Carlton v Simon Blackwood

Industrial Relations (Tribunals) Rules 2011

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Blackwood v Adams [2015] ICQ 001

Blackwood v Mahaffey (2016) 259 IR 137

British Launderers' Research Assn v Borough of Hendon Rating Authority [1949] 1 KB 462

Carlton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 150

Jegatheeswaran v MIMA [2001] FCA 865; (2001) 194 ALR 263

State of Queensland (Department of Education and Training) v Workers Compensation Regulator [2016] ICQ 021

Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54

A J See instructed by Kerin Lawyers for the appellant

S A McLeod directly instructed by the Workers Compensation Regulator for the respondent

[1] Marion Carlton was engaged by Clayfield College to be its Head of Boarding. On 8 November 2010 there was a meeting attended by Ms Carlton, the college's headmaster, Mr Savins, and the school's business manager, Ms Gallinaro.

[2] They had a discussion about Ms Carlton's work performance and, at the end of the meeting, Mr Savins gave her a letter which set out a number of matters of concern about how she had been conducting herself and about her performance as Head of Boarding.

[3] Shortly after the meeting, the appellant commenced a period of sick leave.

[4] On 16 November, the appellant's solicitors sent a letter to the school responding to the matters raised in the letter given to her on 8 November.

[5] The appellant's claim that her employment was a significant contributing factor to the development of an adjustment disorder with anxiety and depressed mood was accepted by the Commissioner. But, the Commissioner held that the appellant's injury was not compensable because it was excluded by the operation of s 32(5) of the Workers Compensation and Rehabilitation Act 2003 ("the Act").

[6] Ms Carlton appeals against the Commissioner's decision that she did not suffer an injury within the meaning of s 32 of the Act.

[7] So far as is relevant, s 32 of the Act provides:

(1) An injury is personal injury arising out of, or in the course of, employment if -

(a) for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury; or

(b) for a psychiatric or psychological disorder - the employment is the major significant contributing factor to the injury.

(5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances -

(a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;

(b) the worker's expectation or perception of reasonable management action being taken against the worker;

(c) action by the Regulator or an insurer in connection with the worker's application for compensation.

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

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

[8] The notice of appeal in this matter was filed before the decision in State of Queensland (Department of Education and Training) v Workers Compensation Regulator[1] was published. In that decision, reference is made to the requirements of r 139 of the Industrial Relations (Tribunals) Rules 2011. That rule provides that an application to appeal is to "state concise grounds of appeal". The application in this case does not comply with the rule. It consists of a mixture of assertions of error, argument and criticism. It is, to that extent, incompetent. For reasons which I will explain below, it also exemplifies the appellant's misunderstanding of the appeal process, both generally and with respect to the circumstances of this case.

[9] Applications to appeal which do not comply with the Rules risk being struck out as incompetent. No application was made by the respondent to have that occur, but appellants cannot expect that this Court will continue to allow documents to be filed which do not comply with the Rules.

What was the case of the appellant before the Commission?

[10] It is a requirement of all appeals to the Commission under the Act for the appellant to provide, among other things, a Statement of Stressors.

[11] It has been emphasised, time and time again, that one of the purposes of the Statement of Stressors (or a Statement of Events) is to confine the issues to be considered.[2]

[12] In the Amended Statement of Events (ex 42) filed by the appellant, the factors said to have led to the appellant suffering the onset of symptoms were summarised as follows:

"a. Meeting that occurred between the Applicant and Mr Brian Savins, School Principal on 8 November 2010

ISSUE 1 - Meeting with Principal Brian Savins that occurred on or about 8 November 2010 relating to a letter from the employer to The Applicant dated 1 November 2010."

[13] It is not open to an appellant, having conducted the appeal before the Commission in a particular way, to then, on an appeal to this Court, seek to expand the issues and to run a case which was not run below.

[14] The parties to an appeal before the Commission, and the Commission itself, must not allow an appeal under the Act to become a vehicle for the resolution of a list of grievances which are not relevant to the event or events which are said to have given rise to the compensable injury.

[15] The appellant's case before the Commission was made clear early in the proceedings. Counsel for the appellant outlined the nature of the case as follows:

"So the critical stressor relates to a meeting with the Principal that occurred on November where a letter was then handed to the appellant.

