referred to Simon Blackwood (Workers' Compensation Regulator) v Mahaffey,[86] ('Mahaffey') in which President Martin wrote –

What does s 32 require?

This section has been the subject of consideration on many occasions. In this case, there was conduct (the harassment) which was a cause of the disorder and which did not come within s 32(5) and there was conduct (the telephone answering issue) which was a cause of the disorder and which did come within s 32(5). Thus the following question arises:

If a particular stressor is held:

  1. to have been a cause of a psychiatric or psychological disorder, and
  1. to have arisen out of, or in the course of, reasonable management action reasonably taken, then

is the psychiatric or psychological disorder excluded from the definition of "injury" in s 32(1) no matter what else may have caused the disorder?

…

Section 32 (1) is concerned with consideration of an injury which arises out of, or in the course of, employment. In other words, it covers the whole gamut of the employment relationship. It does not confine its operation to particular aspects of the employment, rather, it emphasises that all of the employment is to be considered because an "injury" will only come within the definition "if the employment is a significant contributing factor to the injury".

A distinction can then be drawn with the provisions of s 32(5). Putting to one side s 32(5)(c), that section is concerned with "reasonable management action" which is actually taken or a worker's expectation of perception of such action. In other words, it is concerned only with a "slice" of the employment.

…

The question which arises in this case, and which has been set out above, could, if answered in the way proposed by the appellant, lead to circumstances where a worker who nominated two stressors would be denied compensation if one of those stressors was reasonable management action etc., even if the unchallenged expert evidence was that its contribution to the disorder was minimal. Similarly, the appellant's answer would also deny a worker compensation if a disorder was the result of ten stressors, each of equal importance, but where one fell within s 32(5).[87]

  1. [131]
    The Appellant's submissions referred to consideration of beneficial legislation in Mahaffey,[88] however I note Martin J's comments regarding the approach to beneficial legislation  -

It is only if more than one interpretation is available or there is uncertainty as to the meaning of the words that the beneficial interpretation approach arises – Victims Compensation Fund Corporation v Brown.[89]

  1. [132]
    The facts of this matter can be distinguished from those of Mahaffey in which the relevant management action was quite distinct to the other stressors giving rise to the employee's injury. However, in this matter, the medical evidence and the Appellant's evidence demonstrate that the Appellant's assertion of alleged failures in management action to provide appropriate support relating to the other stressors contributed significantly to the development of the Appellant's injury.
  1. [133]
    In Workers' Compensation Regulator v Langerak,[90] President Martin wrote –

The ultimate question under s 32(5) is whether the injury, not any one stressor, arose out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with the worker's employment. The determination made in respect of s 32(5)(a) is one made by weighing reasonable management action against other employment factors in light of the whole of the evidence.[91]

  1. [134]
    The Appellant contends that to the extent that the injury arose out of management action, such action was not reasonable nor was it taken in a reasonable way.
  1. [135]
    After having regard to the cases discussed above, I am not of the view that it is appropriate to determine which of the stressors were the 'most significant' contributors to the injury. The whole of the evidence must be considered to determine whether the injury arose out of or in the course of management action. The medical evidence of Dr Kobayashi and Dr Calvird indicates that there was a significant overlap of management action with the other employment factors. I am satisfied that both the evidence of the medical practitioners and the Appellant demonstrates that the Appellant's symptoms arose from both management action and non-management action stressors.

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

Stressor 1 - The decision to allocate Students A, B and C to the Appellant's class

  1. [136]
    The Appellant had a pre-existing mental health history which she submits should have been taken into consideration when determining the composition of her class in 2021.
  1. [137]
    The Appellant refers to the email she sent to Ms Uittenbosch on 2 November 2020 indicating that she was suffering from severe anxiety.[92] However, the medical evidence supports the view that there had been a marked improvement in the Appellant's psychological functioning leading up to December 2020. I note that the Appellant's submission regarding her vulnerability was not outlined in her SOFC and was not a nominated stressor. I also accept the Respondent's submission that it was not put on notice that the vulnerability of the Appellant formed part of the appeal. Notwithstanding this submission, I am satisfied that the medical evidence indicates that the Appellant was stable in December 2020.
  1. [138]
    In Murphy v Workers' Compensation Regulator[93] it was determined that a decision regarding allocation of teachers to a classroom and the communication of such a decision was management action. Accordingly, the decision to allocate Students, A, B, and C to the Appellant's class was management action.

Students A, B, and C

  1. [139]
    Student A commenced attending the school towards the end of 2020 and since this time had a considerable number of negative behaviour incidents.[94] In the document prepared by Ms Hansen setting out the students with multiple incidents of misconduct/misbehaviour from 1 January 2020 to 31 December 2020[95] Student A was not included because he had left the school and the school leadership no longer had access to his data in OneSchool.[96]
  1. [140]
    The Student Plan for Student A outlines the following –
  1. –Difficulty with: self-regulation, engaging appropriately in unstructured environments
  1. –Limited understanding of action/consequence
  1. –Triggers: transition, change to routine
  1. –Requires frequent re-direction & cues to stay on task & follow instruction
  1. –Demonstrates disruptive, disrespectful behaviour[97]
  1. [141]
    Ms Miell gave evidence that she had given Student A in-class support in 2020 and had taken him out of the classroom to calm down.[98]
  1. [142]
    Ms Uittenbosch gave evidence that Student A had difficulties with regulating his emotions and behaviour and his attendance was very poor.[99]
  1. [143]
    Ms Hansen gave evidence that Student A was a highly complex child who was volatile, difficult, impulsive, highly intelligent, but dysregulated.[100]
  1. [144]
    The Student Plan for Student B notes that Student B had a considerable number of negative behaviour incidents in 2020.[101]
  1. [145]
    The Student Plan for Student B outlines the following –

Difficulties with self-regulation and peer problem solving. Limited understanding of action consequence. Requires use of specific tools – Wriggle stool, headphones. Parental concerns with anxiety. Difficulty with emotional regulation.[102]

  1. [146]
    On 23 February 2021, a progress note records that there had been a 'significant increase in behaviours resulting in frequent office referrals and suspension'.[103]
  1. [147]
    Ms Miell gave evidence that she had some involvement with Student B in 2020 involving her going to the classroom, talking with the teacher, setting up a space for him in the classroom, and using the 'Engine Room'.[104] The Engine Room is a regulation room where students who were heightened would go that would include sensory equipment for the students to use.[105]
  1. [148]
    Ms Uittenbosch gave evidence that in Prep, Student B had a couple of behaviour incidents but that she did not work very closely with him in Prep.[106]
  1. [149]
    Ms Hansen gave evidence that Student B could be oppositional, lacked attention span, and could become dysregulated and volatile.[107]
  1. [150]
    Ms Hansen gave evidence that although the school management saw incidents from Student B, "didn't anticipate the escalation that [they] saw when Student B was in the [2021] class.'[108]
  1. [151]
    The Student Plan for Student C notes that this student had a considerable number of negative behaviour incidents in 2020.[109]
  1. [152]
    Student C's Student Plan includes the following entry–

Impact:  Difficulties with self-regulation.

Difficulties with peer problem solving.

Displays aggressive behaviour towards others.

