Ashby v The State of South Australia

4 It is conceded that the worker suffers from an illness or disorder of the mind.

5 It is also conceded that the worker's employment with the employer was a substantial cause of the disability.

6 The employer maintains a denial liability in respect of the worker's claim on the ground that the worker is unable to establish that the disability did not arise wholly or predominantly from reasonable action taken in a reasonable manner by the employer to counsel the worker: s 30A(b)(ii) of the Act.

7 Following the lodgement of the worker's Notice of Dispute the matter was referred to conciliation as required by the Act and having failed to resolve by agreement the matter was referred to a hearing before an Arbitration Officer.

8 The material that was placed before me included the transcript of the hearing before the Arbitration Officer, statements from the worker and from other persons involved in relevant issues, medical reports, claim forms, medical certificates, documentation relating to the worker's claim, the employer's determination and other sundry documents.

9 At trial I heard oral evidence from the worker, and from Ms Margaret Beagley and Ms Sharon Brock (formerly Hamilton). Ms Beagly is the Executive Principal of the College and at all relevant times the worker worked for her as her personal secretary. Ms Brock was at all relevant times the College's Administrative Officer and was the person from whom the worker needed to obtain permission to take leave.

10 The evidence establishes that the worker is a woman age 51 years who was at all relevant times employed by the employer as a school services officer and had worked as a secretary for the College for 22 years.

11 The College is a South Australian correspondence school that is involved in distance education. Ms Beagley has been the Executive Principal of the College since 1990.

12 Prior to the events of 16 October 2001 the worker had a number of difficult personal issues to deal with.

13 For example, in May 2000 her husband had suffered a major heart attack for which he was admitted to hospital for some four or so weeks. In addition to the natural concern and anxiety that this caused the worker, she had to deal with some issues that arose in the workplace about her securing time off work so as to visit her husband.

14 This incident does not appear to have caused any lasting legacy.

15 It would seem that in about August 2001 the worker experienced a severe bout of flu and her treating doctor recommended that she have an x-ray of her lungs. The x-ray was conducted in late August and the report revealed the possibility that there might have been a shadow on one of her lungs. The worker was obviously concerned about this.

16 Also at around this time the worker had some difficult issues to deal with in relation to her ailing mother. The worker's mother was suffering from a terminal illness and unfortunately she has since died. The worker not only had to deal with the fact of her mother's illness, but she also had to attend to a number of personal matters in relation to her mother's affairs.

17 Like most educational institutions, school holidays influenced the College's workload. At the end of September 2001, the third term school holidays commenced and on Monday 15 October 2001 the final school term began.

18 On the morning of Tuesday 16 October the worker received a telephone call from her mother's treating medical specialist wherein she was advised that her mother was permitted to return home for a trial period with a district nurse in attendance and that she was to be released from hospital the following day for this purpose.

19 The worker wished to accompany her mother and assist with her transportation from hospital to home. Accordingly that day she contacted Ms Brock and sought and obtained approval to be absent from work the following day.

20 As was her practice the worker then approached Ms Beagley to confirm with her that she had her permission to take special leave the following day. Technically Ms Beagley's approval was not required but as a matter of courtesy, the worker thought it proper to obtain it.

21 This followed with an exchange between the worker and Ms Beagley ("the exchange"), after which the worker left in tears and she has not returned to work since.

22 I now turn to the more controversial aspects of this case. It seems to be accepted by both parties that the exchange was the primary cause of the worker's stress and anxiety. Where they differ is how the exchange occurred, how it should be characterised and whether it was reasonable action taken in a reasonable manner.

23 The worker contends that the exchange was not counselling for the purposes of s 30A(b) of the Act nor does it fit within the descriptions of any of the other stipulated potentially disqualifying events provided for by the sub-section. Accordingly, her primary submission is that a consideration of the reasonableness or otherwise of the employer's conduct does not arise because she has proved that employment was a substantial cause of her disability and that it was not wholly or predominantly caused by one or other of the stipulated potentially disqualifying events.

