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[2022] QCA 255
General information, not legal advice.
Court of Appeal (Qld)
2022-12-09
Mullins P, Flanagan JA and Williams J
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Potter v Gympie Regional Council [2022] QCA 255
PARTIES: RONALD JAMES POTTER / (appellant) / v / GYMPIE REGIONAL COUNCIL / (respondent)
FILE NO/S: Appeal No 2587 of 2022 / SC No 12923 of 2017
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING COURT: Supreme Court at Brisbane – [2022] QSC 9 (Brown J)
DELIVERED ON: 9 December 2022
DELIVERED AT: Brisbane
HEARING DATE: 26 July 2022
JUDGES: Mullins P, Flanagan JA and Williams J
ORDERS: The appeal is dismissed.The parties are to file submissions as to costs, not to exceed 3 pages in length, within 14 days of delivery of judgment.
CATCHWORDS: TORTS – NEGLIGENCE – DUTY OF CARE: EXISTENCE – where an employee was placed on suspension from employment by the employer – where the employee subsequently suffered a psychiatric injury – where the employee’s suspension was immediate and on full pay – where the employee was placed on suspension pending an investigation – whether an employer owes a duty of care in suspending an employee / TORTS – NEGLIGENCE – STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH – GENERALLY – where the employee alleges that the employer suspending him caused his psychiatric injury – where the employer had disciplinary procedures – where there was a dispute about which disciplinary procedure was the correct procedure – whether a failure to use the correct disciplinary procedure amounted to a breach of duty of care – whether the decision to suspend the employee amounted to a breach of duty of care / TORTS – NEGLIGENCE – DAMAGE AND CAUSATION – foreseeability – suspension – discipline of employees – whether it was reasonably foreseeable that the employee would suffer psychiatric injury / Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 305B, s 305D / Avenia v Railway & Transport Health Fund Ltd (2017) 272 IR 151; [2017] FCA 859, cited / Commonwealth Bank of Australia v Barker (2014) 253 CLR 169; [2014] HCA 32, cited / Downe v Sydney West Area Health Service (No 2) (2008) 71 NSWLR 633; [2008] NSWSC 159, cited / Eastwood v Magnox Electric plc [2005] 1 AC 503; [2004] UKHL 35, referred / Govier v The Uniting Church in Australia Property Trust (Q) [2017] QCA 12, considered / Hayes v State of Queensland [2017] 1 Qd R 337; [2016] QCA 191, considered / Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15, cited / Malik v Bank of Credit & Commerce International SA (in liq) [1998] AC 20; [1997] UKHL 23, cited / Marsh v Ministry of Justice [2017] EWHC 1040 (QB), referred / New South Wales v Paige (2002) 60 NSWLR 371; [2002] NSWCA 235, considered / Robertson v State of Queensland & Anor [2021] QCA 92, cited / Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 , considered / Yapp v Foreign and Commonwealth Office [2013] ICR D21; [2013] EWHC 1098 (QB), referred
COUNSEL: R J Douglas KC, with J P Kimmins, for the appellant / J D McKenna KC, with R C Morton, for the respondent
SOLICITORS: Shine Lawyers for the appellant / Jensen McConaghy Lawyers for the respondent
MULLINS P: I agree with Flanagan JA.
FLANAGAN JA: This is an appeal from an order of the learned primary judge dismissing the appellant’s claim for damages for psychiatric injury. There was no dispute at trial that the appellant suffered psychiatric injury.
The issues considered by the primary judge were much broader and varied than those raised on appeal. Both the issues at trial and on appeal however, arise from the following general factual background.
The appellant commenced employment with the respondent in 2008. By 2014 he held the position as a manager in the respondent’s Local Laws Branch. Following a survey of staff in late 2013, issues were raised in relation to the appellant’s work performance. This culminated in a meeting conducted on 30 June 2014 at which the appellant was given a letter of the same date.
Subsequent to this meeting and unrelated to any issues concerning the appellant’s work performance, he was the subject of allegations of misconduct made by another employee of the respondent.
On 21 July 2014 a meeting was conducted with the appellant, his managers and a human resources employee, Ms McCrohon, at which the appellant was given a letter of the same date. The letter of 21 July 2014 informed the appellant that he was suspended on full pay pending a formal investigation into the allegations of misconduct.
By letter dated 28 July 2014, the appellant was informed that the first part of the investigation had concluded and he was provided with a detailed list of five allegations. The letter also provided the appellant with an opportunity to be interviewed by the investigator, David Wilkinson of Aitken Legal on 30 July 2014.
The appellant attended this interview.
The investigation report of Mr Wilkinson was provided to the respondent on either 9 or 11 August 2014. The report excused the appellant of serious misconduct but some findings of lesser misconduct and poor management were found.
On 9 August 2014, the appellant forwarded a medical certificate to the respondent which stated that the appellant was suffering a medical condition and would be unfit for duty from 9 August 2014 to 17 August 2014.
On 13 August 2014, the appellant emailed another medical certificate to Ms McCrohon which stated that the appellant was suffering from work related stress and anxiety that required further management and that he would be unfit for duty up to 30 August 2014.
As matters transpired, the appellant was not informed of the results of the investigation until 22 January 2015. He did not return to work and his employment was subsequently terminated.
Issue One: That the respondent, in suspending the appellant, did not owe him a duty of care (Grounds of Appeal 3, 8 and 9)
Before considering Issue One, it is necessary to outline in more detail the events leading to the respondent’s decision to suspend the appellant.
As already observed at the appellant’s work performance meeting of 30 June 2014, he was provided with a letter of the same date. This letter was signed by Mr Stanton who was the Acting Director Planning and Development. The letter confirmed that the results of the staff survey were unsatisfactory and did not demonstrate a standard of management and leadership that was acceptable to the respondent. The letter acknowledged however that the appellant was not “solely responsible” for the outcomes of the survey. The letter outlined Mr Stanton’s expectations of the appellant’s performance as the Team Leader for the Local Laws Branch. One of those expectations related to consistency in the appellant’s dealings with staff. The letter concluded:
“The matters that have been raised in this letter are serious and a significant improvement from yourself is required to meet the expected standards of performance. Council is committed to working with you to achieve a successful outcome.