Requires frequent re-direction and cues to follow instructions.[110]

  1. [153]
    Ms Miell gave evidence that she had no concerns with Student C's behaviour in 2020 and had never been asked to have anything to do with Student C.[111]
  1. [154]
    Ms Uittenbosch gave evidence that she had little to do with Student C during Prep in 2020 and was not aware of any concerns about Student C's behaviour.[112]
  1. [155]
    Ms Hansen gave evidence that Student C was a bit of an 'unknown' and had not displayed high levels of behaviour previously,[113] however, in 2021 it became clear very quickly that her behaviour escalated significantly.[114]
  1. [156]
    The Appellant gave evidence that towards the end of 2020 Ms Miell, brought Students A, B, and C up to meet her separately and they were prepared with a photo book to remind them of who the Appellant was.[115]
  1. [157]
    The Covid pandemic had a significant impact on the school's ability to assess students due to online learning and high levels of absenteeism. Ms Uittenbosch was responsible for Prep and Grade 1 at the school during the relevant period. Ms Uittenbosch gave evidence that in 2020 Covid had a significant impact on the school's ability to assess children within the classroom, stating –

…Well, it's difficult to assess them when they're not there. Online learning – you know there were some changes, for example, in semester 1 reporting period. Their requirements for reporting were reduced for semester 1 2020. I know at [the school] they only reported on English, maths and science for that reason so, you know, like you can't assess someone on their reading if they're not at school consistently and another impact from COVID was really reduced attendance because, of course, no one is allowed to attend school when they have any symptoms so students' attendance was significantly affected.[116]

  1. [158]
    Ms Hansen gave evidence was that it was difficult to ascertain whether specific students had behavioural issues in Prep in 2020 or were not coping as there were long periods in which the students were not at school. In response to a question as to any problems in being able to identify behavioural students in prep in 2020, Ms Hansen stated –

…

Well, given that while there – there was times where they were at school

…

there were also long periods where they weren't. The validity of the information that we received – and, I guess, there was also a lot of anxiety that we – we saw. So it was hard to ascertain regularly through our normal processes where students were not coping or whether they were. I mean, it – it – it manifests in a classroom in front of you.

…

You see it. But, I guess, there were so many contributing factors that it – it was a very difficult year to utilise the processes that we normally put in place.[117]

  1. [159]
    The school leadership was aware that the significant impact of Covid on the attendance of students in Prep in 2020 made the data relating to progress unreliable, noting the very high rate of absenteeism. Ms Hansen also gave evidence about the impact on students' anxiety levels which manifests in behavioural difficulties. In these circumstances it was understandably difficult for the school leadership to rely upon the data obtained, particularly where they were aware that some of the anxiety and behavioural difficulties were connected to the irregular arrangements due to Covid. In these circumstances, the decisions regarding class composition were compromised by the unreliable data obtained in the 2020 year.
  1. [160]
    Evidence was given by the Appellant, Ms Miell, Ms Uittenbosch, and Ms Hansen regarding the process of structuring classes. In summary, the evidence indicated that towards the end of 2020 the Prep teachers proposed an initial structure for the next year's Grade 1 classes, as per the usual process. Consultation then occurred with Ms Miell as the inclusion teacher for Prep to Grade 2 and then with Ms Uittenbosch and Ms Hansen. The consultation would generally involve discussions around the needs of students, teacher capacity, parent requests, and where it would be best to place students. Ultimately, Ms Hansen would make the final determination in allocating the students to each class.[118]
  1. [161]
    Ms Uittenbosch stated that in making the decision about class composition, they would take into account the needs of the students, including their academic needs, social and emotional needs, personality types, behaviour, and the best interests of the staff.[119]
  1. [162]
    There were five teachers allocated to Grade 1 in 2021, including two beginning teachers and three experienced teachers. Ms Gill was a beginning teacher, and the Appellant was one of the three experienced teachers.[120] 
  1. [163]
    Ms Uittenbosch gave evidence that the types of factors taken into consideration for the 2021 classes included the fact that there were beginning teachers on the Year 1 team along with experienced teachers.[121] A shared teaching arrangement was in place for one of the experienced teacher classes which did not suit students who could not adjust to the change in routine. Requests from parents were also considered as part of the process although not all requests could be accommodated.[122]
  1. [164]
    Ms Hansen gave evidence that there were no verified students in the Appellant's 2021 class, however, there were other verified students in the Grade 1 cohort.[123] Verified students were those who had a verified diagnosis which attracted funding for support in the classroom.
  1. [165]
    The Appellant gave evidence that when she commenced planning for the 2021 year after being allocated the 1S class, she downloaded the students' reading records to understand their literacy level so that she could group them accordingly. The Appellant stated that other than two students whose reading level was 15, most of her class was below 10.[124]
  1. [166]
    Ms Hansen gave the following evidence regarding the Diagnostic Standardised Assessment Data Export spreadsheet covering 13 July 2020 to 31 December 2020–

… Well, in - in terms of the test, I just need to state that it's not a standardised testing mechanism. So every teacher who does the test does it in their own way and two different teachers can level children differently based on the same test. In terms of the data across the cohort, my understanding was that while Laura had a large number of students in her class that were flagged … it wasn't the only class who had a high number.

…

And running records are not usually a determinating factor around placing students in classes because there are a number of factors that may impact a child's ability to read a book. It could be that a child has English as a second language needs tuition in proficiency in English and so therefore can't read the book. There's a whole range of reasons why children wouldn't be reading at level. And, as a diagnostic tool, it's about determining what instruction might be needed in a classroom to build literacy proficiency.[125]

  1. [167]
    Ms Hansen confirmed that the spreadsheet indicated that class 1D contained one more student with low literacy levels than the number in the Appellant's class.[126]
  1. [168]
    I note the Appellant's submission that the Respondent only referred to class 1D and not the remaining three Grade 1 classes, indicating that the other classes had higher literacy levels than the Appellant's class.[127] This may be the case, however, the data relating to class 1D indicates that the Appellant's class did not have the lowest rates of literacy in the grade. Based upon the evidence of Ms Hansen as outlined at [168], I am not persuaded that the data contained in the spreadsheet was necessarily a reliable indicator of literacy. When comparing class 1D with 1S, 1D had lower literacy rates and was given to a beginning teacher. Class 1S had higher literacy levels, albeit marginally, and was given to the Appellant who was an experienced classroom teacher.
  1. [169]
    The Appellant submits that her class had a higher number of students reading below level 5 than the other classes and this adversely affected the Appellant. Ms Uittenbosch's evidence was that the reading levels for those students were not so much of a concern for her because 2020 had not been a normal schooling year. It appears that the Appellant put significant pressure on herself to immediately address the reading issues in her class. The Appellant did not suggest that she felt pressure from anyone in the school leadership to address the reading levels. The evidence indicates that the school leadership understood that reading levels had been impacted by significant absences associated with Covid in the previous school year.
  1. [170]
    Following the completion of the process for the allocation of students into classes for 2021, the Appellant was given a class that had significant literacy challenges from 2020 along with students with behavioural challenges. However, it is not the case that the other classes were without challenges. It was accepted that verified students were placed in other classes, meaning that students with diagnosed conditions were placed in a class other than that of the Appellant's. Whilst the status of these students as 'verified' attracted funding for some level of support, it is still the case that these classroom teachers had to manage these additional behavioural challenges and academic difficulties at times when the support was not present in the classroom.
  1. [171]
    Ms Hansen gave the following evidence in response to a question as to whether a determination was made to change the Appellant's class composition –

…Not at that stage, because we looked at other factors around health concerns of students, maybe medical conditions, numbers of students with English as a second language, numbers of students with social-emotional issues … and we felt that the classes were appropriately balanced commensurate with the experience of the teachers who were taking those classes and their proficiency. [128]

