Read v Workers' Compensation Regulator [2017] QIRC 72

Davis v Blackwood [2014] ICQ 009

O'Brien v Q-Comp [2007] QIRComm 53; (2007) 185 QGIG 383

Q-COMP v Foote (2008) 189 QGIG 539

WorkCover Corp (SA) v Summers (1995) 65 SASR 243

Mr B J Carman, solicitor, instructed directly by the appellant

Mr P O'Neill of Counsel, instructed directly by the respondent

[1] Patricia Mary Read was employed by the Cairns Regional Council as a Town Planner. The appellant seeks to set aside the decision of the Workers' Compensation Regulator dated 9 September 2016. The decision of the Workers' Compensation Regulator confirmed the decision of Local Government Workcare to reject Ms Read's application for compensation as a result of s32(5) of the Workers' Compensation and Rehabilitation Act 2003.

[2] The appellant bears the onus of establishing her entitlement to compensation. That is, it is for the appellant to demonstrate to the Commission that the Regulators decision was wrongly made. The standard of proof is on the balance of probabilities.

[3] The parties have agreed on the facts of this matter and they are as follows:

"The Appellant commenced employment with the Cairns Council ('the Council') on 22 September 2005 as a Planning Officer.

The Appellant up until 9 March 2016 worked in the Planning Approvals section of the Council.

The Appellant's immediate supervisor is Mr Gary Warner who has been in that role since the de-amalgamation of the Cairns Regional Council.

On 30 April 2015 at a team meeting of the Planning Approvals Team Mr Warner provided a direction to the team about professional email correspondence and the use of the correct Council signature block.

In or about August 2015 the Appellant, as a Planning Officer, had conduct of File 8/7/3341 which involved an application for a significant retaining wall at 18-19 Temora Place.

On 14 August 2015 the Appellant sent a site inspection email with photographs showing 17 Temora Place.

The Appellant sent a further email on 28 August 2015 attaching the correct photographs, labelled 'Correct site inspection photos for 18-19 Temora - retaining wall 8/7/3341.'

In or about October 2015 the Appellant, as a Planning Officer, had conduct of File DA 8/7/3368 - Site inspection 6 Lancewood Close.

On 1 October 2015 the Appellant sent an email with the subject line 'Site inspection for 6 Lancewood Court Cls Mt Sheridan 8/7/3368'.

In or about October 2015 the Appellant, as a Planning Officer, had conduct of File DA8/7/3390 - 10 Onyx Street.

An initial report prepared by the Appellant in relation to DA 8//7/3390 (DM5 document #4988577) included a page describing an environmental covenant that existed on the adjoining property.

On 7 January 2016, the Appellant received an email from Mr and Ms David & Bianca Christopher for assistance relating to a site at 71-75 Harvey Road, Redlynch.

On 8 January 2016, the Appellant, by email, responded to the email from the Christophers and copied her response email to Mr Sean Davis from All Construction Approvals.

On 17 February 2016, the Appellant received an email from Councillor Richie Bates regarding fencing along Lily Creek behind Law Street.

On 18 February 2016, the Appellant sent a response email to Councillor Richie Bates and copied her response to State Member Pyne and Councillor Max O'Halloran.

On 8 March 2016 at 1.09 p.m. the Appellant was sent an invitation to attend a meeting to be held at Level 2 Crathern Room at 10.30 a.m. to 11.00 a.m.

On 8 March 2016, the Appellant accepted the invitation to attend the meeting at 4:03p.m.

The Crathern Room was located away from the Appellant's usual work location at the Council.

The Appellant attended at the Crathern Room on 9 March 2016 to attend the meeting with her support person, her solicitor, Mr Bernie Carman.

Attending the meeting on behalf of the Council were Mr Gary Warner, the Appellant's direct supervisor, Mr Peter Boyd, Manager Strategic Planning and Approvals, and Ms Rebecca Jones (nee Stewart), then employed as Human Resources Advisor by the Council.

Mr Peter Boyd provided an introduction and outline of the purpose of the meeting and then provided the Appellant with a copy of a letter of allegations dated 9 March 2016 and read the letter to her.

Mr Boyd confirmed in the meeting that the Appellant was not required to make a response to the letter of allegations at that meeting and that she had seven days to do so.

The meeting ended at approximately 10.40 to 10.45 a.m.

Subsequent to the meeting the Appellant left work and attended upon her treating General Practitioner, Dr Sandra Davies of the Apple Tree Medical Centre who provided her with a non-workers' compensation medical certificate that certified her as unfit for duty from 9 March 2016 to 24 March 2016.

Dr Davies provided a further non-workers' compensation medical certification on 23 March 2016 certifying the Appellant as unfit for duty until 6 April 2016 from an ongoing acute stress reaction.