Please [note] that this letter is not a formal warning regarding your performance. I am endeavouring to clarify for you what are reasonable expectations of a person in your position within the organisation and the level of support you can expect. Should satisfactory progress towards meeting these expectations is not achieved then it is open to Council to formalise its concern to you and outline the actions that are available to manage this matter.”
The appellant showed one of his team members, Sharon Smith, the letter of 30 June 2014. In the course of their conversation, the appellant spoke about another team member, RS, stating that if he had not given RS a job, he would probably be in jail. Ms Smith told RS the following day what the appellant had said about him. RS became very upset and complained to a superior, Mr Wolff, about the fact his private information had been disclosed. RS brought his complaint to the attention of Ms McCrohon, who described RS as being distressed, shaken, crying and upset.
On 11 July 2014, RS made a formal complainant to the respondent. A preliminary investigation was conducted by Mr Stanton and Mr Wolff on 14 July 2014. RS and three other employees were interviewed.
The letter provided to the appellant when he was suspended on 21 July 2014 stated the nature of the complaint and the identity of the complainant. It identified the serious nature of the complaint in a high-level summary. The letter was signed by the respondent’s CEO, Mr Smith. It relevantly stated:
“I have assessed the complaint and have formed the view that if the complaint is proven findings of serious misconduct could be made. Please note that no findings have been made, but given the complaint made and the potential for serious misconduct to be found, I have needed to give consideration to how this matter will be handled. I refer to clause 6 of the councils Disciplinary Action Procedure (copy attached).”
“2.You will be immediately stood down from your employment on full pay.
…
3.A formal investigation will commence that will involve interviews with the complainant and witnesses;
4.You will make no contact with the complainant, potential witnesses or discuss this matter with any council employee other than [human resources and managers];
5.A formal allegations letter will be provided to you once the complainant has been formally interviewed and other witnesses interviewed;
6.You will be provided with at least 24 hours’ notice of an interview time;
7.You will of course be entitled to be accompanied to the interview by a support person.
8.Further advice of the next steps in the investigation process will then be advised to you – eg there may be a need for further interviews and clarification of issues. There may also be a need to further interview you.
9.Council has approved the appointment of Aitken Legal to assist in the investigation process and in particular Mr David Wilkinson will be the investigator and conducting the interviews and providing final recommendations.”
The letter further reiterated on the second page that no findings had been made at that stage, and there would be no determinations without appropriate findings based on supporting evidence. The letter summarised the complaint made by RS and the timeline for the investigation.
The letter also informed the appellant that if proven the allegations could constitute a breach of the respondent’s Staff Code of Conduct. The appellant was referred to the privacy provisions.
The letter further stated that:
“You need to appreciate that this is a serious misconduct investigation with potential serious misconduct findings, and if those findings are made we will need to consider whether your employment can continue with the council. You need then to take the investigation most seriously and that is why we are standing you down so that you can have time to prepare for the meeting.”
While the letter of 21 July 2014 referred to the Disciplinary Action Procedure (DAP) there was another procedure in place at the relevant time entitled “Performance and Misconduct/Disciplinary Procedure” (PMDP). The relevant provisions of both of these policies are considered in detail below in relation to Issue Three.
The respondent sent the appellant a letter on 28 July 2014 which contained further allegations and particulars of allegations:
“As you are aware, council has engaged Aitken Legal to investigate several complaints made against you. The first part of this investigation has concluded and we are now in a position to provide you with a detailed list of the allegations made against you. Given the serious nature of the allegations, we have provided the allegations to you in writing.
The complaints raise a number of issues with respect to:
1.Allegation One: That on or about 23 October 2013 you demonstrated poor judgement when requesting Robert Bryson, former temporary employee, to produce a report regarding [RS]’s performance at work;
2.Allegation Two: That in relation to a matter involving the service of a summons at 84 Duke Street, you attempted to exert influence over [RS] by reference to information that [RS] had shared with you regarding an earlier criminal matter;
3.Allegation Three: That on 11 July 2014 you showed to Sharon Smith the letter dated 30 June 2014 sent to you by Mark Stanton, Acting Director Planning and Development, regarding issues of personal improvement, demonstrating a lack of confidentiality in the discussions between your line management and you;
4.Allegation Four: That on 11 July 2014 you attempted to divulge to Sharon Smith the information that [RS] had shared with you regarding the earlier criminal matter;
5.Allegation Five: That on 21 July 2014 you invited Sharon Smith to telephone you in direct contravention of the express instruction at numbered paragraph 4 of the letter provided to you at the time of your stand down…”.
The letter invited the appellant to make a response in an interview arranged with the investigator on 30 July 2014. It outlined the time and place, and that the appellant could bring a support person. The letter emphasised the seriousness of the complaints. It stated that “you need to take the investigation most seriously and that is why we have stood you down so that you can have time to prepare for the meeting [with the investigator]”. The letter also contained excerpts from the Staff Code of Conduct.