  1. [172]
    The Appellant submits that while the process that the school leadership had in place for composing classes for 2021 was arguably reasonable management action,[129] the management action was not taken in a reasonable way due to the composition of the classes for Year 1 in 2021 and the allocation of class S1 to the Appellant.[130]
  1. [173]
    The evidence indicates that the task of developing classes is difficult and complex. There are multiple factors to be considered by the school leadership when determining the appropriate composition of each class. I do not consider it useful to consider what was the 'most reasonable' action that could have been taken, particularly using the benefit of hindsight. The Appellant submits that the school failed to consider the risk factors present by the 'synergistic combination' of Students A, B, and C. It is clear that the presence of Students A, B, and C in the 1S class resulted in significant stress for the Appellant. However, in circumstances where other Grade 1 classes had inexperienced teachers, part-time or shared teachers, and a mix of students with verified diagnoses, it may be the case that placing these students in any of those classes could have led to other consequences due to the 'synergistic combination' of other student arrangements.
  1. [174]
    The Appellant submits that it was unreasonable that Students A, B, and C were placed in the Appellant's class given their history of misconduct and behavioural issues.[131] I am not persuaded that this metric indicates that the school acted unreasonably by placing Students A, B, and C in the Appellant's class. Multiple other factors also had to be considered by the school, including each teacher's level of experience, and ensuring that students who do not cope well with changes to routine are not placed in a shared teaching class.[132]
  1. [175]
    I note the Respondent's submission that when determining whether management action is reasonable and taken in a reasonable way, the competing interests that the school leadership had to balance must be considered. I accept the characterisation of these competing interests as including the following –
  • the obligations imposed by the anti-discrimination legislation;
  • the inclusive education policy which outlines the right for all students with all needs to have the same access to learning;
  • the interests of the students; and
  • the skills and ability of the teachers allocated to teach those students.[133]
  1. [176]
    The decision to put Students A, B, and C in the same class was revisited during the term after the Appellant raised concerns, and a decision was made to remove Student C and place her into a different class. This does not indicate that the original action regarding class structure was unreasonable, rather, reasonable action was taken to address the Appellant's concerns within a reasonable timeframe.
  1. [177]
    The Appellant submits that the placement of Students A, B, and C in her class contributed to her injury, however, I note the Appellant's evidence that the decision to remove Student C did not have any significant impact on her class. I accept that the school leadership engaged in a reasonable process to allow significant input from the Prep teachers who had taught these students and the inclusion staff when determining the class compositions. I also accept that other factors such as parental requests had to be considered along with medical conditions and the placement of non-English speaking students. The school leadership then had to ensure that the teachers allocated to each class reflected their experience and work schedule to most appropriately fit the class. This is not an exact science; however, I accept that the school leadership undertook a process and were satisfied that the classes were appropriately balanced. I am not satisfied that the decision relating to the class composition, including the placement of Students A, B, and C in the Appellant's class, was unreasonable management action or that it was taken in an unreasonable way in connection with her employment.

The support provided to the Appellant (stressors 61,62,64 and 65)

  1. [178]
    The documentary evidence supports the Appellant's oral testimony that she sought support in relation to her class. This includes emails of 21 February 2021, 14 March 2021, 19 March 2021, and 22 March 2021.
  1. [179]
    The Appellant submits that the significant difference for her in 2020 compared to 2021 was the level of support she received from the school. The Appellant gave evidence that in 2020 she had a student in her class who was verified with autism and consequently she received the support of an inclusion teacher's aide and assistance from Ms Miell.[134]
  1. [180]
    The Appellant's evidence was that because she did not have a verified student in 2021, she no longer received support from Ms Miell.[135]
  1. [181]
    On 4 March 2021, the Appellant sent an email to Ms Uittenbosch outlining her concerns about her class.[136] In this email the Appellant stated that she appreciates that Student C has been transferred to another class, however, Students A and B continue to require one‑on‑one support to manage their behaviour.
  1. [182]
    Ms Uittenbosch gave evidence that after she received the Appellant's email, she shared the Appellant's concern with the leadership team, Principal, Deputies, and Head of Curriculum because rosters/timetables were in development at that time.
  1. [183]
    The Appellant submits that Ms Uittenbosch did nothing to address the Appellant's concerns regarding the timetabling of additional teacher aide assistance and did not provide a formal reply to the Appellant's email other than stating that she would see what she could do.
  1. [184]
    In response to questions regarding this email, Ms Hansen gave evidence that she believed that she had a conversation with Ms Uittenbosch about the email and looked at the range of issues and would have looked at the cohort again. The Appellant submits that the evidence from Ms Hansen should be given negligible weight on the basis that it appears to have been an attempt at reconstruction as to what happened. I did not form the view that Ms Hansen was attempting to reconstruct what had happened, although it did not appear that Ms Hansen had a clear memory of particular conversations. Overall, my impression was that Ms Hansen was a reliable witness when recalling these matters.
  1. [185]
    The Appellant submits that the evidence of Ms Gill that she had discussions with the Appellant about the lack of support that they were receiving from the school confirms that it was not simply the perception of the Appellant that there was a lack of support for the Grade 1 teachers but in fact a shared view of other teachers as well. As a teacher of another Grade 1 class, Ms Gill's evidence indicates that it was not the case that the Appellant had been disadvantaged due to unreasonable class allocation, or that other classes had fewer challenges.
  1. [186]
    Ms Gill was a beginning teacher teaching Grade 1 in the year after the Covid pandemic interrupted their schooling. It is not surprising that Ms Gill would have liked to have received more support, just as it is not surprising that the Appellant would have liked more support. The difficulty is that the support that the school leadership were able to supply was limited.
  1. [187]
    The Appellant gave evidence that she was required to evacuate her class on many occasions. Ms Hansen's evidence was that whilst she acknowledged the Appellant had evacuated her class on occasion, that happened regularly across the school.[137] Ms Gill gave evidence that she also evacuated her class and outlined the process she adopted to do so safely. I accept that having to evacuate a class would be a stressful occurrence, however, the evidence of Ms Hansen indicates that it was not only the Appellant who had to manage this process. The evidence of Ms Gill indicates that even beginning teachers had challenging students within their class that resulted in evacuations.
  1. [188]
    I accept the Respondent's submission that the fact that evacuations occur and that procedures have to be put in place and written plans developed to respond to such events does not mean that an expectation of a teacher to respond to those situations is unreasonable.
  1. [189]
    The Appellant confirmed that she received the same timetabled support from a teacher aide as the other Grade 1 classes for either a half hour or an hour for reading groups.[138] The Appellant submits that the 'reactive assistance' that she received was the same as was available to every other teacher in the school and did not take into account the extra difficulties the Appellant faced with her class. In circumstances where funding was not available to provide greater support, this was reasonable management action.
  1. [190]
    The Appellant gave evidence that she understood that she would be supported in the form of teacher aide support, physical hands-on support, and people-in-the-room support,[139] although admitted that no one had outlined the support that she would be receiving in 2021.[140] It is unclear why the Appellant would have expected to have greater 'people-in-the-room' support when this was never communicated, particularly given her knowledge of the process for funding for support being linked to the presence of students with a verified diagnosis.
  1. [191]
    The Appellant submits that the support provided was 'reactive support' in that it was provided only when she called for assistance.[141] The evidence indicates that school leadership did provide reactive support, with action taken on every single occasion bar one following the Appellant's request for support. That was not an insignificant amount of support.
  1. [192]
    The school leadership also provided other assistance to the Appellant through Ms Barnes, the literary support teacher, Ms Odorici, through informal 'check-ins', and Ms Blount from the LEAP program for Student A. Ms Blount from LEAP attended the Appellant's classroom on a Wednesday, however, I note that this was only for half an hour and not for the full two hours that Student A was in the Appellant's class.[142]
  1. [193]
    Ms Gill gave evidence that after the teaching staff raised concerns with the leadership team, they adjusted things around the school to assist the Year 1 teaching staff which resulted in the provision of more inclusion support towards the end of Term 1 and at the beginning of Term 2.[143]
  1. [194]
    In Ms Uittenbosch's evidence, she stated that she had liaised with the Metro Behaviour Service about additional support for Student A and Student B. This was intended to involve the behaviour advisory person coming out to support and provide additional strategies to the teacher and others who were supporting Student A and Student B.[144]
  1. [195]
    Ms Uittenbosch stated that a behaviour advisory person allocated to Student B came out to the school and worked with the Appellant to develop an Individual Behaviour Support Plan for Student B.[145]
  1. [196]
    The Appellant submits that the evidence from Ms Uittenbosch regarding the support from the Metro Behaviour Service was not put to the Appellant in cross-examination in breach of the rule in Browne v Dunn.[146] I accept that in circumstances where the Appellant was not given the opportunity to provide evidence regarding the impact of this support, limited weight should be given to this evidence beyond the factual evidence that Ms Uittenbosch engaged with Metro Behaviour Service to obtain support.
  1. [197]
    In reference to the completion of a referral to Metro Behaviour Service by school leadership for Student B, the Appellant submits that this did not occur until at the earliest 4 March 2021, with a meeting in relation to Student B not arranged until 22 March 2021. The Appellant submits that this was too little and too late as far as the Appellant's mental health was concerned.[147] It is important to consider the time periods involved in this decision. A referral was made to Metro Behaviour approximately 6 weeks after the commencement of the school term. It was not unreasonable to consider how the students settled into their new classes before seeking external assistance. The delay in this case was not unreasonable.
  1. [198]
    Regarding her interactions with Student B, Ms Uittenbosch gave the following evidence –