We say [the handling of the letter is] something that took place where there was no expectation that any of the issues were going to be raised. And it's the context of the meeting that took place, the provision of the letter, and then a couple of days later, my client remained at the workplace and eventually couldn't cope any further and had to go and seek medical support ...

... but certainly when my client opens the letter dated 1 November and is confronted with all these issues out of the blue, that's possibly the ... trigger ...

But the context of what we would say, the environment of that meeting, the nature of the meeting that took place, that too would have compounded the surprise, and it would have compounded I guess, the unreasonable nature in which management action is taken."

[16] Early in the proceedings, counsel for the respondent stated that the respondent was proceeding on the basis of the contents of the Amended Statement of Events which were consistent with the outline set out above.

[17] In the appellant's closing submissions, the case was said to be a simple one:

"The stressor that gave rise to this injury was the meeting of 8 November 2010 between Ms Gallinaro, Mr Savins and the appellant, when at the conclusion of that meeting, the appellant was handed a diminished performance letter."

[18] Unfortunately, the hearing before the Commissioner was diverted by considerations which were irrelevant to the true issue to be determined. The appellant pursued a series of complaints which had not been claimed to have been stressors and, thus, attempted to engage upon a roving enquiry into conduct and events which were not germane to the decision which had to be reached. In the appellant's submissions in reply in this Court, there are nine instances referred to in which slightly different versions of the appellant's case are expounded upon. This is entirely unacceptable. An appellant's case has to be known before the hearing starts. The Commission cannot allow a case to "evolve" and place the respondent in the position of having to contend with the shifting sands of an undefined argument. If an appellant wishes to advance a different case, then that should be done by seeking an amendment to the Statement of Stressors or the document identifying the facts and contentions. The Commission can then decide whether or not to allow such an amendment.

[19] The pursuit of matters which are not relevant to the issues in contest wastes time and incurs unnecessary costs. Such matters cannot be pursued on an appeal to this court.

[20] The appellant relied upon two broad grounds of appeal.

[21] In the first, it was submitted that "the Commission ... [had] failed to properly establish the primary facts giving rise to the exclusion of the Appellant's 'injury' for the purposes of s 32(5)(a) of the [Act]. That is, the primary facts were not supported by sufficient probative evidence to conclude that there had been 'reasonable management action taken in a reasonable way by the employer in connection with the worker's employment'". The appellant then set out a list of so-called "primary facts".

[22] The second ground was that "the Commission ... failed to take into account ... relevant considerations".

[23] This is a difficult ground to understand. Under this ground of appeal, the appellant argues, in effect, that:

• (a) The Commissioner did not establish the "primary facts" which gave rise to exclusion of the injury through the operation of s 32(5) of the Act; and

• (b) The "primary facts" were not supported by sufficient probative evidence to allow the conclusion that s 32(5) applied.

[24] The reference to "primary facts" is likewise difficult to understand. It is a term often encountered on appeal but appears to be used in this case to cover a number of different matters. These so-called "primary facts" are dealt with later in these reasons.

[25] A brief examination of the principles which apply in this type of appeal will assist. The grounds of appeal which are available are confined to:

• (a) errors of law; or

• (b) excess, or want, of jurisdiction.[3]

[26] An error of law can be a number of things. In this case, the appellant seems to have attempted to confine her case to errors of law consisting of making findings unsupported by the evidence and failing to take into account relevant considerations.

[27] It is indisputable that a finding of primary facts, where there is no evidence to support that finding, is an error of law.[4] A helpful examination of this area was undertaken by Finkelstein J in Jegatheeswaran v MIMA[5]where he said:

