Palmer & Ors v State of Queensland [2015] QDC 63

District Court of Queensland|2015-03-27

EMPLOYMENT LAW - injury to employee - psychiatric injury - employee subject to complaint - investigation of complaint in conjunction with a large number of related complaints - whether duty of care in respect of psychiatric injury

EMPLOYMENT LAW - injury to employee - psychiatric injury - comments by superior - whether such injury a reasonably foreseeable consequence

EMPLOYMENT LAW - injury to employee - psychiatric injury - whether breach of duty - damages assessed

Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613 - applied.

Hegarty v Queensland Ambulance Service [2007] QCA 366 - applied.

Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 - applied.

Hirst v Nominal Defendant [2005] QCA 065; [2005] 2 Qd R 133 - cited.

Hogno v Racing Queensland Ltd [2013] QCA 139 - cited.

Hole v Hocking [1962] SASR 128 - considered.

Hunter and New England Local Health District v McKenna [2014] HCA 44 - cited.

Keegan v Sussan Corporation (Aust) Pty Ltd [2014] QSC 64 - considered.

Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44 - applied.

Malec v JEC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 - cited.

Marshall v Queensland Rehabilitation Services Pty Ltd [2012] QSC 168 - cited.

Medlin v SGIC [1995] HCA 5; (1995) 182 CLR 1 - cited.

Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471 - considered.

New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 - cited.

New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511 - cited.

New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371 applied.

New South Wales v Rogerson [2007] NSWCA 346 applied.

O'Leary v Oolong Aboriginal Corporation Inc [2004] NSWCA 7 - applied.

Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 - applied.

Queensland Corrective Services Commission v Gallagher [1998] QCA 426 - considered.

Ryan v Ann Street Holdings Pty Ltd [2006] QCA 217; [2006] 2 Qd R 486 - applied.

Sullivan v Moody (2001) 207 CLR 562 - considered.

Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 - cited.

Wicks v State Rail Authority of NSW [2010] HCA 22; (2010) 241 CLR 60 - cited.

Wolters v University of the Sunshine Coast [2013] QCA 228 - considered.

[1] The plaintiffs were in 2008 working in the Maryborough Office of Disability Services Queensland ("DSQ"), in managerial or administrative positions. In late 2008 and early 2009 there was a dispute in Maryborough where a number of staff complained about a number of the managerial or administrative people in that office. An independent investigation was set up, which ultimately concluded that the complaints were not sustained. The plaintiffs allege that, as a result of the negligence of the people running the office in their treatment of the plaintiffs, they had in the meantime suffered psychiatric injury, for which they claim damages. Liability and quantum are both in issue.

[2] These four proceedings were heard together pursuant to orders that I made, with the evidence being evidence in all of them. The parties agreed on certain facts for the purposes of these proceedings. These are set out in Exhibit 1, and are as follows:

"1. At all times material to the claims of the plaintiffs, the defendant provided disability services in Queensland under the name Disability Services Queensland ("DSQ").[1]

The plaintiffs in these matters were employed by the defendant at the Maryborough Service Centre ("MSC") at all times material to their claims.

The plaintiff Tanya Palmer (Ms Palmer) was born on 11 March 1960. She was employed by the defendant as an Administration Officer (Rosters) at the MSC.

The plaintiff Samantha Hayes (Ms Hayes) was born on 16 May 1969. She was employed to work as an Administration Officer at the MSC.

The plaintiff Pamela Greenhalgh (Ms Greenhalgh) was born on 29 May 1967. She was employed to work as an Administration Officer at the MSC.

The plaintiff Edith Harris (Ms Harris) was born on 6 November 1956. She was employed to work as an Administration Officer - Team Leader at the MSC.

Between July 2008 and May 2010 the following events occurred with respect to activities at the MSC which the plaintiffs claim caused them to suffer psychiatric illness.

In July 2008 Ms Julie Johnson, a Team Leader for DSQ, made a complaint against Ms Hayes who was in the role of Services Manager, alleging workplace harassment and other issues.

In July 2008 Ms Johnson's complaint was investigated by Lily Simpson (Ms Simpson) who was Acting Senior Manager at DSQ, MSC.

Ms Hayes was interviewed by Ms Simpson in July 2008.

In early September 2008 Ms Greenhalgh was asked to manage Ms Johnson by her line manager, Brendan Costello.

In September 2008 the Acting Director of MSC, Belinda Huig, notified Ms Johnson and Ms Hayes that the complaint by Ms Johnson was not substantiated.

On 26 October 2008 Ms Johnson lodged a fair treatment appeal with the Public Service Commissioner.

Ms Johnson's appeal was supported by statements from 25 Residential Care Officers (RCOs) from the Maryborough DSQ.[2]

On 19 January 2009 the complaint was referred to the Crime and Misconduct Commission (CMC) by the defendant.

The CMC initial assessment categorised the situation as:

The allegations were made against nine managers, service managers, team leaders, and an administration officer including [the plaintiffs].

In January 2009 Ms Pamela Steele-Wareham, Regional Executive Director, was appointed to oversight a "collaborative change process" for MSC.

The CMC referred the complaint of Ms Johnson back to the defendant for investigation.

Before the complaint was referred by the CMC, the defendant had determined that if it was referred back to DSQ for action it would conduct "an external and timely investigation".

On 14 January 2009 the defendant by its agent, Ms Steele-Wareham participated in a hearing of the Industrial Relations Commission where Ms Johnson, the main complainant, was allowed to participate and make submissions to the Commission.

The defendant made no application to the Commission for any of the plaintiffs to participate in the hearing.

On 16 January 2009 the Acting Director General of the Department of Communities, Betty Kill, informed the Acting Secretary for the AWU, Gary Ryan and its advocate, Peter Eldon, that Ms Greenhalgh had been recently permanently appointed to the position of Resource Officer, Specialist Response Service, to commence on 19 January 2009 and that she would not have any line management responsibility for 'this group of staff'.

Additionally, Ms Kill informed Messrs Ryan and Eldon that Ms Hayes' request for a secondment had been approved in the role of Community Resources Officer in the Maryborough Regional Office from 27 January 2009.

Furthermore, Ms Kill advised on 16 January 2009 that Ms Palmer's duties were changed back to her substantive position as Resource Officer, so as to remove her responsibility for:

(a) Direct contact to and from RCOs concerning the filling of shifts;

(b) linking resource officer rosters around the technical aspects of the roster;

(d) liaising directly with the manager of MSC concerning any decision making of contentious issues emerging from roster or maintenance tasks.

On 18 January 2009 Ms Harris left work until 25 January 2009.

On 19 January 2009 the defendant was aware by its agent, Ms Steele-Wareham, that the AWU was planning to hold a protest picket at the MSC.

The AWU distributed a notice which claimed the 39 members of the AWU who worked under accommodation, support and respite services made a vote of no confidence in six persons in management positions inside the MSC. The notice named Ms Palmer, Ms Hayes and Ms Greenhalgh as three of them.

In February 2009 investigators were appointed and conducted an investigation into the complaint.

In March 2009 interviews were conducted with complainants.

On 17 March 2009 Ms Palmer left work until 17 April 2009. Ms Palmer was also absent from work from 20 April 2009 to 17 May 2009.

On 16 January 2009 Ms Hayes left work at the MSC and did not return.

In April and May 2009 interviews were conducted with Ms Harris, Ms Greenhalgh and Ms Palmer. The interviews were conducted by Mr F Albietz and Mr G Smith.

On 4 December 2009 Ms Cuskelly and Colleen Bruce were asked by Shirley Witta, Manager AS and RS to attend the house of another Manager, Edith Harris. Ms Cuskelly and Ms Bruce found Ms Harris sobbing on her kitchen floor.

Ms Greenhalgh left work between 12 May 2010 and 8 June 2010.

On 7 July 2010 Loraine Stokes (Ms Stokes) chaired a meeting with four of the managers who had been the subject of allegations.

The parties agree that the defendant is vicariously liable for the acts or omissions of Julie Johnson, Pamela Steele-Wareham, and other staff where those acts or omissions were committed in the course of employment of those persons."

[3] I am conscious of the fact that these proceedings arise out of a fairly lengthy and heated dispute between management and at least some of the residential care officers ("RCOs") working for the MSC. That dispute has already been the subject of proceedings in the Industrial Relations Commission, and complaints which related to it have been investigated independently. I am only concerned with the issues that arise in the proceedings brought by the four plaintiffs, but inevitably those issues are closely related to the development and course of that dispute, particularly because there are significant issues in this matter as to the question of causation. However, it is important for me to emphasise that I am only concerned with resolving the matters in issue in this action, and I am not conducting some sort of commission of inquiry into the events at the Maryborough Service Centre.

[4] I am also conscious of the fact that I have had relatively limited evidence, in that there were a lot of other people involved in the broader dispute from whom I did not hear evidence. As I will indicate, the immediate trigger for the dispute appears to have been a particular employee, Ms Johnson. She was not called as a witness; the evidence suggested that she is still working for the Department, although in a different position.[3] The defendant may not have been concerned to defend her position. There may be other explanations. I have in those circumstances not had the opportunity to make my own assessment of her. There are however in evidence a number of documents, including a statutory declaration, which she wrote, and I have read these.[4] To some extent these provide evidence of her position in relation to the dispute, and also seem to throw some light on her personality. In any case, I can only deal with the issues on the basis of the evidence before me.

[5] One of the functions of DSQ in Maryborough was to manage a number of residential homes for persons with an intellectual disability, who as a result needed assistance in caring for themselves. These homes were staffed by RCOs with a Team Leader in charge of several homes. RCOs were rostered so that one of them, and at one home two, would be there at all times. This was necessary to enable care to be provided to the residents. Groups of homes and the RCOs staffing them were then managed by one of two Service Managers at Maryborough, under the control of an overall Manager who at the relevant time was Mr Costello. Ms Hayes, one of the plaintiffs, was one of the Service Managers at the time. She was responsible for managing three of the homes, one of which was a respite care home.[5]

[6] Ms Hayes had been in her position since late 2006, initially in an acting capacity.[6] She had joined the service in an administrative role a few years earlier, and had worked her way up. She had not herself worked as an RCO. In her position she had to ensure that the standards and procedures of the service were implemented in the homes she managed. She was involved in the induction of new RCOs, and in the course of doing this she met Ms Johnson when she was inducted as an RCO, and she managed Ms Johnson.[7] She was initially happy with Ms Johnson's work, and supported her promotion to the position of Team Leader: p 1-35. The relationship soured however in March 2008 when she refused to socialise with Ms Johnson and her husband: p 1-36.