Often we call it a reset day so if Student B wasn't ready to learn and demonstrated by his behaviour or his ability to regulate then he would have a reset day so his parents would collect him, take him home, and we'd start afresh the next day or sometimes he was also suspended to the point where this was impacting the parents' employment because I was calling them often.[148]

  1. [199]
    Ms Hansen gave evidence that the school leadership utilised its Investing for Success funding to pay for a full-time teacher who supported staff across the school and responded to behavioural issues or social-emotional issues in class.[149] The Appellant submits that as this evidence was not put to the Appellant during cross-examination, the evidence should be set aside in accordance with the rule in Browne v Dunn.[150] The Appellant also submits that this funding appears to have been for the Learning Engagement teacher role held by Ms Odorici in 2021. Whilst the Appellant was not given the opportunity to provide evidence as to the use of the Investing for Success funding, she did provide evidence about the support provided by Ms Odorici. It is irrelevant whether the Appellant knew the source of funding for Ms Odorici's role. I accept the evidence that the school utilised this funding to retain a full time Learning Engagement teacher to respond to behavioural issues in class, and this role was occupied by Ms Odorici.
  1. [200]
    In relation to Ms Blount from the LEAP program attending at the school, the Appellant submits that Ms Blount was a witness who was effectively supportive of the employer and was therefore a witness that the Respondent would be expected to call. The Appellant submits that the Commission is entitled to draw an inference that Ms Blount's evidence would not have assisted the Respondent in relation to the issue of the level of support provided to the Appellant in accordance with the Jones v Dunkel principle.[151] In circumstances where the Appellant has confirmed the involvement of Ms Blount and the LEAP program, I am not of the view that Respondent would be expected to call Ms Blount and hence no adverse inference will be made.
  1. [201]
    The Appellant acknowledged that extra non-contact time was provided to enable her to complete planning and paperwork, however, contends that this did not support the Appellant in managing the behaviour of Students A, B, and C in her classroom. It seems to me that any action in providing the Appellant with time outside of the classroom for planning and to complete paperwork allowed the Appellant more time within the classroom to focus on teaching and managing the behaviour of students.
  1. [202]
    The Respondent outlined at paragraphs 12(k) and 12(l) of their SOFC a number of actions taken by the school leadership to support Student A and Student B and their respective families, however, the Appellant contends that these actions were not taken to support the Appellant in managing her classroom. I do not accept this submission, noting that many of the actions taken directly assisted the Appellant. At 12(k)(iv) and (v) the Respondent outlines the following –
  1. on 9 February 2021, the deputy principal gained consent for student A to be placed on a part time education plan which meant that he would be absent from the appellant's classroom on Mondays and Tuesdays;
  1. commencing from Wednesday, 24 February 2021, when student A was attending in the appellant's classroom, he attended for two hours and support was provided by a LEAP behaviour support teacher until Week 9 of Term 1…[152]
  1. [203]
    The Appellant's evidence reflects a particularly insular perspective, when it seems that the assistance given to the students and their families was aimed at improving the student's ability to behave and perform appropriately in the classroom or to obtain greater support through a formal diagnosis. The Appellant was not the only person at the school attempting to deal with Students A, B, and C, with the school leadership undertaking almost daily tasks related to these students.
  1. [204]
    I note that due to the actions of school leadership, Student A was suspended for much of the time in which he was in the Appellant's class in response to inappropriate behaviour. As a consequence of suspensions and the Appellant's absences, the Appellant only had Student A in her classroom for approximately 14 days.[153] I accept that these were difficult days, however, the evidence demonstrates the school leadership actively supported the Appellant by ensuring that misbehaviour was addressed.
  1. [205]
    An email was sent by Ms Barnes dated 3 April 2021, stating that nine students in the Appellant's class had been identified for specific reading support for Term 2. The decision to arrange for additional reading assistance in Term 2 was reasonable management action taken in a reasonable way.
  1. [206]
    The Appellant contends that there was no way that the Appellant could provide 1:1 attention to Students A, B, and C as well as address the low literacy levels of half of her class. It is clear that Students A, B and C would have benefitted from 1:1 support, however, the provision of such support is entirely dependent on the resources available to the school. It is also noted that there is no evidence that the school leadership expected the Appellant to provide 1:1 support to Students A, B, and C, and improve the literary levels of her class.
  1. [207]
    The evidence indicates that whilst the Appellant was enduring a difficult class, the management of the school were acting reasonably to address her concerns. As with any school, the school did not have limitless funding to provide greater support in the form of teacher aides or inclusion teachers to all students who require assistance, particularly those who did not have a verified disability.
  1. [208]
    The evidence indicates that the school leadership had procedures in place to support dysregulated students. There were a number of inclusion staff who worked in a support area, which included an 'Engine Room' which provided sensory equipment for the students to use when they were removed from class.
  1. [209]
    The staff available to support the students included a behaviour specialist, Ms Jo Odorici (learning engagement teacher) and inclusion teachers and inclusion teacher aides. The Appellant gave evidence that she interacted with Ms Odorici more than any of the other support staff because her students did not have a diagnosis.[154]
  1. [210]
    Whilst the Appellant describes the support from the inclusion staff and Ms Odorici as 'reactive' only,[155] it was nonetheless a system of support that allowed the Appellant to seek support at any time.
  1. [211]
    In terms of proactive support, Ms Uittenbosch gave evidence that she began liaising with the Metro Behaviour Service in Term 4 2020 for Student A and had begun discussions about additional supports for Student B in Year 1.[156]
  1. [212]
    The school arranged for Student A to only attend school part-time, with Ms Uittenbosch stating that the purpose of the reduced attendance hours arrangement was so that a student could experience success and then build on that to increase Student A's time at school.
  1. [213]
    Ms Uittenbosch started having discussions with Student A's father following his suspension about continuing to access external support to further investigate Student A's needs in terms of ADHD and possible ASD, and getting assessments done through the Child Development Services ('CDS'). Discussions also covered gaining consent for the school to put in a referral for Student A to attend an alternative placement setting for a couple of days per week and the school for a couple of days per week. Student A's father consented to this arrangement.[157]
  1. [214]
    Ms Uittenbosch gave evidence that whilst Student A's father was receptive to the idea of having him assessed, he would not always follow through. Consequently, Ms Uittenbosch stated that she would speak to Student A's father almost every day and follow through on where he was in terms of doctors' appointments and referrals to CDS. The evidence was that following these attempts they did commence liaising with CDS.[158] Ms Uittenbosch stated that she would check in with Student A's father at pick up time if she had not already phoned him earlier to collect Student A from school because he was not behaving appropriately.[159]
  1. [215]
    Regarding the LEAP program, Ms Uittenbosch gave evidence that Student A would attend this program at a different school and then on Wednesday, Thursday, and Friday, Student A would attend the school as part of a part-time education plan allowing for two hours attendance each morning.[160]
  1. [216]
    Ms Uittenbosch gave evidence there was a lot of contact with Student B's parents and transition plans were put in place for before school and moving into classrooms as he would often arrive to school very unsettled.[161]
  1. [217]
    Ms Uittenbosch's evidence was that all possible assistance has been provided to the Appellant and that the school had exhausted all avenues of assistance.
  1. [218]
    The evidence indicates that while the Appellant was struggling with Students A, B, and C in her classroom, the school leadership were actively dealing with other aspects of these students lives. The actions in liaising with Metro Behaviour Service, liaising with LEAP, having almost daily conversations with the parents, immediately removing the students following misbehaviour, suspending the students on multiple occasions, and working with parents to obtain diagnoses demonstrate that reasonable actions were being taken to manage the challenges posed by these students' behaviour. 
  1. [219]
    The evidence of Ms Uittenbosch was that after several discussions with the Appellant a decision was made by the leadership team to move one of the students from the Appellant's class to ease the load.[162] Ms Uittenbosch stated that a decision was made to move Student C rather than Students A or B because connections had been made with their parents, partnerships had been made between LEAP and the Appellant as their teacher, and it was believed that Student C would cope better with the transition to a different class. Regarding the decision to remove Student C from the Appellant's class, Ms Uittenbosch stated that the reason Student C was chosen to move was because she felt there was too much else in place for both Student A and Student B and, for the types of personalities that they had, she did not think they would cope with the change.[163]
  1. [220]
    Ms Hansen gave the following evidence regarding the decision to take Student C out of the classroom–

