Broadbent v Workers' Compensation Regulator [2023] QIRC 70

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Broadbent v Workers' Compensation Regulator [2023] QIRC 070 PARTIES: Broadbent, Veronica Jane Appellant v Workers' Compensation Regulator Respondent CASE NO: WC/2021/50 PROCEEDING: Appeal against a decision of the Workers' Compensation Regulator DELIVERED ON: 1 March 2023 HEARING DATES: 10, 11, 12 and 13 October 2022 DATES OF WRITTEN CLOSING SUBMISSIONS: MEMBER: HEARD AT: Appellant's submissions, 25 November 2022 Respondent's submissions, 4 January 2023 Appellant's reply submissions, 12 January 2023 McLennan IC Brisbane ORDERS: 1. The appeal is dismissed. 2. The Respondent's decision of 17 March 2021, as set out in correspondence dated 22 March 2021, is confirmed. 3. The Appellant is to pay the Respondent's costs of the hearing, to be agreed or, failing agreement, to be subject to a further application to the Commission. CATCHWORDS: WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' -- 1 of 54 -- 2 COMPENSATION REGULATOR – where appellant was a worker within the meaning of s 11 of the Workers' Compensation and Rehabilitation Act 2003 – where appellant suffered a personal injury in the form of a psychiatric disorder – where the psychiatric disorder arose out of, or in the course of, the appellant's employment – whether employment was the major significant contributing factor to the appellant's psychological / psychiatric injury LEGISLATION: CASES: Industrial Relations Act 2016 (Qld) s 545 Workers' Compensation and Rehabilitation Act 2003 (Qld) s 11, s 32, s 558 Workers' Compensation and Rehabilitation Regulation 2014 (Qld) s 132 Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031 Davidson v Blackwood [2014] ICQ 008 Delaney v Q–COMP Review Unit (2005) 178 QGIG 197 Kavanagh v Commonwealth (1960) 103 CLR 547 Ramsay v Watson (1961) 108 CLR 643 Ribeiro v Workers' Compensation Regulator [2019] QIRC 203 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 State of Queensland (Queensland Health) v Q– Comp and Beverley Coyne (2003) 172 QGIG 1447 Tuesley v Workers' Compensation Regulator [2021] QIRC 071 Weiss v Workers' Compensation Regulator [2020] QIRC 111 -- 2 of 54 -- 3 Wicks v Workers Compensation Regulator [2018] QIRC 63 WorkCover Queensland v Buchanan (2000) 165 QGIG 124 Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2) [2021] ICQ 13 APPEARANCES: Mr R Myers of counsel, instructed by Shine Lawyers for the Appellant. Mr P Rashleigh of counsel, directly instructed by the Respondent. Reasons for Decision [1] In 2003, Ms Veronica Broadbent started work at (what was to become known as) the Currumbin Community Special School. [2] Ms Broadbent was originally hired as "the first-time registrar" of the school.1 She described the scope of her role as: …I supervised staff, I – the teacher aides – the non-teaching staff are the people that I would supervise. I was involved with selection, but that was a process where you had a panel each time, it wasn't – I wasn't alone with the selection. I – also my role was about completing audit compliance for the school, financial audit compliance, HR, fundraising, working in partnership with the community. It was quite extensive and the fact that I would do the scheduling for teacher aides. Although in the latter part everything was – everything that I did within the role was always up- lined to the principal…2 [3] Although Ms Broadbent's position title later changed to "Business Services Manager" (BSM), she continued to work closely with a succession of "at least seven"3 school principals and was "always part of the leadership team."4 [4] Ms Broadbent said all that changed towards the end of 2016. Following the appointment of a new principal, Ms Nicky Belous, the school had: …a deputy principal came in…then there was a head of curriculum that was employed, and what changed was the three of them just became quite separate to me…5 [5] The instalment of a fresh school leadership team saw teacher aides begin to speak more freely about workplace concerns, without being "reigned in".6 1 T 1-7, line 39. 2 Ibid line 43 – T 1-8, line 2. 3 T 1-8, line 7. 4 T 1-9, line 42. 5 T 1-8, lines 42 – 45. 6 T 2-6, line 25. -- 3 of 54 -- 4 [6] But Ms Broadbent soon began to feel isolated7 and excluded8 by the new order of things. [7] With the changing of the guard, an undercurrent of discontent about Ms Broadbent's perceived failure to support teacher aides with adequate manual handling training bubbled to the surface. [8] Things came to a head at a particularly ugly staff meeting on 1 March 2017. That resulted in: • Ms Belous getting advice from the Department's Regional Human Resources Manager, Ms Annette Rose;9 • Ms Belous issuing a letter to Ms Broadbent, outlining conduct expectations;10 • Ms Broadbent emailing the school workplace health and safety officer alleging inappropriate treatment and that she felt unsafe in the workplace;11 • Ms Broadbent consulting her doctor because she was experiencing stress, anxiety and depressive symptoms on 8 March 2017;12 • Ms Burstow lodging an official grievance about Ms Broadbent's conduct at the meeting;13 • Ms Belous referring the matter to the Ethical Standards Unit for assessment and consideration;14 • the Ethical Standards Unit determining that the matter was to be managed through the Department's Regional office;15 • a flurry of statements from teacher aides being forwarded to Regional office;16 • an investigation being undertaken by Ms Lucy Harris, Senior Adviser, South-East Region;17 • Ms Belous' monitoring of the establishment of a professional working relationship between Ms Broadbent and Ms Burstow;18 and 7 T 1-9, line 37. 8 T 1-8, line 45. 9 Appellant's submissions filed 25 November 2022, Supplement, page 14. 10 Exhibit 3. 11 Exhibit 4. 12 8 March 2017; Exhibit 1, page 51. 13 Exhibit 15. 14 Respondent's Statement of Facts and Contentions, filed 30 July 2021, [14]. 15 Ibid. 16 Ibid [15]. 17 Ibid. 18 Ibid [18]. -- 4 of 54 -- 5 • Ms Belous' ongoing offers to arrange for mediation between Ms Broadbent and Ms Burstow.19 [9] Then on 9 June 2017, Ms Broadbent was suspended from duty and immediately escorted from the school premises. Correspondence from the Department advised Ms Broadbent that she was under investigation for alleged misconduct - and she was directed not to speak with any colleagues, parents or other members of the school community. [10] Ms Broadbent attended an investigation interview conducted by Department officers in January 2018. [11] By 21 February 2018, Ms Broadbent "was not coping"20 and ceased work altogether. [12] While Ms Broadbent acknowledged that her suspension from duty and the ensuing investigation contributed to the deterioration of her mental health, she asserted that these events were "not the cause of or significant contributor towards (her) symptoms, as such symptoms were already well established prior to this event."21 [13] Ms Broadbent's case is that the series of events that occurred in the workplace between October 2016 and March 2017 resulted in her psychiatric disorder. Claim details [14] Ms Broadbent lodged a Form 132A Application for assessment of permanent impairment (the application) with WorkCover Queensland (WorkCover) on 8 November 2019. [15] WorkCover concluded that Ms Broadbent had sustained an injury of a psychiatric nature, however considered there to be insufficient information to establish the employer acted unreasonably or against company policies and procedures relating to the 'Formalised United Voice Grievance'.22 [16] WorkCover rejected the application, finding that Ms Broadbent did not sustain an 'injury' within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) (the Act). [17] Ms Broadbent applied to the Workers' Compensation Regulator (the Regulator) to review that decision on 26 June 2020. [18] The Regulator confirmed WorkCover's decision in correspondence dated 22 March 2021. [19] Ms Broadbent subsequently filed this appeal against the Regulator's decision on 15 April 2021. 19 Ibid [19] – [20]. 20 Appellant's Statement of Facts and Contentions, filed 9 June 2021, page 8. 21 Ibid. 22 Regulator's Review Decision correspondence 22 March 2021, page 3. -- 5 of 54 -- 6 What legal tests must be satisfied for Ms Broadbent's appeal to succeed? [20] The definition of 'injury', per the iteration of the Act at the relevant time, was (emphasis added): 32 Meaning of injury (1) An injury is personal injury arising out of, or in the course of, employment if - (a) for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury; or (b) for a psychiatric or psychological disorder - the employment is the major significant contributing factor to the injury. … (3) Injury includes the following – (ba) an aggravation of a psychiatric or psychological disorder, if the aggravation arises out of, or in the course of, employment and the employment is the major significant contributing factor to the aggravation; … (4) For subsection (3)(b) and (ba), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation. (5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances - (a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment; (b) the worker's expectation or perception of reasonable management action being taken against the worker; (c) action by the Regulator or an insurer in connection with the worker's application for compensation. Examples of actions that may be reasonable management actions taken in a reasonable way- • action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker • a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment. [21] An injury arises out of employment where there is a causal connection between the employment and the injury.23 [22] Additionally, the employment must be the major significant contributing factor in the case of a psychiatric or psychological disorder. 23 Kavanagh v Commonwealth (1960) 103 CLR 547, 558–559. -- 6 of 54 -- 7 [23] An appeal such as this is a hearing de novo.24 The Appellant bears the onus to prove, on the balance of probabilities, that she sustained an injury within the meaning of the Act. As explained by Deputy President Merrell in Ribeiro v Workers' Compensation Regulator: The balance of probabilities test requires a court to reach a level of actual persuasion and that process does not involve a mechanical application of probabilities.25 What are the questions to be determined? [24] There is no dispute between the parties that: • Ms Broadbent was a worker within the meaning of s 11 of the Act, during the relevant period; • Ms Broadbent suffered a personal injury, in the form of a psychiatric disorder;26 and • the psychiatric disorder arose out of, or in the course of, Ms Broadbent's employment. [25] The questions to be determined are:27 • what is the psychiatric or psychological condition that Ms Broadbent has? • was Ms Broadbent's employment the major significant contributing factor to her psychiatric disorder? and • if so, did Ms Broadbent's psychiatric disorder arise out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with her employment? Summary of Findings [26] For the reasons that follow, I find that: • the medical evidence established that Ms Broadbent suffered a major depressive disorder combined with PTSD;28 and • Ms Broadbent's employment was not the major significant contributing factor to her psychiatric disorder. 24 Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031, [27]; State of Queensland (Queensland Health) v Q–Comp and Beverley Coyne (2003) 172 QGIG 1447. 25 [2019] QIRC 203, [101], citing Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262, [136]. 26 Respondent's submissions filed 4 January 2023, [57]. 27 T 1-2, lines 16 - 26. 28 Regulator's Review Decision correspondence 22 March 2021, pages 7 – 8. -- 7 of 54 -- 8 Evidence and submissions [27] Written closing submissions were directed in the order Appellant – Respondent – Appellant (in reply, on issues of law only). [28] The Appellant's written closing submissions were filed on 25 November 2022. [29] The Respondent's written closing submissions were filed on 4 January 2023. [30] The Appellant then filed written closing submissions in reply on 12 January 2023. [31] The evidence of the twelve witnesses and 17 Exhibits tendered at the Hearing, together with the written closing submissions, the Statements of Facts and Contentions, the Notice of Appeal and other materials filed in this matter were considered in this Decision. Witnesses [32] The witnesses for the Appellant's case were: • Ms Veronica Broadbent, the Appellant herself; • Ms Catherine MacFarlane, (former) teacher,29 the Appellant's former work colleague; • Ms Dianne Kerr-Morgan, (former) teacher aide,30 the Appellant's former work colleague; • Ms Katelyn Cridge, (former) teacher aide,31 the Appellant's former work colleague and niece-in-law;32 • Ms Toni-Ann Brown (former) teacher aide and school cleaner,33 the Appellant's former work colleague; • Dr Elsa Lap Yee Yeung, Consultant Psychiatrist;34 and • Dr Trevor Newmark Lotz, Consultant Psychiatrist.35 [33] The witnesses for the Respondent's case were: • Ms Annette Rose, Senior Human Resources Consultant,36 Department of Education; 29 T 2-4, lines 23 – 28. 30 T 2-32, lines 15 – 20. 31 T 2-45, lines 19 – 45. 32 T 2-53, lines 14 – 19. 33 T 2-63, lines 18 – 22. 34 T 4-31, line 18. 35 T 4-38, line 21. 36 T 3-14, line 12. -- 8 of 54 -- 9 • Mr Daniel Barker, Head of Curriculum,37 the Appellant's former work colleague; • Ms Jodie Marlowe, teacher aide and (former) union delegate,38 the Appellant's former work colleague; • Ms Nicole Aiken,39 Principal,40 the Appellant's former work colleague; and • Ms Rebecca Nikotemo, Deputy Principal,41 the Appellant's former work colleague. What is the psychiatric or psychological condition that Ms Broadbent has? [34] There is no dispute between the parties that Ms Broadbent suffered a personal injury, in the form of a psychiatric disorder. [35] I concur with the conclusion that Ms Broadbent has a psychiatric condition, comprising a major depressive disorder combined with post-traumatic stress disorder or syndrome. [36] I adopt the reasoning set out in the Regulator's review decision: Dr Peta Concannon, general practitioner of the Women's Medical Centre, has completed a workers' compensation work capacity certificate dated 6 November 2019 in which she provides a diagnosis of 'work related stress.' Dr Concannon in further information provided by facsimile transmission of 5 February 2020 referred to a diagnosis of 'post traumatic stress disorder / anxiety / depression.' Dr Elsa Yeung, psychiatrist, in her report of 16 October 2018 refers to a combined diagnosis of PTSD and major depressive disorder. Dr Trevor Lotz, psychiatrist, in his report of 6 February 2020 refers to diagnoses of major depression with anxiety and Post-Traumatic Stress Syndrome.42 [37] The documents referred to in the above extract of the Regulator's review decision were in evidence in this Hearing.43 The psychiatric disorder arose out of, or in the course of, Ms Broadbent's employment [38] There is no dispute between the parties that Ms Broadbent's psychiatric disorder arose out of, or in the course of, her employment.44 That is settled. 37 T 3-20, line 13 – 25. 38 T 3 – 56, lines 12 – 34. 39 née Belous. 40 T 4-3, line 21. 41 T 4-20, line 39. 42 Regulator's Review Decision correspondence 22 March 2021, pages 7 – 8. 43 Exhibit 1, pages 52, 82, 17, 44. 44 Respondent's Statement of Facts and Contentions, filed 30 July 2021, [1]. -- 9 of 54 -- 10 Was Ms Broadbent's employment the major significant contributing factor to her psychiatric injury? [39] Psychiatric injuries sustained before 30 October 2019 are required to meet the test of a worker's employment being "the major significant contributing factor". That is the relevant test here. [40] The Appellant's filed 'Amended List of Stressors' nominated seven stressors, said to have occurred prior to, or on, 1 March 2017.45 [41] In Tuesley v Workers' Compensation Regulator, Industrial Commissioner Hartigan (as she then was) stated: It is accepted that an injury may occur over time. As such, the matters leading up to when the injury is sustained, albeit over a period of time may be considered relevant to the causation of that injury.46 [42] It is not disputed that Ms Broadbent first consulted a doctor about her symptoms on 8 March 2017. On that date, Dr Concannon recorded that Ms Broadbent "is suffering from work related stress." 