On 6 April 2016, Dr Davies also provided a workers' compensation medical certificate that:

• diagnosed the Appellant as suffering from an Adjustment Disorder with anxious mood;
• recorded that the Appellant was first seen for that condition on 9 March 2016; and
• the Appellant's stated date of injury was 9 March 2016.

On 9 April 2016, the Appellant lodged her application for compensation with WorkCover Queensland."

[4] In light of the concession made by the respondent in relation to the acceptance that Ms Read suffered an injury within the meaning of s32 of the Act, the only question that needs to be determined is whether that injury is excluded from being compensable as a consequence of the injury arising from 'reasonable management action taken in a reasonable way' by her employer.

Is the injury excluded from being compensable because the injury was the consequence of 'reasonable management action taken in a reasonable way'?

[5] The respondent contends that the appellant's injury would be excluded by s32(5) of the Act because it arose out of or in the course of reasonable management action taken in a reasonable way in connection with her employment.

[6] In Davis v Blackwood, Martin J set out the role of the Commission when embarking upon an enquiry as to whether a psychological or psychiatric injury arose out of, or in the course of, reasonable management action taken in a reasonable way. In that matter his Honour stated:

"The task of the Commission when applying s 32(5) does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances. There may be any number of actions or combinations of actions which would satisfy s 32(5). The proper task is to assess the management action which was taken and determine whether it was reasonable and whether it was taken in a reasonable way. Sometimes, that may involve considerations of what else might have been done but that will only be relevant to whether what was done was, in fact, reasonable."[1]

[7] The sole management action said to enliven s32(5) was a meeting held on 9 March 2016. At that meeting the appellant was informed of a number of allegations made against her. Those allegations can be summarised as follows: unprofessional communication with external stakeholders; making significant errors in the identification of sites; and, breaching the council election caretaker mode communication policy by corresponding with a councilor and a state member of parliament when it was not appropriate to do so.

[8] Management action is not defined in the Workers' Compensation Act 2003. Indeed, very little has been written in this jurisdiction to assist in the interpretation of the expression "management action".

[9] In O'Brien v Q-Comp,[2] Linnane VP referred to the Canadian authority of Canadian General Electric Company Limited v The Ontario Labour Relations Board to assist in determining the scope of what is and is not management. In that case, it was stated that:

"... managerial means something pertaining to or characteristic of a manager and it is equally obvious that the word 'manager' means one who manages ... The word 'manage' is said to be equivalent to conducting or carrying on a business or under-taking or an operation, to conduct affairs. It is also said to be equivalent to controlling or directing the affairs of a household, institution or state, or as the taking of or attending to a matter. It apparently includes the action or manner of conducting affairs or administering and directing or controlling any matter. It is obvious ... that the essential meaning of the word is to control and direct and that must obviously include not only administration but direction of planning for any particular enterprise ..."[3]

[10] Management action does not embrace every instruction of and action by an employer. Rather, the expression contemplates a particular type of action by an employer, and something other than a mere instruction or requirement that the worker perform his or her duties.[4] Management action must be something different to the normal duties and incidents of her employment as a Town Planner. In other words, it must be something more than what was part and parcel of her employment.[5]

[11] As setout above, at the meeting of 9 March 2016 the appellant was read and provided with a copy of letter that particularized three allegations made against her.

[12] It is not necessary for the purposes of this matter to determine the strength or veracity of the allegations. Rather, for the purposes of this inquiry, the Commission must first determine whether the disciplinary meeting between the appellant and the officers of the Council constituted management action.

[13] Section 32(5) of the WCR Act sets out examples of actions that may be reasonable management actions taken in a reasonable way. They include action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker or a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment.

[14] The disciplinary process commenced by Council was in accordance with the Local Government Act, in particular, the meeting of 9 March 2016 with the appellant which was convened for the purpose of outlining the allegations, would in my view, fall within the meaning of management action.

[15] The evidence of Messrs Boyd, Warner and Cohen was that Ms Read was a good worker, had received customer service accolades, and was liked by her peers. However, in respect to a number of areas, Ms Read's performance as particularised in the letter of 9 March 2016, fell below the standard which Council expected of its employees and, in particular, what was expected of a town planner in their employ.

[16] Where an employee's performance falls below the standard expected of a person in that role, or when an employee's conduct does not accord with prescribed practices and procedures, it is reasonable, in those circumstances, for a disciplinary meeting to occur.

[17] In this matter I am satisfied that it was reasonable for the appellant's managers to convene a meeting with her to discuss allegations relating to her conduct and professional standards.

[18] The disciplinary meeting of 9 March was attended by Ms Read, Mr Carman (Ms Read's legal advisor), and Mr Boyd, Mr Warner, and Ms Jones. The meeting lasted somewhere between 10 and 15 minutes, even though Ms Read felt like the meeting went for 40 minutes.