… as I explained to you earlier, that process of balancing classrooms is extremely complex. You move one child from one classroom and sometimes you can create an even bigger problem in another classroom. So we had to do checks and balances around combinations of students' issues, where they're looking at the experience of the teacher; looking at how the teachers were managing their own classes; the distribution of disability; a whole range of things. It – the decision was made that it – best person to move from the class was student C, at – based on all of those factors.

Okay? --- We also had to get parent consent, as well.

And, well, which parents have to give that consent? --- The parent of the child being moved. [164]

  1. [221]
    The Appellant gave evidence that Ms Uittenbosch came to her in Week 6 to advise that one of the students would be moved out of her class and asked which of the students the Appellant would like them to move. The Appellant stated that her preference was Student A because she had the least relationship with him, and he did not really have a relationship with her or other students in the class. The Appellant gave evidence that she had built up a good rapport with the parents of Students B and C, stating that she had spent a lot of time with Student B and had built up a good relationship with Student B's mother.[165]
  1. [222]
    The Appellant submits that the decision to remove Student C was imposed upon the Appellant despite her cogent reasons for preferring to having Student A removed, and was not reasonable management action, nor was the management action taken in a reasonable way. Whilst the Appellant did have cogent reasons for preferring to have Student A removed, there were equally cogent reasons for Student C to be removed. As stated by Ms Hansen in her evidence, there are multiple factors to be considered when moving a student between classes and the school leadership had to consider all of these factors. The teacher's preference is not the sole determinative factor.
  1. [223]
    I also note that at the time the decision was made to move Student C, the proposal was for Student A to be attending LEAP for three days a week in Term 2. It was not an unreasonable decision to remove Student C given the view that this student would have been most able to cope with the transition to a new class and the likelihood that Student A's presence in the Appellant's class was to be even more limited in Term 2.
  1. [224]
    The Appellant gave evidence that Student C being moved out her classroom had very little impact because Students A and B were the more disruptive students. In addition, the Appellant contends that Student C's behaviour still disturbed the Appellants' class because she was placed in the kitchen when she was yelling and being loud and the kitchen adjoined each of the four classrooms, such that the Appellant's class would also be disturbed by Student C.[166]  The Appellant again appears to have an insular perspective on what options were reasonably available to the leadership team in these circumstances. The noise generated by Student C impacted on four classrooms, not just that of the Appellant. The action in removing Student C at the very least ensured that the Appellant did not have the additional stress of managing the behaviour of Student C in her own classroom. I am not persuaded that the removal of Student C had 'very little impact' where the Appellant also contends that Student C was so loud that her class continued to be disturbed by her conduct after her removal.
  1. [225]
    The Appellant contends that the decision by school leadership to remove Student C from the class in Week 6 of the term was not reasonable because the action was 'late and inadequate'.[167] I am not persuaded that an unreasonable amount of time lapsed before making the decision to move Student C to another class. As outlined in the evidence of Ms Uittenbosch and Ms Hansen, there are many factors that are considered when structuring a class and similar factors are considered when decisions are made to move students to another class after the school year has commenced. Moving a student mid-way through a term is a serious decision requiring parental consent, and in these circumstances, I am of the view that managing the situation for six weeks prior to making the decision was not unreasonable. As previously outlined, students had been through a disrupted year in 2020 due to Covid including undertaking online learning and high levels of absenteeism. Allowing a period of transition back to the usual requirements of face-to-face learning and regular school attendance was reasonable. The school leadership acted reasonably when deciding to move Student C to another class in Week 6 and this action was taken in a reasonable way.
  1. [226]
    The Appellant exchanged emails with Ms Uittenbosch on 4 March 2021 regarding the support being provided by the school.[168] In the first email, the Appellant requests further support, however, states the following –

Firstly, thank you for the support that you have provided me with this year. You have truly done a lot to support me and my students – attending our classroom, removing students when required, communicating the parents, moving [Student C], and much more. You have gone above and beyond what I imagine a P-2 Deputy Principal should be required to do.[169]

  1. [227]
    The Appellant's email proceeds to state that despite the assistance provided by Ms Uittenbosch, greater assistance is required.
  1. [228]
    Ms Uittenbosch responded to the Appellant's email on 4 March 2021, stating –

Thanks for acknowledging the support given to you and again I acknowledge the adjustments you make daily for your students. While [Student A] and [Student B] attract no additional funding, they access significant support. From week 1 I have liaised with Metro Behaviour to gain placement in the LEAP program which falls into the category of a positive learning centre and I established a part time education plan for [Student A]. Neither [Student A] or [Student B] are in care and therefore do not attract ESP funding. I am in daily communication with both boys families to work towards the best outcomes for each of them. I have today organised for a Metro Behaviour referral for [Student B] and gained consent from his mum. While I cannot allocate 1-1 support for these boys I will do my very best to support and respond to their needs. I would like to discuss further face-to-face if you have any time tomorrow.[170]

  1. [229]
    The Appellant sent an email in reply to Ms Uittenbosch, stating –

I agree. As I said in my initial email, you are doing an awful lot to support me. You have been a great advocate for [Student A], [Student B] and their families. I can't imagine the stress that this is adding to your already stressful job.