[7] Ms Greenhalgh began to work for the Department in 1994 as an RCO: p 2-53. She then became a resource officer, and then an acting unit manager, a team leader and then an acting service manager. She knew Ms Johnson from 2007 (p 54) and in 2008 she had a couple of issues with her, including in July Ms Johnson's telling staff that if they had a problem not to go to management and report but to go over their heads: p 2-55.[8]

[8] Ms Palmer had considerable experience as an officer handling rostering at the Ipswich office of DSQ: p 3-59. She had worked in rostering for upwards of 10 years, and was quite good at it. She had been involved in developing rostering programmes, and had been sent to various offices to assist them in the implementation of these programmes. She moved to Maryborough in 2007,[9] and found that there were problems with the roster then in place: p 3-60. Given that one or two RCOs had to be rostered to be at each home at all times, there was a system of having a rotating shift pattern for each of the homes, which took into account a number of factors which I need not go into; there was some complexity about the process. There were however not enough permanent RCOs then employed to fill the roster when it was prepared properly, with the difference being made up by permanent RCOs working overtime.

[9] At that stage there was quite a lot of overtime being worked, partly because there were not enough permanent RCOs, and partly because the rostering system which had been in use at Maryborough was obsolete: p 3-61. Ms Palmer brought the rostering system uptodate, and there were a number of additional permanent and casual RCOs employed, changes which brought the rosters under control, and the amount of overtime work was significantly reduced: p 3-62. This was beneficial for the budget of the office, but had the consequence that a number of RCOs suffered a reduction in the overtime available for them, and some were unhappy about this.[10] The RCOs also had less control, losing the ability to pick which shifts they would work.[11] In addition the implementation of this roster required some greater degree of flexibility from the RCOs, for example having to work at times at different houses, which some RCOs were unhappy about.

[10] About the same time, there were moves within the department to improve the quality of life for the people living in the houses.[12] There was new legislation, which identified this as an objective, and steps were taken to give effect to this, including by monitoring conditions in the homes, ensuring that the progress and activities undertaken by the residents were properly documented, and encouraging them to engage in additional activities. This involved some additional work for, and closer supervision of, the RCOs, which would have been problem for any RCOs who were not conscientious in performing their work.[13] The management structure had changed with the creation of the position of team leader, a position which involved closer supervision of the RCOs as the team leaders would regularly visit the homes.[14] Overall there were a number of changes which could be expected to give rise to some discontent on the part of those who preferred the old ways.

[11] Ms Hayes felt that initially she had a good working relationship with Ms Johnson,[15] but said that that changed when she rejected a suggestion from Ms Johnson that they meet socially: p 36, p 2-17. This was not long before the first complaint. Ms Palmer never got on with Ms Johnson whom she regarded as difficult to work with, loud, pushy and overbearing: p 3-65, p 4-24. She filled out a couple of workplace injury report forms because of her behaviour, but nothing changed.[16] Ms Greenhalgh had known Ms Johnson from 2007, having worked with her at times, and described her as not a nice person, with respect to coworkers, being very vocal and inclined to raise her voice, and tending to stand up so that she could lean over the person she was talking to rather than sit face to face across a desk or a table: p 2-56.

[12] Ms Harris joined DSQ in 1995 as an RCO and became a team leader in about 2007, presumably when the position was created: p 4-54. She was responsible for three houses, with five regular staff plus casuals and relieving staff. After Ms Johnson became a team leader they had workstations together in the MSC: p 4-57. She also described Ms Johnson as being loud, and inclined to talk over people, being a dominant personality, but she said that she had no issues with her until an occasion when Ms Johnson was complaining about her workload, and asked Ms Harris whether she agreed that the workload of team leaders was too great: p 4-58. Ms Harris did not agree and said so, and she said that Ms Johnson appeared hostile towards her from then on. She said that thereafter she found her hard to work with, and that Ms Johnson would not follow established procedures. She spoke to her manager, Mr Costello, about Ms Johnson, but was told in about December 2008 that something would be done and to stop worrying about the matter. Ms Johnson became worse in 2009, angry with everyone, and Ms Harris avoided her: p 4-59. This was not hard, as she was hardly ever in the office. She also complained to Ms Steele-Wareham: p 9-54.

[13] In May 2008 Ms Hayes took some leave: p 1-36. While she was away, a residential resource officer who had occasion to visit a particular house at La Frantz Drive for which Ms Johnson was responsible complained about the state of the house, particularly in relation to cleanliness. At that stage Ms Hayes' work was being covered by Ms Greenhalgh, who in cooperation with the manager Ms Chaplin[17] arranged a planning day, that is a meeting, for the team after Ms Hayes returned. At the meeting, held on 21 May 2008, Ms Johnson was very defensive in disputing the detail of the complaint, and critical of the officer who had made it. That this was so is supported by the content of an email from Ms Johnson of 3 September 2008 to Ms Hayes, in response to one of 28 August 2008 complaining that there were aspects of the same house that were still not properly cleaned, and that other matters arising from the planning day had not been addressed: document 13, which is also defensive and aggressive. At that meeting Ms Johnson also complained about the workload she had been given: p 1-37.

[14] Later Ms Harris took over as the team leader in charge of the house at La Frantz Drive, and found when she did so that the folders and documentation in relation to the residents had not been kept up to date by Ms Johnson, so she had a lot of work to do to bring it all up to date: p 4-68. Ultimately cleaning contractors were brought in to clean the house,[18] suggesting persistent resistance by the RCOs.

[15] On 8 July 2008 Ms Johnson provided to the regional executive director Ms SteeleWareham a written complaint alleging workplace harassment against Ms Hayes: document 11.[19] This complaint went for nine pages, but little of it referred to any conduct by Ms Hayes in relation to Ms Johnson. There was a reference to an occasion when Ms Hayes had spoken to her about an allegation that had been made to her by someone else, in a way which was entirely appropriate; one occasion when she was speaking about RCOs but in a way which could not possibly be interpreted as harassment of Ms Johnson; an occasion in May 2008 when Ms Hayes had been asking her to gather some information required by someone more senior, which was obviously unexceptional; one occasion later in May when Ms Johnson raised a complaint about the workload and was told that that was a management issue and if she had a problem to put it in writing; and that Ms Hayes appeared to become angry when told about problems with morale among RCOs. This turned into an exercise of Ms Johnson telling Ms Hayes how to do her job, but Ms Hayes responded not with harassment but by being silent and walking away.

[16] There was a good deal of how Ms Johnson felt about things, and things that other people said to her, or other exchanges with Ms Hayes which could not possibly constitute harassment. The only matter referred to in the complaint requiring any real consideration was an incident said to have occurred on 11 June 2008 when Ms Hayes supposedly challenged her about her having criticised Ms Hayes and Ms Greenhalgh behind their backs. According to the complaint Ms Johnson responded by saying that she wanted a complaint in writing, and otherwise objecting to the conversation.[20] If Ms Hayes had been told something to this effect I think it would be natural enough for her to raise it informally with Ms Johnson, and I find it difficult to believe that that could amount to harassment.

[17] The complaint was passed on to someone else,[21] who referred it to Ms Simpson, an acting senior manager, who prepared a report: document 10.[22] According to the report Ms Simpson was asked to travel to Maryborough to further explore the complaint and report on the matters raised: p 8-82. She interviewed 10 staff at the MSC and summarised their responses in attachments to her report. It is apparent from this document, and from the evidence of Ms Simpson, that as an investigation this was very badly handled. No attempt seems to have been made to identify relevant incidents as potential incidents of harassment, or to find out what happened during those incidents, and there was no consideration of whether what occurred amounted to harassment for the relevant purpose: p 8-88.

[18] The then manager was asked about things other than the behaviour of Ms Hayes,[23] and a number of other people were asked whether they had ever been subject to or witnessed workplace harassment or bullying by Ms Hayes; all denied that they had ever seen any such thing. There was an interview with Ms Johnson when she complained about the tone of Ms Hayes' voice, and about an aggressive look, and also commented about tennis balls being thrown on a wall, although it is not clear whether this was something supposedly done in her presence. According to the attachment to the report Ms Simpson did not ask Ms Hayes about any of the specific incidents referred to in the complaint, but merely asked in a general way about her behaviour in the workplace. As an exercise in investigating the complaint, this was useless.

[19] The report stated that Ms Johnson had the perception that Ms Hayes was undertaking workplace harassment/bullying during their interactions within the workplace, and that Ms Hayes did not consider her behaviour as harassing or bullying. In the summary it was said that Ms Johnson did not provide enough evidence to substantiate "beyond reasonable doubt" that Ms Hayes' behaviour could be classed as workplace harassment or bullying, which is obviously not the test.[24] Finally she recommended that an investigation into the alleged workplace harassment/bullying be undertaken, which I suppose amounted to an admission that what she had undertaken was not a proper investigation.[25]

[20] One thing she does seem to have achieved however was to leave both Ms Hayes and Ms Johnson with the clear impression that she was upholding the complaint. Ms Hayes said that Ms Simpson came back to the Maryborough office in August 2008, spoke to her and told her that she was upholding the bullying and harassment allegation, on the ground of Ms Johnson's perception: p 1-39.[26] Ms Simpson denied that she said this (p 8-84), but I prefer the evidence of Ms Hayes, partly because her evidence struck me as generally reliable, and partly because it is clear that Ms Johnson was given the same impression by Ms Simpson, as appears from a document Ms Johnson later wrote, which stated that on 1 August 2008 in a meeting with Ms Simpson she was told that her complaint was substantiated: document 16A. I cannot accept that both parties to the dispute would have obtained the same, incorrect interpretation of the situation if Ms Simpson had in fact said what she claimed in evidence to have said.[27] Given what subsequently happened, and that Ms Simpson obviously made a mess of the investigation, it is not surprising that she would not be frank about the situation. Whatever she was doing, to make any such comments to the parties was gratuitous, inappropriate and very damaging in its consequences.

[21] Ultimately however the complaint was dealt with by someone more sensible; by a letter dated 30 September 2008 both parties were advised that the complaint of workplace harassment or bullying was not substantiated: document 16, Exhibit 8. Other matters raised in the nine page complaint, about management decisions being influenced by relationships and team leader workload, were not substantiated, but a complaint about low morale within RCOs was referred to the manager at Maryborough to be addressed. This came as a great relief to Ms Hayes, who had been most concerned about what she was told by Ms Simpson: she was very upset and had gone home immediately after that conversation: p 1-40. She had foreshadowed an appeal but was persuaded to wait until the formal letter. As well she had asked that a different service manager take over the management of Ms Johnson (p 1-43) and Ms Greenhalgh was asked to do this, although she insisted that another more senior manager be present during any meeting she had with Ms Johnson: p 2-56.