47 [43] Only events leading up to that time may be considered relevant to the causation of Ms Broadbent's psychiatric disorder. Anything said to have occurred after that date are not. [44] My task here is to first determine whether the events / conduct happened as Ms Broadbent says they did – and if so, whether her employment was the major significant contributing factor to her psychiatric condition or merely the setting in which it occurred. Nominated Stressors [45] Ms Broadbent says that she suffered a psychiatric disorder, as a result of the workplace conduct and events she was subjected to over a period of time. [46] The contents of the table below is based closely on that Amended List of Stressors: No. Date Title Description 1 18/02/2017 Email from Ms MacFarlane notifying Ms Broadbent of serious / malicious allegations Ms Burstow was making against her On 18 February 2017, Ms Broadbent received an email from Ms MacFarlane (teacher) advising that she had heard Ms Burstow (teacher aide) speaking in an inappropriate manner about her. Ms MacFarlane felt it should be addressed because the content of the accusations being made against Ms Broadbent were serious. The email had been sent directly to Ms Belous (principal) and Ms Broadbent was copied into the email. In the email, Ms MacFarlane reported that Ms Burstow had said: 45 Appellant's Amended List of Stressors, filed 19 September 2022. 46 [2021] QIRC 071, [16]. 47 Exhibit 1, page 51. -- 10 of 54 -- 11 No. Date Title Description • Ms Broadbent had threatened her and that she had been in contact with the Union; • Ms Broadbent threatened her and other teacher aides' positions. In the above email, Ms MacFarlane recounted that she told Ms Burstow: "I know how Ronnie speaks and that I am certain that Ronnie would not 'threaten'. I stated that Ronnie is very professional in how she speaks. I recommended that Lyn be very careful about how she speaks with whom, as code of conduct may be breached." The content of the email caused Ms Broadbent to feel shocked, stressed and anxious about the apparent false and malicious allegations being made against her. 2 Between 21 February 2017 and 1 March 2017 School visit from Mr Holbrook, Union Representative, United Voice Sometime between 21 February 2017 and 1 March 2017, Mr Holbrook (union representative) attended the school and briefly met with Ms Broadbent in her office. During this meeting, Mr Holbrook advised Ms Broadbent that the union had received notification of an issue at the school involving her. As a result, Ms Broadbent would no longer be working with Ms Burstow as the union delegate. Instead, another teacher aide would be allocated to take on that role. Ms Broadbent told Mr Holbrook that she was not aware of any union matters relating to herself and Ms Burstow. To which Mr Holbrook responded, words to the effect of, "If you don't know now, you will soon." The above meeting and comments left Ms Broadbent feeling anxious and confused about the nature of Ms Burstow's complaint to the union. 3 Between 21 February 2017 and 1 March 2017 Ms Broadbent asked Ms Belous whether any union grievance matters had been raised about her Immediately following her brief meeting with Mr Holbrook, Ms Broadbent told Ms Belous of the conversation between them and asked whether any union grievance matters had been raised about her. To which Ms Belous responded, words to the effect of, "Yes, Lyn had approached me to tell me that she felt attacked by you at the meeting." This caused Ms Broadbent to feel shocked, stressed and anxious, as she did not attack Ms Burstow at any recent or other meetings. 4 Between 21 February 2017 and 1 March 2017 Ms Broadbent requested a meeting with Ms Belous and Ms Burstow to discuss grievance matters raised Due to Ms Broadbent's concerns and confusion over the allegations referred to in Stressor 3 above, in the course of that conversation with Ms Belous, she requested that the two of them meet Ms Burstow to discuss the matter. Ms Belous declined Ms Broadbent's request, with words to the effect of, "No, I have concerns with that." Ms Broadbent then asked if she would at least have the right to openly discuss the matter with all involved, to try -- 11 of 54 -- 12 No. Date Title Description to come to an amicable resolution. That request was also rejected by Ms Belous. This further magnified Ms Broadbent's feelings of stress and anxiety. 5 01/03/2017 Staff meeting – physically removed from room On 1 March 2017, Ms Broadbent attended a Teacher Aide Meeting. The meeting became a verbally heated and unpleasant environment where some of the teacher aides were crying. During the meeting, Ms Broadbent respectfully and calmly attempted to calm the situation. In the meeting, Ms Belous told Ms Broadbent to "Leave the school now, go now." Ms Belous and Ms Nikotemo then stood up, walked over to where Ms Broadbent was seated, cornered Ms Broadbent, grabbed her by each arm and physically escorted Ms Broadbent out of the meeting room. Ms Nikotemo then slammed the door behind Ms Broadbent and locked it. Ms Broadbent then attempted to re-enter the room because she had left her keys there. As Ms Broadbent was not expecting the door to be locked, she hit her face on the door window when she attempted to open the door. As a result of these events at the meeting, Ms Broadbent immediately felt shocked, humiliated, belittled and distressed about the manner in which she had just been treated by Ms Belous and Ms Nikotemo in the presence of other staff. 6 01/03/2017 Letter to Ms Broadbent re breach of code of conduct On 1 March 2017, Ms Broadbent attended a meeting with Ms Belous and Ms Annette Rose (Department's Regional HR Manager) in the principal's office. At the meeting, Ms Belous issued Ms Broadbent with a letter putting her on notice that she had breached the school's code of conduct during the meeting on 1 March 2017. Ms Broadbent felt very shocked and anxious about reading the contents of this letter, as it was not a true record of events that took place at the meeting. Following reading this letter, Ms Broadbent emailed Ms Rose to advise that she would provide a formal response because it did not accurately reflect the events which took place at the meeting and she was no longer feeling safe in the workplace, especially with attending teacher aides meetings. On 2 March 2017, Ms Broadbent's stress and anxiety was such that she emailed Ms Lindsay Inglis (the school's workplace health and safety officer) advising that she did not feel safe in the workplace and provided an outline of the code of conduct letter together with Ms Broadbent's own recollection of events that took place at the teacher aides meeting on 1 March 2017. -- 12 of 54 -- 13 No. Date Title Description 7 Various – prior to 1 March 2017 Malicious comments made by Ms Burstow Prior to 1 March 2017, Ms Broadbent had discussions with colleagues (including Ms Louise McCormick, Ms Toni Brown, Ms Glenda Ritchie and Ms Kate Cridge), through which she became aware that Ms Burstow has been making a number of false and slanderous allegations about her. In the presence of other staff members, Ms Burstow had commented that: • Ms Broadbent had threatened Ms Burstow • Ms Broadbent had threatened the job security of Ms Burstow and other teacher aides • Ms Broadbent was incompetent and lacked transparency • They wanted to get rid of Ms Broadbent and get a new Business Services Manager (BSM) When Ms Broadbent was advised that Ms Burstow had made the above comments about her, it caused Ms Broadbent to feel stressed, anxious and fearful of the consequences of such malicious and false allegations. Medical evidence Dr Elsa Lap Yee Yeung, Consultant Psychiatrist [47] In her report of 4 June 2018, Dr Yeung recorded that:48 …She has not been able to work since June 2017. … She started working in 2000. She said the Principal did not like her post and she had minimal interaction with the Principal. She had reported a few incidents at the school and she recalled the Principal making comments like "Where is your policewoman's uniform? You need to wear a police uniform." In 2009, there was a new Principal…The Principal then threw a manilla folder at her. She was later advised to go to the EAP and get counselling. … From 2013 to 2015, when the Deputy Principal was being investigated, Veronica said that the Deputy Principal would remove tasks from her and exclude her from meetings. A new Principal arrived in 2016. Veronica was excluded from meetings by this Principal.49 Another new Principal came on board in 2017. Veronica said that from January 2017 onwards she was excluded from meetings by this Principal. The Principal withheld information from her and would notify the non-teaching staff to no report to Veronica. In March 2017 during a staff meeting Veronica stated that two non-teaching staff were arguing. She tried to mediate. The Principal then stood up and asked her to leave. She claimed that two staff members held her hand on both side and escorted her out of the meeting. The door was slammed behind her. She turned around and wanted to go back to the room and she hit the door hard. She said this incident was witnessed by a lot of staff. She said other staff felt terrified as the Principal locked the door after her. Veronica requested a meeting with the Principal. The Principal attended 48 Much of this account was repeated in the report for QSuper dated 16 October 2018. 49 Exhibit 1, page 6. -- 13 of 54 -- 14 the meeting with a District Officer and served her with a Code of Conduct. She had three or four days off work and then returned to work. In June 2017, Veronica was informed by the HR Department of the Education Department that she was under investigation and that she must leave the premises, and that she must take all her personal belongings and walk out of the school…she waited anxiously, not knowing what was happening. By January 2018 she was informed that an interview with her would take place in February 2018. In February 2018 Veronica was accompanied by her lawyer at a four-hour meeting. The Department showed her multiple complaints from staff. Veronica believed that none of these allegations could stand and she had a paper trail to prove herself. She felt frustrated by the situation. She felt that she could not return to the school. She resigned at the end of February 2018. (I am uncertain about the exact nature of the complaints). Veronica never applied for WorkCover. She attended the EAP on a few occasions… In terms of her symptoms, Veronica stated that she has had a lot of anxiety and depression. She recalled being quite depressed in 2004. She also recalled that from 2006 onwards, she had anxiety. She was particularly anxious about going to work and was feeling nauseated. She had been getting treatment from her GP intermittently. She was put on Lexapro by her GP over the years intermittently. Veronica said she was still functioning but had noticed a decline in her level of functioning from March 2017 onwards. She noticed a decline in mood after the meeting… She noticed significant worsening of her symptoms following the June 2017 meeting…her symptoms had not improved since June 2017. She was put back on Lexapro in March 2017…50 Past Psychiatric History She stated that all her depression are triggered by work stress…51 Impression …It is unclear as to which year she actually started to present with depressive symptoms. She has had a few periods of depression in the past but she had obtained treatment from her EAP and had medication treatment from her GP. She stated that her symptoms became worse after March 2017.52 …There was no other depression that was described by Veronica which was precipitated by other life stressors. …She is also under a lot of financial stress…53 [48] In her report of 1 August 2018, Dr Yeung stated: …She still remains rather distressed about the work matters…54 [49] In her report of 22 August 2018, Dr Yeung stated: …Her symptoms have much improved… …I think this is the right time for her to start working on her depressive symptoms and her grief over the loss of her job…55 50 Ibid 7. 51 Ibid 8. 52 Ibid 8. 53 Ibid 9. 54 Ibid 10. 55 Ibid 12. -- 14 of 54 -- 15 [50] In her report of 16 October 2018, Dr Yeung stated: Progress …Initially my impression was that she suffered from a depressive episode. Although it is unclear when she first presented with her symptoms, it appears that she has had a few episodes of depression in the past when she was going through the issues at the school. She had obtained treatment from the EAP and medication treatment from her GP in the past. She claimed that her symptoms became worse after March 2017… …She denied other episodes of depression which were precipitated by other life stressors. … Current symptoms (My latest review was on 15/10/2018) …In terms of the workplace issues, she told me that there were other incidents including an issue with a groundsman. She told me that she tried to get the groundsman out of the school as he claimed that he had a gun. The Police eventually located the gun in his farmhouse, and this groundsman made threats to shoot everyone at school.56 She stated that another groundsman has been rather aggressive towards her and had been banging on the door as he was intoxicated frequently. She felt very threatened. This occurred in 2007. She stated that she had dealt with those issues with the EAP. In March 2017, the school Principal had thrown a folder at her and subsequently she was locked in a room and the door was slammed behind her. She turned around and then she hit the glass door hard. That incident had triggered the events with the groundsmen in the past and now she is experiencing reoccurrence of the issues with the two groundsmen as well the school Principal locking her up, and she felt threatened that she was being trapped and locked up. … …She still worries about her safety and she said one of the groundsmen still lives locally… Impression Given the information that I have obtained from her after a few more assessments, I am now of the opinion the Ms Broadbent suffers from Major Depressive Disorder, chronic, of a severe and recurrent nature, and the current episode seems to have its onset from March 2017… I would also consider that she suffers from PTSD with a delayed onset. The incident that had occurred in March 2017 of her feeling that she was being locked up and trapped in a room, and banging her hand into the glass door, had triggered the previous incidents with the groundsmen and now she had daily nightmares which affect her sleep…57 [51] Dr Yeung gave evidence at the Hearing. [52] In re-examination about the significance of what occurred at the 1 March 2017 meeting, Dr Yeung made the following observations: Dr Yeung … - the whole event of the psychiatric condition – if this event didn't occur, then its unlikely to happen; however, based on my report, this is the critical event that has affected her, and she continues to reexperience the event. So therefore, based on what she told me, this event is the critical reason why – why she had developed subsequent depression and also PTSD as well.58 56 Ibid 16. 57 Ibid 17. 