Appellant v Respondent

Appellant v Respondent - [2018] VSC 248 - VSC 2018 case summary — Zoe

[30]

Mrs Pulling consulted Dr Khan on 12/11/14 with workplace stress causing insomnia and an upset stomach.

She required 2 days leave at that time.

She represented on 11/2/15 with a migraine, and then again on 19/2/15, citing workplace stress as the precipitating factor for the migraine. At this consultation she also complained of intermittent chest pains, which were worse when stressed. She decided to work from home to minimise the stress from the conflict at work and the review process that was taking place. She worked from home for 2-3 weeks, before returning to the workplace.

Mrs Pulling represented on 20/8/15 with stress from workplace. She had been taking her own sick leave from time to time to manage her symptoms.

Again on 28/8/16 she presented with chest pain, and Dr Barton sent her to Emergency Department for assessment. After tests the diagnosis was anxiety.

On 1/9/15, Mrs Pulling felt the stress/anxiety she was suffering, as a direct consequence of the conflict in the workplace, made it impossible for her to go back to the office.

The symptoms of anxiety and subsequent lowered mood led to the diagnosis of depression and anxiety on 1/10/15, and she was commenced on antidepressant medication.

Mrs Pulling has remained away from the workplace and on medication from that time until the present.

The diagnosis is workplace stress causing anxiety and depression.

The condition is considered work related, and the worker's employment has been a contributing factor to the worker's condition.

The worker had a similar occurrence in 2007, where she suffered from workplace stress and subsequent depression and anxiety. This was treated with resolution of workplace conflict, and mediation, with the worker making a complete recovery. It was not considered a pre-existing injury, as the worker was symptom free and on no medication for the 7 years in between episodes.

The worker has no current capacity for work in pre injury employment, as she doesn't believe the conflict issues have been resolved.

She would have some ability for alternate duties if the environment was free of the precipitating issues.

The factor inhibiting Mrs Pulling's ability to perform full and unrestricted work duties is the unresolved office issues.

Mrs Pulling will require ongoing medication for some months, then a reassessment regarding further treatment. She may also benefit from some psychology.

I would assess the prognosis as being extremely positive if Mrs Pulling is able to work in an environment free of major conflict.

[32]

The claimant told me that she experienced stress and difficulties working with three particular co-workers named [S], [L] and [C] over a long period of time - at least three years.

In her own words, she told me that they did not really work and that they were very slack. On the other hand, Ms Pulling was someone with a very hard-work ethic. She told me during the interview that she was a highly regarded employee.

She told me that, initially, she worked right next to those three women (above) and that she was constantly distracted by them.

She also told me that they tried to get her to do work that they should have been doing, although she did a different job to them.

She told me that her team merged with another team.

She told me that she frequently approached management and that management was well aware of what the three co-workers were like, and how this impacted upon Ms Pulling. She reports that management promised 'to do lots' but reportedly 'did nothing'. She told me that she could not concentrate at work and that she resorted to wearing earplugs.

She told me that her direct manager was [M] (who then became director). She told me that she worked very closely with [M] on high-level things. She told me that he also knew what was going on and knew the pressure that she was under.

She told me that she developed symptoms and features of anxiety and stress, as well as chest pain, worsening migraines, sleep disturbance and concentration impairment.

She told me that she started seeing psychologists through the EAP.

She told me that, in or around February 2015, she developed a severe migraine. She saw her doctor, she was sent to hospital and had two days off work. She told me that when she returned to work her coordinator, [C], told her that there was going to be a 'toe-to-toe' meeting. She became anxious about this. She told me that she attended that particular meeting and became light-headed.

In addition to continuing treatment with the EAP, she also consulted a women's health naturopath.

She told me that her last day at work was 28 September 2015. She told me that the day before was very stressful. On 28 September 2015, she was working at her desk writing minutes to a meeting. She developed worsening chest pain. She went to her car. She called her doctor and spoke with the nurse at the medical practice. She was worried that she was having a heart attack.

She told me that she underwent an ECG at her doctor's practice. There were concerns about the ECG and she was sent to hospital by ambulance.

She told me that she last saw the psychologist through the EAP about one or two months before she left work. She told me that she has not been able to afford to see an independent psychologist since then.

[55]

Therefore, in conclusion I make the following findings: (1), the plaintiff did not suffer any compensable injury arising out of or in the course of her employment by the defendant. I make this finding on a number of grounds: (a), all of her evidence concerning the symptoms of stress were confined to headaches, that is migraine headaches, and chest pains. She agreed that the migraines had occurred intermittently with various severity since she was 17 years old and she is now aged 58, and with some reluctance she had to agree that she had experienced chest pains, also on and off over the years, as recorded in the general practitioner's notes.

I accept that these symptoms increased in regularity and severity in times of stress and I accept that all of the tests from time to time concerning the chest pains excluded cardiac origin and suggested that these pains were stress-related. However, I emphasise and I so find that these episodes were symptomatic of long-standing medical conditions and not injures per se. I emphasise the distinction between symptoms and injury. I feel reinforced in this view by the uncontested evidence that the plaintiff only had a couple of days off work following these symptoms and that there was absolutely no work event which could be temporally linked to the onset of chest pain on 28 August 2015.

Also the plaintiff gave evidence that she has had no migraines since about a week after ceasing work on that date.