In finding that the respondent did not owe a duty of care to the appellant in suspending him on full pay pending investigation, her Honour reasoned as follows. Her Honour noted that no Australian authority appears to have found a duty of care to arise in relation to a decision to suspend as opposed to a duty to provide adequate support. Her Honour considered that the better view was that there was an implied term in the contract of employment that the respondent could give reasonable and lawful directions to an employee. Her Honour noted that although it appears to be a right recognised at common law, more recent authority has recognised it as an implied term in a contract of employment: Avenia v Railway & Transport Health Fund Ltd (2017) 272 IR 151. Her Honour applied the decision of this Court in Govier v The Uniting Church in Australia Property Trust (Q) [2017] QCA 12 and the decision of the New South Wales Court of Appeal in New South Wales v Paige (2002) 60 NSWLR 371 and distinguished the decision of this Court in Hayes v State of Queensland [2017] 1 Qd R 337 in concluding that the respondent, in suspending the appellant, did not owe a duty of care. The distinction drawn by the primary judge was between a decision-making process concerning the incidents of a contract of employment as distinct from the carrying out of tasks by an employee such that it is outside the scope of the duty of an employee to provide a safe system of work:
[399]Any duty of care needs to bring into account the contract that existed between the Council and Mr Potter. A duty to an employee to protect the employee from psychiatric harm does not extend to injury suffered by undertaking the very obligation imposed by the contract. Unlike the case of Koehler, the provision of such a direction involves an element of discretion rather than simply requiring an employee to undertake the very obligation to perform work under a contract of employment. The Council, however did have a contractual right to give a direction to suspend or not to perform work to an employee on full pay where allegations against an employee were being investigated, albeit the direction had to be reasonable. Similarly, the decision to suspend or direct an employee not to work on full pay is separate from the investigation process albeit that it is connected to it since it is recognised as being a reasonable direction in limited circumstances where it is given in the context of an investigation. The entitlement of an employer to suspend or direct an employee not to work on full pay has been recognised as a reasonable direction where the employer bona fide forms the view that it was in furtherance of its duties to inquire into or investigate allegations of inappropriate behaviour at least in the circumstances identified by Lee J in Avenia, and potentially more broadly where the employer bona fide forms the view that the continued performance of the employee’s duties was inconsistent with the employer’s interests, according to Rothman J in Downe. The present case is not concerned with decisions relating to the investigation process itself or disciplinary processes as was the case in Paige and Govier. However, like Paige and Govier, it does relate to a decision-making process concerning the incidents of a contract of employment and not the carrying out of tasks by an employee such that it is outside the scope of the duty of an employer to provide a safe system of work and the plaintiff’s duty of care would be a novel duty of care.
[400]The recognition of such a right to relieve an employee of the obligation to perform work during an investigation is inconsistent with a duty not to injure an employee by giving such a direction. As is evident from the discussion above, the determination of whether such a direction is given involves a number of competing interests which may need to be considered, including the interests of other employees and the employer as well as the employee concerned. That weighs against the recognition of any duty of care. Nor is the fact that it may be foreseeable that the exercise of that right without reasonable care might result in a psychiatric injury sufficient to justify the imposition of a duty of care. While the fact of the employer/employee relationship and the potential vulnerability of the employee weighs in favour of a duty of care, the present case, in my view, is more analogous to the situation considered in Govier insofar as the proposed duty of care relates to the exercise of a contractual right which is an incident of the contract of employment connected with the undertaking of an investigation.”
The appellant submits that the primary judge erred in failing to find that the respondent owed to the appellant a duty of care in suspending him from his employment. That error is further explained by reference to ground of appeal 9(a) which alleges that the primary judge erred in finding that the decision to suspend the appellant’s employment was outside the respondent’s duty to provide a safe system of work. These grounds of appeal were condensed in oral submissions to a contention that the primary judge erred in applying the decisions in Govier and Paige rather than the decision in Hayes. There are a number of difficulties with these submissions.
First, the letter of 21 July 2014 outlines the nine steps to be followed in what is described as a “disciplinary process”. These steps included the provision of a formal allegations letter, the appellant being stood down from his employment on full pay, a formal investigation being commenced and an opportunity for the appellant to be interviewed by the investigator. The disciplinary process also required the appellant to have no contact with the complainant, potential witnesses or to discuss the matter with any Council employees other than those named in the letter. The effect of the letter is similar to that considered by Fraser JA at [7] of Govier.
Secondly, the effect of the suspension decision was that the appellant was stood down from his employment and would not be carrying out any task as an employee while the investigation was pending.
Thirdly, no error is demonstrated in the primary judge distinguishing Hayes. Fraser JA in Govier distinguished Hayes at [74] as follows:
“Hayes & Ors v State of Queensland, upon which the appellant relied, also does not supply a ground for distinguishing Paige. In Hayes, each member of the court (the President (dissenting), Mullins and Dalton JJ) referred with approval to the decision in Paige but distinguished it on the ground that the claim in Hayes was not based upon the conduct of the investigation of, or decision making in relation to, complaints against the employees but was instead based upon the employer’s failure to provide and maintain a safe workplace for each employee in the course of their employment during the investigation and decision making process”.
Fraser JA continued at [75]:
“This is not a case in which the claim was based upon a duty by the employer to supply a safe system of work in the workplace by providing support for an employee during the course of an investigation, as was the case in Hayes.”
The appellants in Hayes were not stood down from their employment but were either relocated or reassigned. As observed by Mullins J (as her Honour then was) in Hayes at [100], the decision in Paige among others did not preclude a finding that a duty of care arose in the circumstances on the part of the respondent to provide adequate support to each appellant in the workplace while the investigation of the complaints was otherwise ongoing, so as to avoid psychiatric injury to the relevant appellant.
The duty of care considered in Hayes does not extend to incidents of the contract of employment such as the disciplinary procedures under consideration in the present case.
The appellant submits that such a duty has been recognised in England.1 However, these English authorities are based on the concept of there being a term of mutual trust and confidence between the employee and employee, derived from the English case of Malik v Bank of Credit & Commerce International SA (in liq) [1998] AC 20. The difficulty with this submission is that in Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 the High Court refused to imply a term of mutual trust and confidence in Australia. On that basis, it was correct for her Honour to conclude that no such duty of care extended to the incidents of employment.
Issue Two: That as at 21 July 2014, the risk of psychiatric injury being suffered by the appellant was not reasonably foreseeable (Grounds of Appeal 2 and 4)
An even more difficult hurdle for the appellant to overcome is her Honour’s finding that as at 21 July 2014 the risk of the appellant suffering psychiatric injury was not reasonably foreseeable. At [2] of the Judgment her Honour considered that the appellant’s claim failed principally because the earliest date on which there was a foreseeable risk that he might suffer psychiatric injury did not arise until 14 August 2014. This was the day following the appellant emailing the second medical certificate to Ms McCrohon. It was not until 14 August 2014 that there was a not insignificant risk of psychiatric injury to the appellant that the respondent knew or ought to have known of.