58 T 4-33, lines 39 – 44. -- 15 of 54 -- 16 … Mr Myers …it seems that this lady was in employment for a long period of time. It seems that this was certainly a situation that was out of the ordinary. She was normally running these meetings and controlling them and talking to the teacher's aides and the like. And this certainly was a different meeting. It erupted with people talking over each other. Certainly, it's said that she was talking over people. But after all those years, this was – it seems to be an unusual event; would you agree with that? Dr Yeung I – I can't comment on that because I haven't asked her about what – what usually happens in different meetings. All I can say, going back to my notes, is that this meeting did occur. She has pointed it out. And I must stress that what she had told me, in particular of what happened at this meeting, that she was being sort of held – held by the two people on the side, escorted her out of the meeting. That, that – that description seems to be a little bit unusual for anyone who – who would be escorted that way in a meeting. Mr Myers Right. But what if it's found that she wasn't actually escorted out? That the meeting had become heated. She was told to leave. Are you – can you say that - ? Dr Yeung …- it is still possible that if she psychologically, still at the time after the meeting, that she's feeling rejected, violated, being spoken aggressively and she feels threatened, yes, it can cause some – potentially can trigger off a psychological effect. And – and that was one of the discussion I had, that that meeting perhaps had triggered a delay onset of PTSD in relation to other matter with the groundsman. So yes, it could be, but I guess it's not up to me to decide what actually happened in that meeting. I'm only based on what she told me during the assessment.59 Dr Trevor Newmark Lotz, Consultant Psychiatrist [53] In his report of 6 February 2020, Dr Trevor Lotz stated: History of presenting complaint …In summary it appears from the beginning of the year 2017 to when Ms Broadbent finally resigned from work in February 2018, there was a history of being bullied and harassed. Ms Broadbent summarises the difficulties as commencing when the new principal started at the school, it appeared the new principal brought in her colleagues from another school, and effectively was trying to ostracise and force Ms Broadbent out of her role as a business manager which she had held for 19 years at the Currumbin Community Special School. Ms Broadbent states that she loved her job, had always had positive feedback regarding her work… Ms Broadbent states she started noticing features of anxiety commencing around February 2017. She was anxious going to work, she was concerned about the attitude towards her by the principal, deputy principals and their behaviour such as excluding her from meetings, ostracising her generally, not informing her of the workings of the school that she needed to be aware of. Ms Broadbent also found that several of the staff members admitted they were reluctant to talk with her as there were "things going on in the background." Ms Broadbent described several incidences where she had a door slammed in her face, was physically pushed out of a room, and effectively belittled and humiliated. 59 T 4-34, lines 1 – 23. -- 16 of 54 -- 17 Ms Broadbent started consulting with a psychologist through the employer's assistance program (EAP), to learn behavioural strategies to manage with this change in behaviour from the principal and her "cronies". She noted ruminations at home about what was happening at school, described nausea and apprehension going to school with discreet panic attacks and ultimately could no longer sustain her employment and resigned in February 2018.60 … Past psychiatric history Ms Broadbent has no past psychiatric history. She did not see a psychologist or psychiatrist prior to contacting EAP when the difficulties started at work. … Prior medical and surgical history Ms Broadbent state that approximately 7 years ago she had an operation on her liver…She has no other medical or surgical history of note…61 … Workers compensation history Ms Broadbent has no workers compensation history. I questioned why she did not apply for workers compensation following the difficulties in her most recent employment, she stated she was advised to pursue QSuper instead.62 … Mental State Examination …She was a cooperative and coherent historian… … Conclusion and diagnosis From the history, mental state examination and enclosed documents, it appears Ms Broadbent who had no past psychiatric history…and enjoyed her previous employment, was subjected to bullying and harassment by a new principal and "cronies" ad was ultimately ostracised, isolated and what could be termed as "gas lighted". Ms Broadbent started developing features of anxiety, sought the services of a psychologist (EAP) to manage the difficulties at work, however, could no longer sustain the deteriorating psychological condition, and ultimately resigned in February 2018. She has not worked since.63 … 7) Whether the vicious conduct of Lyn Burstow behind our client's back was a significant contributing factor towards our client's condition; 60 Exhibit 1, page 36. 61 Ibid 39. 62 Ibid 41. 63 Ibid 42. -- 17 of 54 -- 18 In my opinion the vicious conduct of the principal Lyn Burstow towards Ms Broadbent is a significant contributing factor to her condition.64 … 8) Whether the events which unfolded at the meeting on 1 March 2017 whereby our client was inappropriately escorted from the meeting and had the door slammed / locked behind her was a significant contributing factor towards our client's condition; The event where she was inappropriately escorted from a meeting and then the door slammed behind her was also a significant contributing factor.65 … 9) Whether a person of normal fortitude is likely to have suffered an adverse psychological reaction, such as our client's, in response to the conduct of Lyn Burstow and the events which unfolded at the meeting on 1 March 2017; In my opinion, person of normal fortitude is likely to have suffered an adverse psychological reaction such as Ms Broadbent's in response to the general conduct of Ms Burstow. 10) What other factors, if any, have significantly contributed towards causing our client's condition; It appears there was more than one incident. The solicitor's brief has outlined specific incidences, however Ms Broadbent has described a general attitude of ostracization, isolation and malicious gossip.66 … Psychiatric impairment rating Date of Injury 21 February 2017 to 21 February 201867 … [54] Dr Lotz gave evidence at the Hearing. [55] In cross-examination, Dr Lotz was asked about Ms Broadbent's account of the 1 March 2017 meeting: Dr Lotz …What I can recall it that it appear to be a very destructive meeting. She felt that she was being belittled and dismissed. And from what I recall, and I think I wrote it into my report – Mr Rashleigh Yeah? Dr Lotz - that she was sort of forcibly removed – removed from the meeting. Mr Rashleigh What do you mean by forcibly? Dr Lotz Like, two colleagues sort of escorted her out of the room.68 … 64 Ibid 44. 65 Ibid 44 – 45. 66 Ibid 45. 67 Ibid 48. 68 T 4-39, lines 8 – 16. -- 18 of 54 -- 19 Mr Rashleigh …would that make a difference to your view that, if she was, she wasn't, if you like, "manhandled" out of the room? Dr Lotz From the history Ms Broadbent gave me, it was a case of she didn't really have much choice as it wasn't that she voluntarily left the room, that it was pretty much coerced and the colleagues were either – well, I suppose, if not physically touching her, were certainly not making it easy for her to remain in the room. And what I understand also from the records and from what Ms Broadbent explained to me was, after she left the room, the doors were locked or closed or automatically locked – I don't recall exactly – and she couldn't re- enter the meeting. Mr Rashleigh …Well, would it change your opinion that, rather than being the victim here, she was the perpetrator of verbal abuse towards both staff and the principal, getting into the principal's face, some 30 centimetres from her face, and becoming aggressive, pointing a finger and abusing the principal, was asked to leave and she left. The door shut behind her – the door was an automatically-shutting door; what would you say to that scenario? Dr Lotz Well, I don't know because that wasn't the history that was given – me by Ms Broadbent, that she was the instigator of any verbal abuse.69 … Mr Rashleigh Well, if that's the correct history, then you've – your opinion's based on a wrong history; is that right? Dr Lotz Well, my history is based on what Ms Broadbent gave me; I don't know whether it's right or wrong. Mr Rashleigh But if it's found that that's not the correct history by the Commission, then you've been given a wrong history and based your report on a wrong history; is that correct? Dr Lotz That would be – case, yes. Mr Rashleigh Yes. Okay. But you're not prepared to change your opinion because you say you've not spoken to Ms Broadbent about that; is that correct? Dr Lotz Not specifically who – who attacked who. I took on face value the – it was a long history, anyway. It wasn't specifically that meeting; it was a lead up. That meeting was the proverbial straw that broke the camel's back…The history is that she was working approximately 20 years in her role and then things just got difficult with the new principal and this seemed to be the pinnacle of it all. And it wasn't just this meeting that was the issue; that – that's the impression I got from Ms Broadbent when I interviewed her.70 Dr Peta Concannon, General Practitioner [56] On 8 March 2017, Dr Concannon provided a medical certificate stating that Ms Broadbent "is suffering from work related stress" and "will be unfit for work for 3 days."71 69 Ibid lines 30 – 47. 70 T 4-40, lines 18 – 35. 71 Exhibit 1, page 51. -- 19 of 54 -- 20 [57] Sometime later on 6 November 2019, Dr Concannon completed a workers' compensation work capacity certificate, in which she provided a diagnosis of 'work related stress' and further records: Patient's stated date of injury 1/3/17 … Patient's stated mechanism of injury Bullying at work Describe mechanism in detail Psychological trauma due to bullying during work meeting Pre-existing factors or condition aggravated (if not previously supplied) Nil … The certified injury does not prevent a return to pre-injury duties…72 [58] On 3 February 2020, Dr Concannon sent a facsimile to WorkCover Queensland that included the following response (my emphasis): What is the major significant contributing factor/s that has caused your patient's diagnosis? (Please provide as much detail as possible into the factors) Patient stated that she was bullied at work, 1/3/17 during a meeting, and that this bullying continued over the next 11 months. … Are there any outside of work factors contributing to your patient's current diagnosis? No Is your patient suffering an aggravation of a pre-existing or underlying condition? No73 [59] It is acknowledged that most of this medical evidence is dated after 8 March 2017 - the date that Ms Broadbent was first seen by Dr Concannon for her psychiatric disorder.74 However, what Ms Broadbent is recorded to have told Dr Concannon about the nominated stressors (and / or any other issues that may have contributed to the development of her psychiatric disorder) is relevant to my determination of whether (or not) it was "the major significant contributing factor" to the injury. [60] Dr Concannon was not called to give evidence at the Hearing. Ms Annette Bliss, Clinical Psychologist [61] Ms Bliss' consultation notes were in evidence. Various references were made to both the stressors alleged and other concerns that occupied Ms Broadbent's mind at that time. [62] An extract of the consultation notes made on 20 April 2017 is: Workplace bullying, principal wrongly accused her of belligerent and aggressive behaviour. Having nightmares about being locked in a cupboard by the principal other memories from the past in relation to workplace stress emerging. Feels like her case hasn't been heard and her integrity questioned. Been there 18 yrs and no problems before. Now principal withholding information 72 Ibid 52. 73 Ibid 82 – 84. 74 Ibid 52. -- 20 of 54 -- 21 from her so not able to do her job properly, other teacher aides won't seek her out due to not wanting to upset Nikki the principal…75 [63] An extract of the consultation notes made on 14 June 2017 is: …Was escorted off workplace premises until further notice. Suspended. Has sought legal advice. Case in her favour as has been alleged for grievances she doesn't know about. Tried to arrange mediation but the principal pulled out…76 [64] An extract of the consultation notes made on 12 July 2017 is: …still no contact from education about her case. Five weeks now…School reported concerns over her administration and have given no examples or chance to defend herself…struggles with trying to figure out what she could have done wrong.77 [65] An extract of the consultation notes made on 26 July 2017 is: Reports someone from school requested a form from her so as school could get a $30,000 funding, so she did, but then reports that she got a breach because of this…78 [66] An extract of the consultation notes made on 9 August 2017 is: …Still does not know allegations…79 [67] An extract of the consultation notes made on 14 December 2017 is: Reports increased nightmares and flashbacks of past trauma from workplace previous investigations, triggered by school now being under investigated…will be paid till April next year…problems with husband now affecting family…80 [68] An extract of the consultation notes made on 7 February 2018 is: Presented quite upset, reported had an investigation for nearly 6 hours at school, her lawyer came with her and she reports that they were investigating nepotism and that she didn't follow a procedure in filling out a document on one occasion. Reports that witnesses from work that she doesn't have contact with reported malicious lies. Reported feeling traumatised by the process, made to feel like a criminal…81 [69] An extract of the consultation notes made on 13 February 2018 is: Struggling with not knowing, apparently investigation finishes this week…Wanting to resign, cannot cope with investigation and wrongly accused allegations, keeping herself distracted but can't stop thinking about it all. Gave examples of interrogation at interview.82 75 Ibid 88. 76 Ibid 90. 77 Ibid 92. 78 Ibid 93. 79 Ibid 94. 80 Ibid 95. 81 Ibid 96. 82 Ibid 97. -- 21 of 54 -- 22 [70] An extract of the consultation notes made on 2 May 2018 is: …handed in resignation and report sent a letter back from Qld Education saying that investigation on hold considering her mental health but if she wanted to come back her position would still be on hold and investigated further. Still has been given no reason or wrong doing of what she did. Apparently the bullying that does on in school will be going on TV insight…83 [71] An extract of the consultation notes made on 3 September 2018 is: … Very stressed financially.84 [72] An extract of the consultation notes made on 19 September 2018 is: …Reports bank pressuring them for payments, so now having to sell their family home and to down size…85 [73] An extract of the consultation notes made on 11 October 2018 is: …Feels betrayed by her work colleagues…Reports nightmares from previous work environment, often feeling trapped, attacked, isolated and publicly humiliated…86 [74] An extract of the consultation notes made on 7 June 2019 is: …She says the hardest part was not knowing what the school was going to say about her…87 [75] It is acknowledged that all this medical evidence is dated after 8 March 2017 - the date that Ms Broadbent was first seen by Dr Concannon for her psychiatric disorder.88 However, what Ms Broadbent is recorded to have told Ms Bliss about the nominated stressors (and / or any other issues that may have contributed to the development of her psychiatric disorder) is relevant to my determination of whether (or not) it was "the major significant contributing factor" to the injury. [76] Ms Bliss was not called to give evidence at the Hearing. Did the events / conduct described by Ms Broadbent as the 'stressors' happen as she says they did? [77] The Respondent submitted that the stressors be considered in three distinct bundles because the matters contained therein "are sufficiently connected to warrant those stressors being looked at together and globally":89 • stressors numbered 1 to 4, being Ms Burstow's report that Ms Broadbent had threatened her and the fall-out from that; 83 Ibid 100. 84 Ibid 102. 85 Ibid 103. 86 Ibid 105. 87 Ibid 107. 88 Ibid 52. 89 Respondent's closing submissions filed 4 January 2023, 5 [28] – [30]; Delaney v Q–COMP Review Unit (2005) 178 QGIG 197. -- 22 of 54 -- 23 • stressors numbered 5 and 6, being the meeting of 1 March 2017 and code of conduct letter subsequently issued; and • stressor 7, various reports being made to Ms Broadbent that Ms Burstow had made malicious comments about her. [78] It is convenient to adopt that course. Consideration of Stressors 1 - 4 [79] Ms Broadbent alleged the following events / conduct occurred: No. Date Title Description 1 18/02/2017 Email from Ms MacFarlane notifying Ms Broadbent of serious / malicious allegations Ms Burstow was making against her On 18 February 2017, Ms Broadbent received an email from Ms MacFarlane (teacher) advising that she had heard Ms Burstow (teacher aide) speaking in an inappropriate manner about her. Ms MacFarlane felt it should be addressed because the content of the accusations being made against Ms Broadbent were serious. The email had been sent directly to Ms Belous (principal) and Ms Broadbent was copied into the email. In the email, Ms MacFarlane reported that Ms Burstow had said: • Ms Broadbent had threatened her and that she had been in contact with the Union; • Ms Broadbent threatened her and other teacher aides' positions. In the above email, Ms MacFarlane recounted that she told Ms Burstow: "I know how Ronnie speaks and that I am certain that Ronnie would not 'threaten'. I stated that Ronnie is very professional in how she speaks. I recommended that Lyn be very careful about how she speaks with whom, as code of conduct may be breached." The content of the email caused Ms Broadbent to feel shocked, stressed and anxious about the apparent false and malicious allegations being made against her. 2 Between 21 February 2017 and 1 March 2017 School visit from Mr Holbrook, Union Representative, United Voice Sometime between 21 February 2017 and 1 March 2017, Mr Holbrook (union representative) attended the school and briefly met with Ms Broadbent in her office. During this meeting, Mr Holbrook advised Ms Broadbent that the union had received notification of an issue at the school involving her. As a result, Ms Broadbent would no longer be working with Ms Burstow as the union delegate. Instead, another teacher aide would be allocated to take on that role. Ms Broadbent told Mr Holbrook that she was not aware of any union matters relating to herself and Ms Burstow. To which Mr Holbrook responded, -- 23 of 54 -- 24 No. Date Title Description words to the effect of, "If you don't know now, you will soon." The above meeting and comments left Ms Broadbent feeling anxious and confused about the nature of Ms Burstow's complaint to the union. 3 Between 21 February 2017 and 1 March 2017 Ms Broadbent asked Ms Belous whether any union grievance matters had been raised about her Immediately following her brief meeting with Mr Holbrook, Ms Broadbent told Ms Belous of the conversation between them and asked whether any union grievance matters had been raised about her. To which Ms Belous responded, words to the effect of, "Yes, Lyn had approached me to tell me that she felt attacked by you at the meeting." This caused Ms Broadbent to feel shocked, stressed and anxious, as she did not attack Ms Burstow at any recent or other meetings. 4 Between 21 February 2017 and 1 March 2017 Ms Broadbent requested a meeting with Ms Belous and Ms Burstow to discuss grievance matters raised Due to Ms Broadbent's concerns and confusion over the allegations referred to in Stressor 3 above, in the course of that conversation with Ms Belous, she requested that the two of them meet Ms Burstow to discuss the matter. Ms Belous declined Ms Broadbent's request, with words to the effect of, "No, I have concerns with that." Ms Broadbent then asked if she would at least have the right to openly discuss the matter with all involved, to try to come to an amicable resolution. That request was also rejected by Ms Belous. This further magnified Ms Broadbent's feelings of stress and anxiety. [80] Ms MacFarlane's email was sent directly to Ms Broadbent on 18 February 2017 and Ms Belous was copied in.90 It read: Hi Ronnie I am writing to advise that on Thursday Lyn Burstow returned to the library while I was in the IT room. She stated that you had threatened her and that she had just come off the phone after an hour telephone call with Optum. Yesterday afternoon (Friday 17 February 2017) Lyn Burstow stated that she had been in contact with the unions. She stated that you 'threatened her and several other teacher aides positions here'. She said something to the effect that the teacher aides who have injury might be relocated. I asked Lyn if Ronnie actually threatened her or if Ronnie gave information that may have led to her feeling like she had been threatened. I stated to her that I know how Ronnie speaks and that I am certain that Ronnie would not 'threaten'. I stated that Ronnie is very professional in how she speaks. I recommended that Lyn be very careful about how she speaks with whom, as code of conduct may be breached.91 90 Exhibit 2. 91 Ibid. -- 24 of 54 -- 25 [81] On any plain reading of Ms MacFarlane's email, her purpose was two-fold. She sought both to alert Ms Broadbent to what Ms Burstow had said about her - and invite Ms Belous to take some action against Ms Burstow to "deal with it".92 [82] The catalyst for all that ensued was the "open door"93 meeting in Ms Broadbent's office with Ms Burstow on 16 February 2017. [83] Ms Broadbent's evidence was that it was an amicable conversation that led into the health and well being of staff and how it was to be managed within the Department's Health and Wellbeing policy. Ms Broadbent said Ms Burstow "was laughing and left the room".94 She denied being aggressive towards, threatening or otherwise bullying Ms Burstow. Ms Broadbent submitted that: …directly after the meeting Nicky entered the appellant's office and stated words to the effect "I couldn't help but hear that meeting so I have telephoned Melanie Cowan from organisational health and she said she is very happy to come down and meet at the school with all the teacher aides and talk with them all about our health and wellbeing and explain to staff clearly outlining the processes you were trying to explain to Lyn about staff sickness and injury management just now." The appellant says that Nicky further advised the appellant words to the effect that "Melanie would be coming to the school for the meeting on 24 February at 7:30 am." At no stage did Nicky raise any concerns with the appellant about the manner in which the appellant and Lyn communicated with each other. [84] Ms Kerr-Morgan's evidence supported Ms Broadbent's account in that: • she confirmed Ms Broadbent's account that Ms Burstow was "laughing"; • she confirmed that Ms Broadbent had "the door open policy"; and • with respect to Ms Burstow's demeanour as she left Ms Broadbent's office, she said "Lyn was fine, Lyn was jovial, she wasn't crying, she was normal, she was in conversation".95 [85] However, there were several curiosities in Ms Kerr-Morgan's evidence: • notwithstanding Ms Broadbent's door was open and she "just stood right near the entrance of the door waiting", Ms Kerr-Morgan also said "I didn't hear what they were saying"; • she referred to the interchange between Ms Broadbent and Ms Burstow just prior to the latter walking out as "debating" – an interesting choice of words for what was otherwise posited as a good-humoured conversation; • Ms Kerr-Morgan's recollection was that immediately after Ms Burstow left Ms Broadbent's office, she went to Ms Belous' office and had a conversation with her there. That contrasts with Ms Broadbent's evidence that Ms Belous in fact came to her office "directly after the meeting" to tell her arrangements had been made for 92 T 2-27, line 45. 93 T 1-16, line 40. 94 T 1-11, line 40. 95 T 2 – 37, lines 40 – 45. -- 25 of 54 -- 26 someone from the Department to speak with the teacher aides about staff injury management processes. Clearly, both accounts cannot be correct, Ms Belous was not in two places at once directly after the meeting between Ms Broadbent and Ms Burstow ended; • Ms Kerr-Morgan claimed to have overheard Ms Belous ask Ms Burstow "Are you going to do it?", shortly before Ms Burstow fell to the floor in the admin area. If Ms Broadbent's account is to be believed, Ms Belous was at that time speaking with her; • Ms Kerr-Morgan also claimed that, upon leaving Ms Broadbent's office, she "walked down the corridor to find where Lyn was going." One wonders why? • when Ms Burstow fell to the floor shortly thereafter, Ms Kerr-Morgan stated "…then they went into procedures, you know, to do what they do. And then Ronnie's come down the corridor quickly to Lyn to see what's going on. Nicky Belous comes down the corridor quickly, "What happened?" looks straight to Ronnie, "What have you done?" And that was it. Then they did what they had to do, and the ambulance came, and Lyn was fine." Ms Kerr-Morgan's clear inference was that there was some collusion between Ms Burstow and Ms Belous to stage this incident, based on her account of the exchange between them directly after leaving Ms Broadbent's office. [86] Ms Belous did not recall the alleged exchange of "Are you going to do it?" between she and Ms Burstow occurring at all. She also denied the incident recounted by Ms Kerr- Morgan about Ms Burstow falling over shortly after the open door meeting with Ms Broadbent and an ambulance being called. Ms Belous also denied that she had said to Ms Broadbent "What have you done?" I believe Ms Belous. Even years later, surely one would remember something as dramatic as that happening in the workplace, if indeed it did. I found Ms Belous' evidence to be both straightforward and balanced. I considered Ms Belous was an honest broker in all this. [87] In my view, Ms Kerr-Morgan's version of events is implausible. I considered her credibility as a witness to be very poor. She only eventually, and rather grudgingly, accepted that Ms Broadbent had been dishonest in the course of her work. She was so obviously in Ms Broadbent's camp that her evidence was of little assistance to the Commission's impartial findings of fact. For those reasons, to the extent that Ms Kerr- Morgan's account differed from Ms Belous', I have preferred the testimony of the latter. Finding [88] From the evidence above, I find that the "open door" conversation between Ms Broadbent and Ms Burstow: • was loud enough for Ms Belous to hear clearly; • confused enough (at best) for Ms Belous to take immediate steps to arrange for someone else to come to the school and explain the policy and process to the teacher aides, even while the very conversation between the pair was still in progress; and -- 26 of 54 -- 27 • significant enough for Ms Belous to come in and tell Ms Broadbent the steps that she had taken "directly after the meeting". [89] Ms Broadbent pointed to the failure of Ms Belous to "raise any concerns with the appellant about the manner in which the appellant and Lyn communicated with each other" in the open door meeting as support for her contention that she did not "threaten" Ms Burstow's and the other teacher aides' positions. However, I find it more likely that Ms Belous was by that time so used to constantly needing to "mediate a lot between them",96 that she found it easier to deal with the issue being discussed - than the manner of communication, given the pair's "very volatile relationship".97 By that time, it was rather par for the course. [90] Ms MacFarlane's email provides a contemporaneous account of what Ms Burstow had told her on the very day of the open door meeting with Ms Broadbent: "She stated that you had threatened her and that she had just come off the phone after an hour telephone call with Optum…She stated that you 'threatened her and several other teacher aides positions here'. She said something to the effect that the teacher aides who have injury might be relocated." It is helpful that Ms Burstow's words were recorded by Ms MacFarlane so soon after the open door meeting had occurred. I consider an hour long telephone call to the Employee Assistance Program provider, on the day of the open door meeting, further supports the significant personal impact the discussion had on Ms Burstow. I also note the sequence of Ms Burstow's actions - it was only the following day that Ms Burstow also took the step of contacting her union about what had transpired. That does not fit comfortably with the Appellant's narrative that Ms Burstow's allegations of "threats" were fabricated, in order to create trouble for Ms Broadbent. If that were the case, she would more probably have contacted her union first and immediately, rather than the EAP telephone service. [91] When Ms Belous arrived at the school as Acting Principal in October 2016, Ms MacFarlane was in the position of Acting Deputy. The inappropriateness of listening in to a colleague's call to a counselling service ought be obvious to anyone, let alone an experienced teacher who had held such a school leadership position. That said, despite Ms MacFarlane's intentions, the email she sent on 18 February 2017 provides a most useful contemporaneous account of what was done and said by Ms Burstow to her. [92] For those reasons, I cannot accept that Ms Burstow's allegations of Ms Broadbent's threats against her and other teacher aides' positions were "false and malicious" - I believe Ms Broadbent did indeed make such threats. However, I do accept that Ms Burstow's allegations were "serious". [93] Further, as a party to the conversation with Ms Burstow, I do not believe that Ms Broadbent was "shocked" to receive Ms MacFarlane's email report – however, I do accept that Ms Broadbent would likely have felt "stressed and anxious" that Ms Burstow had now taken some action for the matter to be resolved beyond the school. 96 T 4-5, line 17. 97 Ibid line 20. -- 27 of 54 -- 28 [94] Ms Broadbent's stress and anxiety about what would happen next were soon realised when Mr Holbrook of United Voice visited the school a short time afterwards. While Mr Holbrook was not called by either party to give evidence, it is certainly plausible that he did visit the school so quickly after the union received the call from Ms Burstow about threats being made to teacher aides' positions – noting that she was at that time also the union delegate at the school. Ms Jodie Marlowe's evidence was "that was mostly Lyn's integrity that she decided that she could not stand as a delegate"98, given she was now in dispute with Ms Broadbent. In those circumstances, I can understand why Mr Holbrook may have advised Ms Broadbent of a change in union delegate. With respect to Ms Broadbent's claims that she felt "anxious and confused about the nature of Ms Burstow's complaint to the union", as a party to the open door conversation I cannot accept that Ms Broadbent was "confused" about it, although I accept that she did feel "anxious". However, I find that Ms Broadbent's stated feelings of anxiety and confusion were not due to either Mr Holbrook's alleged comment or the said "unknown" nature of Ms Burstow's complaint to her union99. It is most likely that Ms Broadbent felt anxious because she did know what Ms Burstow had said and that there were likely to be further consequences coming. [95] It follows then that I can accept the Appellant's assertion that: Immediately following her brief meeting with Mr Holbrook, Ms Broadbent told Ms Belous of the conversation between them and asked whether any union grievance matters had been raised about her. To which Ms Belous responded, words to the effect of, "Yes, Lyn had approached me to tell me that she felt attacked by you at the meeting."100 [96] However, for reasons similar to those given above, while I do believe hearing this caused Ms Broadbent to feel "stressed and anxious" about what would happen next, I do not accept that Ms Broadbent could be "shocked" because she herself was a party to the open door meeting with Ms Burstow. She knew what she had said. On the balance of probabilities, I have found it more likely than not that Ms Broadbent did threaten Ms Burstow and other teacher aides' positions at that time. [97] I find it also more probable than not that Ms Broadbent then focused her efforts on trying to take the heat out of the issue and "discuss the matter with all involved, to try to come to an amicable resolution". It was absolutely in her interests to do so. But it was unfortunately a case of too little, too late. By that time, Ms Burstow had told Ms Belous that she felt attacked by Ms Broadbent in the open door meeting. Ms Belous was now aware that Ms Burstow had both sought assistance from the EAP in "an hour telephone call with Optum" (courtesy of Ms MacFarlane's email). The union organiser had also paid a visit. As a result of what occurred in the open door meeting less than a fortnight ago, things were escalating rather quickly. Ms Belous gave evidence that "I stopped that meeting because Lyn did not want to be involved."101 That is understandable in circumstances where it was Ms Burstow who had been "threatened". If Ms Burstow did not want to meet with Ms Broadbent about the matter, it would not be appropriate for Ms Belous to force it, particularly with the knowledge that Ms Burstow had since sought 98 T 3-65, lines 23 – 31. 99 The Respondent's submissions filed 4 January 2023 note that there is no evidence of a grievance being lodged by Ms Burstow in respect of the conduct by Ms Broadbent towards her on 18 February 2017. 100 Stressor 3. 101 T 4-6, line 15. -- 28 of 54 -- 29 counselling support through EAP. It could be reasonably inferred that Ms Burstow was most distressed by what had occurred. [98] Ms Burstow's refusal to meet with Ms Broadbent, and Ms Belous' unpreparedness to make her do so, was said to have "further magnified Ms Broadbent's feelings of stress and anxiety". While I accept that Ms Broadbent did increasingly feel stressed and anxious by this time because her attempts to resolve the problem had been unsuccessful, I do not believe that Ms Broadbent remained "confused" about the allegations made by Ms Burstow. [99] For the reasons explained above, I find that Ms Burstow's allegations against Ms Broadbent, although certainly "serious", were not "malicious" or "false". I have accepted that Ms Broadbent was "concerned" about the ongoing impact of her threats and conduct towards Ms Burstow in the open door meeting, but she could not have been "confused" by it as the direct result of same. Consideration of Stressors 5 - 6 [100] Ms Broadbent alleged the following events / conduct occurred: No. Date Title Description 5 01/03/2017 Staff meeting – physically removed from room On 1 March 2017, Ms Broadbent attended a Teacher Aide Meeting. The meeting became a verbally heated and unpleasant environment where some of the teacher aides were crying. During the meeting, Ms Broadbent respectfully and calmly attempted to calm the situation. In the meeting, Ms Belous told Ms Broadbent to "Leave the school now, go now." Ms Belous and Ms Nikotemo then stood up, walked over to where Ms Broadbent was seated, cornered Ms Broadbent, grabbed her by each arm and physically escorted Ms Broadbent out of the meeting room. Ms Nikotemo then slammed the door behind Ms Broadbent and locked it. Ms Broadbent then attempted to re-enter the room because she had left her keys there. As Ms Broadbent was not expecting the door to be locked, she hit her face on the door window when she attempted to open the door. As a result of these events at the meeting, Ms Broadbent immediately felt shocked, humiliated, belittled and distressed about the manner in which she had just been treated by Ms Belous and Ms Nikotemo in the presence of other staff. 6 01/03/2017 Letter to Ms Broadbent re breach of code of conduct On 1 March 2017, Ms Broadbent attended a meeting with Ms Belous and Ms Annette Rose (Department's Regional HR Manager) in the principal's office. At the meeting, Ms Belous issued Ms Broadbent with a letter putting her on notice that she had breached the school's code of conduct during the meeting on 1 March 2017. Ms Broadbent felt very shocked and anxious about reading the contents of this letter, as it was not a true record of events that took place at the meeting. Following reading this letter, Ms Broadbent emailed Ms Rose to advise that she would provide a formal response because it did not accurately reflect the events which took place at the meeting and she -- 29 of 54 -- 30 was no longer feeling safe in the workplace, especially with attending teacher aides meetings. On 2 March 2017, Ms Broadbent's stress and anxiety was such that she emailed Ms Lindsay Inglis (the school's workplace health and safety officer) advising that she did not feel safe in the workplace and provided an outline of the code of conduct letter together with Ms Broadbent's own recollection of events that took place at the teacher aides meeting on 1 March 2017. [101] The witnesses agree that the Teacher Aide Meeting on 1 March 2017 was a most unpleasant occasion and that it degenerated into a heated verbal exchange, raised voices, finger pointing (actual and metaphorical) and weeping teacher aides. [102] Other than that, the witnesses gave very different accounts of what occurred. Ms Broadbent [103] Indeed, Ms Broadbent herself gave different accounts of what occurred. The variations of her accounts are extracted below: [104] In the Appellant's Statement of Facts and Contentions, it was submitted that: …during the meeting Nicky asked the appellant to leave in a loud and aggressive tone and both Nicky and Bex Nikotemo, deputy principal, walked either side of the appellant and physically escorted her towards the door and as the appellant left the room either Nicky or Bex forcefully slammed the door shut behind the appellant and then unknowingly to the appellant they also locked the door behind her. The appellant says that she realised that she had left her office keys behind in the meeting room so walked back to enter the door and when she attempted to open the door she noticed that it was locked and because she was not expecting it to be locked she hit her face on the door window. The appellant says that she felt belittled, humiliated and distressed over the manner in which she was spoken to by Nicky throughout the meeting in the presence of other staff and being physically escorted out of the room and having the slamming of the door and it being locked behind her acted as a final demeaning insult. [105] Ms Broadbent's evidence at the Hearing was that: • the purpose of the meeting was for Ms Belous to talk about the allocation of teacher aide hours within the funding parameters;102 • usually the school leadership team and Ms Broadbent sat around the same area at these meetings. However, at this particular meeting, Ms Belous, Ms Nikotemo and Mr Barker were in various locations around the room. So Ms Broadbent too sat apart from them on a table on her own;103 • Ms Belous mentioned that manual handling training had been organised for the teacher aides;104 102 T 1-19, lines 3 – 6. 103 Ibid line 33. 104 Ibid line 12. -- 30 of 54 -- 31 • Ms Sandra Oakey (teacher aide) stated that "the training's not there" for the school's temporary teacher aides, so particular named individuals "didn't know anything" and "didn't know what they were doing" because they had not been trained in manual handling practices;105 • "So by this time a few of the teacher aides started to converse and it got a little bit loud. So I said look, because I was already standing – we were talking about the manual - …and I just lifted my tone and I said, look, I think we need to end the conversation there because Paula started to cry…and people were starting to gather";106 • "…I just said look, I don't think this is okay, we need to stop this conversation because we don't want to personalise this";107 • "But with that Nicky Belous stood up and said no, I think you need to leave, and walked over to me – I was shocked."108 Ms Belous said "You need to leave the school now, you need to go now";109 • "…and with that (Ms Belous) just, you know, put her hand on here, and Bex put her hand on there. Daniel was over at the back and moving towards me, just coming slightly towards me which – so that there was the two and him. Then they escorted me to the door and slammed the door behind me";110 and • I went two steps out and thought I've left my keys for my office there and smacked straight into the door, it was locked, and there's a .. glass pane in the door. I was so embarrassed because I could see everyone was just looking. And the door – I was right in the door and eventually it became open and I said I just need to get my keys. So I walked in there, but everyone was dead silent and then … I was just totally humiliated."111 [106] In Ms Broadbent's email to herself on 1 March 2017 at 1:05 pm, she noted the following about the meeting that day: Staff Member SO then spoke up and said also can we have the replacement that come in know what they are doing. I responded that it is not a requirement that when we bring causal staff members in that they would immediately have they training. SO then state well what about the permanent staff that are here they don't even know. She said like when AG and PM were placed down here they didn't know anything. I stated that whilst you aides that have been here for a long time you could be guiding them with your expertise. SO stated no because even they don't know what to do. You placed FJ down here too and she doesn't know what she's doing either. I stated I prefer we do not name people as it personalises the issue. NB principal then walked across to me and said you need to stop and I am asking you to leave. You need to go and call someone at regional to talk to them you need to go home and get some help. I responded I am fine and I do not feel the responses like this are ok and as their supervisor I am allowed to have a voice and as that information be given to 105 Ibid line 24. 106 Ibid line 27. 107 Ibid line 33. 108 Ibid line 45. 109 T 1- 20, line 5. 110 Ibid line 7. 111 Ibid line 11. -- 31 of 54 -- 32 me so I can do my job effectively. Nicky walked me to the door and slammed the door behind me, I stopped I had forgotten my keys and went to re-enter the staff room and the door was locked. I went in asked to collect my keys and left the staff room.112 [107] In Ms Broadbent's email to Ms Inglis on 2 March 2017, she wrote: I will also state that as I got up to walk out of the meeting Nicky Belous came over to me and said "you can leave the school now" "go now call regional but leave the school" Nicky then proceeded to follow me to the door and opened the door and slammed the door loudly behind me then locked the door. I walked away from the staffroom and then realised I had left my office keys so went back to the door to enter. It was locked I knocked and as witness by staff member it was a few minutes and a teacher aide said "well is someone going to let her in" they opened the door. I find this completely inappropriate to the conduct of a principal…113 [108] Conspicuous by its absence, Ms Broadbent's two emailed contemporaneous accounts of the meeting did not contain any reference to: • being physically escorted from the meeting; • both Ms Belous and Ms Nikotemo walking her out of the meeting – or any move towards her by Mr Barker; and • whacking her face against the glass pane in the door and being humiliated in front of the assembled staff group. [109] In the email to Ms Inglis, Ms Broadbent refuted the version of events presented in the code of conduct reminder letter that Ms Belous had issued to her after the previous day's meeting. [110] In an email to Ms Rose on 1 March 2017, Ms Broadbent also said about the code of conduct reminder letter that had been provided to her that day that: …I will be making a formal response to this letter as I do not feel that this letter is a true and correct record or representation of the events and behaviours as they actually happened at the meeting.114 [111] In evidence too was a file note of the meeting created by Ms Broadbent.115 The date on that document is somewhat later, 26 March 2019. It states that: …At this point I stand up and have to project my voice above other conversations saying "well I think we need to end this conversation as its not really appropriate to name people" and T/As properly need to be going onto bus duty. Nicky Belous principal is glaring across the room at me then stands up and moves towards me stating "yes you do need to stop." I start moving up towards right side of room to exit and as doing this Nicky Belous walks quickly towards me and stops me saying "you need to leave the school now, I'm asking you to go home now" I respond No I am not leaving I am going up to my office to complete what the auditor needs. (at that point Bex Nikotemo moves to my side) Nicky then states again "leave now" I responded saying I am able to have a voice and that behaviour and comments naming staff was inappropriate." I then walk towards the exit door. Nicky (A/principal) and Bex Nikotemo (A/DP) walk behind me. 112 Exhibit 6. 113 Exhibit 4. 114 Exhibit 1, page 2. 115 Exhibit 7. -- 32 of 54 -- 33 I exit and the door slams loudly behind me. I begin walk along the pathway, realise I have left my keys behind so walk back to Staff room and the door is locked so I knock to enter. Some moments went by and then the door was opened. I walk in to get keys and walk out of Staffroom to go back to office… [112] That account has Ms Broadbent: • standing up at the point where Ms Oakey continues to reference various deficiencies in the patchy provision of manual handling training to teacher aides in different sections of the school, rather than being already on her feet as she had described in an earlier account; • projecting her voice above other conversations, by which I understand to mean that hers was the loudest voice in the room at that time; • herself being the one to initiate her own exit from the meeting; • mention of Ms Nikotemo moving to her side, only at the point where Ms Broadbent retorted that she was able to have a voice; and • simply knocking on the door to re-enter the staff room to retrieve her keys. [113] I have serious concerns about Ms Broadbent's credibility as a witness. I have noticed the differences in her accounts of what she alleged to have occurred, to different people at different times. That is no mere blemish. Whilst Ms Broadbent presented herself as a model employee, who provided indispensable high-level management support to a succession of principals over 18 years - and who had no issues with any of them until the arrival of Ms Belous in October 2016 – that was not correct. [114] In cross-examination, Mr Rashleigh put it to Ms Broadbent that she was aware of a number of complaints made about her behaviour at the school dating back to 2014. To which Ms Broadbent responded: "I can't recall."116 As Mr Rashleigh then set about chronicling the various performance and conduct allegations, it transpired that Ms Broadbent did in fact recall each of them.117 Those matters were subject of an investigation towards the end of 2017, a number found to be substantiated, Ms Broadbent was suspended from duty and ultimately resigned. [115] Those factors lead me to hold grave doubts about Ms Broadbent's honesty. To the extent that there has been any conflict between Ms Broadbent's evidence - and the evidence of either Ms Belous, Ms Nikotemo, Mr Barker or Ms Marlowe – I have not preferred the Appellant's version. Accounts to medical practitioners [116] The history provided by Ms Broadbent to the medical experts about the 1 March 2017 meeting is also relevant. 116 T 1-31, lines 41 – 46. 117 Ibid 44. -- 33 of 54 -- 34 [117] In her report of 4 June 2018, Dr Yeung recorded that:118 In March 2017 during a staff meeting Veronica stated that two non-teaching staff were arguing. She tried to mediate. The Principal then stood up and asked her to leave. She claimed that two staff members held her hand on both side and escorted her out of the meeting. The door was slammed behind her. She turned around and wanted to go back to the room and she hit the door hard. She said this incident was witnessed by a lot of staff. She said other staff felt terrified as the Principal locked the door after her. Veronica requested a meeting with the Principal. The Principal attended the meeting with a District Officer and served her with a Code of Conduct. She had three or four days off work and then returned to work. [118] In her report of 16 October 2018, Dr Yeung wrote (emphasis added): Current symptoms (My latest review was on 15/10/2018) … In March 2017, the school Principal had thrown a folder at her and subsequently she was locked in a room and the door was slammed behind her. She turned around and then she hit the glass door hard. That incident had triggered the events with the groundsmen in the past and now she is experiencing reoccurrence of the issues with the two groundsmen as well the school Principal locking her up, and she felt threatened that she was being trapped and locked up. … [119] That last account is especially bizarre. It is the only occasion that Ms Broadbent claimed that Ms Belous threw a folder at her and locked her in a room. Extraordinary. [120] In cross-examination, Dr Yeung accepted the proposition that if Ms Broadbent's account of the teacher aides' meeting of 1 March 2017 was the complete opposite of what actually occurred, then it couldn't have contributed to her psychiatric condition.119 [121] In his report of 6 February 2020, Dr Trevor Lotz stated (emphasis added): History of presenting complaint …Ms Broadbent described several incidences where she had a door slammed in her face, was physically pushed out of a room, and effectively belittled and humiliated. [122] In his evidence at the Hearing, Dr Lotz said that the history contained in his report "…is based on what Ms Broadbent gave me; I don't know whether it's right or wrong." Dr Lotz accepted that if the history he had been given by Ms Broadbent was found not to be correct by the Commission, then his report was based on a "wrong history." [123] On 6 November 2019, Dr Concannon completed a workers' compensation work capacity certificate, in which she provided a diagnosis of 'work related stress' and further records: Patient's stated date of injury 1/3/17 … Describe mechanism in detail Psychological trauma due to bullying during work meeting120 118 Much of this account was repeated in the report for QSuper dated 16 October 2018. 119 T 4-33, lines 1 – 13. 120 Exhibit 1, page 52. -- 34 of 54 -- 35 [124] On 3 February 2020, Dr Concannon sent a facsimile to WorkCover Queensland that included: … Patient stated that she was bullied at work, 1/3/17 during a meeting, and that this bullying continued over the next 11 months. … [125] Ms Bliss' consultation notes of 20 April 2017 record Ms Broadbent said she was subject to: Workplace bullying, principal wrongly accused her of belligerent and aggressive behaviour. Ms Kerr-Morgan [126] Ms Kerr-Morgan was not at the 1 March 2017 meeting but apparently heard all about it from Ms Broadbent the following day. [127] Her evidence was that she saw Ms Nikotemo and various teacher aides engaged in what she described as "collusion"121 throughout the day. [128] I have earlier explained why I found this witness' evidence to lack credibility. Ms Cridge [129] Ms Cridge was present at the 1 March 2017 meeting. Her evidence was that: …We all sat down and we had started to discuss the allocated hours coming into term 2, and talking about different modules that were available to brush up on training during the holiday period. From there, one staff member became quite aggressive, her name was Sandra, and she was singling out other staff members who she felt didn't have adequate training. At this point, those two other staff members became visibly upset and distraught, where Ron intervened calmly and said, I appreciate your feedback Sandra. However, can we please have this discussion in a more appropriate forum, perhaps with Nicky and myself after the meeting. Once this was said, Sandra ignored that and began to speak loudly. Her body language had changed to quite staunch as she continued to attack the other two staff members. Ron then reiterated herself and said, Sandra, I appreciate your feedback. However now is not the time to have this discussion. Can you please meet with myself after this meeting. At that point, Nicky stood up, put her hand on the table and said, Ron, you need to stop. It was very direct and it was very aggressive and the room went silent. From there, she looked at Ron and said, you are being aggressive and you need to leave. She got up from the other side of the table and Bec came from the far-left corner and they physically ushered Ron out of the room. So they went either side, ushered Ron out of the room, slammed the door shut and locked the door. From there, the staff – all the staff were really just bamboozled from what we just witnessed and really confused on what was going to happen next.122 [130] When Ms Cridge was asked to explain what she meant by "physically ushered" she explained: I mean grabbed an arm each, assisted Ron out of her chair and escorted her out of the building. So Nicky got one arm, Bex got the other arm, lifted up to say you need to leave, and was ushered out. The door was then locked, Ron didn't have her keys so she was knocking on the door. A staff member asked, area we going to let her in. Nicky replied, do not let her in. Five minutes went by, 121 T 2-37, line 25. 122 T 2-47, lines 21 – 41. -- 35 of 54 -- 36 Jodie Marlowe opened the door and let Ron in. She grabbed her keys, where she was then asked to leave the premises by Nicky. From there we dispersed. It was time to go on playground duty and the meeting was over.123 [131] Ms Cridge also stated that she observed Ms Burstow as: …She had her arms folded to the back of the room and she had a smirk during the meeting.124 [132] With respect to assessing Ms Cridge's credibility as a witness, I was deeply concerned that when directly asked in what circumstances she first met Ms Broadbent in 2014 she answered quite evasively "Through the community". When then asked in what capacity Ms Cridge knew Ms Broadbent, she said "I knew Ron through the community as I was reaching out to Currumbin Special School to obtain employment."125 Only in cross- examination did Ms Cridge reluctantly admit her familial relationship with Ms Broadbent, in this excruciating exchange: Mr Rashleigh Are you related to Ms Broadbent? Ms Cridge Am I related? Mr Rashleigh Yes. By marriage? Ms Cridge By marriage, yes. Mr Rashleigh Yes. So you're her daughter-in-law? Ms Cridge No. Mr Rashleigh What relation are you then? Ms Cridge I'm her niece-in-law. Mr Rashleigh Her niece-in-law? Ms Cridge Yes.126 [133] It reflects very poorly on Ms Cridge's credit that she did not offer that information when first asked in what capacity she knew Ms Broadbent. [134] The other issue that infects my view of Ms Cridge's credibility is her oral evidence that Ms Belous and Ms Nikitemo each laid hands on Ms Broadbent. As Mr Rashleigh fairly put to her, Ms Cridge's statement of 6 March 2017 makes no mention of Ms Broadbent being so physically escorted out of the meeting.127 That was a highly significant omission and persuades me to the opinion that it did not therefore occur. By insisting at the Hearing "But it was physically visible", Ms Cridge had rather over-egged the pudding. The combination of all that has caused me to arrive at a very poor opinion of Ms Cridge's credibility as a witness. 123 Ibid lines 43 – 47; T 2-48, lines 1 – 4. 124 T 2-49, lines 32 – 34. 125 T 2-45, lines 26 – 29. 126 T 2-53, lines 8 – 19. 127 Ibid lines 40 – 46; Exhibit 12. -- 36 of 54 -- 37 Ms Brown [135] Ms Brown's evidence about the 1 March 2017 meeting was that: …when Ronnie was trying to, you know, calm down the staff members, a couple in particular that were belittling others and basically telling, you know, all of the teacher aides that, you know, this one wasn't qualified to be here. This one had no concept of what they were doing and actually name calling, and Ronnie was, you know, saying let's not, you know, name call here. This is not the – the way to do it. If someone needs more training or more help, you know, we give that to them. We don't do it in a public forum and, you know, name drop and make them feel bad, because there were a couple of girls crying, and Nicky overrode her and said, go on. Go on. Speak. Say what is needed. Say who's bad and who doesn't know what they're doing, you know, to make others, in my opinion, feel – feel bad.128 … …The 1st of March, when she was trying to calm down a couple of very nasty women, she was told in no uncertain terms to "Leave now" and what I classify as hog-marched out of the school – you know, one person grabbed this arm, one person grabbed that arm and forcibly removed her from the room. I'm just, like, "What the?" I had never seen such disrespect to another human being in all my life. I've seen people on the – beggars on the street being treated nicer than that. You know, and then the door was slammed in her face and locked so she couldn't get back in, and she's knocking on the door going, "My books, my pens, my keys." You know, and a teacher aide had to get up and – I mean, I was just stunned. I was just stunned. I couldn't move. But another teacher aide not far from me actually went and unlocked the door so Ronnie could come and get her – get her stuff, but for someone to be treated so disrespectfully was disgraceful.129 … I do believe that everything that took place that meeting was premeditated.130 … Ronnie was in her chair going, please, people, please. Just calm down. This isn't the time or the place for name calling…She wasn't yelling. She wasn't being aggressive. She wasn't towering over anybody. She was just going, please, let's just – let's just calm down…131 … She was still seated…Well, next minute I know, Nicky and Bex were both standing. Daniel had come from behind me somewhere, and Nick's – Nicky and Bex had grabbed Ronnie by each of the arms. Daniel's opened the door and they've basically shoved Ronnie out, and Nicky's going, "Leave now." I had no idea what Ronnie had done now.132 [136] I have a very poor view of Ms Brown's credibility as a witness. Her oral evidence that Ms Belous and Ms Nikitemo each laid hands on Ms Broadbent did not accord with her own contemporaneous account, as contained in her written statement dated 1 March 2017.133 As Mr Rashleigh fairly put to her, Ms Brown's statement of 1 March 2017 makes no mention of Ms Broadbent being grabbed and physically escorted out of the meeting.134 I note also that Ms Brown's earlier written account stated that Ms Broadbent 128 T 2-65, lines 9 – 19. 129 T 2-67, lines 33 – 45. 130 T 2-68, lines 3 – 4. 131 T 2-69, lines 16 – 20. 132 Ibid lines 35 – 41. 133 Exhibit 13. 134 T 2-77; T 2-78; Exhibit 13. -- 37 of 54 -- 38 stood up when saying "something along the lines of, This conversation needs to stop". That contrasts with her oral evidence that Ms Broadbent was seated when Ms Belous and Ms Nikotemo were said to have grabbed an arm each. Those were highly significant differences. While Ms Brown denied that she was embellishing what occurred,135 I do not believe she was telling the truth. By insisting at the Hearing that Ms Broadbent was "hog-marched out of the school", together with a most theatrical delivery of her oral evidence, I found Ms Brown's contribution to the proceeding to be entirely contrived and unpersuasive. Ms Burstow [137] The formal complaint filed by Ms Burstow dated 15 March 2017 was in evidence at the Hearing,136 though the lady herself is now deceased. [138] That document records Ms Burstow's account of the 1 March 2017 meeting, in which she stated that Ms Broadbent was the aggressor. As a result of Ms Broadbent's own behaviour, Ms Burstow wrote that Ms Belous had: …very quietly and quickly tried to remove Ronnie from the room and asked if she (Ronnie) need to have some time or the rest of the day off. Ronnie said "it was unfair that we could have our say and she could not. Ronnie was quite angry.137 Ms Marlowe [139] Ms Marlowe was present at the 1 March 2017 meeting. Her evidence was that: From my memory, as I say, it's a long time ago, it became quite heated. I think emotions were running high and some of the aides became quite upset and distressed about the process… … …At one stage Ronnie was asked to leave the room and after she left we – it was calmed down a little bit. So, yeah, as I said, it's a long time ago though, but I can kind of just remember the emotion most…(Ronnie) was asked to leave. I remember people walking with her, but she passed me and I can't tell you what happened behind me.138 … …I did not personally find Ronnie being aggressive…I found her- it was emotive and it was heightened and emotions were running high.139 [140] Ms Marlowe's recollection was that Ms Broadbent was sitting down during the meeting, rather than standing. She also remembered Ms Belous and Ms Nikotemo "walking over and asking Ronnie to leave the room."140 135 T 2-79. 136 Exhibit 15. 137 Ibid. 138 T 3-57, lines 34 – 41. 139 T 3-79, lines 5 – 9. 140 Ibid lines 6 – 19. -- 38 of 54 -- 39 [141] Ms Marlowe absolutely rejected the proposition put to her by Mr Myers that "Nicky and Bex had Ronnie cornered and they were both animated with their hand gestures talking very sternly to Ronnie".141 [142] Ms Marlowe denied that Ms Belous and Ms Nikotemo "grabbed one of Ronnie's arms each and escorted her out of the room."142 [143] Given a period of about 5½ years had elapsed between that meeting and the Hearing, it was entirely understandable that Ms Marlowe did not recall every detail of what was said and by whom. Appropriately, where Ms Marlowe could not remember something when asked, she said so. Ms Marlowe did not attempt to fill in any memory gaps that would occur over such passage of time with conjecture presented as fact. In my view, that enhanced her credibility as a witness in these proceedings. Ms Belous [144] Ms Belous' evidence about the 1 March 2017 meeting was that: There was conversations with some of the teacher aides. I remember Sandra Oakey supporting some of the – the new teacher aides to the school such as Paula Moore and Ronnie was talking about how she had organised training before and how she supported manual handling and Lyn and Ronnie I – there was some exchange between them and it had started to get a little bit heightened – quite heightened …in terms of raised voices. …The teacher aides and Ronnie. Ronnie and I were sitting at the front of the room. The teacher aides were facing us. My memory is that Ronnie stood up and started talking over the top of the other teacher aides. I went over to Ronnie and said "I think we need to not have this conversation now. We need to stop this conversation" because I was aware of the impact it was having on the other teacher aides…I could see that there were two – at least two people crying. My recollection is that Ronnie was sitting at a table next to me and she had books and keys. I think that she had slammed the books down. She did stand up – talking over the top of people, pointing fingers. She then walked to go out of the room – I think, and I followed a little bit. And I said – and then Ronnie came back to me and she pointed to me. Came very close to me and said "I'm taking out a grievance on you."143 … Mr Rashleigh How close was she to you? Ms Belous I would say within 30 centimetres. Mr Rashleigh All right. How did that make you feel? Ms Belous Not great. Mr Rashleigh What do you - ? 141 Ibid lines 23 – 24. 142 Ibid lines 26 – 28. 143 T 4-7, lines 20 – 46; T 4-8, lines 1 – 2. -- 39 of 54 -- 40 Ms Belous Bit threatened Mr Rashleigh Bit? Ms Belous Intimidated. Would be my words. Mr Rashleigh Okay. And so she was close to you. You felt intimidated. Was there any bodily movement of Ronnie when she was close to you? Ms Belous Just pointing her finger at me. Mr Rashleigh All right? Ms Belous And talking [indistinct] at me. Mr Rashleigh Okay. And said she was taking out a grievance? Ms Belous Yep. Mr Rashleigh What happened then? Ms Belous I said to her "I will support you to take leave or to go to regional office to get support." And she said "I'm not leaving this school." Mr Rashleigh All right. Then, what happened? Ms Belous She walked out of the staff room, from one side of the room to the other and I followed her out and I closed the door behind her. Mr Rashleigh All right. Did you lock the door? Ms Belous No. Mr Rashleigh The door in the staff room, can you just explain to the commission how it operates? Ms Belous The meeting is in the morning and the cleaners are usually in and out of the staff room. We work with students with disabilities so it is often locked because there's hot water urns, etcetera, in there. So it is a snib lock from the inside in the staff room out and on the outside you need a key to enter back in. Mr Rashleigh So would the door automatically lock to people coming in when once it was shut? Ms Belous If you snibbed it, yes. And I – it was – it's quite often and probably today in the morning it would still be snibbed because the cleaners rarely open it. Mr Rashleigh All right. All right. So Ms Burstow144 went out. Did she come back in? Ms Belous She did. I was at the back of the room then and trying to regroup the teacher aides and settle them and she walked towards the door. I think someone gestured to me that she's there – maybe. I opened the door, she walked past me to go and get – I believe she left her books or a phone or keys at the desk where she was. And then she walked back out again.145 144 It was Ms Broadbent who had left the room and ought been referred to here, rather than 'Ms Burstow'. 145 T 4-8, lines 4 – 42. -- 40 of 54 -- 41 [145] Ms Belous said that after the 1 March 2017 meeting, she sought professional advice from Ms Annette Rose in her capacity as the Senior HR Consultant for regional office.146 Ms Belous and Ms Rose then together drafted the code of conduct reminder letter to Ms Broadbent;147 it was provided to her at a meeting later that same day. [146] That correspondence stated Ms Broadbent's conduct had been inappropriate because of: • Inappropriate or belligerent language directed at a number of teacher aides and personalized statements • Demonstrating low-level aggression toward a group of employees with body language and tone of voice • Negative interaction with employees during the staff meeting • Challenging official decisions and directions when the principal asked you to stop your conversations in the meetings • Preventing the good operations and management of the school148 [147] That 1 March 2017 correspondence to Ms Broadbent is significant, as it serves as Ms Belous' contemporaneous account of what occurred at the meeting. [148] With respect to what Ms Broadbent had actually said or done to cause her to include each of the points above, Ms Belous explained that: She said to the teacher aides that she does a lot for them, and they were ungrateful. They need to work as part of a team…149 … Her standing up, powering over, I guess, the teacher aides that were sitting down. Pointing fingers. Using a very raised voice. To – and not having – not providing opportunity for the teacher aides to have their voice heard.150 … That referred to me actually trying to say to her, I think we need to stop this conversation, before she stood up and started talking to one of the teacher aides...And I though that was a reasonable request.151 … In terms of running a meeting where employees are feeling safe and being able to be heard.152 [149] In the 1 March 2017 correspondence, Ms Broadbent was further reminded that: It is important to listen respectively to our staff and give them the forum to voice their concerns and questions within the scope of the agenda and to remain on the set agenda and not become emotionally driven with the content we are delivering. My future expectations are that you address the staff with respectful language and tone; and listen in an open manner to their points of view. It is expected that you follow my leadership and direction in order to support the operations of the school and outcomes for students. If you have concerns about information that arises in staff meetings, please discuss this with me in a controlled manner outside of the staff meeting forums.153 146 T 4-9, line 1. 147 Ibid line 47. 148 Exhibit 3, page 1. 149 T 4-11, lines 2 – 3. 150 Ibid lines 12 – 15. 151 Ibid lines 30 – 33. 152 Ibid lines 42 - 43. 153 Exhibit 3, page 1. -- 41 of 54 -- 42 [150] As a witness, Ms Belous was direct and forthright. She answered questions in a measured, balanced manner. Ms Belous' oral account at the Hearing aligned with the contemporaneous documentary evidence of the code of conduct reminder letter. If she did not have an independent recollection of something when asked, she said so. Ms Rose [151] Ms Rose's evidence was that Ms Belous had sought her advice "about the teacher aide meeting initially and what happened at the teacher aide meeting."154 Ms Rose recalled that Ms Belous had contacted her after the 1 March 2017 teacher aides meeting to ask what she could do. [152] Ms Rose recommended holding a meeting to provide Ms Broadbent with a letter to remind her of obligations under the code of conduct. Ms Rose attended the meeting later that same day and took minutes.155 [153] A copy of Ms Rose's meeting notes, as annotated by Ms Broadbent, were also in evidence at the Hearing.156 Although Ms Broadbent had noted on that document that "Support person Lynne Grimmand also stated these notes are not a correct recording of conversations held in meeting", she was not called as a witness. [154] Ms Rose's evidence at the Hearing was that Ms Broadbent did not mention anything about hands being laid upon her and being ejected from the meeting on 1 March 2017.157 Ms Nikotemo [155] Ms Nikotemo was present at the 1 March 2017 teacher aides' meeting. Her evidence at the Hearing was that: • after a discussion about staff allocation, a group of teacher aides expressed their concerns around manual handling. "There was a number of new and – and staff who'd been there longer, and they were just questioning when the training would occur so that the new staff were able to safely and correctly support students during their personal hygiene." Ms Broadbent entered the conversation by "talking over people" and suggested the issue was due to "staff's inability to work as a team";158 • Ms Belous then made it clear, in a calm manner, that it was not the place for that conversation;159 • Ms Broadbent reacted by putting "her books and folder and phone down with force on the table. She stood up. She was – she was challenging the principal in front of everyone…Stating that she would take a grievance out against the principal." Ms Broadbent's body language was "intense"; in particular, "She was standing up. 154 T 3-14, lines 47 – 48. 155 Exhibit 16. 156 Exhibit 9. 157 T 3-17, lines 19 – 20. 158 T 4-22. 159 Ibid. -- 42 of 54 -- 43 She was coming in closer. She was physically – her body. She had red face. She – she was heightened, in my perception."160 Ms Broadbent "came directly into the principal's personal body space, "within a 30-centimetre ruler, I would say"; • Ms Belous was already standing. She did not move when Ms Broadbent came towards her; however Ms Nikotemo then also moved towards Ms Belous;161 • Ms Broadbent said that "it was unacceptable how the meeting had gone down with teacher aides having a point of view"; • at this time, Ms Nikotemo was standing directly next to Ms Belous "not touching, but shoulder to shoulder" because she "could see fear and concern in the principal's face. I could see she was shaken. I could see – I felt really I needed to stand next to her and support." Ms Broadbent continued to stand directly before Ms Belous, yelling aggressively in her face;162 • "(Ms Belous) offered possibly three or four times for (Ms Broadbent) to leave as it was inappropriate behaviour, and she was advised to take a break. She was advised to go to region and talk to someone if needed. She was advised to take the day off. And as (Ms Belous) was advising and offering opportunities for her to leave, (Ms Belous) was walking, and I was walking shoulder to shoulder next to her towards the door because it was – we had duty coming up, and it was time to calm the room and be prepared for student arrival. So we walked across";163 • Ms Broadbent was "Still yelling at (Ms Belous), talking to her telling her she wouldn't leave the school, it's her school, it's not going to happen, she going to – we'll hear from her lawyers. It would be – it was going to be – she was taking a grievance out against the principal";164 • Ms Nikotemo absolutely rejected the proposition that she and Ms Belous grabbed Ms Broadbent by the arms;165 • Ms Nikotemo stated it was Ms Broadbent who slammed the door as she left;166 • Ms Nikotemo explained that the door automatically locked;167 • Ms Nikotemo denied that Ms Broadbent was "upset and shaken", instead insisting that she was "very angry when she re-entered the room";168 160 T 4-23, lines 1 – 21. 161 T 4-27. 162 T 4-23. 163 T 4-23; T 4-24. 164 T 4-24. 165 T 4-27. 166 Ibid. 167 Ibid. 168 Ibid. -- 43 of 54 -- 44 • then "Due to the distress of a number of teacher aides, crying, and people just overwhelmed and people in shock, it was about calming…";169 and • the door to the room is "consistently locked" - when one goes through the door and it shuts, it locks.170 Mr Barker [156] Mr Barker was present at the 1 March 2017 teacher aides' meeting. His evidence at the Hearing was that: • the whole leadership team would be present at the teacher aides meetings on occasion;171 • the issue of manual handling and training was discussed at the meeting;172 • the teacher aides raised questions around "the processes for training and training in the past and what training would be in the future";173 • Ms Broadbent entered the conversation "quite directly and abruptly"174 by speaking "over the top of two educational assistants that were talking. All had asked some questions and (she) disagreed with that they were saying";175 • when Ms Broadbent spoke over the top of the two teacher aides, "They were upset and felt they weren't being heard";176 • Ms Broadbent "became upset, agitated and aggressive towards the teacher aides and the Principal". She "targeted some teacher aides in the meeting" and "Directly pointed to them…". The teacher aides were visibly upset;177 • Ms Belous attempted to defuse the situation by saying it was probably a conversation for another time;178 • Ms Broadbent then "became very heightened". She "got louder, displayed visibly aggressive behaviours", "walking towards people, continually pointing towards people", culminating in her threat to file a grievance against Ms Belous;179 • towards the end of the meeting, Ms Broadbent stood up and walked towards the centre of the room where Ms Belous and the teacher aides were seated. Ms Belous 169 T 4-24. 170 Ibid. 171 T 3-23, line 4. 172 Ibid line 3. 173 Ibid line 27. 174 T 3-23, line 47. 175 Ibid line 45. 176 T 3-24, line 5. 177 Ibid lines 13 – 34. 178 Ibid line 48. 179 T 3-25, lines 4 – 27. -- 44 of 54 -- 45 stood up, met Ms Broadbent halfway and said that if she needs to take time away from the school, she's welcome to take it "because of the state she was in."180 Ms Broadbent responded that she would not leave the school;181 • Ms Broadbent stood very close to Ms Belous' face, "around 25 centimetres, I believe…";182 • Ms Belous followed as Ms Broadbent walked out of the room;183 • "The door is locked when someone comes in. It's just practice that you would go in through the door, you close it so students can't enter the door. It just becomes habit of what everyone would do";184 • when Ms Broadbent re-entered the room not minutes later, she came in very quickly, picked up something and left; • the teacher aides were still upset. "They were in tears. They were – they were uncomfortable seeing Veronica behave that way towards the Principal, yeah";185 • Ms Broadbent's behaviour at the meeting was "unprofessional". "She was frustrated, she was – appeared angry, she appeared aggressive, aggressive behaviour towards the educational assistants in the room and the teacher aides and towards the leadership team and she was loud";186 • Mr Barker rejected the proposition that he knew there was going to be a showdown between Ms Belous and Ms Broadbent at that meeting;187 and • Mr Barker absolutely rejected the proposition that Ms Belous and Ms Nikotemo grabbed Ms Broadbent by the arms and escorted her from the room.188 Finding [157] Having found earlier in this Decision that Ms Broadbent did threaten Ms Burstow's job security and that of other teacher aides in the open door meeting, it follows then that it is more probable than not that Ms Broadbent was again the aggressor at the 1 March 2017 meeting. [158] I have earlier in this Decision explained why I doubt the truthfulness of evidence given by Ms Broadbent, Ms Kerr-Morgan, Ms Brown and Ms Cridge. To the extent that their 180 Ibid lines 40 – 48. 181 T 3-26. 182 Ibid. 183 Ibid. 184 T 3-27. 185 Ibid. 186 Ibid lines 29 – 42. 187 T 3-49. 188 T 3-50. -- 45 of 54 -- 46 evidence conflicts with that of Ms Belous, Ms Nikotemo, Mr Barker and Ms Marlowe – I prefer the accounts of the latter witnesses. [159] On the balance of probabilities, I find on the evidence above that the following sequence occurred in meeting of 1 March 2017: • there was no collusion between the school leadership team and teacher aides about plans for any such show down at the 1 March 2017 meeting, as alleged by several witnesses for the Appellant's case. Those claims are a complete fabrication; • many teacher aides were concerned about workplace safety and wanted manual handling training to be provided. Some teacher aides raised questions around the processes for training, what had happened in the past and what ought to happen in the future. The perceived inadequacy of such opportunities had been a bugbear for some time and calls for appropriate training for all teacher aides were again ventilated – this time in the group setting of a teacher aide meeting; • Ms Oakey was not 'naming and shaming' other teacher aides because they had not been trained, she was advocating for appropriate training to be delivered to support their safety at work; • Ms Broadbent took this as a criticism of her personally and became defensive. At this point, Ms Broadbent stood up and talked loudly, "directly and abruptly" over the top of the teacher aides who were speaking; • Ms Broadbent asserted she supported safe manual handling practices but it was not a requirement for all teacher aides to be trained. Ms Broadbent said the teacher aides needed to work as a team. That is, the teacher aides that were more experienced or trained should be helping others; • Ms Burstow and some other teacher aides disagreed. A "heightened" exchange ensued between Ms Broadbent and some teacher aides; • Ms Broadbent's demeanour became aggressive towards the teacher aides in the meeting, as she directly pointed at them. The teacher aides were visibly upset, with at least two crying by that time; • Ms Belous attempted to defuse the situation by saying it was probably a conversation for another time; • Ms Broadbent reacted by putting her books and folder and phone down with force on the table. Ms Broadbent walked towards the door to exit the room, of her own volition; • the claim that Ms Belous and Ms Nikotemo stood over Ms Broadbent or laid hands upon her is a complete fabrication; -- 46 of 54 -- 47 • as Ms Broadbent moved to leave the room, Ms Belous followed her. Ms Broadbent turned, stood within 30 centimetres of Ms Belous' face and threatened to take out a grievance against her; • Ms Belous was demonstrably intimidated by Ms Broadbent's actions. Ms Nikotemo moved towards Ms Belous, in support; • Ms Belous responded by telling Ms Broadbent (words to the effect that) she would support her to take leave or to go to regional office to get support." Ms Broadbent retorted "I'm not leaving this school" and left the room; • Ms Belous closed the door behind her. It locked automatically; • Ms Belous then turned her attention to the teacher aides, who were by that time in varying degrees of upset and distress. Ms Belous was in the process of calming those who remained in the room when someone gestured to her that Ms Broadbent was trying to re-enter it. Ms Belous then opened the door and Ms Broadbent angrily walked past her to retrieve her books, phone and / or keys; • Ms Broadbent then left the room once again; and • the teacher aides gathered themselves and returned to their student duties. [160] I find that Stressor 5 did not happen as Ms Broadbent had alleged. [161] With respect to Stressor 6, I consider that the provision of a letter reminding Ms Broadbent of her obligations under the code of conduct was an entirely reasonable and retrained response by Ms Belous to the meeting conduct exhibited by Ms Broadbent. I cannot accept that Ms Broadbent felt very shocked when reading the contents of this letter, given I have found it to be an accurate record of events that took place. However I do understand that Ms Broadbent may well have been anxious about the consequences of her actions. I consider both Ms Broadbent's email to Ms Inglis the following day, and her email to Ms Rose disputing the record of what had occurred at the meeting, to be belated attempts to retrofit some alternative facts to instead cast herself as the voice of reason. [162] Ms Broadbent's accounts of the 1 March 2017 meeting - as told to Dr Concannon, Dr Yeung, Dr Lotz and Ms Bliss – were not true. [163] Therefore, the expert medical reports of Dr Lotz and Dr Yeung were based on a wrong history. -- 47 of 54 -- 48 Consideration of Stressor 7 [164] Ms Broadbent alleged the following events / conduct occurred: No. Date Title Description 7 Various – prior to 1 March 2017 Malicious comments made by Ms Burstow Prior to 1 March 2017, Ms Broadbent had discussions with colleagues (including Ms Louise McCormick, Ms Toni Brown, Ms Glenda Ritchie and Ms Kate Cridge), through which she became aware that Ms Burstow has been making a number of false and slanderous allegations about her. In the presence of other staff members, Ms Burstow had commented that: • Ms Broadbent had threatened Ms Burstow • Ms Broadbent had threatened the job security of Ms Burstow and other teacher aides • Ms Broadbent was incompetent and lacked transparency • They wanted to get rid of Ms Broadbent and get a new Business Services Manager (BSM) When Ms Broadbent was advised that Ms Burstow had made the above comments about her, it caused Ms Broadbent to feel stressed, anxious and fearful of the consequences of such malicious and false allegations. [165] It is important to first revisit Ms Broadbent's evidence as to what she understood Ms Burstow had said about her. Mr Myers What was your reaction to the allegation that you heard that you were incompetent and lacked transparency? Ms Broadbent This comment that's been made in here was something that I often heard from other teacher aides that Lyn Burstow had been expressing throughout the school about me. But none of this had ever come to me directly. Mr Myers And what do you say about it though? Ms Broadbent I went to Nicky Belous when I heard these things