The key concern I was trying to communicate is that they require more than what we are currently equipped to provide. As you say, you cannot assign them 1-1 support and yet this is precisely what they required and what I require to be able to effectively teach them and the other students in my class.

I am more than happy to discuss my concerns in person.[171]

  1. [230]
    The above email exchange supports a conclusion that Ms Uittenbosch was doing all that she could to support the Appellant. Although the Appellant was grateful for that support, she was of the view that more support should be made available to her. The Appellant may well be correct that these students required 1:1 support, however, the school (like every other school) is limited as to the level of support that can be provided.
  1. [231]
    The Appellant gave evidence that she began to develop concerns about her ability to manage her class for 2021 and began to experience symptoms of IBS:

… I'd just started to do my planning and I was having – looking at this in black and white and thinking this is – this is really hard. I don't think I can do this. I am really worried. I – I know that they can't put that level of support in my classroom. [emphasis added][172]

  1. [232]
    The Appellant's evidence indicates that she recognised even before the start of Term 1 that the ability to place timetabled support in her class was limited and that school leadership could not 'put that level of support' in her classroom.
  1. [233]
    The Appellant's submission that Ms Uittenbosch and the school leadership gave meaningless platitudes and paid lip service to the Appellant's concerns is not persuasive. The evidence demonstrates that Ms Uittenbosch was dealing with matters relating to Students A, B, and C on an almost daily basis. A pertinent example was Ms Uittenbosch's actions which resulted in Student A only spending 2 hours per day in the Appellant's classroom on four days per week (attending LEAP on Wednesdays). The Appellant may not have recognised this as 'support', however, it ensured that the Appellant did not have to manage Student A in her classroom full-time. The reality was that the Appellant wanted support in the form of allocated assistance in the classroom, preferably to allow for 1:1 support with the relevant students, and was not able to accept that finite resources did not allow for this to occur.
  1. [234]
    As outlined by President Martin J in Davis, the task of the Commission when applying s 32(5) is to assess the management action that was taken and determine whether it was reasonable and whether it was taken in a reasonable way.
  1. [235]
    I am satisfied that the evidence supports a determination that the school leadership acted reasonably in allocating class 1S to the Appellant and acted reasonably in supporting the Appellant in her role as a classroom teacher.
  1. [236]
    The actions of the school leadership in supporting the Appellant were reasonable and taken in a reasonable way in connection with her employment.

Conclusion

  1. [237]
    It is common ground that the Appellant suffered a personal injury, and that the injury arose out of her employment.
  1. [238]
    The Appellant's evidence and the medical evidence of Dr Calvird and Dr Kobayashi demonstrates that the Appellant's employment was a significant contributing factor to the injury.
  1. [239]
    Stressors 2 to 8, 10 to 54 and 57 to 60 (conduct related to Students A, B, and C) are accepted as evidence by the OneSchool records. It is accepted that these stressors contributed to the Appellant's injury on the basis of the Appellant's evidence and the evidence of Dr Calvird.
  1. [240]
    Stressor 55 (the parent-teacher interviews) is accepted, and the evidence of the Appellant is accepted regarding the impact of this stressor on the development of her injury.
  1. [241]
    Stressor 56 (the Appellant being informed that Student A would not be attending LEAP in Term 2) is substantiated and the evidence of the Appellant is accepted as supporting a conclusion that this stressor contributed to the Appellant's injury.
  1. [242]
    Stressor 63 (reports from students that they felt unsafe whilst in the classroom) is substantiated by the school records. The report of Dr Calvird of 2 September 2021 supports a finding that this stressor contributed to the Appellant's injury.
  1. [243]
    The medical evidence, particularly that of Dr Calvird, along with the Appellant's oral evidence demonstrates that the Appellant's injury arose out of the events associated with the students in her class (the non-management stressors) and the actions taken by the school leadership (management action stressors). The evidence does not support the submission made by the Appellant that the injury occurred notwithstanding management action.
  1. [244]
    Stressors 1, 61, 62, 64 and 65 arose out of management action. The evidence does not support a finding that the decision to allocate Students A, B, and C in the Appellant's Grade 1 class was unreasonable or taken in an unreasonable way. The evidence does not support a finding that insufficient classroom support was provided to mitigate against incidents caused by Student A, B, and C or to ensure a safe classroom and safe workplace. The evidence does not support a finding that insufficient support was provided to ensure the Appellant was able to deliver teaching to an effective level while Student A, Student B, and Student C were present in the classroom. For the reasons outlined above, I consider that the school leadership took reasonable management action in a reasonable way throughout the relevant period.
  1. [245]
    I note the Appellant's evidence that she had utilised all of the management strategies to address the students' behaviour, confirming that there was nothing else she could have implemented in the classroom.[173] On the basis of the evidence from the school leadership that the Appellant was an excellent, competent and dedicated teacher, I have no difficulty in accepting that the Appellant did use every strategy possible to address the students' behaviour. There was no evidence before the Commission that the Appellant could have adopted any other strategies to manage her classroom. The Appellant presented as a dedicated teacher who was committed to advocating for her students. At no point throughout these proceedings was it suggested that the Appellant could have done more for her students.
  1. [246]
    The difficulty for the Appellant's claim is that not only was she stressed by the non‑management actions, but the medical evidence confirms that she was significantly stressed by her view that the support provided by the school leadership was insufficient.
  1. [247]
    The Appellant submits that management may have avoided the Appellant decompensating if they had taken 'proactive and timely action' when the Appellant first raised concerns.[174] Much of the Appellant's submissions on this point relate to the school taking action at an earlier stage. Notwithstanding the ongoing actions by the school to manage broader issues regarding Students A, B, and C,  many actions relating to their classroom presence occurred within a number of weeks of the school year commencing. Noting the availability of immediate support in response to a request for assistance, I do not consider the time taken to source and establish proactive support to have been unreasonable.
  1. [248]
    I also note that the school leadership's actions in working with the students' parents to obtain diagnoses would ultimately have led to increased funding and further support for the classroom teacher. These actions were appropriate and reasonable but could not yield an immediate result for the Appellant.
  1. [249]
    If it were not for the existence of stressors arising out of management action, the injury would be one for acceptance. However, the existence of s 32(5) requires consideration of whether the injury arose out of reasonable management action taken in a reasonable way. The medical evidence supports a determination that management action was a significant contributing factor, along with the other non-management action stressors. As outlined above, the evidence supports a conclusion that the injury arose out of reasonable management action taken in a reasonable way in connection with the Appellant's employment.
  1. [250]
    I am satisfied the management action taken in relation to the nominated stressors was reasonable. As a consequence, s 32(5) of the Act is enlivened to exclude the Appellant's claim. Accordingly, the Appellant did not suffer an injury within the meaning of the term pursuant to s 32 of the Act.