At Judgment [403], the primary judge made the following finding as to the foreseeable risk of psychiatric injury as at 21 July 2014:
“I do not find, that on 21 July 2014, the risk of a psychiatric illness being suffered by Mr Potter was reasonably foreseeable in the sense that the risk was not far-fetched or fanciful or to phrase the issue as the parties have that there was not a significant risk of psychiatric injury to the plaintiff that the [defendant] knew of or ought reasonably to have known of in the suspension of Mr Potter.”
“Whether there was ever a not insignificant risk of psychiatric injury to the plaintiff that the Defendant knew of, ought reasonably have known of.”
“The critical factor in Koehler was that the employer had no reason to suspect that the employee was at risk of psychiatric injury. In contrast, the critical factor in Eaton v TriCare (Country) Pty Ltd, where this Court allowed an appeal by an unsuccessful plaintiff (a nurse who had suffered psychiatric injury in her workplace) was that the deterioration of that person’s psychological state was apparent during the period in which she was mistreated by her supervisor.
As Henry J has explained, at no stage during the relevant period of her employment did the appellant exhibit signs which warned of the possibility of psychiatric injury. The trial judge was correct to hold that signs that she was under stress at work were insufficient to make the risk of a psychiatric injury reasonably foreseeable, so as to result in the relevant duty of care.” (citations omitted).
[309]As was stated by Dalton J in Hayes, evidence as to what notice the employer had that the employee in question was at risk of suffering psychiatric injury will often play an important role in cases. In that respect, the courts have drawn a distinction between stress on one hand and a recognised psychiatric illness on the other. As set out above, it is assumed that unless the employer knows of some particular problem or vulnerability, an employer is entitled to assume that its employees are up to the normal pressures of the job. Similarly, Gleeson CJ in Tame stated it was not enough that distress, alarm, fear, anxiety, annoyance or despondency, without any resulting recognised psychiatric illness, might be foreseen. Further, as was pointed out by McMurdo JA in Eaton v TriCare (County) Pty Ltd:
‘It was not the legal responsibility of the respondent to its employees to provide a happy workplace or one in which their productivity might have been enhanced by temperate and polite behaviour from those in managerial positions. The relevant legal responsibility was to take reasonable care to avoid a risk of psychiatric injury to the appellant in the circumstances that she was exhibiting a particular vulnerability’.” (citations omitted)
The primary judge in considering the issue of foreseeability had regard to a number of circumstances. These circumstances are considered below but it may be observed that her Honour’s focus on the particular circumstances in considering foreseeability constitutes the correct approach.
The two relevant grounds of appeal are 2 and 4:
“2.The Learned Trial Judge erred in finding that something further besides workplace stress was required in order to prove that the risk of psychiatric injury to an employee was reasonably foreseeable.
4.Having found that the appellant was showing signs of distress and anxiety and was psychiatrically vulnerable as at 21 July 2014, and that suspension of his employment would place significant additional stress upon the appellant, the Learned Trial Judge erred in failing to find that a duty of care arose as at 21 July 2014.”
“… While it is acknowledged that workplace stress can give rise to recognisable psychiatric illness, something further is required to say that the risk of psychiatric injury to an employee by an employer is reasonably foreseeable.”
The appellant submits that the development of a recognised psychiatric injury can be foreseeable depending upon the level of stress which an employee is suffering and/or the accumulation of stress by an employee together with other relevant facts. To the extent that this submission suggests that, in determining foreseeability in the context of workplace stress, all relevant circumstances must be considered, it does not demonstrate any error in the approach of the primary judge.
In oral argument, the appellant submitted that this Court is in as good a position as the primary judge to adjudicate whether or not psychiatric injury was foreseeable. In the appellant’s amended outline of argument, 12 circumstances are identified as supporting the inference that the appellant’s psychiatric injury was foreseeable. The appellant acknowledges that a number of those circumstances were considered by the primary judge: Judgment, [406 (a) – (h)].
There are a number of difficulties with the appellant’s submission that this Court is in as good a position as the primary judge to assess the issue of foreseeability. The first is that the appellant does not challenge the findings of fact of the primary judge but rather her Honour’s final evaluative step in concluding that the risk of psychiatric injury was not foreseeable. Secondly, the findings of fact made by her Honour were in part based upon the evidence of witnesses who observed the appellant in the course of the meetings of 30 June 2014 and 21 July 2014 and his reactions to those meetings. Thirdly, in determining the primary facts of what was said at these meetings and the appellant’s reactions, her Honour had to consider contested issues concerning the tone and effect of what was said as viewed from the respondent’s perspective. Fourthly, in making findings of fact as to what was said and what occurred at the meetings, the primary judge had to assess the reliability of the appellant’s evidence. Her Honour found that the appellant was generally an honest witness but was however prone to exaggeration:
[207]… However, I did not find him a reliable witness in a number of respects because while he believed that the version of events that he presented was accurate, it was beset by exaggeration and a degree of reconstruction blinkered by his feeling of injustice as to what had occurred. In particular he saw the events of 2014 as all being an attack against him, regardless of what he was told about the process put in place. He has therefore seen the events in that prism and his evidence was skewed and not always reliable of what objectively had occurred.”