24 In the alternative, she contends that if that characterisation is not correct then in all of the circumstances the exchange cannot be characterised as reasonable action taken in a reasonable manner.

25 The employer contends that because the discussions in the course of the exchange concerned issues relating to the worker's work performance the exchange ought to properly be characterised as counselling for the purposes of the provision. Next it would be contended that in all of the circumstances it was reasonable action taken in a reasonable manner such that the worker's onus had not been discharged.

26 In order to understand the respective positions of the parties it is necessary to consider the worker's work performance and absenteeism in the weeks prior to 16 October 2001.

27 Amongst the materials that were tendered before me was a timesheet for the periods from 3 August 2001 to 16 October 2001.

28 At all relevant times the employer had a working practice known as "TOIL", which is an acronym for "Time Off In Lieu". Employees could work in excess of their stipulated hours of 75 hours per fortnight and in effect bank the excess thereby permitting them to take time off in lieu of pay during ordinary working hours at some future time.

29 As at 30 August 2001 the worker had a bank of 20.73 hours. During that pay period, she had used about one half an hour of TOIL to attend a dental appointment.

30 In the week between 6 and 13 September 2001 the worker had used her bank of TOIL on three occasions. The first was to attend a chiropractic appointment. The second was to undertake the x-ray to which I referred earlier. The third was to have a follow up appointment with her general practitioner, to discuss issues arising out of the x-ray. As at 13 September 2001 the worker had a little over 17 hours of TOIL.

31 In the week from 20 to 27 September 2001 the worker used her bank of TOIL to start work over three hours late on the Monday and to leave work three hours early on the Tuesday.

32 At the end of that pay period she had a bank of about 11 or so hours in TOIL.

33 In the week from 28 September 2001 to 4 October 2001 the worker took four full days off and claimed them as Time Off In Lieu. As a result, at the end of the pay period finishing on 11 October 2001 the worker's bank of TOIL had been exhausted and she was over 19 hours in debit.

34 I now turn to consider the relevant parties' respective accounts of the exchange.

35 Ms Beagley described her state of mind leading to the exchange as follows:-

"I was hoping to indicate that how she'd asked for time off; that I was indicating that was okay. However that I had some concerns about the amount of time she had off and the impact that might have been having on her work because there were some mistakes she was making - she didn't appear focussed - and I was concerned that there may have been something troubling her at work or at home that was impacting on it and that she may have - want to talk about it to see whether we could resolve it, as well as the fact that I needed to indicate to her that I was concerned that she'd had a lot of time off and this has a negative impact on other staff with whom she works. Apart from working directly for me the fact that she works in a team environment is really important she is there because other people have to cover when she's not and, secondly, as she is my personal secretary, I think it is important that people don't think she is getting preferential treatment and, thirdly, I guess that there wasn't a precedent being set about the amount of time you could have off during work hours for personal appointments."" (tr 75)

36 Ms Beagley described the exchange in these terms:-

"On the day in question Carol came into my office to deliver the mail and asked for some time off the following day to collect her mother from hospital. I said off course she could have the time off. I indicated, however, that I wanted to discuss my concerns about the amount of time she had taken off at the end of term three for personal appointments and that she didn't appear to be focussed on her work. It was at about this point that Carol began crying. She stated that I am unaware of a number of other employees that take time off and that she felt it was unfair that others were not being spoken to also. In addition, she pointed out that her doctor worked part time. ..." (TB 46)

37 Underpinning Ms Beagley's attitude in the exchange that she had with the worker on 16 October 2001 was a belief by her that the worker had at the end of term three taken an extraordinary amount of time off work during working hours and a belief by her that this reflected a lack of appropriate priorities. It was Ms Beagley's views that there was no reason why these appointments could not have been made either outside of working hours or at times more convenient for those with whom the worker worked and, that this practice by the worker warranted comment.