This leads to my second finding that even if there was an injury which could be said to arise out of or in the course of employment, which I reject, it could not be said to have given rise to any incapacity other than for a few days.

Thirdly, if it is suggested that the symptoms of 28 August 2015 resulted from a build-up of stress through 2014 and 2015, I reject this proposition on the basis of numerous answers of the plaintiff concerning the actions of management in relation to the three women who were annoying her, including the mediation and its outcome in February 2014 regarding [S]; and her welcoming of the review which she became aware of at the end of 2014 and which was formally announced early in 2015; together with private assurances to her that it was designed to get rid of the three underperforming woman [sic]; that her job was not in jeopardy and that she was highly regarded as a high performing member of the staff. In this regard I make the comment that I was not particularly impressed by the plaintiff, but I regarded the evidence of [M] and [C] as most impressive and I regarded them as impartial witnesses.

Finally, if I am wrong about all of the above, I find that s.40 of the Workplace Injury Rehabilitation and Compensation Act would disentitle the plaintiff to compensation for the following reasons: I find that apart from her complaint about the three workmates, which on her own evidence had been and would ultimately be further addressed to her satisfaction, her real grievance was the review process which she initially thought was to address her concerns concerning the three annoying workmates, and then after the meetings in July 2015 she realised that it would result in a restructure which she was not prepared to accept. In this regard I can accept the firm evidence of [C] that she was not a team player and had, as I quoted before, absolutely no intention of sharing tasks.

I find that the review process was management action within the meaning of the legislation. I find that it was reasonable management action in that management wished to reduce the size of her team from ten persons to seven, which she said she welcomed, and that this involved job sharing and multi-skilling - and they are my words - which in my view was perfectly reasonable. I also find that the action was taken in a reasonable manner; there being numerous meetings, one on one consultations, an invitation for feedback and private reassurances to the plaintiff.

Therefore, I find that the plaintiff's case fails on all or any of the above grounds and the proceeding will therefore be dismissed.

[183]

I worked at the Shire of Yarra Ranges for 10 years before retiring in May 2013.

During this time I worked in an administrative role which amongst other things included preparing the Council Agenda which is where I interacted with Vicki most.

Vicki's role included backing up the PA ([D]) to the Director of Environment and Engineering ([M]). Vicki was often under pressure to meet deadlines for the Council Agenda whilst [D] was either on leave or overloaded with work and she confided in me that she had no support from other staff members in her team during this time. During these times Vicki also had to complete her usual tasks, as well as answering phones etc for staff members who were either chatting or not in the office for various reasons. This became an incredibly stressful time for Vicki and I often witnessed the lack of support when she was under such pressure.

At these times the job she was doing needed complete concentration in proofreading, compiling pages of attachments etc for a report to appear in the Council Agenda. It was virtually impossible for her to concentrate fully with team members around her chatting and talking on personal phone calls around her as well as answering their phones when they did not. I remember being at her desk and helping her with some problems with putting a report for the Council Agenda together, and Vicki was constantly interrupted by other staff shouting across the office, asking questions, and not answering their phones. Vicki told me she complained to Management on several occasions, but staff behaviour did not improve and the staff were not kept in line by Management. This reinforced Vicki's lack of support form team members.

Vicki also advised me of occasions she had spoken confidentially to [M] about the poor performing, distractive staff and that on one occasion he had said to her that it was very hard to get rid of poor performing staff.

Vicki talked to me about not having any support, and the whole team not talking to her for about 12 months, as well as [S] spreading rumours about Vicki (which were overheard by [M]), and she didn't know why. She later found out that managers had given confidential information about a proposed staff restructure to the other members in her team of which she had no knowledge.

Vicki told me she was very distressed at how uncomfortable it was at work and she spoke to [M] who said he would speak to [G] (Executive Officer to the team). Apparently this never happened.

When discussing this Vicki told me that without her knowledge, some of her work was given back to [S]'s area so Vicki could concentrate more on assisting [M]. When complaining to [M] about the office environment and how staff were treating her, [M] told Vicki that he had given the work to the others to do, but Vicki had not been informed about it which had further increased the animosity of the staff.

At team meetings, other team members kept querying what work Vicki actually did. Vicki's manager asked her to write a list of her duties but Vicki couldn't understand why he didn't just let them know her duties whilst at the team meeting.

During part of my time at the Council, [L] was my Executive Officer therefore I knew her quite well. Vicki told me that when [L] was transferred to Vicki's department she met with Vicki and Vicki expressed her concerns on where the team was going and also about the problem staff. [L] told Vicki not to worry, she was aware of the problems within the team and she intended to fix them. Unfortunately this did not happen and the situation did not change.

Over the years Vicki and I spoke often of the problems she was facing within her department. I had great empathy as I faced similar problems at times, and the only solution Management had was for me to have counselling and the 'poor performer' was never reprimanded. I was actually lucky - my department mentioned a restructure and I was first to put my hand up to take a redundancy. I had been planning on retiring in 6 months anyway, so getting a redundancy was good for me. Vicki has many years of her working life left before retirement so this would not be an option for her.

After my 10 years with the Council I am definitely of the opinion that there is a culture within Management that anyone who complains is a problem - give them counselling. Poor performers are either shuffled from one department to another, or ignored.

At a glance

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Judgment (246 paragraphs)

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Legislation Cited (3)

Cases Cited (17)