"To understand what is encompassed by the 'no evidence' ground of review it is convenient to consider what is meant by a finding of 'fact'. In common law jurisdictions important issues depend upon the distinction between law and fact. The law relating to appeals and judicial review often raises a distinction between a finding or conclusion of law and a finding of fact. It is in that context that we must decide what is meant by a 'fact'. In dealing with this issue, I will not attempt a complete definition; often it is easier to use a term correctly than to give a correct definition of it. In simple terms a fact is a quality or an event which has happened or existed, including not only a physical fact but also state of mind: F H Bohlen, 'Mixed Questions of Law and Fact' (1924) 72 University of Pennsylvania Law Review 111 at 112, quoted in Paton & Derham, Jurisprudence, 1972, p 204. Stated more broadly, a 'fact' is an act, an action of a person, a state of affairs, a condition (including a state of mind) or an event. It is not limited to things tangible. Usually a 'fact' is something which exists. But it need not be, for a 'fact' may be positive or negative. That is, the non-existence of an act, action, condition, state of affairs or event can be a 'fact', but a negative one: J Bentham, Rationale of Judicial Evidence, 1827, Bk 1, pp 49-50. Further, a fact is not confined to the existence or non-existence of an act etc. A 'fact' may be an act etc which will exist in the future: L Jaffe, Judicial Control of Administrative Action, 1965, p 548; de Smith, Judicial Review of Administrative Action, 5th ed, 1995, p 277.[6]

In curial or administrative proceedings, it is often necessary to understand the difference between various categories of 'fact'. I have already made passing reference to the distinction between 'primary facts' and 'secondary facts'. In British Launderers' Research Association v Borough of Hendon Rating Authority [1949] 1 KB 462 at 471, Denning LJ said that '[p]rimary facts are facts which are observed by witnesses and proved by oral testimony or facts proved by the production of a thing itself, such as original documents', and that secondary facts are 'inferences deduced by a process of reasoning' from primary facts. This distinction has also been expressed as the difference between the 'perception' of facts and the ``evaluation'' of facts: A L Goodhart, 'Appeals on Questions of Fact' (1955) 71 LQR 402 at 405. I will return to this distinction in a moment.[7]

A trier of fact is required to determine whether an asserted fact is 'true'. In the case of a 'primary fact', the question is whether the asserted fact has been shown to be true to the required degree of probability, or in some cases to the required degree of satisfaction. Once the requisite degree of probability or satisfaction has been reached, the asserted fact is assumed to be true. However, before there can be a finding that the asserted fact is 'true' there must be some evidence to support it. If there is no evidence, then the finding may be in error of law. In the case of a secondary fact, there must be primary facts from which the secondary fact can be inferred. If the tribunal draws an inference which cannot reasonably be drawn, that is, if it draws an inference for which there is no evidence, there is an error in point of law: Tracy Village Sports and Social Club v Walker [1992] NTSC 91; (1992) 111 FLR 32 at 37-8."[8] (emphasis added)

[28] But, in this appeal, the appellant only argues that there was not "sufficient probative evidence". If that is the case, then that will not be an error of law because the task for the appellant is to show an absence of evidence. [9] Provided that there is some factual basis for the Commissioner's finding, there can be no error of law on the "no evidence" ground.[10] If the Commissioner made a finding for which there was no evidence, that will be an appellable error if it is relevant to the case conducted before the Commissioner.

[29] It may be that the best way to interpret the argument for the appellant is to regard it as a series of assertions that certain facts should have been found, but weren't.

[30] I turn now to the so-called "primary facts" relied upon by the appellant:

• (a) How the letter dated 1 November 2010, that was issued to the appellant, came about;

• (b) The manner in which the letter was issued to the appellant;

• (c) The fact that it was not provided in accordance with the School's own policy;

• (d) The fact that the appellant did not know that a "formal grievance" had been made against her;

• (e) Why the employer did not advise the appellant that she was participating in a diminished performance process;

• (f) What was the purpose of the meeting conducted between the employer and the appellant on 8 November 2010; and

• (g) How that meeting came about and the manner in which it was conducted.

[31] The last three of those so-called "primary facts" are not facts at all. They are questions or, perhaps, arguments which relate to issues of conduct.

[32] This was not part of the appellant's case. The circumstances which gave rise to the letter were not said to have been responsible for the appellant's injury. This was not relevant to the appellant's case. In any event, the Commissioner did refer to the evidence of Mr Savins which supported the findings made at [106] to [109] of the Reasons.[11]

[33] The argument to support this aspect consists of little more than a reference to part of the Commissioner's decision[12] and then sets out some references to evidence from the appellant. But there is no assertion of error or that there was no evidence which could have supported the Commissioner's finding that "the handing over of the letter ... was ... not unreasonable in the circumstances".