Irrespective of these difficulties with the appellant’s submission, the primary judge was correct to conclude that the risk of psychiatric injury was not foreseeable. Her Honour took the following circumstances into account:(a)the appellant had no history of any psychiatric illness nor any special vulnerability of which the respondent was aware either prior to 30 June 2014 or 21 July 2014: Judgment, [312], [412];(b)prior to these events the appellant had been described as “an extroverted and happy employee, who had not experienced any performance issues in his employment”: Judgment, [310];(c)the comments made by Mr Stanton at the 30 June 2014 meeting could not objectively be perceived to be threatening, bullying or overbearing or contrary to the respondent’s Staff Code of Conduct: Judgment, [318];(d)while Mr Stanton did inform the appellant at the meeting of 30 June 2014 that he was to be performance managed, the letter of 30 June 2014 explicitly stated that it was not a formal warning regarding his performance, although it foreshadowed that if satisfactory progress towards meeting expectations was not achieved, it was open to the respondent to formalise its concerns to the appellant: Judgment, [320];(e)the respondent knew, or reasonably ought to have known, that the appellant was a long term employee and would be upset as a result of the meeting of 30 June 2014 and being given the letter, particularly given that he had, up until that time, not been told he was not performing and had received compliments for his performance in disaster management: Judgment, [327];(f)while there were indications that the appellant was stressed as a result of the meeting of 30 June 2014, insofar as he was observed to have been withdrawn by Mr Wolff, that would accord with a normal human reaction rather than of itself raising evidence of mental deterioration: Judgment, [329];(g)Ms Kelly observed that the appellant lost confidence after receiving the 30 June 2014 letter and had gone from holding himself quite high and proud to slumping and questioning his decisions: Judgment, [406](c);(h)the respondent knew that the appellant was a long-term employee who was employed in a senior position and that a suspension from duty was not a neutral act: Judgment, [406](e);(i)it was implicit in the letter of 21 July 2014 that the appellant’s suspension would end upon the completion of the investigation depending on the outcome: Judgment, [406](h);(j)the respondent would have been aware of the pressures upon the appellant caused by both the events of 30 June 2014 and 21 July 2014, which he had not experienced before. However, the pressures were not of the level that they alone would make a psychiatric injury reasonably foreseeable assuming the appellant was a person of normal fortitude: Judgment, [412];(k)while the appellant had requested reviews of his work plans and weekly meetings to discuss the way forward after 30 June 2014, the appellant had made no complaints of stress which were relayed to senior management: Judgment, [413];(l)the appellant being withdrawn and showing some signs of stress and anxiety after 30 June 2014 and on 21 July 2014 were not an abnormal reaction to the situation he found himself in and were not out of the norm of what would have been expected from someone of normal fortitude in his situation: Judgment, [413]; (m)the signs that the appellant was under stress as a result of the suspension and the other circumstances relied upon were insufficient to make the risk of psychiatric injury to the appellant reasonably foreseeable from the respondent’s perspective so as to result in a duty of care being owed: Judgment, [414];(n)at the meeting of 21 July 2014, while the appellant showed that he was visibly shocked, he did not cradle his head in his heads nor ask “what have I done?”: Judgment, [128].
Issue Three: That if a duty of care was owed, it was not breached by the respondent in suspending the appellant (Grounds of Appeal 10, 11, 12, 13, 14 and 22)
At trial, the appellant asserted that in suspending him on 21 July 2014, the respondent breached the duty of care in the following respects:(a)the suspension was neither lawful nor reasonable;(b)the respondent did not comply with its own policies; and(c)the suspension was not specified to only operate for a particular period of time, such that it was an indefinite suspension which was not a reasonable and lawful direction.
The relevant grounds of appeal challenge the primary judge’s finding that the respondent did not breach any duty it may have owed to the appellant in suspending him.
Before considering the reasoning of the primary judge and the competing submissions, it is first convenient to set out the relevant provisions of the DAP and the PMDP.
Clause 1 of the DAP is entitled “Overview” and states that the document provides procedural “guidelines” as to how to take disciplinary action when necessary. It further provides that the DAP “contains information on how to handle disciplinary situations and the appropriate procedures to follow when disciplining a staff member”.
The letter of 21 July 2014 made specific reference to clause 6 of the DAP which is entitled “Serious Misconduct” and states:
“6 SERIOUS MISCONDUCT
‘Serious Misconduct’ is misconduct of a serious and wilful nature and is usually conduct of a type that would make it unreasonable to require Council to continue employment of the staff member concern.
Conduct which may constitute Serious Misconduct includes, but is not limited to, such things as:
• theft;
• violence;
• fraud;
• conviction of a criminal offence, during the period of employment, which in the opinion of Council either impacts adversely on the staff member carrying out their duties or adversely on the reputation of Council;
• wilful conduct of a kind which constitutes an impediment to the carrying out of a staff member’s duties or to the staff member’s colleagues carrying out their duties;
• a wilful and serious breach of Council’s Code of Conduct (PR-HR- 001) or Policies; and
• wilful disobedience of a lawful and reasonable employer request.
Acts of Serious Misconduct can result in suspension and/or instant dismissal without notice. This is therefore the strongest option available within the disciplinary processes of Council. It’s [sic) application has been narrowed within the decisions of the Industrial Commissions to only that conduct that is proven to be wilful and which goes to the heart of the employment contract. No action should be initiated to suspend or dismiss on the basis of serious misconduct without reference to the Chief Executive Officer.
If a Manager/Supervisor suspects that a staff member has displayed serious misconduct he or she should discuss this immediately with the relevant Director who will assess the situation and decide on the appropriate disciplinary process to be followed in the circumstances.”
“This procedure may be varied from time-to-time by council and does not form part of any employee’s contract of employment.”
(d)under the heading “Disciplinary Procedure Overview”:
“The procedures outlined below are intended as a guide only to the disciplinary procedures which may be implemented by Council. In every case, the actual disciplinary procedure to be adopted will be a matter of Council discretion but in all circumstances Council will comply with the requirements outlined by the Local Government Regulation 2012 (Qld) s 283”.
(e)under the heading “Investigation”:
“Depending on the circumstances, it may be necessary to conduct investigation into incidents and/or allegations against a particular employee. This may involve collecting relevant data, interviewing relevant witnesses, such as the employee’s co-workers or supervisors, or even customers and suppliers with whom the employee has had contact. Council will endeavour to investigate all allegations of unsatisfactory performance, unacceptable conduct, or wilful or serious misconduct by an employee promptly and fairly.
If Council is satisfied, on reasonable grounds, that there appears to be sufficient evidence to support the allegations against an employee, and if those allegation [sic] were proven, will lead to disciplinary action of some form against the employee, the employee may, if council believes this to be reasonably necessary in the circumstances suspended [sic] an employee from duty on ordinary pay pending completion of the investigation. In such circumstances, the employee should be informed in writing of the conditions of the suspension at the time of the suspension and must be paid the employee’s full remuneration as at the start of the suspension for the period of the suspension.”
“A Code of Conduct is a set of standards and behaviours related to the way we do our work. It puts responsibility on each of us to use sound judgment while at work.