[22] On one occasion after there was such a meeting, and the manager had left, Ms Johnson put her hand on Ms Greenhalgh's shoulder and said, "Don't worry, Pam, I'm not after you": p 2-57. Ms Greenhalgh found this very disconcerting (p 328), understandably because it contained an implied threat that the situation might change. As a result she spoke to her manager Mr Costello, and to Ms Cuskelly: p 2-58. She then arranged for an appointment with the Employee Assistance Scheme (EAS): p 3-30. She said that in fact she had little contact with Ms Johnson after September 2008, when she was supposed to be managing her: p 2-62.

[23] After Ms Johnson received the rejection of her initial complaint, she evidently set about canvassing support, in the form of lining up other people, mainly RCOs, who were prepared to criticise Ms Hayes and other members of the management team at Maryborough. She was quite effective at this, helped no doubt by the dissatisfaction within the RCOs at the changes referred to earlier. It is not entirely clear from the material I have seen whether there was one or more than one process of appeal, but one step adopted by Ms Johnson was to give notice of a fair treatment appeal under the Public Service Act 2008: document 16A. This was dated 26 October 2008, but was not the document which led to the major investigation.[28] Ms Johnson provided material from other residential care staff in support of her position. This came to be assessed by the Department's Misconduct Prevention Unit: document 56.

[24] In January 2009 the plaintiffs found out that there had been the further complaint by Ms Johnson. Ms Hayes was told in a meeting on 5 January 2009, and that the complaint related to bullying and harassment, but no other details: p 43, 46, p 2-23. Ms Greenhalgh was also told in January 2009 by Ms Steele-Wareham that there had been allegations made, but only in a general way: p 2-62, p 3-33.

[25] In January 2009 the Acting Director-General was Ms Kill.[29] On 8 January 2009 the head of the Misconduct Prevention Unit of the Department briefed her about the complaints from nine Maryborough staff. He had assessed the complaints and was referring them to the CMC;[30] at that stage he did not assess any significant risk issues with regard to placement of employees: document 20. The Acting Deputy Director-General proposed that the complaints be the subject of an external investigation.[31] Ms Kill agreed with the proposal for the external investigation, in order to be seen to be providing natural justice: p 8-54. Presumably the concern was to remove any appearance of bias.

[26] Ms Johnson also stirred up the Australian Workers Union which represented the RCOs. The union wrote to the Director-General on 8 January 2009 seeking a meeting about what action the Department was proposing to take about what was said to be a number of witness statements containing various allegations: document 56 p 8.[32] Ms Kill received the letter from the AWU, and she interpreted this as indicating that the union regarded these as very serious matters: p 8-52. There was a meeting between Ms Kill and officers of the Union on 9 January 2009, an event which she said in her experience was not uncommon: p 8-52. The union position was that efforts to deal with the situation thus far had been inadequate and ineffectual and more substantial efforts had to occur otherwise there would be substantial union action. She took the union's position seriously. Specifically the union wanted a number of staff removed from positions in the Maryborough region.[33]

[27] In response on 12 January 2009 Ms Kill wrote to the union, pointing out that the complaints had been referred to the CMC for independent consideration and assessment, and that there would be an external and timely investigation process if the matter was referred back to the Department for action: document 56 p 6. She proposed to ensure that the "impacted staff" were reminded of their obligations under the Department's Code of Conduct, and to make a particular person in Human Resources available who could support staff and discuss concerns they might have during the period until the investigation was finalised.[34] In addition, Ms Steele-Wareham was assigned to provide support for all staff and monitor the operations of the MSC[35]: document 25, which drew attention to the Employee Assistance Service. For practical purposes, she took over management of the MSC: documents 47, 48; p 928.

[28] On 13 January 2009 Ms Johnson wrote to the CMC, enclosing 68 pages of supporting material; they referred the complaints back to the defendant for investigation.[36] This led in March 2009 to the appointment of an external investigator, Mr Albietz, a former ombudsman, who was subsequently joined by Mr Smith, a principal investigation officer at the Misconduct Prevention Unit of the Department, for the purpose of an independent inquiry into the complaints: document 2 p 9.

[29] Early on 14 January 2009, Mr Costello sent an email to the plaintiffs and three other people, emphasising some (unidentified) directions given to them earlier in the week, drawing attention to the memo document 22, stating that it was of the utmost importance that they act in line with the Code of Conduct at all times, and requesting them to refrain from discussing this matter generally with any other employees: document 29.[37]

[30] There was a stop work meeting organised on 14 January 2009,[38] at which 38 members of the AWU carried a vote of no confidence in a number of people, starting with the Acting Director-General but including Ms Hayes, Ms Greenhalgh and Ms Palmer: document 28.[39] There was also a conference held at the Industrial Relations Commission on that day,[40] although I have little evidence about what happened there.

[31] The plaintiffs other than Ms Hayes, and some other people, were sent an email by Ms Steele-Wareham late on that day advising that the conference finished at about 4.30 p.m., that Ms Johnson and one other person participated with the union, and a number of additional statements were presented which would be provided to the Department for its response, but there was no further action to be taken: document 26. The email continued:

"Each of you is requested not to discuss these matters with any RCO or other staff. Should anyone want to discuss matters with you they are to be referred directly to Brendan [Costello] and if they feel uncomfortable speaking with Brendan they are to be referred to me. You are also requested not to seek out any information on these matters from any staff. I will ensure people are kept up to date with information as it becomes available. Should staff wish to meet as a group via union or other meetings to discuss these matters you are requested not to participate."

[32] The email also drew attention to the availability of the employee assistance scheme. The plaintiffs interpreted these emails[41] as an instruction that they were not to talk to each other, or other management staff, or their own union.[42] This left them feeling isolated and unsupported by the Department. The AWU released information to the media: documents 34, 36, 46.[43] The AWU was also actively seeking statements from members in pursuit of its campaign: document 35.

[33] There was a further meeting of RCOs held at 10 a.m. on 16 January 2009, attended by 42 people, at which it was resolved that the Department be asked to stand down seven persons including three of the plaintiffs: document 37.[44] This meeting was organised by Ms Steele-Wareham, working with the local AWU organiser. The invitation sent out by Ms Steele-Wareham said that he was "supportive of working with [her] as an independent person to understand your concerns": document 38. She attended the meeting, and said that there were a number of complaints voiced at that meeting, general comments about decision-making by managers, particularly in terms of promotions, and examples were given: p 9-81. The people raising issues seemed to be genuine about what they were saying, and appeared to be talking generally about matters that had some substance attached to them: p 9-82.[45]

[34] Ms Steele-Wareham said her purpose in calling the meeting was essentially to find out the scope of the unrest among the workforce (p 9-10) and she had made it clear that she was not there to make judgments or decisions about issues that were raised, but just to report back to the Director-General, as indeed she did: p 9-11. Her presence did not pacify the union, or was seen as a sign of weakness, because they proceeded to organise a picket of the MSC on 19, 20 and 21 January 2009.[46] There was shouting and at times placards were banged against the office windows.[47] There were no special security arrangements in place: p 5-63.

[35] Ms Kill said that she decided Ms Palmer and Ms Hayes would be moved from their current positions into different positions, and that Ms Greenhalgh would be moved to take up the position to which she was moving anyway as a result of an earlier decision: p 8-54. She did not identify when this decision was taken, but it was while she was Acting Director-General.[48] She said that her primary concern was about maintaining a quality service for the residents and remedying the conflict which had arisen, and she concluded that this would act as a circuit breaker: p 8-54, 55. It was not simply a question of doing the union's bidding, particularly in circumstances where the union was seeking more substantial action against these and other officers, but her concern was that the service was at risk, the residents were at risk and there was a risk of harm to staff as a result of the conflict with other staff. No documentation in relation to this decision was produced.

[36] Ms Kill said that she would expect that, if staff were being transferred to another position pending the outcome of the investigation, the rationale for this move would be explained to the staff concerned, and that this did not mean that the Department had accepted that the complaints that had been made were justified: p 863. She expected that the officers would be told that their redeployment was temporary, though indefinite: p 8-64. She said that she recalled instructing[49] that the staff be clear that the investigation was a separate matter that was not being prejudged, that they were employees in good standing, but that she had made the decision that these changes were necessary, in the interest of maintaining the service to the residents: p 864. The things that she expected to be communicated were the decision which she had taken, and her rationale for taking it (that is to say because of the importance of continuing the service to the residents), that this decision was not related to the investigation that was underway, and that they were officers of good standing: p 880.[50] It is clear from her evidence that the industrial relations situation was an important consideration in the decision to move the staff, though she was not prepared to say that if there had been no industrial relations issues they would not have been stood aside simply because of the nature of the complaints themselves; that was an issue which would be decided on a case by case basis in the light of the specific complaints: p 8-65.

[37] Ms Kill said that she did assess the risk to the plaintiffs, but she did not consider that that was something that ought to have been communicated to them when they were told of the decision to move them: p 8-69. The risk to the relevant officers that she had in mind was that hostility which had developed and conflict as a result of that hostility could be harmful to them: p 8-80. She was told by senior executives that managerial staff were being treated dreadfully, and that it was sustained. The union was told that these staff were to be moved, and they were not consulted about whether the union would be told: p 8-73. Ms Kill was not convinced that the MSC would be able to arrange adequate coverage for all of the houses in the event of a strike: p 8-75.[51] She knew that in a heated industrial dispute the requirement that RCOs not leave a resident without care might not be complied with, having had experience in the past where that had occurred: p 8-76. These steps would not necessarily prevent industrial action: p 8-77.

[38] About 15 January 2009 Ms Hayes was told that she was being moved to a different position,[52] because the RCOs were not happy about her going to the homes, and she was given a position as community resources officer, which she was told was the only role available: p 48, 49.[53] She was not happy about this because, although her pay was not reduced, this was a lower status position and she felt as though she was being punished: p 49. She said she was told that this had to be done pending the investigation, became upset and went home. The combination of things left her feeling unable to continue at work: p 2-33. Ms Steele-Wareham said she told her it was not in her best interests to be continuing to deal with the workforce given their attitude; she regarded it as unsafe: p 9-12.[54] Ms Hayes subsequently consulted a doctor, and went off work with stress: p 53. She put in a claim for workers' compensation: p 54.