Was the letter provided in accordance with the policies of the employer?

[34] Once again, it was not advanced by the appellant that the failure (as alleged) of the letter to comply with the policies of the employer was a stressor which resulted in her injury. It is difficult to see how that might be the case in any event. There was evidence from both Mr Savins and Ms Gallinaro, which was accepted by the Commissioner, that a substantial number of performance issues had already been raised with the appellant on an informal basis. . The appellant argues that the letter of 1 November 2010 constituted allegations of diminished performance and so s 7 of the Human Resource Policy Manual applied. The appellant then argues that the employer did not follow its own policies and, as a result, undertook management action that was unreasonably taken. But there is nothing to suggest that this amounted to a stressor in the accepted sense. There was evidence that no performance process had been initiated against the appellant and that, in any event, the manual was provided to assist in the resolution of difficulties rather than to compel slavish adherence to its terms.

The fact that the appellant did not know that a formal grievance had been made against her under the terms of the grievance policy

[35] It is not explained by the appellant how the absence of this knowledge could amount to a stressor or could amount to unreasonable management action. Once again, it is irrelevant to the case which was advanced by the appellant before the Commission. The appellant decompensated on 12 November 2010. She was not aware at that stage that a formal grievance had emerged and how it was being dealt with. This is not a complaint which is consistent with the appellant's case.

Why the employer did not advise the appellant that she was participating in a diminished performance process

[36] The appellant argues that the failure of the Commission to properly determine this primary fact meant that the Commission could not properly form a view as to the reasonableness or otherwise of the conduct of the employer. The point that this submission misses is that it was not part of the case of the appellant that because she was unaware of such a process that it led to her decompensating. Once again, the factual basis for this contention is unsupported. The policy manual expressly provides that there is no requirement to formally document an interview or a meeting when giving guidance on performance.

Why the employer went to such lengths to disguise that fact

[37] This is an argument by the appellant that the Commissioner failed to consider the credibility of the employer's witnesses. The appellant argues: "The Commission failed to make any adverse findings concerning Mr Savins and Ms Gallinaro arising out of this conduct and their quite conflicting and self-contradicting evidence." The Commissioner did make findings about the reliability of the witnesses called and the appellant has failed to identify any error which would lead to a conclusion that it was not open to reach the findings that were made in respect to the credit of Mr Savins and Ms Gallinaro. I repeat, an appeal is not for the purposes of rearguing a case but for the identification of error. If a finding has been made which is supported by some evidence then that will not, in the ordinary course of events, amount to an error of law.

[38] The appellant also argues that there is some relevance to the issue of how, and by whom, the meeting was called. Rather than arguing to a particular conclusion the appellant's written submissions on this point consist of a number of questions which are more suited for a submission at the initial appeal level in the Commission. There is a contention that the Commission should have found that the failure to tell the appellant that Ms Gallinaro was attending the meeting was in fact an "ambushing". It is then contended that this was done to deliberately surprise the appellant in order that she be caught off guard.

[39] The appellant's own evidence was that Mr Savins contacted her by telephone and told her that he needed to speak to her "about a few important matters". There was evidence from Mr Savins that there was general conversation at the start of the meeting and that he then invited Ms Gallinaro to discuss the petty cash issue. While he recalled that the appellant seemed surprised, he gave evidence that the meeting was amicable even though the appellant seemed to be "a little put out that the meeting was about this particular matter". The appellant submits, it seems, that there should have been a conclusion that the meeting was an "ambush", but there is evidence to support the contrary conclusion and the Commissioner was justified in reaching such a view.

What was the purpose of the meeting conducted between the employer and the appellant?

[40] This is, once again, an example of the appellant seeking to engage in a minute examination of matters which were not relevant to the case run on her behalf. This ground is nothing more than an assertion that the appellant's evidence should have been preferred to that of Mr Savins and Ms Gallinaro. It was open to the Commissioner to accept the evidence of those two witnesses and to reject the assertion that the appellant was "interrogated" in respect to the missing money.