It aims to deliver best practice by ensuring those standards are clear and guided by sound ethics. By consistently applying these standards, we enhance public trust and confidence in each of us. Noting in this Code interferes with your rights as a private citizen or a ratepayer.
The Code does not cover every situation. However, the values, ethics, standards and behaviours it outlines are a reference point to help make decisions in situations it does not cover. If you act in good faith and in keeping with the spirit of the Code, you can expect to be supported by Council.
A ‘Guide for Ethical Decision-Making’ is included at Appendix B to help you in situations not covered by the Code.”
“As an employee of Council, you are expected to comply with applicable legislation, awards, certified agreements, Council policies and local laws.
You have the right and responsibility to respectfully question how you do your work, particularly if you think there is an imminent risk to the safety of yourself or others, or there is a better way of doing something, or if you think that a direction may be in breach of the law. When you have recorded your suggestion or concern you are required to work as directed by your supervisor/manager, except where there is an imminent risk of safety. If the matter cannot be resolved within the workgroup, it should be immediately referred to your manager.”
Clause 3(d) deals with privacy and notes that as a general rule a person should ensure that they comply with Council policy in relation to maintaining privacy of personal information.
Page 14 of the Staff Code of Conduct contains provisions dealing with “Breaches of the Code”. All employees of the Council have the responsibility to comply with the Code of Conduct and all other policies which Council implements and/or varies from time to time. It further provides that:
“All disciplinary action taken by Council against an employee for found breaches of this Code will be in accordance with Council’s Disciplinary Action Procedure…”.
The appellant submits that the power to suspend under clause 6 of the DAP arose only after serious misconduct had been proved. Clause 6 did not therefore give to the respondent a legal right to suspend the appellant. Clause 6 made no provision for interim suspension pending investigation. It was only the PMDP which provided for interim suspension. The appellant further submits that the PMDP in terms commenced from 30 April 2013 and replaced all previous policies. By clause 3(a) of the Staff Code of Conduct, all employees of the respondent which would include the CEO, Mr Smith, were expected to comply with Council policies. As clause 6 of the DAP did not make provision for interim suspension pending investigation, it follows according to the appellant, that the respondent had no legal right to suspend him. The appellant therefore asserts that the primary judge erred in finding that the respondent had a legal right to suspend the appellant pending investigation in circumstances where it did not follow its own policies. An examination of her Honour’s reasons, however, does not reveal any such error.
Her Honour dealt with the alleged breaches arising out of the suspension in considerable detail: Judgment, [473] – [540]. Central to her Honour’s reasoning was the proposition that the respondent through its CEO, Mr Smith, had a contractual right to suspend the appellant on full pay, pending investigation. This legal entitlement arose by virtue of an implied term in the contract of employment. In this respect the primary judge relied on two authorities: Downe v Sydney West Area Health Service (No 2) (2008) 71 NSWLR 633 and Avenia v Railway & Transport Health Fund Ltd. At Judgment [347] – [348] the primary judge considered the decision of Rothman J in Downe as follows:
“[347]Notwithstanding that Rothman J found that there was an implied term in the contract of employment not to conduct oneself in a manner calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence between an employer and employeehttps://www.queenslandjudgments.com.au/caselaw/qsc/2022/9 - _ftn122 and to act in a good faith towards each other, Rothman J found an employer had the right under a contract of employment to give a direction to an employee not to perform work during the course of an investigation into allegations of misconduct:
“In circumstances where an employee, bona fide, takes a view that during the course of such an investigation, the continued performance of duty by an employee is inconsistent with its interests, it is entitled under the terms of the contract of employment, to direct the employee not to perform work.”
[348]Rothman J therefore considered that there was not a breach of the contract of employment to provide a direction not to perform work while an investigation into complaints occurred, provided it was given in good faith.”
“[355]Lee J, while acknowledging that suspension on full pay was not a neutral act and cast a shadow over an employee who was subject to suspension, found that where an employer bona fide takes a view that, during the course of an investigation, the continued performance of the duty by an employee is inconsistent with its interest, it was entitled, under the terms of the contract of employment, to direct the employee not to perform work.
[358]Lee J concluded that:
“More particularly, RTHF was entitled to suspend Dr Avenia under the Employment Contract where it formed the view, bona fide, that the direction to suspend was in furtherance of its duties to enquire into or investigate allegations of inappropriate behaviour when such behaviour could constitute a risk to the safety, health and welfare of its staff and/or its fulfilment of its duty to provide a safe place of work for its staff. Of course, this is just another way of stating that, in these circumstances, a direction to suspend would constitute a reasonable direction and Dr Avenia was obliged to comply with it by reason of the Reasonable Direction Provision…”.
“…To the extent that the policies and procedures were not complied with, it may be evidence that the direction to suspend Mr Potter was not a reasonable one. That would be a breach of contract and, assuming a duty of care is owed (contrary to my findings), it would potentially be evidence of negligence if there was a foreseeable risk of psychiatric injury at the time of the suspension.”
As to the DAP, her Honour noted that the procedures were “guidelines” as to how to take disciplinary action. While clause 6 was limited to serious misconduct, any disciplinary process that was to be adopted in the case of serious misconduct was left to the discretion of the relevant director. Her Honour considered that the discretion would extend to determining whether it was appropriate to suspend the relevant employee on full pay pending any investigation into allegations if it was reasonable to do so.
As to the PMDP, her Honour noted that the disciplinary procedures outlined in this policy were intended as a guide only. The PMDP expressly provided that the policy did not form part of any employee’s contract of employment.
Her Honour observed that the DAP is also referred to in the Staff Code of Conduct in the context of breaches of that Code which also refers to an employee being suspended on full pay until an investigation is completed, if deemed appropriate by the CEO and disciplinary action being taken under the DAP. In those circumstances, her Honour considered that although the position was not altogether clear, the DAP may have continued in effect after the PMDP commenced and that all procedures were operative as at the relevant time. Her Honour noted that it was not contended by either party that the position was otherwise.