[39] According to Ms Greenhalgh she was told by Ms Steele-Wareham that she and the others against whom the complaints had been made were not allowed to talk to each other in relation to the dispute: p 2-63. She did not ask any questions. They were told it was a union dispute. The next day she was asked by Mr Costello whether she was still happy to act in the service manager's position and she said she was,[55] but the following day she had a phone call from Mr Price, another manager, advising that she was to move immediately to a position that she had previously applied for with a different team: p 2-64. She had been advised in November that she had been successful in this application (document 17), but had stayed on in her position because of a need for some continuity because of difficulties posed by a particular resident who had challenging behaviours. No doubt this move was somewhat disruptive for her given that she was being kept on in the former position specifically to deal with this task, but it could hardly be characterised as some form of disciplinary action or unfair treatment. Nevertheless, she saw this as a process of giving in to the RCOs, since she knew that they had wanted her and other managers moved away: p 2-66. She started in her new position on 2 February 2009: document 101.

[40] When she moved into her new position Ms Greenhalgh did some training, which involved going to Brisbane: p 2-91. She was told at some point at a meeting[56] that she would receive details of the process of investigations that she would be involved in, but at that stage no details of the allegations.

[41] In January 2009 Ms Palmer was told by Mr Price that some allegations had been made against her and as a result she was being stood aside from her position, but he did not say what the allegations were.[57] For that purpose she was also required to leave her usual work station, and was given a different desk: p 3-74. Her work station had been especially set up with appropriate aids because of a shoulder problem that she had: p 3-69.[58] Although Ms Palmer had been removed from her position, and from her desk, she was not given anything else to do: p 4-4. Someone else who had had some training but whom she did not regard as up to speed was given her job to do, and she had to spend some time helping that person or dealing with queries from that person.

[42] Ms Palmer was concerned to receive the email about the proceedings in the Industrial Relations Commission (document 26), particularly because of concern about what Ms Johnson would be saying to them: p 3-71. She also understood the email as indicating that they were not allowed to talk about the matter with anyone: p 4-9. She also received the email from Mr Costello dated 14 January, document 29: p 4-8.

[43] Ms Palmer was in the office on one occasion when there was picketing organised by the AWU and she was terrified by it: p 3-74. At the time of the picketing, while she was in the office she saw on a table some documents from the AWU which had her name on them: p 3-75.[59] She put in a workplace injury report form in relation to this.[60] She said that during the picketing there was chanting and at times placards were being banged against windows: p 3-76. She thought that the picketers were angry and that they seemed to be out to hurt someone, which particularly frightened her: p 3-77. She was too frightened to stay in the building and she was escorted out to her car through the back door by Ms Greenhalgh, and went home: p 3-77. She complained at the time to Mr Price: p 378.

[44] Ms Greenhalgh was then still working from the same office building, though in a different section, so that she was aware of the picketing, she thought, on 19-21 January 2009: p 267. She was upset by it, particularly when they were hitting the windows with their placards, and she was told that one of the picketers, a Mr Smith, had entered the foyer of the building: p 2-68.[61] She submitted workplace injury report forms as a result of her feeling stressed, harassed, intimidated and bullied by the picketers: documents 44, 51. She did not receive any feedback in relation to those forms. She felt a lack of management support in the building, although at the time she was being managed by the Sunshine Coast office: p 2-69.

[45] Ms Greenhalgh said that during or just after the picketing she was speaking with Ms SteeleWareham, in the course of which Ms Steele-Wareham had asked, how could 60 RCOs be wrong: p 2-70, p 3-35. She replied that they could be wrong if they want what they want, not being happy with the fifth line rostering system referred to earlier.[62] Ms Steele-Wareham denied she said this: p 9-15, 53.

[46] At about this time Ms SteeleWareham told Ms Greenhalgh that there had been a complaint of racial vilification by her, supposedly at a team planning day which Ms Greenhalgh had run, and asked her what she had said at the meeting. Ms Greenhalgh said that she gave an account of a discussion in relation to the management of the processes for recording a client's financial matters in circumstances where the client was visiting members of an extended family within the Aboriginal community: p 2-71. According to her Ms Steele-Wareham spoke about some other matter, and then told her that she would have to go and do cultural training,[63] because she had vilified. Ms Greenhalgh felt that she was being dealt with unfairly, because she was essentially being punished without there having been any proper investigation of the complaint, and without her having had the opportunity to tell her side of the story. She felt that Ms Steele-Wareham was treating her and the other managers as guilty, because of that comment and because she was not doing anything to help them.[64]

[47] On 2 February Ms Palmer met with Ms Steele-Wareham, and had a discussion, the content of which Ms Palmer could not now recall, except that at the end of the conversation Ms Steele-Wareham said: "How can all those people be wrong?": p 47.[65] She was most upset about this because it appeared that Ms Steele-Wareham had decided that the allegations, the details of which Ms Palmer at that stage did not know, were justified: p 4-8. Ms Palmer cried, and that was the end of the meeting.

[48] Apart from a bit of helping out, and a trip to Townsville for work, Ms Palmer did not have any particular function until 17 February 2009 when the job that she was previously doing was split, another person was given responsibility for rostering, and she was to take care of payroll matters, though she was still not to have any contact with RCOs: p 4-13. This did not occupy her whole time, or close to it, in spite of the fact that nominally she had a long list of duties: document 54, p 4-14. Ms Palmer had been on a working party which was preparing a new rostering system, and she had some papers associated with this at her old desk: p 4-15. On 17 March 2009, she sought to retrieve them, and was told by the person who had taken over her rostering role that she had thrown them away. This interfered with that work and left her feeling very upset, as though she had been sabotaged. She was so upset that she went home. She saw a GP as soon as she could, and completed a workers compensation form, but her application was not immediately accepted: p 416, document 70.

[49] On 9 March 2009 Ms Greenhalgh was sent an email by Ms Steele-Wareham referring to the investigation process: document 57. At the time Ms Greenhalgh was on a training course, and did not in fact have access to her emails, and when she eventually discovered that the email had been sent she was upset that she had not been advised more promptly: p 3-7. In April 2009 Ms Greenhalgh had a conversation with Ms Harris who was complaining about the way the RCOs were behaving at a house at which she was working: p 3-8. She told her to speak to her manager, and subsequently had a conversation with Ms Steele-Wareham about the matter. Shortly after that, she was spoken to by her manager in her new position who instructed her that she was not to have any contact with people from the previous section. Up to then she understood that she was not to have contact with RCOs and residents, and she was quite upset that she was not allowed to have any contact, which indeed was not really consistent with the requirements of her new position.[66]

[50] Ms Greenhalgh became so upset by this that she left the building and went home. Later she had an informal conversation with Mr Costello and after that when she happened to see Ms Steele-Wareham she had an anxiety attack: p 3-12. Subsequently, when Ms Steele-Wareham moved to Brisbane she felt better. Nevertheless, it appears that her stress reaction became more severe during 2010, to the point where in May she was unable to work at all.[67] She began a graduated return to work in August, and eventually she got back to full time work, but she still has anxiety symptoms at times, particularly when she sees certain RCOs: p 3-13. She is now working in a different building, which helps.

[51] Ms Harris was on leave from 18 to 26 January 2009.[68] When there were reports in the press she rang a couple of times, but was told, first by Mr Costello and then by Ms Steele-Wareham, that she was not involved in what was going on, and to enjoy her holiday.[69] At one stage she was told by another team leader that she had heard from an RCO that they were now out to get her as well, and she spoke again to Ms Steele-Wareham who again told her there was nothing to worry about: p 462.[70] After her holiday she resumed her work as a team leader, but saw her GP complaining about stress from problems at work: p 5-35. She was prescribed medication.

[52] In March 2009 Ms Harris had a week off work because she was upset about not being told anything, but she did want to work and she went back to work after that: p 4-72, p 5-35. On 15 April 2009 Ms Harris was given a letter about the investigation: document 61, p 4-63. It was shortly before this that she was first told by Ms SteeleWareham that she was involved, and that she was to be given the letter. She was quite upset about the letter, particularly about an allegation of racial discrimination; she found that particularly upsetting, because her husband, and her two children, are Aborigines. There was an occasion in April 2009 when there was a meeting with Ms Steele-Wareham during which Ms Harris became quite upset, and she later prepared a record of the meeting: document 7, p 4-67. She saw her GP again on 14 May, complaining of stress from work: p 5-35.

[53] The independent inquiry promised by the Department got underway in March 2009,[71] but it was some time before they interviewed the plaintiffs. The plaintiffs were not given details of the specific complaints made against them prior to the time when they were interviewed.[72] Ms Palmer was interviewed on 27 April 2009: document 65, which she verified: p 4-17. Ms Palmer had subsequently a further interview: document 75, p 4-18. This further interview was because on the first occasion she did not have documents available to answer the charges, not having been given particulars of them beforehand, so a second interview was arranged for that purpose. Ms Harris was interviewed on 29 April 2009 (document 66) and again on 28 May 2009 (document 74). Ms Hayes was interviewed on 26 May 2009 (document 73). Ms Greenhalgh was interviewed on 28 May 2009: document 76.

[54] In June 2009 Ms Palmer was sent to the Hervey Bay office for two weeks, on the basis that they needed someone at that office, but in fact when she got there she was not allowed to do anything very much, and found the exercise quite frustrating: p 421. Before July 2009 she had been to the EAS people, but did not find them very helpful: p 4-22. What she really wanted was to get back to her previous position, but the Department was not prepared to allow that. She was concerned in September 2009 when Ms Johnson returned to work after taking maternity leave, and she arranged to move to a desk at the opposite end of the building; however there was a door to the outside of the building next to her desk, and Ms Johnson began to use that door to enter and leave the building, something she had not done previously: p 4-23. Ms Palmer assumed, and the assumption seems to me to be reasonable, that this was just being done to upset her. She put in a number of workplace injury report forms in relation to this conduct, but nothing effective was ever done.

[55] Ms Hayes remained off work for about six months, and was then cleared to return to work provided she was not working with RCOs: p 74. She found however after two weeks that she could not cope with working in the same office. The Department evidently could not find her any other work for some time. She was provided with support and assistance in redeployment from a psychologist, Ms Stokes: p 6-57, Exhibit 34. Eventually she worked for three months with the National Parks and Wildlife Department, which she said worked well: p 76. However she was told she had to work again in the Maryborough office, and became upset: p 77. She was then given a position within a group based in Brisbane, though most of the work was done in an office in a different part of the building in Maryborough: p 78.

[56] Eventually[73] Ms Hayes moved to a different position which led to a move to Brisbane in November 2011: p 79. She was able to cope with this work, and at first generally enjoyed it, but after a couple of years her condition deteriorated again, she began having anxiety attacks, and eventually she felt she just had to get away from the Department completely: p 80. She did not in her evidence identify any particular trigger for this deterioration.