[41] Under this heading the appellant asserts that the Commissioner failed to take into account the following "relevant" considerations:

• (a) The significance and justification of the issuing of the letter dated 1 November to Ms Carlton by the employer;
• (b) The fact that the appellant was unaware, that the employer had commenced a disciplinary/diminished performance process against her;
• (c) The fact that the issuing of the letter dated 1 November 2010, was not in conformance with the employer's policy as contained within the Human Resources Policy Manual;
• (d) The unsubstantiated allegations of "missing monies" that were made by Ms Cheryl Barnes against the appellant;
• (e) The fact that the employer abandoned the investigation into those allegations of missing monies;
• (f) The pervasive and long-running undermining conduct of Ms Cheryl Barnes, the Assistant Head of Boarding of the employer.

The significance and justification of the issuing of a "disciplinary letter" by the employer

[42] This is irrelevant to the case conducted by the appellant. Even if it is correct to say that the letter was not created in accordance with the employer's own policies, there is no evidence to support a connection between the appellant's decompensation and that alleged fact. But, the Commissioner expressly found that it was not unreasonable to prepare the letter in circumstances where Mr Savins had mounting concerns in respect of the appellant's management of the boarding house. In other words, the Commissioner did take into account this matter even though it was not strictly necessary to do so.

The fact that the appellant was unaware that a grievance had been lodged against her

[43] This was not a matter which ever formed part of the stressors relied upon by the appellant. It is difficult to understand the logic employed by the appellant on this point. The argument is that the Commissioner failed to take into account the fact that the appellant had not been made aware that a grievance had been lodged against her. That raises the question: Why is that relevant? It was never part of the appellant's case that was formalised in its list of stressors that a failure by management to notify the appellant that a grievance had been lodged with unreasonable management action. This is also a failure by the appellant to draw a distinction between unreasonable management action which has an effect and unreasonable management action which is neither expressed to have had an effect or about which there was evidence which might suggest that it had an effect.

The issuing of the disciplinary letter not in conformance with policy

[44] This argument overlooks the need to demonstrate a connection between action and effect. There is no error of law demonstrated here and it is nothing more than a rehashing of issues already dealt with under Ground 1.

The "missing monies" allegations and the investigation

[45] The Commissioner allowed evidence to be given and arguments to be advanced which did not relate to the true issues for determination. The fact that that occurred does not make it relevant. An oversight by the Commissioner in allowing such material to be presented does not mean that, by its mere presentation, it is a matter which needs to be considered. Once again, the Amended Statement of Events does not provide any specific basis for asserting that the issue of the "missing monies" was a particular stressor. There was evidence which was able to be accepted that Ms Gallinaro did ask the appellant whether she had the case and the appellant said that she did not.

[46] This is nothing more than another example of the case "running off the tracks" on this point. The appellant did not make it a relevant issue in her Amended Statement of Events and it did not become relevant.

[47] This is another example of the case being conducted contrary to the written Statement of Events. The Commissioner did accept that Ms Barnes took the opportunity to undermine the appellant at various times. But, this particular ground, like others above, is irrelevant to the case. The conduct of Ms Barnes features nowhere in the Amended Statement of Events. It is irrelevant.

[48] The appellant has sought to agitate issues some of which should not have been the subject of attention before the Commission but were. Nevertheless, the matters for determination are confined by the Amended Statement of Events or the Statement of Stressors. Cases like this are not to be run as if they are a mini Royal Commission into all aspects of the conduct of both the employer and the employee.

[49] The thrust of the appellant's case in this court has been that there were some parts of the evidence which could have been preferred over other evidence. That does not demonstrate an error of law. The appeal is dismissed.

[1] [2016] ICQ 021.

[2] See Blackwood v Adams [2015] ICQ 001 at [17] and [19], and Blackwood v Mahaffey (2016) 259 IR 137 at 147.

[3] By s 341 of the Industrial Relations Act 1999, now s 557 of the Industrial Relations Act 2016.

[4] British Launderers' Research Assn v Borough of Hendon Rating Authority [1949] 1 KB 462 at 471.

[5] [2001] FCA 865; (2001) 194 ALR 263.

[9] As explained in Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 77, "There is no error of law simply in making a wrong finding of fact."

[10] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356.

[11] [2015] QIRC 150.