The primary judge went on to consider whether the decision to suspend the appellant on full pay pending investigation was reasonable and bona fide. Her Honour observed that the reason for standing the appellant down in the letters of 21 and 28 July 2014 was to allow him time to prepare for the meeting with Mr Wilkinson to answer the allegations made. Prior to the appellant being suspended, Mr Wolfe and Mr Stanton had taken statements from RS and three other employees in the Local Laws Branch. Ms McCrohon’s evidence was that the statements would have been discussed, although not received as a formal summary prior to the engagement of Aitken Legal on or about 16 July 2014. Mr Smith gave evidence that his usual practice prior to signing a letter such as the letter of 21 July 2014 was to discuss the background to the issue and to enquire whether proper procedures had been followed and whether legal advice had been obtained. Mr Smith was aware that it was a serious matter to suspend an employee and there had to be a reasonable basis for him to do so. While Mr Smith could not recall the detail of what transpired, he would have satisfied himself of the contents of the letter and enquired about any legal advice.
The primary judge also had regard to the serious nature of the allegations made in the letter of 21 July 2014. The letter had been drafted by Aitken Legal. Ms McCrohon could not recall whether she spoke to Mr Smith about the contents of the letter but considered it was likely someone in her team would have discussed the matter with Mr Smith.
The primary judge concluded at Judgment [502] that the appellant was not stood down merely to give him time to prepare for the meeting with Mr Wilkinson to respond to the allegations, but because the allegations include allegations which could constitute serious misconduct in relation to RS based on a complaint from him and evidence of members of his team.
“[515]Objectively there were facts which supported the suspension pending the completion of the investigation. Those included the fact that allegations if proven could constitute serious misconduct and involved a junior member of Mr Potter’s team. While RS had indicated he could still work with Mr Potter, he was the complainant and serious allegations had been raised in relation to his treatment not only by him but by other employees in Mr Potter’s team. One of the allegations arose out of alleged disclosure of personal private information of RS. Ms McCrohon stated that the Local Laws team discussed matters between themselves, sometimes inappropriately and there seemed to be a level of dysfunction in the team. The allegations in the letter of 21 July 2014 were at least supported by the complaint of RS and to preliminary statements from employees in Mr Potter’s team and were likely to be interviewed by the investigator.
[516]While the plaintiff submits that was no evidence that Mr Potter’s presence in the workplace was causing disruption, I am not persuaded that was the case. Given the nature of the allegations made by his team of which he was manager with a previous allegation made against him and that it related to confidential information which was apparently disclosed confidential information of one employee to Ms Smith in the context of asking about the meeting that had taken place between Ms Smith and Mr Stanton and Mr Wolff, his continued presence during the investigation may cause disruption and difficulties for those subordinate to whom who were going to be interviewed in the investigation. That environment could have been hostile or stressful for both the team members and Mr Potter potentially creating a risk to the welfare of all staff.
[517]In those circumstances, a view could be reached, bona fide, that it was in the interests of ensuring the welfare of all in the team, including Mr Potter, that he be removed from the workplace while the complaints were investigated. The direction was in those circumstances a lawful and reasonable direction as discussed by Lee J in Avenia and Rothman J in Downe.”
The appellant submits that any consideration of whether the decision to suspend was reasonable and made bona fide should be limited to the sole reason identified in the letters of 21 and 28 July 2014. Such an approach to determining this issue is unnecessarily restrictive. The exercise of the contractual right to suspend was made by the CEO of a local council in circumstances where serious allegations had been made by RS concerning the disclosure of confidential information. The effect this disclosure had on RS was evident to a number of employees of the respondent, including Ms McCrohon. The primary judge’s careful analysis of the relevant evidence including the provisions of the DAP and PMDP provided a sound basis for the finding that the decision to suspend the appellant was reasonable and made bona fide.
Nor is any error demonstrated in her Honour’s finding at Judgment [508] – [510] that the appellant was not indefinitely suspended. As correctly submitted by the respondent the fact that a suspension is for a period until the happening of an event, rather than an identified date, does not make the suspension indefinite: Downe at [296]. Here the suspension was until the final outcome of the investigation.
Issue Four: That any breach was not causative of the appellant’s psychiatric injury (Grounds of Appeal 23, 24 and 28)
The relevant grounds of appeal are that the primary judge erred in:(a)finding that the suspension of the appellant’s employment alone was not a substantial cause of the injury (Ground 23);(b)failing to take into account Dr Byth’s and Dr Jetnikoff’s evidence that the appellant’s psychiatric condition was caused by the suspension of his employment (Ground 28); and(c)finding that even absent the suspension of the appellant’s employment, the appellant would have suffered his injury given the allegations made by RS and the criticisms made of his management which lifting the suspension would not have resolved (Ground 24).
After reviewing the evidence of the psychiatrists, the primary judge accepted that the suspension had an impact on the appellant but was only one of the stressors. Her Honour stated at Judgment [645]:
“I am unpersuaded that the suspension alone was a substantial cause of the injury suffered in isolation from the fact that allegations were made against [the appellant] and that they were to be investigated. Or to put it in the converse I am not satisfied that [the appellant] would not have suffered the psychological injury but for his having been suspended or stood down given the allegations made against him still would still have been the subject of an investigation and the results and his sensitivity to that criticism appear to equally feature in his psychiatric injury.”
This conclusion was reached by the primary judge after an extensive review of the evidence including that of the appellant, Dr Byth and Dr Jetnikoff: Judgment, [589] – [644]. That review included a consideration of the effects on the appellant of the work performance meeting of 30 June 2014, the respondent’s alleged failure to provide adequate support to the appellant while suspended and the respondent’s alleged failures to inform the appellant of the results of the investigation and to lift the suspension.
The appellant submits that the primary judge correctly stated but then misapplied the legal test for factual causation in respect of suspension. The enquiry was made as to a ‘substantial cause of the injury suffered in isolation from’ rather than whether the alleged negligent suspension was part of a set of conditions that were jointly sufficient to account for the occurrence of harm.
Section 305D of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) provides that “a decision that a breach of duty caused particular injury comprises the following elements—(a)the breach of duty was a necessary condition of the occurrence of the injury (factual causation);(b)it is appropriate for the scope of the liability of the person in breach to extend to the injury so caused (scope of liability).