38 Importantly, Ms Beagley described the exchange in these terms:-

"At this point it certainly was not a disciplinary matter at all. It wasn't anything about managing significant underperformance or managing performance at all. It was more of an issue of raising it, as I said - I guess there where the two bits, and one was about the impact it might have on the rest of the team. I guess there was the link with the fact that she had been making some silly mistakes and that was more me pursuing whether or not there was something bothering her that we needed to address." (tr 76)

39 The worker described the exchange a little differently. She said:-

"I was standing behind the desk and to the side of it - Ms Beagley was in a seated position and after I requested leave she pushed herself away from her desk with some force. She then spoke in a loud voice and it threw me off guard. She then proceeded to talk about leave I had taken on previous occasions in order to attend doctors, dentists and hair dressing appointments. I answered her as best I could - trying to explain that my doctor consults only on certain days, that I had to go to specialists because they dictate the times when they are available to see me. I also explained to her that I had always made time up for appointments taken during working hours. ... I commenced feeling quite ill as I was quite taken back by the tone of her voice and what she was saying to me. I remember saying that I thought that I was being treated unfairly as regards to my request for leave compared to other employees, not only this time but also in the past. She stated that she was not interested in anyone else, only me. Her voice was raised. I was feeling really out of control inside, I began to cry and felt I just had to leave her room. I told Ms Beagley that I had to leave now and she called out that she didn't realise that she'd upset me so much and that I could have some of the time off." (TB 23,24)

40 Mr Lines, counsel for the employer, contended that the exchange satisfied the statutory definition of "to counsel". He said:-

"It's my submission that even though the discussion on 16 October 2001 was impromptu and informal, it still comes within the meaning of the first placita of action to counsel. None of the actions in that paragraph are qualified to mean formal.

Depending on the circumstances and the structure of the organisation and the employment relationships, there will be varying degrees of formality and informality for most of these times of actions, whether you are talking about transferring, demoting, disciplining, counselling, retrenching, and in my submission what took place between Ms Beagley and Ms Ashby does qualify as an action to counsel." (tr 194)

41 Mr Lines submitted that the exchange assumed the character of "to counsel" in two ways. The first was that although Ms Beagley only intended to flag a couple of issues she actually had proceeded to discuss them and because the issues discussed comprised of matters fairly described as counselling, the relevant definition of "to counsel" was satisfied. The second was that because the discussion was intended to schedule a time of counselling that of itself was so connected with counselling that the scheduling fell within the relevant definition.

43 The relevant provision speaks of "to transfer, demote, discipline, counsel, retrench or dismiss the worker".

44 Whilst it is true that the dictionary definition of the word "counsel" includes "advice or guidance, discussion and consultation" it would be wrong, in my view, to approach the construction of the provision by viewing that word in isolation. What is called for is the contextual approach as suggested in the frequently cited passage of the judgement of Mason J (as he then was) in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985)157 CLR 309 at 315 where his Honour said:-

"Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasise the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise."

45 Actions by an employer to transfer, demote, discipline, retrench or dismiss a worker are significant events that are usually associated with some degree of formality.

46 In my view, this is the context in which the words "to counsel" must be considered.

47 In my opinion not every act of advice or guidance about work related matters that might be given by an employer to a worker should be regarded as action to counsel for the purposes of s 30A(b)(i). I think it is a question of degree. At one extreme, a pre-arranged structured meeting in which performance issues are discussed and recommendations made as to how work performance might be improved is an obvious example of an event, which would be regarded as action to counsel. At the other extreme, a casual remark, in the context of what was otherwise a discussion that had little to do with work, which included a suggestion that a certain initiative might be considered, ought not, in my opinion be relevantly regarded as action to counsel.

48 In this case I have come to the conclusion that the exchange was not action to counsel for the purposes of s 30A(b)(i). I have reached this conclusion because:

* The exchange took place in the course of an unscheduled and impromptu meeting which occurred as a result of the worker's initiative.

* Ms Beagley only intended to flag some issues that were of concern to her and she did not intend to deal with them at that time.

* Ms Beagley did not intend to give any directions or advice.

* Ms Beagley did not regard the exchange as counselling.