Orders

  1. [251]
    I make the following orders:
  1. The appeal is dismissed.
  1. The decision of the Workers' Compensation Regulator is confirmed.
  1. Failing agreement on costs, to be the subject of a further application to the Commission.
  1. Liberty to apply.

Footnotes

[1] Rossmuller v Q-COMP [2010] ICQ 4

[2] McDonald v Q-COMP (No. 2) (2008) 188 QGIG 180; Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301

[3] Briffa v Q-COMP (2005) 180 QGIG 70

[4] Name of school suppressed to protect identities of students.

[5] Exhibit 1, Volume 2, Trial Bundle, [614].

[6] Appellant's written submissions filed on 4 August 2023, [38].

[7] T 1 – 19, ll 29 – 31.

[8] T 1 – 27, ll 11 – 14; T 1 – 25, ll 1 – 6.

[9] T 1 – 26, ll 9 – 10.

[10] T 1 – 20, ll 27 – 40; T 1 – 68, ll 42 – 46; T 1 – 69, ll 1 – 10.

[11] T 1 – 24, ll 32 – 44.

[12] T 1 – 20, ll 44 – 46.

[13] T 1 – 43, ll 15 – 21; T 1 – 43, ll 34 – 45.

[14] T 2 – 63, ll 3 – 16; T 3 – 29, ll 25 – 36; T 4 – 5, ll 9 – 15, 29 – 40; T 4 – 15, ll 41 – 46.

[15] T 1 – 44, ll 1 – 32.

[16] T 1 – 30, ll 31 – 42.

[17] T 1 – 30, ll 44 – 47.

[18] T 1 – 23, ll 1 – 24; T 1 – 32, ll 27 – 29.

[19] T 1 – 23, ll 1 – 5; T 1 – 32, ll 22 – 27; T 2 – 24, ll 42 – 46; T 2 – 25, ll 1 – 2.

[20] T 1 – 65, ll 20 – 29.

[21] T 1 – 65, ll 32 – 33.

[22] T 1 – 65, ll 33 – 43.

[23] Exhibit 1, Volume 2, Trial Bundle, [843].

[24] T 1 – 70, ll 28 – 38.

[25] T 1 – 70, ll 40 – 47; T1 – 71, ll 1 – 15.

[26] T 1 – 49, ll 31 – 34.

[27] T 1 – 66, ll 5 – 13.

[28] E.g., describing a student 'wrecking' a classroom when the OneNote records indicate less serious conduct.

[29] T 2 – 62, ll 41 – 44; T 2 – 63, ll 1 – 6.

[30] T 2 – 63, ll 18 – 29.

[31] T 2 – 84, ll 35 – 46.

[32] T 2 – 54, ll 45 – 47; T 2 – 79, l 22.

[33] T 3 – 31, ll 4 – 12.

[34] T 3 – 31, ll 4 – 30.

[35] T 3 – 31, l 48; T 3 – 32, ll 1 – 14.

[36] T 3 – 31, ll 37 – 34.

[37] T 4 – 8, ll 45 – 46; T 4 – 9, ll 1 – 9.

[38] T 4 – 8, ll 35 – 41.

[39] T 3 – 31, ll 27 – 34; T 4 – 4, ll 25 – 28.

[40] T 4 – 11, ll 30 – 39.

[41] T 4 – 11, ll 19 – 22.

[42] T 4 – 47, ll 1 – 29.

[43] T 3 – 11, ll 7 – 12; T 3 – 11, ll 14 – 23.

[44] T 3 – 11, ll 25 – 29.

[45] T 3 – 20, ll 29 – 39.

[46] T 4 – 41, ll 13 – 47; T 4 – 42, ll 1 – 8.

[47] (1959) HCA 8; 101 CLR 298.

[48] Exhibit 1, Volume 1, Trial Bundle, [75].

[49] Exhibit 1, Volume 1, Trial Bundle, [453].

[50] T 2 – 16, ll 1 – 5.

[51] Exhibit 1, Volume 1, Trial Bundle, [453].

[52] Exhibit 1, Volume 1, Trial Bundle, [454].

[53] Exhibit 1, Volume 1, Trial Bundle, [455].

[54] Exhibit 1, Volume 1, Trial Bundle, [281].

[55] Exhibit 1, Volume 1, Trial Bundle, [457].

[56] Exhibit 1, Volume 1, Trial Bundle, [40].

[57] Exhibit 1, Volume 1, Trial Bundle, [143].

[58] T 2 – 46, ll 37 – 43.

[59] T 2 – 47, ll 1 – 10.

[60] Exhibit 1, Volume 1, Trial Bundle, [147].

[61] Exhibit 1, Volume 1, Trial Bundle, [443].

[62] Exhibit 1, Volume 1, Trial Bundle, [454].

[63] Exhibit 1, Volume 1, Trial Bundle, [143].

[64] Exhibit 1, Volume 1, Trial Bundle, [145].

[65] Including the Personalised Learning Plan and Students with Multiple Incidents Report.

[66] Respondent's written submissions filed on 30 October 2023, [13].

[67] Exhibit 1, Volume 2, Trial Bundle, [626].

[68] Exhibit 1, Volume 2, Trial Bundle, [680].

[69] Exhibit 1, Volume 2, Trial Bundle, [701-703].

[70] Exhibit 1, Volume 2, Trial Bundle, [707-710].

[71] Exhibit 1, Volume 2, Trial Bundle, [705].

[72] Exhibit 1, Volume 2, Trial Bundle, [719].

[73] T 1 – 69, ll 36 – 45.

[74] T 2 – 33, ll 44 – 47.

[75] T 1 – 56, ll 9 – 12; T 1 – 70, l 47 to T 1 – 71, ll 1 – 3.

[76] T 1 – 54, ll 24 – 34.

[77] T 4 – 23, ll 24 – 41.

[78] Exhibit 1, Volume 2, Trial Bundle, [621].

[79] Exhibit 1, Volume 2, Trial Bundle, [676].

[80] Exhibit 1, Volume 2, Trial Bundle, [672].

[81] Appellant's written submissions filed on 4 August 2023, [14].

[82] [2014] ICQ 009, 51.

[83] Davis v Blackwood [2014] ICQ 009, 51.

[84] [2015] ICQ 027, 44.

[85] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027, 44.

[86] [2016] ICQ 010.

[87] Simon Blackwood (Workers' Compensation Regulator) v Mahaffey [2016] ICQ 10, 32.

[88] Appellant's written submissions filed on 4 August 2023, [54].

[89] Simon Blackwood (Workers' Compensation Regulator) v Mahaffey [2016] ICQ 10, 43.

[90] [2020] ICQ 2, 86.

[91] Workers' Compensation Regulator v Langerak [2020] ICQ 2, 86.

[92] Exhibit 1, Volume 2, Trial Bundle, [744].

[93] [2022] QIRC 264, 200.

[94] Exhibit 1, Volume 2, Trial Bundle, [633].

[95] Exhibit 1, Volume 2, Trial Bundle, [718].

[96] T 4 – 43, ll 9 – 14.

[97] Exhibit 1, Volume 2, Trial Bundle, [634].

[98] T 2 – 55, ll 40 – 47.

[99] T 3 – 28, ll 29 – 36.

[100] T 4 – 16, ll 24 – 30.

[101] Exhibit 1, Volume 2, Trial Bundle, [697].