[57] In mid-October 2009 the independent investigators submitted their report.[74] The complaints were comprehensively rejected. It was considered by the Deputy Director-General, Mr Hogan, who accepted its findings in late October: p 8-9. There was some concern about the reaction when the findings were made known, and for that purpose an external organisation was engaged to provide assistance in improving the workplace relationship between the management and staff: p 8-10. The then Director-General and other senior officers within the Department travelled to Maryborough in order to brief those concerned on the outcome of the investigation. The officers the subject of the investigation, including the plaintiffs, were briefed at Hervey Bay on 27 November, and they were provided with letters formally communicating the decision in relation to the complaints.[75]

[58] The Director-General's party then travelled to Maryborough and held a meeting with a large number of RCOs, who produced a strong adverse, and to some extent aggressive, reaction to the decision: p 8-11. It was the most robust and aggressive meeting Mr Hogan had ever attended. Mr Hogan was concerned about the reaction mainly because it indicated that it would be difficult to get the workplace working properly, something which would require more intensive effort. Part of the problem was that, although the complainants were told the outcome of the investigation, the reasons of the investigators were not released to them.[76] The union threatened further industrial action, and there were further proceedings in the Industrial Relations Commission, which led to a copy of the report being made available to representatives of the union, under the supervision of the Commission and on the basis that the details of the contents of the report would not be communicated to others: document 91. Once the union officials were able to consider the terms of the report, the union lost interest in pursuing the matter, though no doubt individual complainants who had been told their complaints had been rejected but had not been given reasons for that decision would still have been angry and dissatisfied with the process.

[59] It is clear from the evidence of Mr Hogan that the Department at that time was focused on seeking to mend the relationship with the staff, and various steps were taken including, significantly, a decision not to return the two plaintiffs, Ms Palmer and Ms Hayes, to their previous positions at that time: p 8-10. This was because of the volatility of the situation, and the strong reaction from the workforce. For the same reason it was decided that no disciplinary action would be taken against any complainants: p 8-12. During the time Mr Hogan was specifically responsible for this issue, which appears to have ended in early 2010, no final decision had been taken as to whether Ms Palmer and Ms Hayes would return to their previous positions.[77] The practical effect of this was that the decision that they stay out of those positions for the time being continued: p 8-35.

[60] In the light of Mr Hogan's evidence at p 8-37, 38, it is safe to infer that, up to the time when he ceased to be responsible for this matter, no decision had been taken permanently to move Ms Palmer and Ms Hayes from their previous positions. It follows that, insofar as they may have had an impression to the contrary, it was erroneous.[78] Mr Hogan also said that his expectation would be that if it was decided that it was necessary because of an industrial relations issue that had arisen for a person to be moved out of a particular position in the Department, without any adverse finding against that person, he would expect that the context and rationale for this decision would be explained to that officer: p 8-39. He did not recall an issue ever arising in relation to Ms Harris being removed from her position: p 840.

[61] Mr Hogan said that one of the actions instigated was to provide additional support and engagement with Ms Palmer and Ms Hayes about their career planning and placement options: p 8-23. The additional support was in the form of the provision of a separate counsellor, Ms Stokes, to provide support to at least some of the plaintiffs: p 8-24. Ms Stokes, a psychologist, said that she first saw Ms Hayes at the request of the Department in early July 2009, to help her cope and to provide assistance for possible redeployment: p 6-56.

[62] Mr Hogan understood that simply having complaints made against one can be quite stressful for the person concerned, and that it was obvious when he saw the subject officers that they were quite emotionally distressed: p 825. Mr Hogan agreed that the Department had a commitment to provide continuity of care, and that was why the matter was taken to the Industrial Relations Commission when there was a threat of strike: p 8-29. Mr Hogan conceded that if someone in the position of Ms Johnson was not doing her job properly and was resisting doing it properly, then that could well impact on the care provided to the residents, and that in those circumstances he would expect management to take action to make sure that that person was doing the job properly: p 8-34. Mr Hogan was aware of another industrial matter involving Ms Johnson around this time: p 8-34. Mr Hogan recognised that if local managers were not supported by senior managers, that could be demoralising: p 834. Accordingly if RCOs were resisting management attempts to get them to do their job properly, then those attempts ought to be supported by more senior management, and it would be reasonable for them to expect that they would be supported in that by more senior management: p 8-35.

[63] On 16 November 2009 Ms Palmer began to get counselling from Lorraine Stokes, who had also counselled some of the other plaintiffs: p 4-25. However she did not find the counselling to be particularly helpful: p 4-26. In December 2009 she went off work for a time. In April 2010 there was a meeting with various managers when she was trying to arrange to return to work, but the difficulty was that she wanted to go back to her rostering position (p 4-22), and they were not prepared to let her do that: p 427. She was told that it was not safe for her to go back to that position.[79] Prior to this situation developing her intention had been to work until she was 67, at which time she and her husband would retire; she expected to be working in rostering work until then: p 4-28. More recently she has been living in Emerald and then Gladstone with her husband, but she feels that she is unable to work as she is terrified of contact with people: p 4-29. As a result of her condition her relationships with her children and her husband have suffered, and at times she has felt suicidal: p 4-30. She has been taking medication, more recently Lovan, which she can tolerate, and she has attended a number of sessions with counsellors and psychologists. She sees a psychiatrist every six months: p 4-31.

[64] Ms Harris was very upset about the whole business of the investigation, because in her view the people who complained about it had just outright lied, she was not the sort of person to do the things that they had alleged: p 4-70. None of the people who had complained about her had previously spoken to her about the matter of their complaints and tried to resolve them: p 4-71. She also felt that Ms SteeleWareham had lied to her about there not being complaints about her when it turned out there were. She was off on WorkCover from 30 June 2009 until October 2009, when she began a return to part-time work, initially working only in the office, p 4-73. It was her doctor's idea not to have contact with the RCOs by going to the houses. She was also supported at this time by Ms Stokes: p 6-74.

[65] Ms Harris heard from someone, she could not recall who, that Ms Steele-Wareham had said that all those allegations cannot be wrong; it was not said directly to her: p 475. She was quite upset about this, and she thought that about this time Ms Steele-Wareham's attitude towards her changed. In October 2009 there was an organisation called PsyCare who was brought in to offer counselling to people who were upset at the situation in Maryborough, and Ms Harris had at least one conversation with them, but her impression was that essentially these people were brought into support the RCOs rather than to support her: p 4-76. She attempted returns to work October 2009, but had difficulty in coping with contact or possible contact with RCOs (Exhibit 35) and there was more stress when the outcome of the investigation came out. She had a panic attack in early December 2009[80] as a result of which she was off work for some months, but commenced a graduated return to work on 15 February 2010: Exhibit 35.

[66] The return to work had progressed to the point where she was up to working about 24 hours a week, but in October 2010 a new manager took over who insisted that she work particular nominated days, rather than simply working on those days where she felt well enough to work: p 4-77. She was very upset about this, and walked out of the meeting, and later she became so upset that she had to be calmed down and taken home by some other people. She understood that as a result of that the new manager said that he did not want her back working again at DSQ.[81] Prior to this she had been planning her work on a fortnightly basis, but not necessarily working the same particular days each week: p 4-78, Exhibit 22. After this initial rocky start, her relationship with the new manager improved, and she was now working with him satisfactorily, and back as a team leader essentially in her previous role: p 4-80.

[67] Ms Harris finds that she is still hurt by the allegations that were made and the way everything was handled, but generally she is able to cope, though every couple of weeks she becomes very tearful and isolated: p 4-81.[82] She asserts however that she is still able to do her job and she still loves it, and she enjoys the interaction with the residents. Before this incident she had in mind working until she retired in much the same work. There is however the prospect of some disruption in her employment with the new disability support scheme being rolled out: p 4-82. She is hopeful that it will work out, and there are other possible options for employment with other people she knows. She has had counselling at times, and she has been prescribed different medication, and is still on Lovan: p 4-83. She also takes Stilnox to help her to sleep, though she would prefer not to have to take them. Prior to this incident, she had not had any particular difficulties with anxiety or depression, except about 10 years ago when she had some symptoms associated with menopause: p 4-84.

[68] The plaintiffs were employed by the defendant and therefore the defendant as employer owed them a duty to take all reasonable steps to provide a safe system of work. That extended in principle to a duty of care in relation to psychiatric injury as well as in relation to physical injury, but in the former case it is necessary to take care to identify correctly the content of the employer's duty.[83] The central issue in relation to duty is whether the risk of a particular employee's sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not farfetched or fanciful.[84]

[69] Whether that was so in a particular case may arise simply because of the nature of the work that the employee was required to do; it is accepted, for example, that work undertaken by police officers and security guards involves a risk of their being exposed to psychiatric injury, because of the risk that they will find themselves in life threatening or other extremely unpleasant situations. It does not follow of course that if such a person suffers psychiatric injury the employer will necessarily be liable; the obligation on the employer is only to take reasonable care to avoid such an injury, which may be simply a matter of putting in place appropriate procedures to minimise the risk.[85] There may well be other occupations where much the same position applies, but even in respect of these occupations the emphasis is on exposure of the employee to the sort of extreme situation where psychiatric injury is more readily foreseeable.

[70] On the other hand, the mere fact that an employee has been placed in a situation that the employee finds stressful, because the work is difficult or demanding, or the workload is excessive, has not been regarded as showing without more that it is reasonably foreseeable that the employee will suffer psychiatric injury. This is because many, possibly even most, employees find work difficult or demanding or challenging, so that it would be unrealistic to expect employers to relieve employees from any exposure to stress at work. Many people experience demanding or stressful situations in the course of their employment without developing psychiatric problems. It has been recognised as well that one of the difficulties in formulating the content of a duty of care is that the capacity of a particular individual to cope with stress may be affected by unpredictable personal circumstances, including circumstances not known to the employer.[86]

[71] Although the duty is owed to employees individually, so that an employer must take into account any information specific to a particular employee which could reasonably indicate a particular vulnerability and hence risk of psychiatric injury, in the absence of any relevant information it appears that an employer is entitled to assume that an employee is a person of normal fortitude.[87] On the other hand, it is clear that an employer who has relevant information about a specific employee is not protected from liability merely because the conditions to which the employee was exposed would probably not have caused psychiatric injury to a person of normal fortitude.[88]

[72] Even in an occupation likely to expose employees to particularly stressful situations, there are limits to the extent to which an employer is expected to be alert to the risk of psychiatric injury developing in an employee, particularly in circumstances where there has been no particular indication of the existence of a specific risk in relation to that employee. This is illustrated by the decision of the Court of Appeal in Hegarty v Queensland Ambulance Service [2007] QCA 366. In that case the Court of Appeal overturned a judgment in favour of a paramedic who was found to have experienced a cumulative stress reaction as a result of exposure to multiple traumatic events during 15 years of service.