49 Accordingly, in my opinion, it is not necessary to resolve what appears to be a conflict between the respective accounts of the worker and Ms Beagley as to what was said in the exchange, nor is it necessary for me to determine whether or not that action was reasonable action taken in a reasonable manner. Because the event which clearly was the significant trigger to the worker's development of anxiety and depression was not caused by one of the potentially disqualifying events, it having been conceded that employment was a substantial cause of the worker's disability, her claim must succeed.

49 If my characterisation of the exchange is incorrect and if in fact it does meet the description of "to counsel" I would nevertheless find that the worker should succeed.

50 Again, I do not find it necessary to resolve the conflict between the worker's account and that given by Ms Beagley. Even if I were to accept that Ms Beagley's account was accurate, in my opinion, Ms Beagley's raising these issues at this time and in this manner was not reasonable.

51 Ms Beagley had said in her statement that she was aware of a number of matters in the worker's personal life that were causing her concern. (See TB 46). She knew that the worker's mother was ill. She knew that the worker was seeking this time off work the following day to take her mother from hospital to home. Ms Beagley had not checked with Ms Brock to identify the circumstances in which the worker had taken leave or whether there were any issues that she needed to be concerned with in connection therewith.

52 Importantly, Ms Beagley gave the following evidence in response to various questions put to her by Mr Warren (tr 83):-

"Q You would also agreed, wouldn't you, that as at 16 October 2001 her job wasn't in jeopardy from your perspective.

Q And she wasn't in need of any formal disciplinary process. You'd agree with that.

Q And you would agree, wouldn't you, that she wasn't in need of any counselling to do with anything about her work.

Q So any concerns that you in fact had were of a very minor nature weren't they, in the scheme of things.

A The concerns about her mistakes were minor. The concern about time off work wasn't as minor because of the impact it was having or could have potentially - well, it did have an impact on other people having to cover for her when she was away and a potential future impact in terms of other employees expectations.

Q Other employees hadn't spoken to you about their - leaving Ms Hamilton aside - is in a slightly different position - other employees hadn't spoken to you about their concern with the time that Mrs Ashby was having off, had they.

53 Ms Beagley conceded in cross-examination that she commenced her conversation with the worker with the critical comment about the amount of leave that she had been taking (tr 118).

54 Ms Beagley conceded that what it was that she wished to discuss with the worker was not pressing, it was not particularly important and that she did not expect that it was going to lead to anything other than perhaps some constructive discussion and in that context I think the following exchange at tr 130, is also instructive:

"Q But the occasion that you took to speak to her about all of these incidents was when she walked in asking for some time off to pick up her sick mother from hospital.

Q And you consider that's an appropriate time to speak about those issues?

A At the time, I responded as I did. Retrospectively, we're always wiser and I can see that it possibly wasn't the best time."

55 In my opinion, if the exchange was action to counsel, it was not reasonable action taken in a reasonable manner. I come to this conclusion for the following reasons:

* There was no urgency for Ms Beagley to raise these issues at this time. It was reasonably foreseeable that the worker might, because of her personal circumstances (they being circumstances that Ms Beagley was aware of), become upset at implied criticisms of her commitment to her work. Ms Beagley speaks of being wise after the event. With all due respect, I think that to seize upon this chance meeting, wherein the worker, out of a sense of courtesy, not duty, was asking for some time off to take her ailing mother home from hospital, to flag some performance issues that were not pressing or important, was particularly insensitive, and the fact that it caused the worker to become upset was in my opinion utterly predictable.

* The worker was given no prior warning that these matters were issues for Ms Beagley or that she wished to discuss them with her. I think that as a matter of fairness, the sorts of matters that Ms Beagley wanted to raise warranted prior warning to enable the worker to prepare a response.

56 For all of these reasons in my opinion the employer was wrong to have rejected the worker's claim. In my opinion the circumstances of the worker developing anxiety and depression in the workplace was compensable. I was asked by counsel at the commencement of this hearing to merely make a preliminary ruling on the issue of compensability. I would now like to hear from counsel as to how they wish to deal with any issues arising out of the worker's entitlements to compensation pursuant to the Act as a consequence of this ruling.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.