[102] Exhibit 1, Volume 2, Trial Bundle, [699].

[103] Ibid.

[104] T 2 – 56, l 46 to T 2 – 57, l 2.

[105] T 2 – 56, ll 43 – 47; T 2 – 57, ll 1 – 2.

[106] T 3 – 30, ll 30 – 35.

[107] T 4 – 17, ll 1 – 7.

[108] T 4 – 17, ll 10 – 12.

[109] Exhibit 1, Volume 2, Trial Bundle, [718].

[110] Exhibit 1, Volume 2, Trial Bundle, [710].

[111] T 2 – 55, ll 5 – 9.

[112] T 3 – 30, ll 41 – 45; T 3 – 72, ll 1 – 7.

[113] T 4 – 19, ll 20 – 28.

[114] T 4 – 19, ll 25 – 36.

[115] T 1 – 19, ll 22 – 42.

[116] T 3 – 26, ll 3 – 11.

[117] T 4 – 7, ll 2 – 12.

[118] T 2 – 54, ll 13 – 25; T 3 – 26, ll 46 – 49; T 3 – 27, l 28; T 4 – 9, ll 14 – 46; T 4 – 10, ll 1 – 39; T 2 – 58, ll 15 – 18.

[119] T 3 – 27, ll 6 – 22.

[120] T 4 – 9, ll 6 – 9.

[121] T 3 – 43, ll 27 – 49.

[122] T 3 – 27, ll 34 – 38.

[123] T 4 – 16, ll 1 – 6; T 4 – 15, ll 3 – 6.

[124] T 1 – 28, ll 4 – 40.

[125] T 4 – 12, l 41 to T 4 – 13, l 7.

[126] T 4 – 13, ll 12 – 17.

[127] Appellant's written submissions filed on 4 August 2023, [157].

[128] T 4 – 14, ll 44 – 47 to T 4 – 15, ll 1 – 3.

[129] Appellant's written submissions filed on 4 August 2023, [424].

[130] Appellant's written submissions filed on 4 August 2023, [426].

[131] Exhibit 1, Volume 2, Trial Bundle, [718].

[132] T 3 – 27, ll 25 – 35.

[133] Respondent's written submissions filed on 30 October 2023, [225].

[134] T 1 – 43, ll 34 – 45; T 1 – 46, ll 33 – 40; T 2 – 5, ll 26 – 27.

[135] T 2 – 6, ll 13 – 14.

[136] Exhibit 1, Volume 2, Trial Bundle, [804].

[137] T 4 – 48, ll 36 – 38.

[138] T 1 – 45, ll 24 – 39.

[139] T 1 – 32, ll 31 – 35.

[140] T 1 – 32, l 37.

[141] Appellant's written submissions filed on 4 August 2023, [236].

[142] Exhibit 1, Volume 2, Trial Bundle, [655].

[143] T 3 – 17, ll 16 - 31.

[144] T 3 – 28, ll 38 – 42; T 3 – 28, ll 44 – 49.

[145] T 3 – 33, ll 35 – 40.

[146] (1893) 6 R 67 (HL); Appellant's written submissions filed on 4 August 2023, [249].

[147] Appellant's written submissions filed on 4 August 2023, [246].

[148] T 3 – 34, ll 29 – 34.

[149] T 4 – 15, ll 5 – 12; T 4 – 15, ll 21 – 25.

[150] (1893) 6 R 67 (HL); Appellant's written submissions filed on 4 August 2023, [270].

[151] (1959) HCA 8; 101 CLR 208; Appellant's written submissions filed on 4 August 2023, [262].

[152] Respondent's Amended Statement of Facts and Contentions filed on 11 October 2022, 12(k).

[153] Respondent's Amended Statement of Facts and Contentions filed on 11 October 2022, 13(j).

[154] T 1 – 21, ll 20 – 25.

[155] Appellant's written submissions filed on 4 August 2023, [491].

[156] T 3 – 28, ll 35 – 40; T 3 – 29, ll 1 – 5.

[157] T 3 – 30, ll 5 – 15.

[158] T 3 – 30, ll 10 – 19.

[159] T 3 – 33, ll 19 – 25.

[160] T 3 – 33, ll 5 – 9.

[161] T 3 – 33, ll 35 – 45.

[162] T3 – 34, l 47 to T 3 – 35, l 3.

[163] T 3 – 35, ll 1 – 10.

[164] T 4 – 24, ll 19 – 28.

[165] T 1 – 61, ll 1 – 5.

[166] T 1 – 62, ll 8 – 18.

[167] Appellant's written submissions filed on 4 August 2023, [493].

[168] Exhibit 1, Volume 2, Trial Bundle, [804].

[169] Exhibit 1, Volume 2, Trial Bundle, [805].

[170] Exhibit 1, Volume 2, Trial Bundle, [804].

[171] Ibid.

[172] T 1 – 44, ll 30 – 32.

[173] T 2 – 28, ll 1 – 27.

[174] Appellant's written submissions filed on 4 August 2023, [527].

Close

Editorial Notes

  • Published Case Name:

    Stable v Workers' Compensation Regulator

  • Shortened Case Name:

    Stable v Workers' Compensation Regulator

  • MNC:

    [2024] QIRC 274

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    26 Nov 2024

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
Briffa v Q-Comp (2005) 180 QGIG 70
2 citations
Jump To
Cite 1 - (2005) 180 QGIG 70
Cite 2 - (2005) 180 QGIG 70
Browne v Dunn (1893) 6 R 67
3 citations
Jump To
Cite 1 - (1893) 6 R 67
Cite 2 - (1893) 6 R 67
Cite 3 - (1893) 6 R 67
Davis v Blackwood [2014] ICQ 9
3 citations
Jump To
Cite 1 - [2014] ICQ 9
Cite 2 - [2014] ICQ 9
Cite 3 - [2014] ICQ 9
Hardy v Workers' Compensation Regulator [2015] ICQ 27
3 citations
Jump To
Cite 1 - [2015] ICQ 27
Cite 2 - [2015] ICQ 27
Cite 3 - [2015] ICQ 27
Jones v Dunkel [1959] HCA 8
3 citations
Jump To
Cite 1 - [1959] HCA 8
Cite 2 - [1959] HCA 8
Cite 3 - [1959] HCA 8
Murphy v Workers' Compensation Regulator [2022] QIRC 264
2 citations
Jump To
Cite 1 - [2022] QIRC 264
Cite 2 - [2022] QIRC 264
Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301
2 citations
Jump To
Cite 1 - (2006) 181 QGIG 301
Cite 2 - (2006) 181 QGIG 301
Rossmuller v Q-COMP [2010] ICQ 4
2 citations
Jump To
Cite 1 - [2010] ICQ 4
Cite 2 - [2010] ICQ 4
Stephen Horace MacDonald v Q-COMP (2) (2008) 188 QGIG 180
2 citations
Jump To
Cite 1 - (2008) 188 QGIG 180
Cite 2 - (2008) 188 QGIG 180
Workers' Compensation Regulator v Langerak [2020] ICQ 2
3 citations
Jump To
Cite 1 - [2020] ICQ 2
Cite 2 - [2020] ICQ 2
Cite 3 - [2020] ICQ 2
Workers' Compensation Regulator v Mahaffey [2016] ICQ 10
4 citations
Jump To
Cite 1 - [2016] ICQ 10
Cite 2 - [2016] ICQ 10
Cite 3 - [2016] ICQ 10
Cite 4 - [2016] ICQ 10

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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