[73] Keane JA, as his Honour then was, with whose reasons the other members of the Court agreed generally, said at [41]:

"I pause here to observe that this elegant formulation of the plaintiff's case glosses over a number of issues. It must be said immediately that, while an employer owes the same duty to exercise reasonable care for the mental health of an employee as it owes for the employee's physical well-being, special difficulties may attend the proof of cases of negligent infliction of psychiatric injury. In such cases, the risk of injury may be less apparent than in cases of physical injury. Whether a risk is perceptible at all may in the end depend on the vagaries and ambiguities of human expression and comprehension. Whether a response to a perceived risk is reasonably necessary to ameliorate that risk is also likely to be attended with a greater degree of uncertainty; the taking of steps likely to reduce the risk of injury to mental health may be more debatable in terms of their likely efficacy than the mechanical alteration of the physical environment in which an employee works."

[74] Given the nature of the work to which a paramedic is exposed his Honour found that there was a foreseeable risk that that work would cause psychological stress and possibly psychiatric injury, but acknowledged that the defendant had taken at least some steps in the early 1990s to deal with that risk. The plaintiff succeeded at trial on the basis that his supervisors ought to have detected that he was in need of professional help to cope with stress and ought to have suggested that to him, but that approach was rejected on appeal by his Honour who seems to have regarded it as putting the standard of care required by an employer at too high a level. His Honour said at [47]:

"In the joint judgment of McHugh, Gummow, Hayne and Heydon JJ in the recent decision of the High Court in Koehler v Cerebos (Australia) Ltd, it was said that a stable appreciation of the content of the employer's duty to take reasonable care is essential; and that it is erroneous to proceed on the assumption that 'the relevant duty of care [is] sufficiently stated as a duty to take all reasonable steps to provide a safe system of work without examining what limits there might be on the kind of steps required of an employer.' Further, 'litigious hindsight' must not prevent or obscure recognition that there are good reasons, apart from expense to the employer, why the law's insistence that an employer must take reasonable care for the safety of employees at work does not extend to absolute and unremitting solicitude for an employee's mental health even in the most stressful of occupations. A statement of what reasonable care involves in a particular situation which does not recognise these considerations is a travesty of that standard."

[75] After some further analysis of the evidence and discussion of the submissions on appeal his Honour said at [89]:

"In my respectful opinion, there is much force in the defendant's principal submission. Bearing in mind the plaintiff's proficiency in his duties, his ambition, his apparent physical problems and his reasonable requests for a transfer from Gayndah, it is difficult to see how a layman in the position of any of the plaintiff's supervisors, even one trained in the manner suggested by Professor Bryant, could have been alerted to discern in the plaintiff's cluster of complaints a 'signal' that the plaintiff was not coping with the stresses of his job. It is even more difficult to see the basis on which the defendant's officers could have been instructed to conclude that the only reasonable response to what the plaintiff actually said to his supervisors would have been advice to seek psychological assessment and assistance."

[76] An earlier decision of the Court of Appeal illustrates the difficulty in succeeding in a matter of this nature, particularly in the case of a person in a managerial position: Queensland Corrective Services Commission v Gallagher [1998] QCA 426. Again in that matter the Court overturned a judgment for a plaintiff who was found to have suffered a major depressive illness while working in a managerial position in a prison over a period of about three years. There were difficulties in the administration of the prison, which was overcrowded and short staffed, and in that case there were indications from the plaintiff that he was experiencing stress at work, and at one stage he took a period of stress leave. There had also been complaints about aspects of his management which had been ventilated in an appeal in relation to promotion which was ultimately not pursued, and there had been a report prepared into his management which he believed would be critical of him but which had not been released to him.

[77] In that matter it was noted that the defendant had referred the plaintiff to professional counselling, which the plaintiff had declined, pointing out that he was receiving professional attention privately: [18]. The Chief Justice, who delivered the principal judgment, said at [23] that he found it difficult to accept that an employer conducting a correctional centre and knowing of the availability of the counselling and support service which was on offer should reasonably foresee a risk of injury to its managerial staff as involved in the sort of circumstances found in that case. There were also difficulties with causation, in circumstances where the evidence in relation to causation really went no further than to say that there was a link between the depression and the workplace in a general sense: [30].

[78] One area where there can be particular stress in the workplace is where an employee is the subject of humiliating and harassing treatment by a person in a superior position in the structure of authority. Such a case was considered by the New South Wales Court of Appeal in Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471. That case involved a security guard, who was working under the supervision of a person who was not employed by the same employer, so that there were two defendants, the employer of the plaintiff and the employer of the supervisor. In that case the plaintiff had succeeded at trial against both defendants, but the Court of Appeal overturned the finding of liability on the part of the plaintiff's employer.[89] The liability on the part of the supervisor's employer was essentially because the conduct of the supervisor was such that he would have been personally liable and the conduct was held to have occurred in circumstances where his employer was vicariously liable for it; indeed, it was said that his position was such that his conduct was able to be identified as the conduct of his employer itself.

[79] As to the question, which is more relevant here, of the liability of the plaintiff's employer, Spiegelman CJ said at [20], [21]:

"The prospective nature of the inquiry as to breach has particular significance in the case of the risk of psychiatric injury. In any organisation, including in employer/employee relationships, situations creating stress will arise. Indeed, some form of tension may be endemic in any form of hierarchy. The law of tort does not require every employer to have procedures to ensure that such relationships do not lead to psychological distress of its employees. There is no breach of duty unless a situation can be seen to arise which requires intervention on a test of reasonableness.

Koehler affirms the line of High Court authority ... which focuses attention on the purpose for which the inquiry as to foreseeability is undertaken, namely, to determine what reasonableness requires by way of response and, therefore, whether legal responsibility for the conduct should be attributed to the defendant for the injury to the plaintiff."

[80] In that matter there was a good deal of evidence as to what was known by various other employees of the plaintiff's employer as to the way the plaintiff had been treated, but it was held that the knowledge of most of these people could not be attributed to the employer, because of the positions they held. In the case of those employees whose knowledge could be properly attributed to the employer, it was held that what they had seen was not enough to suggest foreseeability of a recognised psychiatric illness, rather than simply suggesting an adverse effect on the plaintiff's mind. The Chief Justice said at [58], [59]:

"The signs suggestive of psychiatric illness, rather than psychological disturbance, satisfy the not far fetched and fanciful test of foreseeability. However, they do not, in my opinion, reach the level of possibility which would require the employer ... to intervene.

Workers are subject to stress in both their working and personal lives which can affect their mental health. Changes in personal behaviour over a period of years may occur for many reasons. So may the response of crying. These responses did not, in my opinion, indicate psychiatric illness to the degree that required a response from the actual or surrogate employer."

[81] It seems to me that his Honour was there distinguishing between the test for whether there is a duty of care and the content of the duty of care; given that an employer's responsibility is only to take reasonable care, not absolute care, the mere fact that psychiatric injury is reasonably foreseeable in accordance with the conventional test does not mean that there is necessarily an obligation on the part of an employer to take steps in response, and it is necessary in assessing whether the employer has fallen below the standard of reasonable care to have regard not merely to the foreseeable possibility of psychiatric injury but to the level of risk of such injury.

[82] One of the difficulties facing the plaintiff in that case was there had never been a complaint to the employer about the behaviour of the supervisor. There are two Queensland cases where there was a complaint by an employee to an employer about the behaviour of another employee in a position in authority, where a claim for psychiatric injury succeeded: Wolters v University of the Sunshine Coast [2013] QCA 228; and Keegan v Sussan Corporation (Aust) Pty Ltd [2014] QSC 64. The significant feature in each of those cases, however, is that when a formal complaint was made the employer did not follow its own established procedures for dealing with that complaint, and in each case the Court held that if those procedures had been followed it was probable that the psychiatric injury would have been avoided. In circumstances where an employer has itself adopted particular procedures for dealing with misconduct in the workplace, it is generally not difficult to show that a failure to comply with those procedures amounts to a want of reasonable care; in effect the employer is being judged by the standard it has set itself.

[83] The former case, Wolters, is interesting because the trial judge found that psychiatric injury to the plaintiff was reasonably foreseeable as a result of the behaviour of her supervisor, because there had been an earlier occasion when the same supervisor had behaved in a broadly similar way towards another employee and that employee had gone on to develop psychiatric injury as a result, to the knowledge of the employer. This finding was not in issue on appeal, where the issue was as to causation, on which the plaintiff failed at trial but succeeded on appeal. In these circumstances, the decision of the Court of Appeal is authoritative really only on the question of causation, and there was no detailed consideration of other issues.

[84] In the present case of course there had been no formal complaint about the behaviour towards any of these plaintiffs on the part of any supervisor of them, or about similar conduct by any supervisor towards any other employee; in this case there was a formal complaint, but it was against the plaintiffs, initially just against Ms Hayes, but then against all of the plaintiffs, and indeed a number of others. Those complaints were the subject of some consideration and examination, and the matters complained of by the plaintiffs arose in the context of those formal complaints and the responses to them by the defendant. I am not aware of any Queensland authority dealing with that situation, but there is intermediate appellate authority in New South Wales dealing with such a situation.

[85] The first case is New South Wales v Paige (2002) 60 NSWLR 371.[90] In that case there was formal disciplinary action pursued against an employee of the Education Department in relation to what was alleged to have been a failure properly to perform his duties, and as a result of the way in which the investigation was undertaken the employee suffered psychiatric injury. It was held at trial that the disciplinary procedure had not been properly carried out in accordance with the requirements of the various statutory provisions governing such disciplinary procedures for such employees, and on this basis the employer was liable, but on appeal this was set aside, on the basis that there were administrative law remedies available in circumstances where there had been a failure to comply with the relevant statutory provisions, and that it would be inconsistent with the proper coherence of the law as a whole to impose an obligation on the basis of the law of negligence in a context where administrative law already dealt in a particular way with the rights and obligations of the parties.