As discussed above the breaches of duty alleged in relation to the appellant’s suspension concern the respondent not complying with its own policies and suspending the appellant indefinitely.
In Strong v Woolworths Ltd (2012) 246 CLR 182 at 190 [20] the majority of the High Court held that the “factual causation” element under s 305D(1)(a) is a statutory statement of the “but for” test of causation, that it requires proof that the defendant’s negligence was a necessary condition of the occurrence of the particular harm, and that a necessary condition is a condition that must be present for the occurrence of the harm. The majority stated that:
“However, there may be more than one set of conditions necessary for the occurrence of particular harm and it follows that a defendant’s negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual causation within [the section]. In such a case, the defendant’s conduct may be described as contributing to the occurrence of the harm.”
“To what extent, if any, do you consider any current psychological/psychiatric condition suffered by the Claimant (if any) has been caused/contributed to by the events occurring in the Claimant’s employment at the Council leading to the cessation of his employment in July 2014? Please explain your opinion in that regard.
The condition I have diagnosed in my response to Question 2 is in my opinion attributed to workplace factors identified in my previous reports and those of other independent assessors and are consistent with the determinations made by WorkCover Queensland regarding the key issues, namely that Mr Potter was stood down in July 2014 by his management with little notice regarding allegations against him and that just prior to that he had been advised that he was going to be placed on some form of performance management with limited warning.
He has not worked for the Council since 21 July 2014 and has remained fixated on those events. It is not difficult to see the established link between the ongoing symptoms from that time and his current presentation. This is also supported by the treating psychiatrist’s opinion over the course of the last two years of contact.
I could not see evidence of other factors that could clearly be identified as contributing to the ongoing symptoms of the adjustment disorder with anxiety and depressed mood.” (RB, volume 3, 760).
The appellant submits that had her Honour accepted this opinion and applied the “but for” test, her Honour should have concluded that the suspension of the appellant caused his psychiatric injury.
There are a number of difficulties with these submissions. First, the opinion expressed by Dr Jetnikoff incorporates not only the suspension on 21 July 2014 but also the previous work performance meeting of 30 June 2014. The appellant’s own evidence as to the effect of the meeting of 30 June 2014 was that it “hit [him] like a freight train”: RB, volume 4, 1148, line 10. Secondly, Dr Jetnikoff’s response to the question asked should not be viewed in isolation from the balance of the psychiatric evidence. As noted by the primary judge at Judgment [628], Dr Jetnikoff had previously reported that the appellant was upset about being advised there were complaints concerning his management style. As to the suspension itself, the appellant was shocked by the actual allegations. Dr Byth, in cross-examination, referred to the appellant having personality traits which made him more sensitive to criticism. Dr Byth also agreed that the appellant perceived the allegations against him as a personal attack. As noted at Judgment, [602] Dr Byth had previously considered that the appellant’s psychiatric condition was caused by his difficulty coping with interactions with his superiors at work, whom he complained were treating him unfairly and withholding from him information about allegations against him. Thirdly, her Honour was unpersuaded that the suspension alone was a substantial cause of the injuries suffered in isolation from the fact that allegations were made against the appellant and that they were to be investigated. Fourthly, her Honour did apply the correct test in stating “[o]r to put it in the converse I am not satisfied that Mr Potter would not have suffered the psychological injury but for his having been suspended or stood down given the allegations made against him would still have been the subject of an investigation and the results and his sensitivity to that criticism appear to equally feature in his psychiatric injury”. (Judgment, [645]).
Disposition
The appeal should be dismissed.
The parties should file submissions as to costs, not to exceed 3 pages in length, within 14 days of delivery of judgment.
The appellant relies on Eastwood v Magnox Electric plc; McCabe v Cornwall County Council and Another [2004] UKHL 35; [2005] 1 AC 503 (27 – 33); Yapp v Foreign and Commonwealth Office [2013] ICR D21; (2013) EWHC 1098; and Marsh v Ministry of Justice (2017) EWHC 1040 (QB) at [168]. ↩
Potter
Gympie Regional Council [2022] QCA 255
(2017) 272 IR 151
(2014) 253 CLR 169
(2008) 71 NSWLR 633
(2005) 222 CLR 44
(2002) 60 NSWLR 371
(2012) 246 CLR 182
At trial the primary judge had to consider issues of duty of care, foreseeability, breach and causation not only in relation to the suspension of the appellant on 21 July 2014 but also in relation to the work performance meeting of 30 June 2014, the delivery of the investigation report to the respondent on 9 or 11 August 2014 and whether the respondent provided adequate support to the appellant during the suspension and investigation. A further issue was whether the appellant would have made a recovery or would have improved in relation to his psychiatric condition or symptoms if his suspension had been lifted on or about 9 or 11 August 2014.
The appellant originally advanced 29 grounds of appeal which have been narrowed to 14. The appeal is limited to issues which arise from the respondent’s decision, conveyed to the appellant on 21 July 2014, to suspend him on full pay, pending investigation.
To succeed on appeal it is necessary for the appellant to establish that the primary judge erred in making the following four findings:(a)that the respondent, in suspending the appellant, did not owe him a duty of care (Issue One);(b)that as at 21 July 2014, the risk of psychiatric injury being suffered by the appellant was not reasonably foreseeable (Issue Two);(c)that if a duty of care was owed, it was not breached by the respondent in suspending the appellant (Issue Three); and(d)that any breach was not causative of the appellant’s psychiatric injury (Issue Four).
For the reasons which follow the appeal should be dismissed as the appellant has failed to establish that the primary judge erred in making any of these findings.
Her Honour’s consideration of these relevant circumstances in relation to the issue of foreseeability was comprehensive. As to the factual question of whether a reasonable person in the respondent’s position would have made any different assessment at the time, the respondent makes the following correct submission. It is significant that a number of different witnesses who were able to describe the course of events from the respondent’s perspective – including a human resources manager and a solicitor who was very experienced in dealing with matters of this kind – were not subjectively concerned about the appellant’s mental state.
The primary judge concluded at Judgment [515] – [517] as follows: