Du Preez v Workers' Compensation Regulator [2020] QIRC 109

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Du Preez v Workers' Compensation Regulator [2020] QIRC 109 PARTIES: Du Preez, Edelweiss (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2018/16 PROCEEDING: Appeal against decision of Workers' Compensation Regulator DELIVERED ON: 28 July 2020 HEARING DATES: 25 September, 4-8 and 11-13 November 2019 25 June 2020 MEMBER: HEARD AT: O'Connor VP Brisbane and Cairns ORDERS: 1. Appeal is dismissed; 2. The decision of the Regulator is confirmed; and 3. The appellant is to pay the respondent's costs of and incidental to the appeal. CATCHWORDS: WORKERS' COMPENSATION - APPEAL - where psychological or psychiatric injury - where appellant contended stressors causative of injury - where principal had concerns about appellant's teaching performance - where implementation of formal managing -- 1 of 37 -- 2 unsatisfactory performance process - where appellant made allegations about the way the process was initiated and conducted - whether employment was the major significant contributing factor to the injury - whether the injury was excluded by virtue of s 32(5) of the Workers' Compensation and Rehabilitation Act 2003. LEGISLATION: CASES: Workers' Compensation and Rehabilitation Act 2003 (Qld), s 32. Simon Blackwood (Workers’ Compensation Regulator) v Mahaffey [2016] ICQ 010 Simon Blackwood (Workers’ Compensation Regulator) v Adams [2015] ICQ 001 Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 27 Lawton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 99 Davis v Blackwood [2014] ICQ 009 APPEARANCES: Ms E. Du Preez appeared for herself. Mr P. B. Rashleigh of counsel, directly instructed by the Workers' Compensation Regulator. Reasons for Decision [1] Ms Edelweiss Du Preez has appealed to this Commission against a decision of the Workers' Compensation Regulator to reject her application for compensation for a psychological or psychiatric injury. At the relevant time the appellant was a senior teacher based at the Mission Beach State School (MBSS), Northern Queensland. [2] The injury claim is for depression and anxiety diagnosed as being caused by "longstanding bullying throughout the Tully and Mission Beach school district starting at least from the first Managing Unsatisfactory Performance 'MUP'…"1 process. The timeframe relevant for this appeal is approximately 21 November 2016 until 13 June 2017. 1 Exhibit 21 - Independent Medico-Legal Report by Psychiatrist, Dr Mary-Ellen O'Hare, p 379 - citing medical certificate issued by General Practitioner, Dr Carla Jensen. -- 2 of 37 -- 3 [3] To provide a brief factual overview the appellant worked predominately as a primary school physical education teacher for more than two decades. In late 2015 the appellant's role transitioned to include more classroom work and by January 2017 the appellant was appointed as a full-time Year 6 classroom teacher. The appellant struggled with the transition to the classroom teaching role and the school Principal, Mr Gordon Robertson, began to have concerns about the appellant's teaching performance. Mr Robertson spoke with the appellant informally on a number of occasions about her teaching performance, however, ultimately a decision was made to implement a formal MUP process on 2 June 2017. [4] Central to the appellant's case is the evidence of Mr Robertson: it is alleged that he failed to provide adequate support; treated her unfairly; threatened her; and, initiated a MUP process improperly. [5] The appellant identifies the following 14 stressors which she contends were causative of her injury: Stressors2 1. Being denied a classroom teaching role for the second time on or about 21 November 2016. 2. Mr Robertson's threat to Ms du Preez on or about 22 November 2016. 3. Mr Robertson placing Ms du Preez' name in the staff message book on or about 24 November 2016. 4. In terms 1 and 2 of 2017, being provided professional development 4 to 5 months after Ms du Preez commenced in the Year 6 teaching role and this was after Mr Robertson began the appraisal process (by instigating a Performance feedback review) without notice in respect of instigating a Managing Unsatisfactory Performance (MUP) process. 5. On 7 December 2016, or after Ms du Preez required transfer from a Physical Education role, failure of Mr Robertson to provide an induction, and the required ATPR identified within this process, to support Ms du Preez' transition to the classroom teaching role. 6. Failure to provide Ms du Preez with support after a student within her class made comments of a sexual nature about her after the Year 5 camp in 2016 and before Ms du Preez teaching these students involved in this abuse 2017. 7. Mr Robertson attending her classroom unannounced and taking over the lessons from her in the period 25 January 2017 until 12 June 2017 without providing or identifying any required support. 8. Not being provided access to mentoring teachers and Mr Robertson allocating support teachers to Ms du Preez without consultation with her during terms 1 and 2 of 2017, and during the MUP process. 2 Exhibit 4 - "Statement of Stressors" typographical errors in original. -- 3 of 37 -- 4 9. Mr Robertson's decision to remove a child from her class – the process in which this was conducted, the failure to consider the effect on the dynamics of her class, and the way in which this was communicated to Ms du Preez. 10. Mr Robertson attending upon Ms du Preez in terms 1 and 2 of 2017, his failure on 2 June 2017 to provide adequate support to Ms du Preez, or check up on her, following the circulation of a petition by a child in her classroom to have her sacked and suffering abuse at the hands of a parent, as well as appraising her performance directly thereafter. 11. Being required to have a 'demonstration' lesson without adequate notice and making an observation during an EMMS lesson directly after the parental abuse on 2 June 2017. 12. On 2 June 2017, being provided a formal MUP letter and Mr Robertson using the subsequent observation made directly after this abuse for appraisal and requesting a demonstration lesson all on the same date as the parent abused Ms du Preez. 13. The timeframe in which the performance feedback review was undertaken, and the information within this review being incorrect was unfair and unjust, as well as being denied natural justice in respect of Mr Robertson's Performance Feedback Review provided to Ms du Preez by WorkCover on 28 June 2017. 14. Instigation of the MUP process including Mr Robertson: a. failing to consider mitigating circumstances; b. not making observations relating to the concerns identified in the preliminary meeting or providing appropriate feedback after the preliminary meeting on 2 May 2017; c. failing to negotiate adequate timeframes to improve performance; d. failing to use appropriate data about children's outcomes placing her on the MUP process; e. failing to be equitable and confidential; f. failing to document the MUP process correctly. [6] In an appeal of this kind the onus of proof is on the appellant to demonstrate that her injury arose out of, or in the course of, her employment and that her employment was the major significant contributing factor.3 Where questions of management action arise the appellant must prove that her injury is not excluded by virtue of s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 (the WCR Act). Background [7] The appellant was interested in coaching athletics, swimming and gymnastics and in the early 1990's enrolled at university as a mature age student. In 1994 she obtained a Bachelor of Education majoring in Physical Education from the University of New England. Upon graduating, the appellant commenced teaching in Childers in or around 1995. 3 Section 32, Workers' Compensation and Rehabilitation Act 2003. -- 4 of 37 -- 5 [8] For more than a decade, the appellant worked at a number of schools in North Queensland choosing to move between schools both for personal and professional reasons. [9] In 2008 the appellant moved to the Cairns Hinterland Region of the Queensland Department of Education and in the October of that year, started work as a PE teacher at the MBSS. [10] In 2012 the appellant was appointed a senior experienced teacher. 2013 - The First "MUP" [11] In 2013, the appellant was subject to a MUP process which was instigated by the then acting Principal of MBSS, Ms Siobhan Jackson. [12] The first MUP is not relevant to the present appeal and it was the subject of another claim for workers' compensation which was initiated with WorkCover in September 2013. [13] A MUP process has four stages: Stage 1 "Identification and Improvement Plan"; Stage 2 "Improvement"; Stage 3 " External Review"; and, Stage 4 "Board of Review".4 [14] In 2013 the appellant's MUP had proceeded to Stage 3. [15] In October 2013 the appellant informed WorkCover that she would not be continuing with the claim as she had returned to work and was able to resume normal duties. [16] On 24 December 2013, Richard Huelin, the Regional Director of Far North Queensland Regional Office notified the appellant that the MUP process would be returned to a Stage 2. Ultimately, in 2014 Mr Gordon Robertson, the school Principal, decided to terminate the MUP. The Evidence [17] The appellant's primary teaching discipline was health and physical education. In addition to working at MBSS, the appellant worked at a number of other schools within the region as part of a circuit. A circuit exists because an individual school, such as MBSS, does not require a full-time PE teacher. A full-time teaching position is denoted as "1.0" position. [18] In 2015 the appellant expressed concern that the circuit arrangements resulted in her working excessive hours due, in part, to the time required to commute between the various schools. 4 Exhibit 11. -- 5 of 37 -- 6 [19] In response to the appellant's concerns, Mr Robertson adjusted the appellant's schedule by allocating to her an FTE of 0.6 as a PE teacher and an FTE of 0.4 as a Local Relieving Teacher (LRT). The appellant said that when working as an LRT she did not have a speciality area but was required to relieve whatever the class was. [20] In late 2015 the appellant informed Mr Robertson that she was eager to undertake classroom work in order to obtain experience to permit her to apply for a transfer to Southern Queensland. The appellant's intention was to obtain classroom experience prior to moving because, "I didn't want to land in a city like Brisbane without some classroom experience. I wanted to get some experience after 19 years - or 17 years as a PE teacher and two as a local relief."5 [21] Accordingly, in 2016 the appellant was placed into a District Relieving Teacher (DRT) role. Whilst similar to the LRT position, the DRT role involved relieving at other schools. Mr Robertson's evidence was that he thought the DRT role would be suitable for the appellant because: It would provide really good grounding across a number of classrooms in terms of planning, preparation and classroom management. She would be working across the full spectrum of classrooms and get a - a good insight into how other teachers were operating …6 [22] As the appellant was now occupying the DRT role another teacher was brought in from Tully High School to fill the now vacant FTE 0.6 physical education role previously occupied by the appellant. [23] Mr Robertson's intention was to keep the appellant in the DRT role for the duration of the 2017 school year, however, he was informed by Regional Office that the appellant required a classroom placement and therefore should not continue in the DRT role. [24] An arrangement was put in place which involved Ms Danielle Ciranni, a Year 6 teacher, taking up the DRT role previously held by the appellant. The appellant was then allocated a Year 6 classroom teaching position at MBSS from the commencement of the 2017 school year. [25] The appellant told Mr Robertson that she would have preferred to be placed into a Year 3 or 4 class rather than a Year 6 class. Mr Robertson told the appellant that it was not possible as it would require a "full reorganisation of the school, the teaching staff across the school, which I wasn’t prepared to do…"7 [26] Mr Robertson told the Commission that in allocating the teaching positions within the School, he was mindful that the lower grades were formative years and required teachers with a particular skill set. 5 TR1-27, L32-36. 6 TR4-66, L15-20. 7 TR4-79, L35-37. -- 6 of 37 -- 7 Commencement as a Year 6 classroom Teacher - 2017 [27] The MBSS had two Year 6 classes. Year 6A was allocated to Ms Helen Dorante; and year 6B was allocated to the appellant. [28] Ms Dorante acted as a mentor as "I was aware that she hadn’t been in the classroom for a while, so I gave her as much support as I could". That support took the form of a split in teaching whereby the appellant taught History to both 6A and B and Ms Dorante taught Geography to both classes. Similarly, there was an arrangement where Ms Dorante would prepare the Science class homework sheets for both classes which gave the appellant an opportunity to focus on English and Maths. Ms Dorante explained the thought process around the division of work as follows: Because in that first term while she was coming back into the classroom, she wouldn’t need to worry about doing homework sheets, and she’d have an example of - of what we did, and she wouldn’t have to worry about the science content at all for that first term, so it would just allow her to focus on less subjects.8 [29] Ms Dorante told the Commission that she thought the support the appellant was provided would help "to give you an easier transition by taking science and homework in the first term and allowing you to find your feet, before you to (sic) take them on second term".9 [30] The appellant contended that the split workload arrangement made it more difficult for her. Ms Dorante responded to the contention during cross-examination: And I thought - I honestly thought you were happy with the arrangement we had. Because I thought it allowed a transition for you to come in and have less first term. And I thought that that was what you wanted. So now I’m quite stunned that you’re making out that that added pressure to you. I thought I had taken the pressure from you for the first term. It was challenging. I remember it being challenging with geography, too, trying to fit it all in. It was tricky.10 [31] However, the appellant's evidence suggested that she accepted that the workload arrangement was beneficial for saving teaching time which was an issue for the appellant who struggled to get through the class content in the allocated time. The appellant's evidence was: I preferred to open the two doors of the two classrooms and teach all of grade 6 while Ms Dorante was my support person walking around. And then in reverse, when she had Geography. I would do the same - or Science. I would do that same for - we open up the doors. This process would have saved teaching the same lesson twice - wasting - instead of having one hour for both classes learning a subject, we now had two hours for two classes to do a subject…11 8 TR5-24, L15-20. 9 TR5-73, L14-16. 10 TR5-70, L23-29. 11 TR4-84, L36-40. -- 7 of 37 -- 8 [32] Ms Dorante accepted that the Year 6 curriculum was crowded and it was a challenge to get through everything before the end of the term and that she was constantly saying "time is of the essence".12 [33] Ms Dorante's evidence was there were behaviour management problems in both Year 6 classes and that she had offered to assist the appellant with any discipline problem by suggesting strategies such as contacting parents and recording incidents on the OneSchool program. The OneSchool program is software that the Education Department uses which records planning and assessment and provides a record of any contact or discussion between staff, students and parents. OneSchool is beneficial in determining what action might be taken in respect of behaviour management because it provides a record of all past incidents. Plainly, the importance of recording incidents on OneSchool was paramount and there were due dates for the collection of data which Ms Dorante said she reminded the appellant of. Issues arise with the appellant's teaching performance [34] Mr Robertson had a routine of unannounced classroom visits. Mr Robertson's evidence was that he tried to visit all classes "… [s]ometimes it doesn’t happen, but I try to get into every classroom, every day, whether it’s for a short period of time or otherwise". Mr Robertson said that for the start of 2017 he would have visited the appellant's classroom on a daily basis. There were a number of occasions or "incidents" where Mr Robertson observed unsatisfactory teaching. The "Federation" incident [35] It will be recalled that the appellant had responsibilities to teach History to both Year 6 classes. Exhibit 14 is a document which provides an overview of some of the history curriculum which includes topics as: • the significance of Federation in the development of Australia as a nation; • the significance of Henry Parkes' role leading to Australia's Federation; • the significance of the Corowa Conference to Australia's Federation; and • understand how to construct a history timeline. [36] Mr Robertson said that when he arrived at the appellant's class, she was teaching history, and the appellant was trying to draw some sort of link between Australia Day and federation and, in his view, the students were confused about what was being taught. As a result, Mr Robertson took over the class from the appellant and "went through, very quickly, how to look at what the - what the lesson intent was, from the C2C documentation and tried to carry that lesson in an explicit way."13 Mr Robertson's evidence was that after the class had concluded he spoke outside the classroom with the appellant and told her that she needed to understand the content of the lesson prior to teaching it. 12 TR5-26, L24. 13 TR4-84, L1-2. -- 8 of 37 -- 9 Mr Robertson said that the appellant responded by saying that "history was not her forte". Mr Robertson stated in examination-in-chief: At that stage, it was very early in the year and it was just, really - I - I thought, "Yeah. She's settling in. Trying to get - get her head around it," so it was really just a, you know, "Make sure you know what you're talking about, before you try to teach it." So there was no - there was no real drama or issue, at that stage.14 The "Timeline" incident [37] Approximately two weeks after the "Federation incident" Mr Robertson observed an issue with how the appellant was teaching the students to construct a timeline. The appellant was instructing the students to draw a line and then to cut the line into nine equal portions and then to place an event on each line. The appellant explained her method under cross-examination: A timeline has to - when you have a timeline, and the worksheet actually has the directions on it, that if I do a timeline from 1900 to nineteen - or 2000, I would divide the timeline equally into portions. Therefore, if an event fell between - if I divided it into decades and an event happened halfway between a decade, maybe on the - on 1975, then that point or that mark would be not … 15 [38] Mr Robertson's evidence was that the problem with the appellant's method was that it missed the intent of the timeline which was to show the "the clustering of actions that occurred over a short period of time and lapses in time between there and something else". Mr Robertson said that by telling the students to cut the line into equal portions it meant that there was no indication that some of the events were closer together than others.16 [39] Mr Robertson stated that he took the appellant aside and explained to her that it was "not how a timeline works", and that he spoke with the students and the timeline was redrawn. Mr Robertson said he reiterated to the appellant that she needed to know the content before teaching it. The "Newspaper Report" incident [40] An issue arose with how the appellant was teaching the students to write a newspaper article. The students were required to write a feature article for a newspaper on the significance of Henry Parkes' contribution to Federation. The students were given a template in which to write the article and there were specific instructions that the article should include: • a headline; • a lead sentence which introduces the topic and explains the writer's point of view; 14 TR4-85, L33-36. 15 TR3-87, L34-38. 16 However Exhibit 14 states the instructions for the task are to "divide the timeline into equal intervals of time". -- 9 of 37 -- 10 • a body of paragraphs giving information about Henry Parkes; • an interesting caption for the photograph; appropriate historical terms and concepts; and • a variety of language features such as evaluative language to express opinion, expanded noun groups and text connectives of time.17 [41] Notwithstanding that the task contained specific instructions for its completion the appellant's evidence was that her instructions to the students were, "As long as you can tell me about the significance of Henry Parkes. That’s all I want from you".18 There was a suggestion, under cross-examination, that some students were writing the report in dot points, and the following exchange occurred: Mr Rashleigh: But how could you report - mark them on the structure of the report when, in fact, they just put dot points down? Appellant: As I said, I was not marking them on their report writing. I was purely marking them, and I wanted to make it clear to them that it - the structure of the report is not the concern. It's what you can tell me about Henry Parkes. [42] The appellant's instructions to the students were completely at odds with the nature of the task which required the article to be structured as a newspaper article containing, inter alia, a headline, a lead sentence and a body of paragraphs. Mr Robertson had other concerns with how the lesson was being taught: Mr Rashleigh: But when you came into the classroom, in respect of this, was there something that caused you concern? --- Mr Robertson: Initially, it was one of the children put their hands up and asked the question, "Do we have to write this from a - a historical time or can we write it, just now, about federation from the past?" And the - the assessment actually asked for it to be of the time, with the historical language, etcetera, and, at that stage, Ms Du Preez just said, "Oh, you choose". Mr Rashleigh: All right? Mr Robertson: But then [she] had a look at the task and said, "Oh, no. It’s - it - no. Write it - it has to be from that - that period of time." So, at that stage, the kids didn't know what they were doing.19 [43] Mr Robertson's evidence was that he intervened and told the students that the task required completion from an historical perspective and that he once again spoke to the appellant informally that she needed to "understand what you're doing". The Mathematics class incident 17 Exhibit 20. 18 TR3-94, L34-35. 19 TR4-90, L4-13. -- 10 of 37 -- 11 [44] Towards the end of term 1 around Easter 2017, Mr Robertson noticed an issue with how the appellant was managing the students whilst teaching a Mathematics class. Mr Robertson articulated his concerns as follows: Mr Robertson: The - the work that was being undertaken, a number of children just flew through it, had it finished, had it right and they - they were sitting there, Ms Du Preez was working with a couple of kids who were struggling with it, and had - was very focused on the work that she was doing with them, but, in the meantime, the others had finished, were waiting and were getting very restless and - and not - not focused on any of their work. Mr Rashleigh: What was the problem with concentrating on the children that hadn't finished and- - -? --- Mr Robertson: No problem with concentrating on the children that - that hadn't finished … The problem was not acknowledging those who had and giving them something additional or something different to go on with. Mr Rashleigh: All right. And is that usually what a teacher might do? Mr Robertson: Yes. Mr Rashleigh: All right. At least in your experience? --- Mr Robertson: Yes. In my experience. Mr Rashleigh: And would that be an expectation of you, as principal of the school? Mr Robertson: Yes. It would.20 [45] Mr Robertson explained that the teachers undertook professional development around "differentiation" which is "providing different levels or instruction, different context, different timeframe, different content to those students who are struggling with their work and, at the same time, providing the appropriate curriculum for others who would be ahead."21 [46] Mr Robertson said that in early term two parents had approached him and were raising concerns about the appellant and her teaching abilities. Monkey Bars incident [47] On 2 May 2017 there was an incident between the appellant and a boy sitting on the monkey bars. She asked the school captain to request a boy to get down from the monkey bars. When the appellant's back was turned, the boy apparently gave her "the bird". Whilst the appellant did not personally see the incident, the matter was reported to her by a group of female students. 20 TR4-91, L20-37. 21 TR4-91, L45, 46; TR4-92, L1, 2. -- 11 of 37 -- 12 [48] The appellant complained to Mr Robertson. Mr Robertson acted immediately on the complaint by the appellant and spoke individually to the students. It became apparent that the students did not actually see the incident. The student responsible later told the appellant that he had made a gesture but that it was not directed at her. Notification of unsatisfactory work performance [49] On 28 April 2017 Mr Robertson requested a meeting with the appellant regarding her performance as a classroom teacher. [50] The meeting between Mr Robertson and the appellant was held on 2 May 2017. Also, in attendance was a Year 2 teacher, Ms Teresa Camilleri, who acted as a support person. At the meeting Mr Robertson outlined a number of concerns he had with regard to the appellant's teaching. In particular, a lack of effective clarity in lessons; knowledge of curriculum content; lesson structure; student engagement in learning; and behaviour management. [51] Mr Robertson emphasised "explicit teaching", which involved direct and structured learning of establishing a clear learning intent at the start of the lesson. Mr Robertson said he was concerned about the appellant's knowledge, and the clarity of the lessons and that he wanted the appellant to use the explicit teaching format. [52] In response to a question from the appellant in cross-examination, Mr Robertson said: I can remember talking to you, as I did on every occasion that I visit you, about the clarity of your presentation and about the need for you to know what it is that you’re teaching before you teach it, so learn your content before you went in and tried to teach it".22 [53] Mr Robertson gave the appellant a professional development presentation which was a research paper that discusses the concept of "what makes a good teacher". Mr Robertson printed out the PowerPoint and went through it with the appellant. The appellant said she found that the attendance of the support person, Ms Camilleri, was particularly helpful because Ms Camilleri was able to provide the appellant with resources that she could use in her classroom. [54] The meeting on 2 May 2017 is significant in that it marks the first formal occasion that Mr Robertson expressed his concerns to the appellant in relation to her teaching performance. [55] The appellant said the meeting of 2 May 2017 caused her concern "because of the threat". The appellant alleged that Mr Robertson had told her in late 2016 that he was "going to make it hard for her". Mr Robertson denied the allegation. 22 TR7-100, L36-39. -- 12 of 37 -- 13 [56] On 2 June 2017 Mr Robertson conducted a demonstration lesson and sat in on one of the appellant's classes. He observed that that the appellant's knowledge was lacking in the marking of Essential Maths Mastery (EMMs).23 [57] On the same day, Mr Robertson spoke with the appellant and informed her that, in his view, there had not been a sufficient improvement in her teaching performance. Mr Robertson gave the appellant a letter which detailed his concerns. The letter read: Dear Ms Du Preez, I am writing in relation to recent discussions surrounding your work performance in your role as a Year 6 classroom teacher at Mission Beach State School The following general areas of concern with regard to your work performance have been previously discussed with you: • A lack of effective curriculum clarity in planning and enacted lessons • Behaviour management processes and student engagement in learning • Lesson structure including pacing of instruction, clarity of learning intent and success for students • Knowledge of curriculum content As there has not been adequate improvement in the above areas during the last 14 weeks of review, you are formally advised that you are now subject to a formal managing unsatisfactory performance improvement process. A flowchart outlining the details of the process as well as a copy of the relevant managing unsatisfactory performance procedure accompanies this letter. If at the conclusion of the managing unsatisfactory performance process your performance remains unsatisfactory a disciplinary process may be initiated which could result in the termination of your employment. On the basis of the above, I invite you to attend a meeting at the principal's office, at 3:20 p.m. on Tuesday, June 06 to discuss the enclosed draft Identification and Improvement Plan with myself. This meeting will provide an opportunity for you to comment, amend or make suggestions or inclusions to the plan. You will also have the opportunity to share any information which you believe may affect your ability to meet the requirements of your position. I encourage you to bring along a support person to this meeting. Further information in relation to the role of a support person is included in the attached procedure. A support person may include a union representative.24 [58] As the appellant had failed to demonstrate an adequate improvement in her teaching a MUP process was initiated. 23 TR4-99, L9-10. 24 Exhibit 8. -- 13 of 37 -- 14 [59] On 5 June 2017 the appellant attended upon Dr Carla Jensen, a general practitioner, who told the Commission in examination-in-chief that, "you were very upset, and you told me that there was some possible disciplinary action happening at school. You said that you felt bullied, you felt that things had been unfair, and I assessed you as being very upset. You even had a little bit of suicidal ideation which led to a referral to a psychologist and I got you to come back a few days later to check on you."25 [60] On 6 June 2017 a further meeting was held between Mr Robertson, the appellant and Ms Bultreys (a support person) to discuss the MUP process. [61] On 13 June 2017 the appellant again saw Dr Jensen at which stage she was diagnosed as having "depression and anxiety, effects of bullying" with the stated cause of injury being "longstanding bullying throughout Tully and Mission Beach School district starting at least from the first MUP".26 [62] The appellant ceased employment on that day and as at the hearing of this matter had not returned to her employment. The Medical Evidence [63] On 13 June 2017 Dr Carla Jensen, a general practitioner, issued a workers' compensation medical certificate diagnosing the appellant as suffering from depression and anxiety. [64] In examination-in-chief, the appellant was asked to outline the matters of concern that she conveyed to her General Practitioner. The matters identified included: • that there were no more positions for her at the school; • that Mr Robertson was continually in her classroom; • that she felt as if it did not matter what she did that the MUP would have happened anyway because of the threat; • that because she wanted to be in a classroom it meant that someone had to be a DRT and that "I was getting what I want at their expense"; • that she felt alienated by the staff; and • she felt that she was the extra person and the other staff felt that she should have remained as the LRT teacher.27 [65] Dr Mary-Ellen O'Hare, a consultant psychiatrist conducted an examination of the appellant on 20 May 2019 and produced a medico-legal report dated 4 June 2019.28 [66] In formulating her opinion, Dr O'Hare took into account the appellant's self-report, the history provided, the mental status examination and the accompanying material. Based on review of the above, Dr O'Hare concluded that the appellant was suffering from: Post- traumatic stress disorder, with delayed expression; persistent depressive disorder 25 TR1-102, L46-47; TR1-103, L1-4. 26 TR1-104, L11-13. 27 TR1-86, L7-47. 28 Exhibit 21. -- 14 of 37 -- 15 (Dysthymia) with mixed features, in partial remission, with late onset, with persistent major depressive episode, current severity moderate; and mild neurocognitive disorder due to multiple aetiologies. [67] In the report of Dr O'Hare, the workplace injury was described in the following way: The injury Ms du Preez has sustained in 2017, which is the focus of this report, represents an injury which has exacerbated longstanding conditions which have waxed and waned earlier in her life. She became wholly unable to work following the injury which occurred leading up to and finally culminated in June 2017 which included challenge to her professional performance, lack of support in the workplace such as when abused by parents and by students, lack of training, marginalisation and failure of her employer to adhere to recognised process in performance management undertaken which appears to have not met the legislative requirements. Furthermore, the application for Workcover claim being rejected further exacerbated her two conditions worsening her depression anxiety and suicidality. [68] Dr O'Hare expressed the opinion that: There had been an aggravation of psychiatric disorders and the aggravation arises in the course of her employment and the employment is the major significant contributing factor to the aggravation. [69] In oral evidence before the Commission, Dr O'Hare said that the appellant had a longstanding post-traumatic stress disorder and a depressive disorder that predated the issues that are said to be the stressors.29 In her professional view, Dr O'Hare said that the injury sustained by the appellant was an aggravation or exacerbation of pre-existing disorders. The stressors identified by the appellant led to the development of her condition.30 Dr O'Hare was of the view that the stressors were the major significant contributing factor to her injury. The Stressors [70] In this jurisdiction the statement of stressors serves an important purpose. In Simon Blackwood (Workers’ Compensation Regulator) v Mahaffey Martin J said: The requirement for a worker to produce a Statement of Stressors does not arise from the Act or any Regulation. The requirement comes from the standard direction given in these matters. The purpose of this statement is, at least, twofold. First, it identifies for the respondent those matters which the appellant will be contending were the cause of the appellant’s disorder. Secondly, it serves to confine the issues which must be considered on the appeal. Where such a direction has been given, then an appellant may not depart from the Statement of Stressors without leave.31 [71] The statement of stressors not only serves to confine the issues and matters said to give rise to the injury, but it also functions to prevent the Tribunal from considering issues 29 TR5-99, L20-23. 30 TR5-103, L43-45. 31 [2016] ICQ 010, [35]. -- 15 of 37 -- 16 which go beyond the boundary of the appeal. As stated by Martin J in Simon Blackwood (Workers’ Compensation Regulator) v Adams: The case which was mounted by Ms Adams before the Commission was one which was based upon the stressors set out in the Statement of Stressors. The Regulator was entitled to engage in the proceeding on the basis that they were the matters which constituted the entirety of the claim made by Ms Adams. The Commission rejected nearly everything of substance advanced by Ms Adams so far as those stressors were concerned. In making the findings set out in paragraph [86] of her reasons, the Commissioner departed from the case which had been conducted before her. The conduct found to have occurred was not the conduct which was the subject of the Statement of Stressors. It is an error for a Tribunal in cases where the boundaries of the application have been set by a document such as a Statement of Stressors to go beyond that boundary when making findings. It was an error to find that the conduct (offensive as it was) operated to cause Ms Adams' injury simply because this conduct was likely to have caused distress to Ms Adams. I accept the appellant's argument that Ms Adams did not give evidence of the conduct that Mr Hippisley admitted to and, accordingly, it could not have operated to have caused her injury.32 [72] It must be said that some of the stressors complained of appear to be more like generalised complaints. The distinction between a complaint and a stressor is that a stressor is a factor which is said to be causative of the injury. As Martin J said in Hardy v Simon Blackwood (Workers’ Compensation Regulator): It is the responsibility of all parties to appeals before the Commission to conduct the litigation as efficiently as possible and to confine the matters for decision to those which truly need to be decided. It is a matter for concern that a list of 49 matters was presented to the Commission when, in the internal review conducted by the Regulator, only two stressors were relied upon.33 [73] Let me now consider each individual stressor identified by the appellant. Stressor 1 - being denied a class teaching role for the second time on or about 21 November 2016 [74] The manner in which this stressor has been framed is not accurate as the appellant was not denied a classroom teaching role, she was in fact given the role as a Year 6 classroom teacher. The real issue, at least for the appellant, was that her preference was to teach a Year 3 or Year 4 class, however, Mr Robertson was not prepared to do this as it would have meant a full reorganisation of the school's teaching staff. [75] Mr Robertson's evidence was unequivocal. The appellant was given a year 6 teaching role because that was the role that was available. 32 [2015] ICQ 001, [17]-[19]. 33 [2015] ICQ 27, [10]. -- 16 of 37 -- 17 [76] The appellant had previously applied for the position as a Year 1 teacher. However, Mr Robertson decided to offer the position to another teacher for a number of reasons. First, the other teacher was already teaching Year 1 and 2 students; the other teacher had proven herself to be capable and "was operating very successfully"; and Mr Robertson wanted to allocate to the Year 1 class a person who already had the requisite experience to work with students of that age. [77] Mr Robertson told the Commission that in deciding not to give the role to the appellant he had in mind that Year 1 was a foundation year and was particularly important in the development of literacy skills. The decision whether or not to allocate the year 1 class to the appellant was influenced by the fact that the appellant might not have the necessary skill set required to ensure that a Year 1 class "got off to a good start". [78] On or about 21 November 2016 the appellant unsuccessfully applied for a Year 4 classroom teaching role. Mr Robertson decided to give the position to a graduate and when asked to explain this decision, Mr Robertson told the Commission that "… [i]t was decided because she already had a role and I needed a teacher to fill in an area where she had some experience".34 [79] In my view this issue is more akin to a generalised work complaint rather than a stressor which is causative of a workplace injury. Even if I accept that this event is a stressor for the purposes of a workers' compensation claim there are other problems, the foremost being that the appellant did not lead any evidence that challenged Mr Robertson's version of events, which I accept. [80] The appellant's desire to teach in grades 1, 3 or 4 was expressed as a preference. It is not the case as contended by the appellant that she was denied a teaching role. Rather, the appellant sought a classroom position at MBSS which was accommodated. There is nothing unreasonable about the approach adopted by Mr Robertson in dealing with the appellant's request nor his reasoning for making the classroom allocations that he did. Stressor 2 - Mr Robertson's threat to Ms du Preez on or about 22 November 2016 [81] The appellant said that after a staff meeting on 21 November 201635 she approached Mr Robertson about obtaining a classroom teaching position. It is asserted by the appellant that Mr Robertson said to her "I thought you were leaving". The appellant was apparently taken aback by the comment because "she had not put in for a transfer" and "there was no indication from me that I was leaving". Mr Robertson recalled making the comment and said that it was made with the understanding that the appellant had previously expressed an intention to move down to the Brisbane area. 34 TR7-12, L41-42. 35 TR1-5 L3-5. -- 17 of 37 -- 18 [82] The appellant said she could not afford to leave the school due to her financial circumstances and she had previously provided Mr Robertson with a letter about her financial situation. [83] It is contended by the appellant that Mr Robertson allegedly said to the appellant "that if he's forced to place me in a classroom, he was going to make it hard for me". It is this comment which is said to have constituted the threat. The appellant told the Commission that Mr Robertson's comments made her feel that "he didn't want me or I wasn't welcome at the school". Mr Robertson denied making any threat. [84] There are several factors that persuade me that Mr Robertson did not make the threat as alleged. First, the evidence does not support the contention that Mr Robertson was forced by anyone to find a teaching role for the appellant. The evidence was that Regional Office contacted Mr Robertson to inform him that the appellant needed to be in a classroom. It was following this advice that Mr Robertson instigated the expression of interest process through the "Morning Messenger" to secure a place for the appellant at the MBSS. Secondly, prior to the commencement of the 2017 School year Mr Robertson arranged for Ms Dorante to provide support for the appellant as she transitioned back into the classroom setting. Thirdly, he arranged professional development in a key curriculum area for the appellant pre-start in 2017 and gave her feedback and instruction with the objective of improving her teaching abilities. [85] The professional approach adopted by Mr Robertson in providing the above support mechanisms to the appellant are not, in my view, consistent with the contention that Mr Robertson wanted to make it hard for the appellant. Stressor 3 - Mr Robertson placing Ms du Preez' name in the staff message book on or about 24 November 2016 [86] Mr Robertson wrote in the staff message book or "Morning Messenger" seeking an expression of interest from a teacher to volunteer for the district relief teaching position. The message relevantly read: …Please note that this will have to change a bit. I need to have someone accept the DRT role that I suggested or we will be looking at transferring someone from our school as we have Ede still to place in a class, as she is not continuing on as DRT in the coming year. Please see me TODAY if you would consider this role (next year only, not a permanent or even semi permanent role). 