[86] In addition, the Court was influenced by the decision of the High Court in Sullivan v Moody (2001) 207 CLR 562. In that case there was a police investigation into suspected sexual abuse of children by the appellants, which ultimately did not lead to any charges being brought, let alone succeeding. The plaintiffs claimed that they had suffered psychiatric injury as a result, but the High Court held that there was no duty of care owed by persons conducting investigations into such matters, on the basis that such a duty would be incompatible with other duties that the respondents owed, and there was the prospect that such a duty of care would give rise to inconsistent obligations on the part of officers and public authorities in such a context.[91] Sullivan was distinguishable on the basis that there was no relevant relationship between those plaintiffs and the authorities conducting the investigation, whereas in Paige there was an employer-employee relationship which would give rise to a duty of care to avoid psychiatric injury, but the New South Wales Court of Appeal essentially treated the considerations of inconsistent obligations, and coherence of the law, as excluding the existence of a duty of care in such a context.

[87] It seems to me of some significance that the matter was not approached on the basis that the coherence of the law required that there be no duty of care which required the employer to act in a way which was inconsistent with the employer's obligations under the requirements of administrative law. The position seemed to be that, in circumstances where administrative law would give remedies appropriate in that field to, for example, a failure to comply with the requirements of procedural fairness, there would be a lack of coherence if the law of tort also gave a remedy in damages for such a failure. In addition, concern that the proper investigation and pursuit of disciplinary issues might be compromised by the recognition of the need for the employer to exercise reasonable care to avoid relevantly psychiatric injury in such a context was applicable to a relationship of employer and employee as well as to a relationship of law enforcement authority and suspect. Accordingly, it was held in Paige that despite any deficiencies in the disciplinary process, the State was not liable for the plaintiff's psychiatric injury.

[88] A more recent case involving suspected wrongdoing arose in O'Leary v Oolong Aboriginal Corporation Inc [2004] NSWCA 7. The plaintiff who was employed as a bookkeeper suffered psychiatric injury as a result of the way he was treated by his employer when the employer suspected him of misappropriating funds. Various things were done to make it more difficult for him to do this if he were doing it, but he was not told anything about the allegations against him or that he was being investigated. In that case the plaintiff failed at trial, and the Court of Appeal by majority dismissed the appeal. The majority considered there was an important distinction between stress and recognised psychiatric illness, and that the fact that an employee was placed under stress did not necessarily mean that a recognised psychiatric illness was reasonably foreseeable. Spiegelman CJ said at [18]:

"The reaction of the appellant to the evidence of suspicion of his conduct and of his progressive isolation was sufficiently idiosyncratic that it could not be said to be reasonably foreseeable that psychiatric injury, as distinct from non-compensable stress, could result from the respondent's conduct. Other considerations, such as vulnerability and control, do not outweigh this factor."

[89] In that case there was at one stage some investigation of the employee's condition, and the employer was provided with a certificate indicating a diagnosing of adult adjustment reaction leading to depression. The Chief Justice noted that there was no adequate basis in the evidence for assessing the standard of care, or linking the condition referred to in the certificate with the condition ultimately suffered, for which the plaintiff was suing: [19], [22]. Again in that case the Court held that it did not matter whether there had been breaches of administrative law obligations such as the obligation to accord natural justice, so that such a breach did not mean there had been a breach of a duty of care: [23].

[90] The plaintiff in that case failed notwithstanding criticism by the Court of the behaviour of the employer: Sheller JA, the other member of the majority, said at [57]:

"The behaviour of the defendant as an employer, towards the plaintiff as an employee, in several respects was wrong if not disgraceful. ...

[63] Undoubtedly, as a result of his experience in the defendant's workplace the plaintiff suffered a recognised psychiatric illness. Undoubtedly, and according to Dr McMurdo's evidence, the defendant should reasonably have foreseen that its conduct would have caused the plaintiff to suffer some form of workplace stress, which indeed he did suffer. ...

[67] In my opinion, particularly having regard to the limits of the opinion expressed by Dr McMurdo, it was, on the evidence, open to the trial Judge to find that the defendant could not reasonably have foreseen ... that a possible consequence of its conduct was that the plaintiff would suffer a recognised psychiatric illness. The plaintiff failed to prove that his injury was compensable. As the trial Judge put it, it was 'far too remote'. ..."

[91] Although that was a case where the psychiatric illness arose in the context where the employee was being investigated, inappropriately, for suspected wrongdoing, this aspect of the matter did not receive a great deal of attention in the majority judgments, though Paige (supra) was referred to by the Chief Justice. The case however is perhaps more clearly an example showing that the mere fact that workplace stress is reasonably foreseeable, with associated mental distress, does not mean that psychiatric injury to the employee is reasonably foreseeable, or at least does not mean that the content of the employer's duty of care extends to any particular requirement to take precautions to guard against it.

[92] There was another New South Wales case involving allegations of wrongful treatment by an employer giving rise to psychiatric injury where a judgment favourable to the plaintiff at first instance was overturned on appeal: New South Wales v Rogerson [2007] NSWCA 346. That case as it happened involved a police officer, but not one who suffered injury as a result of any particularly dangerous activity or situation that arose in the course of his duties. Rather, his case was that the employer was liable for the psychiatric injury he suffered because it had breached a duty to protect him from discrimination and victimisation arising from the fact that his brother was a disgraced former police officer. The case was based on a series of specific incidents. One of the incidents related to some comments made by a solicitor in the Legal Services Branch who spoke to the plaintiff at a time when it was expected that he would be called before the Wood Royal Commission, and who had asked him about (among other things) his relationship with his brother. The plaintiff became upset at this, but Handley AJA, with whom the other members of the Court agreed, said that the fact that he was visibly upset did not make psychiatric injury reasonably foreseeable: [12]. He also noted at [11] that the remarks were made in good faith and without any awareness of the plaintiff's special sensitivity about his brother: [11]. Accordingly there was no duty of care in relation to the psychiatric injury.

[93] Another matter that the plaintiff complained about was in relation to a failure to achieve a promotion, but the Court held at [26] that the employer owed him "no duty of care in the administration of the procedures for promotion to commissioned rank", citing New South Wales v Paige (supra). Another matter he complained about was comments made by a more junior officer in relation to his brother, which was related to the application for promotion. Handley AJA said of this at [31]:

"The Service cannot have a duty to prevent one police officer making hurtful comments to another who is not subordinate to him, or to protect its officers from the consequences of such comments. ... It was a one off event. There is no evidence that anyone in the Service knew that such remarks would be made and without advance knowledge nothing could be done to stop [the other officer] making them. ... It is not known how [the other officer] came to have this knowledge but the Service can hardly have a legal duty to prevent gossip circulating within its ranks.

[32] The plaintiff did not like [his Inspector's] response but that does not establish a breach of duty. There was no evidence that it was inappropriate, or that a responsible police officer in that position could and should have done anything more. ...

[35] In my judgment the Service owed no duty of care to prevent [the other officer] making the remarks he did, nor did it have a duty to investigate the plaintiff's complaint about those remarks."

[94] On the last point his Honour cited Sullivan v Moody (supra). There was a further issue relating to the transfer, without warning, of the plaintiff to another unit. In relation to this matter his Honour said at [38]:

"In December 1999 the plaintiff was transferred, possibly without prior discussion or consultation, to the Firearms Trafficking Unit. This was said to have been unwanted and unrequested. The absence of prior consultation, if this did not occur, might demonstrate some lack of sensitivity but that is all. The transfer was calculated to remove the plaintiff from what might reasonably have been thought to be a difficult, if not poisonous, situation in which he was subordinate to [the other officer] in the same branch of the Service.

[39] There was no common law duty of care owed to the plaintiff in this situation, and no breach of such a duty: compare State of New South Wales v Paige."

[95] Much of Ms Palmer's amended statement of claim contains matters which are uncontentious. With regard to paragraph 4, I have already said something about the duty of care of an employer. In relation to paragraph 5, I accept that Ms Palmer was told by Ms Hayes what she had been told by Ms Simpson: p 3-65. I accept that Ms Johnson was rude to and spoke over Ms Palmer in her interactions with her. Paragraph 5(h) should I think be a reference to Ms Johnson's appeal rather than the complaint about Ms Johnson; so understood it was uncontroversial, as was paragraph (i). In relation to paragraph (k), Ms Palmer was informed of the fact that allegations had been made about her; she said that she was told this by Mr Price.

[96] There was no direct evidence that Ms Palmer was told by Ms SteeleWareham as alleged in paragraph 4(e)(ii), but it is clear that she knew, although she was not at that time informed of the details of the allegations; that occurred during her first interview with the independent investigators. Paragraph (o) was not proved; on the evidence the Misconduct Prevention Unit analysed the complaints, and recommended that they be referred to the CMC, which occurred. As well, a senior officer of the Department recommended the appointment of an external investigator, which recommendation the Acting Director-General accepted.

[97] I accept that the fact that Ms Palmer would be removed from responsibility for rostering was disclosed to the union, and that this occurred without consulting with or the consent of Ms Palmer. There was no evidence that the plaintiff was involved in discussions about this change in duties with Ms Steele-Wareham or Ms Kill prior to the time when they were implemented, or that the plaintiff accepted this change. As to paragraph (u) there was evidence of an email from Ms Steele-Wareham to various people including Ms Palmer on 19 January, but in terms this indicates that the picket was already in progress at the time it was sent: document 39. Although paragraph (u) was admitted in the defence, there was actually no evidence that Ms Steele-Wareham was aware of the plan to hold the picket prior to its being held. By the time the email document 39 was sent, that the picket was in place was obvious to the occupants of the building. There was no specific advice that Ms Palmer would be a target of the picket.

[98] I accept that the allegations in paragraph (w) were made out. Although there was evidence that a notice about the results of the meeting on 16 January came to be inside the MSC at about this time, there was no evidence that the defendant allowed the distribution of that notice, so paragraph (x) was not made out. With regard to paragraph (cc), some of the language of the pleading is a little wider than was actually supported by the evidence, but broadly speaking I accept the facts alleged. The other facts in paragraph 5 were admitted except for the introductory proposition that as a result of those matters the plaintiff suffered symptoms of depression and psychological anxiety such that she was unable to attend work. That raises the question of whether the plaintiff suffered any and what injury, and when, and issues of causation, which are complex and I will treat them separately. Overall paragraphs (a)-(j), (l)-(n), (p)-(w), and (y)-(dd) were admitted or proved.

[99] The statement of claim in paragraph 6 alleged that the defendant is vicariously liable for the acts or omissions of Ms Johnson, Ms Steele-Wareham and other staff in their treatment of the behaviour towards the plaintiff as set out in paragraph 5. This was particularised as extending to others more senior to the plaintiff, and to those who made the complaints.[92] It is accepted by the defendant that it is liable for such acts or omissions where those acts or omissions were committed in the course of the employment of those persons. I do not think that there is any particular issue about vicarious liability for the acts of Ms Steele-Wareham, but the defendant certainly denied that it was vicariously liable for the relevant acts of Ms Johnson, or the RCOs.