being talked of and asked her could I meet with her and perhaps bring this to the front because I was starting to feel very stressed. It was starting to distress me because there was so much going on and as a supervisor I felt the right way to do it would be go to Nicky, ask her could we all sit down together and this could be – I could be much more aware of and explicit of what they were making reference to here. Mr Myers And do you know what they're making reference to? Ms Broadbent No, I don't. Mr Myers And is there any – what do you say about a lack of transparency on your part? Ms Broadbent Definitely not a lack of transparency. Mr Myers And what about your competence in the role? Ms Broadbent My competency, well, I had been – I was in the position for a long time and I had never had performance issues or – I don't – I didn't feel in any way incompetent, but I had always supervised teacher aides, I had a lot of staff, I'd -- 48 of 54 -- 49 worked with a lot of principals. I don't know because I wasn't aware of what those issues are about my incompetencies, not from anyone. Mr Myers And the school authorities, the principals, the principal, the deputy principal, had you ever had those problems with them? Ms Broadbent No, I didn't have those problems with them at the time – at the time of this 1st of March I had never been indicated – up till the 1st of March I had never had – we even had an audit that was called in February, and even at – the auditor was there for five days and didn't say to me I was incompetent or had nothing – so no, I don't know with that – up to the 1st – reflecting up to the – this time, I don't -189 [166] I have earlier found that Ms Broadbent had likely threatened Ms Burstow and the other teacher aides' positions in the open door meeting of 16 February 2017. Therefore, Ms Burstow's retelling of that to her colleagues could not be considered to be a "malicious and false allegation"; notwithstanding she may well have felt "stressed, anxious and fearful" about the consequences of what had occurred. [167] Ms Cridge said that Ms Burstow repeatedly degraded Ms Broadbent's work abilities.190 Ms Brown alleged Ms Burstow said "disgraceful things about Ronnie" on a bus trip to a professional development day, including that "She's not transparent" and "that Ronnie needed to go".191 However, I have earlier explained why the evidence of both witnesses has little credibility. [168] Mr Barker's evidence at the Hearing was that while Ms Burstow had concerns about some of the processes and procedures in the school, Mr Barker had never heard her say that Ms Broadbent was incompetent.192 However Mr Barker agreed that he and most of the educational assistants held the view that Ms Broadbent lacked transparency.193 By way of some examples, Mr Barker cited areas such as "Vocational care program, some of the cleaning rosters, the training, the manual handling training, obviously, because that was the discussion of the meeting, replacements of educational assistants on the ground, on the staff of the day, who was going to be replaced and who wouldn't have been replaced. It wasn't just concerns about me, it was concerns from the other team leaders as well."194 [169] I have earlier explained why I found Ms Marlowe to be a credible witness. Ms Marlowe absolutely rejected the propositions that Ms Burstow had gone about telling people that Ms Broadbent was unsuitable for the BSM position – nor that Ms Burstow had ever expressed the opinion to her that Ms Broadbent's employment ought be terminated. Ms Marlowe said: To my conversations with Lyn there was never any denigrating of Ronnie at all. She was concerned about practices and issues at hand with the grievance.195 189 T 1-27, lines 30 – 48; T 1-28, lines 1 – 12. 190 T 2-48. 191 T 2-66, lines 25 – 45. 192 T 3 – 53, line 14. 193 Ibid line 17. 194 Ibid lines 25 – 29. 195 T 3-80, lines 30 – 32. -- 49 of 54 -- 50 [170] In light of the evidence above, I find that it is more probable than not that Ms Burstow: • did not say that she wanted to get rid of Ms Broadbent and get a new BSM (or words to that effect); • did tell other colleagues that Ms Broadbent had threatened her job security and that of the other teacher aides. That was not a false and malicious allegation but a true account of what occurred in the open door meeting of 16 February 2017; • did not say that Ms Broadbent was incompetent; and • did say that Ms Broadbent lacked transparency. That was a view shared by Mr Barker and, according to his evidence, most other teacher aides. [171] I observe too that allegations of incompetence and lack of transparency would not be "false and slanderous", given the subsequent investigation of matters pertaining to Ms Broadbent's performance and conduct. [172] I entirely agree with Mr Rashleigh's apt summation that: The alleged malicious behaviour of Burstow cannot be a stressor if the Appellant does not know of it. At best for the Appellant in respect of what she knew about what Burstow was allegedly saying, is that she was questioning her transparency and her competency. Given the matters that were put to the Appellant and with which she agreed in respect of her time at the Currumbin Special School, the Commission might think that the assessment by Burstow about the Appellant lacking transparency and competency was correct. The evidence from the other witnesses Brown, Kerr-Morgan and Cridge as to what Burstow might or might not have done is completely irrelevant when in fact the only things that came to the Appellant's knowledge was the Appellant's lack of transparency and incompetence. …that stressor is not made out on the evidence.196 [173] I find that Stressor 7 did not happen as Ms Broadbent had alleged. Conclusion [174] For the reasons above, I have found that the issues set out by Ms Broadbent as being the stressors are not made out. [175] In determining whether Ms Broadbent's employment was the major significant contributing factor in the onset of her psychological disorder, the Commission may be assisted by the medical evidence. In the end, though, having regard to the whole of the evidence, I must be satisfied on the balance of probabilities that employment is the probable cause of the injury.197 196 Respondent's closing submissions filed 4 January 2023, 5 [31] – [34]. 197 Ramsay v Watson (1961) 108 CLR 643, 645; Weiss v Workers Compensation Regulator [2020] QIRC 111, [158]. -- 50 of 54 -- 51 [176] As Industrial Commissioner Knight observed in Weiss v Workers Compensation Regulator ('Weiss'): Where the Commission is unable to verify the facts or if there is some question as to whether the circumstances or events complained of by Mr Weiss to his treating doctors or specialists have been accurately reported, then it follows their evidence may be of less value.198 [177] I have summarised the medical evidence at paragraphs [47] – [76] of this Decision. [178] There are a number of inconsistencies in the accounts provided by Ms Broadbent to the doctors, including: • Ms Broadbent told Dr Yeung that she had had problems with various principals going back to 2000.199 Ms Broadbent's evidence at the Hearing was that there were no issues until the arrival of Ms Belous;200 • Ms Broadbent told Dr Yeung and Dr Lotz that she was physically removed from the meeting room. That significant point was missing from her contemporaneous account of the 1 March 2017 meeting and I have found it did not occur; • Ms Broadbent told Dr Yeung that when she turned around to re-enter the room and she hit the door hard. That was also missing from her contemporaneous account of the 1 March 2017 meeting and I have found it did not occur. Having worked at the school for 18 years, Ms Broadbent would have surely been aware that the door automatically locked when snibed; • Ms Broadbent told Dr Yeung that "…she has had a lot of anxiety and depression. She recalled being quite depressed in 2004. She also recalled that from 2006 onwards, she had anxiety." However, Dr Lotz recorded that Ms Broadbent had no prior psychiatric history and that Ms Broadbent "started noticing features of anxiety commencing around February 2017"; • Ms Broadbent variously told Dr Yeung that the principal threw a manilla folder at her in March 2017 and in 2009; • Ms Broadbent told Dr Lotz in 2020 that she "had always had positive feedback regarding her work…". By that time though, an investigation had been conducted into various conduct and performance issues found to be substantiated; and • Dr Concannon stated to WorkCover in 2020 that Ms Broadbent had "…stated that she was bullied at work, 1/3/17 during a meeting, and that this bullying continued over the next 11 months"; however Ms Broadbent's claim here is that the stressors occurred up to 1 March 2017, not afterwards. [179] There are further examples of such inconsistencies. 198 [2020] QIRC 111, [159]. 199 Dr Yeung's report of 4 June 2018; Exhibit 1, pages 6 – 9. 200 T 1-31, lines 41 – 43. -- 51 of 54 -- 52 [180] In short, the medical evidence presented in this case was based on an entirely wrong history. [181] In cross-examination, Dr Yeung accepted the proposition that if Ms Broadbent's account of the teacher aides' meeting of 1 March 2017 was the complete opposite of what actually occurred, then it couldn't have contributed to her psychiatric condition.201 [182] While Dr Lotz had opined that significant contributing factors to Ms Broadbent's psychiatric condition were "the vicious conduct of the principal (and) Lyn Burstow"202 and "The event where she was inappropriately escorted from a meeting and then the door slammed behind her was also a significant contributing factor",203 I have found that did not in fact occur. [183] It was accepted by Dr Lotz and Dr Yeung that if the Commission found that to be the case, then their assessments that Ms Broadbent's employment was the major significant contributing factor to her psychological disorder was based on a wrong history. [184] Again in Weiss,204 Industrial Commissioner Knight said: Where an employee is unable to prove that the events which are claimed to have caused their injury occurred in the circumstances as described and as relied on by medical practitioners, a finding that employment is the major significant contributing factor is generally not available to the Commission.205 [185] I find that employment was not the major significant contributing factor to Ms Broadbent's psychiatric disorder. It was instead caused by her own conduct. [186] In those circumstances, Ms Broadbent's employment was not the real or affective cause of the personal injury - but rather merely the setting in which it occurred.206 Costs [187] In light of my conclusions above, an order will be made in favour of the Respondent to dismiss Ms Broadbent's appeal. [188] I will now consider the issue of costs. [189] In Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2),207 Justice Davis considered the issue of costs in a Workers' Compensation Appeal and relevantly stated the following (citations removed): 201 T 4-33, lines 1 – 13. 202 Exhibit 1, page 44. 203 Ibid 44 – 45. 204 Weiss v Workers Compensation Regulator [2020] QIRC 111 [168]. 205 WorkCover Queensland v Buchanan (2000) 165 QGIG 124; Vensa Misevski v Q-COMP (C/2009/29); Wicks v Workers Compensation Regulator [2018] QIRC 63. 206 Respondent's Statement of Facts and Contentions, filed 30 July 2021, 7 [2]. 207 [2021] ICQ 13. -- 52 of 54 -- 53 [16] The power to award costs under s 558 of the WCR Act is not limited like the power to award costs given by s 545 of the IR Act. It therefore follows that costs ought ordinarily follow the event. While costs would normally follow the event of the appeals to the QIRC, there is a discretion to make some other costs order. In Davidson v Blackwood, the point is made that in the absence of any reasons to make any other costs order, costs follow the event. That does not remove the discretion to make some other order and does not extinguish the necessity to give reasons why any costs order was made… … [24] Section 558 provides as follows: "558 Powers of appeal body (1) In deciding an appeal, the appeal body may— (a) confirm the decision; or (b) vary the decision; or (c) set aside the decision and substitute another decision; or (d) set aside the decision and return the matter to the respondent with the directions the appeal body considers appropriate. (2) If the appeal body acts under subsection (1)(b) or (c), the decision is taken for this Act, other than this part, to be the decision of the insurer. (3) Costs of the hearing are in the appeal body's discretion, except to the extent provided under a regulation." (emphasis added) [25] By s 558(3), what is "in the appeal body's discretion" (here the QIRC ) are the "costs of the hearing". The "costs of the hearing" may be quite a different thing to the "costs of the appeal". [26] The power to award costs is not a common law power. It is one granted by statute. Consequently, if the QIRC does not have a power vested by statute to award costs of the appeal beyond the costs of the hearing, then it cannot do so. … [28] However, the QIRC's only power to award costs in this case probably comes from the WCR Act, not restricted by s 545 of the IR Act. In determining the proper construction of s 558(3), and in particular the meaning of the term "costs of the hearing", regard must be had to the context and purpose of the section having regard to the statute as a whole. [29] In my view, the legislature has clearly deliberately limited the costs which can be recovered on an appeal to the QIRC. It has drawn a clear distinction between different parts of the appeal process. While the legislation envisages that the appeal process may involve a conference, no power to award costs associated with a conference is given. The costs are limited to the "costs of the hearing". [30] The law of costs recognises "costs of action" and "costs of trial". In my view, they equate to "costs of appeal" and "costs of hearing" respectively. The distinction is explained by Professor Dal Pont in his work Law of Costs in these terms: "1.19 An order for 'costs of the action' includes not only costs of the trial but also those of interlocutory proceedings and their preparation (such as costs relating to interrogatories, notices to produce and admit and preparation of counsel's brief). These represent the costs to which the successful party in the action is entitled on taxation or assessment, in the absence of an order to -- 53 of 54 -- 54 the contrary. The 'costs of the trial' cover only the costs incurred in the conduct of the trial itself, not any interlocutory matters preceding the trial. In any case, as an action ends with judgment, each of these orders excludes costs incurred after final judgment. Costs of executing the judgment are therefore not costs of the action (or of the trial) but are payable of the execution." [31] I accept that distinction. I consider that the term "costs of the hearing" in s 558(3) is equivalent to "costs of trial" recognised by the law of costs and explained by Professor Dal Pont. [32] Consequently, when the QIRC is exercising a discretion under s 558(3) of the WCR Act, the order which should be made is not "costs of the appeal" but "costs of the hearing" and costs assessors should assess the "costs of the hearing" as they would "costs of trial" as explained by Professor Dal Pont. [190] Section 132(1) of the Workers' Compensation and Rehabilitation Regulation 2014 (Qld) provides that "A decision to award costs of a proceeding heard by an industrial magistrate or the industrial commission is at the discretion of the magistrate or commission." [191] Costs in Workers' Compensation Appeals ordinarily follow the event. Had Ms Broadbent not initiated this proceeding, the Respondent would not have incurred the expense which it did during the hearing of this matter. In my view, an award of costs in favour of the Respondent is reasonable and appropriate. For those reasons, a costs order will be made in favour of the Regulator. [192] For the reasoning outlined in Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2),208 Ms Broadbent will only be required to pay the "costs of the hearing" rather than the "costs of the appeal". [193] I order accordingly. Orders 1. The appeal is dismissed. 2. The Respondent's decision of 17 March 2021, as set out in correspondence dated 22 March 2021, is confirmed. 3. The Appellant is to pay the Respondent's costs of the hearing, to be agreed or, failing agreement, to be subject to a further application to the Commission. 208 [2021] ICQ 13. -- 54 of 54 --