[19] The meeting was held in the Crathern Room, located away from the Appellant's usual work location at Council. The evidence before the Commission that this venue was chosen to afford the appellant with a degree of privacy. The appellant accepted that she was informed that the room had been booked for a longer period than would be required for the meeting to permit her to have discussions with her legal advisor. The appellant took advantage of the offer.

[20] Following introductions and some formalities, the letter was read to the appellant and a copy provided to her. The letter formed part of the disciplinary proceedings undertaken in accordance with the relevant provisions of the Local Government Act 2009 and Regulations 2012. There was no challenge by the appellant to the procedures adopted by the Council under the Local Government Act.

[21] The letter of 9 March 2016 did not refer to penalty or suggest any form of disciplinary outcome. Its sole function was to give Ms Read an opportunity to respond to the allegations.

[22] Ms Read was not required to respond immediately to the letter but was given until 16 March 2016 to provide a formal written response. She was offered assistance from the employee assistance program if she felt distressed by the process. Ms Read declined to avail herself of that program for fear of what they may do with her staff records.[6]

[23] Following the meeting, Ms Read said she felt distressed, left work and attended on Dr Sandra Davies, her General Practitioner who issued a non-workers' compensation medical certificate.

[24] Ms Read told the Commission that it was her belief that that she was going to be terminated. Ms Read accepted in cross-examination that nobody from the town planning team had been dismissed in the five years leading up to the March 2016 meeting.

[25] However, the evidence from Council, which I accept, was that whilst they regarded the matters contained in the letter of 9 March 2016 as serious, they did not regard them as requiring Ms Read's termination and indeed made clear that it was not their intention to terminate her employment.

[26] There is no evidence to suggest that the conduct of the disciplinary meeting or the content of the letter of 9 March 2016 could properly be characterised as unreasonable.

[27] The ultimate outcome of the disciplinary process was a written warning. No further disciplinary action appears to have been taken against Ms Read. Evidence before the Commission indicated that a written warning was a 'mid-level' form of discipline which would only indicate that if further similar behaviour occurs again it will be further investigated.

[28] The evidence before the Commission is that, on receipt of the calendar invite, Ms Read was shocked.[7] Ms Read thought that the issues which were raised in the meeting had been previously addressed and, consequently, she assumed that the meeting would result in the termination her of employment; she was very distressed and "basically went home sick."[8] After the meeting, and after she had left work, the appellant immediately sought medical assistance.[9] The appellant's belief that her employment would be terminated at that meeting clearly caused her a great degree of distress. That much is evidenced by her absence from work for a period of 11 months from the date of the meeting,[10] and the immediate medical assistance that she sought. As a result of this evidence, I find that it was Ms Read's perception of what might be the outcome of the 9 March 2016 meeting which, ultimately, appears to have caused her injury.

"Where the psychological disorder develops out of a worker's perception of reasonable management action being taken against the worker, it is withdrawn from the definition of injury (see s 32(5)(b) of the Act). Where the psychological disorder arises out of or in the course of reasonable management action taken in a reasonable way by an employer in connection with the worker's employment, the psychological injury is withdrawn from the definition of 'injury,' whatever the worker's perceptions may have been (see s 32(5)(a))."[11]

[30] In light of the evidence before the Commission, I am of the view that the management action taken by Council was reasonable and taken in a reasonable way.

[31] It is the reality of the employer's conduct, and not the appellant's perception of it, that must be taken into account. The Commission's role is to assess the reasonableness of the management action. Such an exercise must be undertaken objectively. Consequently, to the extent that the appellant experienced symptoms of stress and anxiety because of a misperception of the management action, her appeal must fail by operation 32(5)(b) of the Act.

[32] Moreover, I am satisfied that the relevant management actions taken by the Council in this matter (i.e., organising a disciplinary meeting which related to performance issues and infringements of the council's codes of conduct; the compilation of a letter detailing the allegations; and, the actual conduct of the meeting) were reasonable and taken in a reasonable way.

[33] Accordingly, this appeal must also fail by operation of s32(5)(a) of the Workers' Compensation and Rehabilitation Act 2003.

1. The appeal is dismissed.
2. The decision of the respondent dated 9 September 2016 is affirmed.
3. The appellant is to pay the respondent's costs of and incidental to this appeal, including reserved costs, to be agreed or failing agreement to be the subject of an application to the Commission.

[1] Davis v Blackwood [2014] ICQ 009, [47].

[2] O'Brien v Q-Comp [2007] QIRComm 53; (2007) 185 QGIG 383, 401.

[3] Canadian General Electric Company Limited v The Ontario Labour Relations Board (1956) OR 437, 443.

[4] WorkCover Corp (SA) v Summers (1995) 65 SASR 243, 247.

[5] Commonwealth Bank v Reeve [2012] FCAFC 21; (2012) 199 FCR 463, 474 [33], 483 [60].

[11] Q-COMP v Foote [2007] QIC 83; (2008) 189 QGIG 802, 810.