[100] The test for vicarious liability in the context of some deliberate wrongful act undertaken by an employee was discussed by the High Court in New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511. In that case a number of judgments were delivered and there was no judgment which stands as a statement supported by a majority of the members of the Court. I am however relieved of the burden of having to analyse the effect of the various statements by the fact that this was undertaken in Ryan v Ann Street Holdings Pty Ltd [2006] QCA 217; [2006] 2 Qd R 486 by Williams JA with whom Fryberg J agreed. His Honour said at [18]:

"What emerges from the various judgments in Lepore is that the critical test, in broad terms, involves a comparison between the intentional wrongful conduct and the type of conduct the employee was engaged to perform. If there is a 'sufficient connection', or a 'sufficiently close connection', or a 'close connection', it will be open to the tribunal of fact to conclude that the wrongful act was done in the course of employment, albeit in an improper mode. The connection is of critical importance, and as Gummow and Hayne JJ noted at para [217] where the opportunity for abuse becomes greater, so the risk of harm increases. Essentially that means that where an employer clothes an employee with authority which, if abused, could lead to great harm, then (the risk being known to the employer) the easier it will be for a court to draw the conclusion that the wrongful act was done in the course of employment."

[101] The acts of Ms Johnson referred to in paragraph 5 are making the complaint against Ms Hayes, lodging the fair treatment appeal, and being rude to and speaking over Ms Palmer in her interactions with her. I can say at once that in my opinion the first and second of these were clearly not acts done in the course of her employment. Her job was to act in effect as supervisor of the RCOs who were working at particular houses caring for residents; it was no part of her job to be complaining about Ms Hayes or anyone else, nor was there any connection between her job and the making of that complaint, other than the fact that it provided a setting for the interactions between Ms Johnson and Ms Hayes which prompted Ms Johnson to make the complaint. The fact that the defendant has a mechanism in place for dealing with complaints by employees against superiors does not mean that the defendant is clothing the employee with authority to make such complaints, or that a complaint is or could be seen to be part of what the employee was employed to do. In my opinion it is clear that the defendant is not liable for these acts of Ms Johnson. The same applies to the acts of RCOs in making complaints.

[102] As to whether rude or overbearing behaviour towards Ms Palmer in their interactions were acts done in the course of Ms Johnson's employment, again in my opinion there is not a sufficient connection with Ms Johnson's job to make this behaviour something done in the course of her employment. Ordinarily misbehaviour between one employee and another at a personal level will not be something done in the course of employment. In circumstances where the employee perpetrating this behaviour is in a position of some authority over the victim such that it is part of the perpetrator's job to correct and perhaps to reprimand the victim, rude or offensive behaviour can be characterised as an improper way of performing the function of supervisor, rather than simply independent rudeness within the workplace, so that the employer will be vicariously liable for it. However Ms Johnson was not in any sense the supervisor of Ms Palmer, so that being rude to Ms Palmer and speaking over her could not be characterised as an improper means of performing a function which it was part of her job to perform. Accordingly I do not consider that these matters were things done by Ms Johnson in the course of her employment either. Paragraph 6, so far as it relates to the acts or omissions of Ms Johnson and the RCOs, was not made out.

[103] There was no dispute at the trial that Ms Palmer had suffered a psychiatric injury, namely major depression with associated agitation and anxiety, but there was an issue about whether this injury had been caused by the matters pleaded in paragraph 5, not all of which have been made out. After she went home on 17 March 2009 Ms Palmer saw her general practitioner who subsequently referred her to a psychiatrist, noting that she suffered from major depression.[93] At this stage the plaintiff was already seeing a psychologist, and was not keen to take antidepressants. The medical evidence as to the cause of the plaintiff's injury was fairly limited. On 18 October 2010 Dr Jenkins advised WorkCover that Ms Palmer remained unfit to work but was continuing to improve and thought that she should be reviewed in three to four months, that she remained positive and motivated, and that further progress was likely.[94] On 21 January 2011 Dr Jenkins said that she was not yet ready to return to work but there were prospects that she could work for someone other than DSQ in about three months' time; she would need continuing treatment until completion of recovery, and there had been some improvement since the last report.[95]

[104] On 3 August 2011 Dr Byth reported to the plaintiff's solicitors that she was suffering from major depression.[96] The history noted stress at work from around September 2008 as a result of the complaints and allegations being made by Ms Johnson and others. She also complained about not being told at first what the allegations were, and about being stood aside from her position, and not being given any other meaningful work to do.[97] The report noted that she had not previously taken stress leave, been recommended for counselling or been prescribed any psychotropic medication. Dr Byth was of the opinion that, because of the length of time that her condition had then been severe despite a good deal of treatment, she was unlikely to obtain a full remission after further treatment, and likely to be left with chronic moderate to marked depression and anxiety arising from her work. Dr Byth in that report said that the condition was caused by her difficulty coping with allegations about her at work and with her being stood aside and placed on other work while she was investigated over a long period, a feeling of being victimised by staff particularly Ms Johnson, and by her management presuming she was guilty until the matter was eventually investigated.

[105] Ms Palmer was seen by Dr Kann, a psychiatrist, on 16 August 2011 for the purposes of a report to WorkCover.[98] Dr Kann diagnosed an adjustment disorder with anxiety and panic disorder, and expressed the opinion that the prognosis was poor for return to work in any capacity either currently or into the foreseeable future, because of relatively fixed views about the risk of being targeted again in the workplace. In describing the history of the incident Dr Kann referred to the behaviour of Ms Johnson, and he described the condition as work related, but otherwise did not particularly comment on the cause of the development of the psychiatric injury.

[106] Ms Palmer was seen by Dr Gunn, a psychiatrist, in March 2012 for the purposes of a report to WorkCover.[99] Dr Gunn diagnosed chronic adjustment disorder. In a commentary on the report[100] Dr Byth differed as to the correct diagnosis, and stated that he disagreed with the contention that Ms Palmer's alcohol intake was contributing to her anxiety and depression. Dr Byth also thought that there was a more pronounced impairment of her capacity to function as a result of her condition (50/100) than that assessed by Dr Gunn (functioning 80/100). I note that Dr Kann gave an assessment of 60/100.

[107] A further report from Dr Byth dated 13 June 2012[101] referred to the plaintiff's condition as work-related anxiety and depression, but otherwise did not take the question any further. An updated report on 26 February 2014[102] confirmed the diagnosis, and noted that there had not been any improvements since 2011, and that she appeared to have become a psychiatric invalid. Her chances of improvement with further treatment were thought to be slim. He did not think that she would ever be able to return to disability work, with the best prospect of recovery being part-time work in simple duties with little responsibility. Even then, she would have problems because of her continuing condition. There was however no discussion in this report about the cause of her condition.

[108] In oral evidence Dr Byth identified a number of features which would have been stressful to her: having the allegations made against her, not knowing the exact nature of the complaints that were made, being moved out of her position and given more menial work to do, being given the impression that at least some in management were assuming that the complaints were justified, and having to see Ms Johnson in particular, and to some extent other people who were complaining about her, at work.[103] He said that the second and fourth things would have aggravated the severity of her condition, and in relation to the third, this would have been significant because she had personality traits which made her relatively inflexible, and had difficulty in adjusting to the change: p 5-11. He considered that greater support from management, being given time off work earlier or being moved to a different location for work would probably have reduced the severity of her condition: p 5-13.

[109] Subsequently Dr Byth signed a note made of a telephone conference with the counsel for the plaintiffs which became Exhibit 42. Dr Byth expressed the opinion that the exposure of the plaintiffs to the picketing was a definite contributing factor to the development of their psychiatric injury whether or not they were at the office at the time.[104] He also spoke about the absence of support from management, particularly at the time of picketing. He expressed the view that there was a snowballing effect in terms of the development of their injury with factors continuing to increase their anxiety as time went on. They appeared to be treated as guilty, with the statements that the RCOs could not be wrong. He thought it was an accumulation of factors which led to the development of the psychological injuries. He also expressed the opinion that the injury, apparently to each plaintiff, would have been foreseeable when one considered all the circumstances. He did not expect that Ms Palmer would get back to work because of the severity of her condition; he was concerned that she was becoming resistant to treatment.

[110] Under cross-examination Dr Byth confirmed his opinion that being stood aside from her job without being given equivalent work to do[105] was a pretty significant psychological blow to Ms Palmer: p 10-12. He also confirmed that in general matters mentioned by a plaintiff would have been the matters that were significant in contributing to her psychological state, but that there was at least a possibility that there were relevant things which she had not mentioned, because she was reluctant to discuss those particular incidents: p 10-6.

[111] For practical purposes the evidence of causation depends on the evidence of Dr Byth. I accept his evidence, and accept that the matters referred to by him caused Ms Palmer's psychiatric condition. The effect of his evidence was that of the matters referred to in paragraph 5 of the statement of claim there were a number which, together with some other things, caused the injury: the behaviour of Ms Johnson towards Ms Palmer (f),[106] the allegations made by the various people against Ms Palmer and others (j), the fact that the plaintiff was initially not informed of the details of the allegations (k), Ms Palmer's being removed from her rostering responsibilities, and not being given other substantial work to do (p), and the effect of the picket in January 2009 (w).

[112] I also accept that the effect of Dr Byth's evidence is that it was the combined effect of all of those matters which resulted in her developing the psychiatric condition that she came to develop, the subject of the claim. This is not a case where there were a number of factors acting and the evidence does not permit an inference to be drawn that a relevant factor or factors was at least a cause of the plaintiff's injury; rather it is a case where there were a number of factors which together produced the plaintiff's injury, and in those circumstances each of those factors is a cause of the injury unless in the case of a particular factor its contribution can be characterised as de minimis. The analogy is with the dust in Bonnington Castings[107], rather than with the asbestos fibres in Ellis.[108]

[113] The submissions for the defendant stressed that the plaintiff was suffering major depression as early as 17 March 2009, so that subsequent events could not have been a cause of her injury. That is not the effect of Dr Byth's evidence. As I understand it, the plaintiff's ultimate psychiatric condition was caused by the combined effect of the various matters he had identified as significant, so they were then all causes of that injury. That remains the case, even if, at an earlier time, the plaintiff suffered a psychiatric condition caused by the significant factors up until then, and it would have had the same diagnosis, that is, the same label. The effect of the additional stressors was that it was, in principle, a different injury, and may well have had a different course and level of severity.

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