36 [87] The appellant submitted that as a consequence of this message, a group of teachers were "very annoyed with me". Following the issuing of the expression of interest, Ms Danielle Ciranni offered to take on the DRT position which then allowed the appellant a classroom position in year 6. There was no direct evidence before the Commission to support the contention that anyone was annoyed with the appellant. 36 Exhibit 26. -- 18 of 37 -- 19 [88] The reason for seeking an expression of interest was self-evident. It was through this process that Ms Danielle Ciranni came forward and a vacancy was made available for the appellant in year 6. Mr Robertson told the Commission that he was not aware of any concerns arising from the message and that "no-one came to me at any point in time about it".37 Stressor 4 - In terms 1 and 2 of 2017, being provided professional development 4 to 5 months after Ms du Preez commenced in the Year 6 teaching role and this was after Mr Robertson began the appraisal process (by instigating a Performance feedback review) without notice in respect of instigating a Managing Unsatisfactory Performance (MUP) process [89] The evidence before the Commission was that the appellant undertook professional development prior to the commencement of the 2017 year. In that regard, the appellant together with Ms Dorante and the school's head of curriculum undertook an exercise at the first professional development day in 2017 to "unpack" and develop the Unit 1 in English.38 In addition, there were three student-free days at the beginning of the 2017 school year. The focus of the pupil free days was on those areas which were necessary for the successful operation of the school, including "mandatory annual training" units.39 [90] Out-of-hours professional development was also offered. Particular reference was made to the session titled "Sound Waves", a spelling program based on phonics and phonemic awareness. [91] Mr Robertson identified some specific examples of other types of professional development offered to staff, in particular, in the area of curriculum concentrating on links between assessment and the C2C (Curriculum to Classroom) units developed by Education Queensland around each of the subject areas. Professional development was again offered to staff on 13 March 2017 dealing with the research undertaken by Professor John Hattie on "Learning Classrooms". The Commission was also told that the G drive, the MBSS's network drive, contained professional resources which were available to teaching staff. [92] In addition, Mr Robertson told the Commission that professional development was conducted for staff at the MBSS across the years 2014 to 2016. [93] The evidence does not support the appellant's contention. Professional development was offered prior to the commencement of the 2017 school year and more particularly early in the first half of 2017. 37 TR7-46, L45-46. 38 TR7-147, L31-33. 39 TR4-80, L3-6. -- 19 of 37 -- 20 Stressor 5 - On 7 December 2016, or after Ms du Preez required transfer from a Physical Education role, failure of Mr Robertson to provide an induction, and the required ATPR identified within this process, to support Ms du Preez' transition to the classroom teaching role [94] In dealing with this stressor it is necessary to consider it against the background that the appellant commenced teaching in 1995 and has been a senior experienced teacher since 2012. [95] The appellant contends that Mr Robertson did not provide her with an induction, nor did he adhere to the requirement under the Annual Teacher Performance Review (ATPR). [96] The exact nature and extent of how Mr Robertson is alleged to have not adhered to the requirements of ATPR have not been identified by the appellant. [97] In dealing with this stressor, it is sufficient to say that there is no evidence to support a conclusion that there was a causal link between the appellant not having an annual performance review and her injury. Stressor 6 - Failure to provide Ms du Preez with support after a student within her class made comments of a sexual nature about her after the Year 5 camp in 2016 and before Ms du Preez teaching these students involved in this abuse 2017 [98] The "comments of a sexual nature" involved a "dare" by a group of year 5 boys to rape the appellant. The exact comments are not known. The respondent accepts that comments were made. [99] The appellant was not made aware of the comments by the students until sometime in late 2016. More importantly for the purposes of this stressor, the appellant was not made aware of the identity of the student who made the comments until 1 June 2017. [100] The stressor relates not to the comments made by the student, but rather to Mr Robertson's alleged failure to notify the appellant of the incident and to tell her that the student who made the comment was in her class. [101] On the basis of the appellant's own evidence, she did not know the identity of the student who allegedly made comments against her. Nor is it immediately apparent in what way Mr Robertson is said to have failed to provide her with support. [102] Mr Robertson told the Commission that having become aware of the incident, he had spoken to the student involved, spoken to the parents of the student, reprimanded the student by denying him access to extra-curricular activities and placed the boy on a behaviour management program. -- 20 of 37 -- 21 [103] The reason why Mr Robertson did not reveal the identity of the student concerned was said to be because, "I would hate to think that the child was then singled out for some particular attention that was undue."40 [104] The claim is, with respect, without substance. As can be seen by the evidence, the appellant remained unaware of the identity of the student who made the comments in relation to her until 1 June 2017. The reasons for not making the identity of the student known to the appellant were reasonable and appropriate. Mr Robertson's response to the student's conduct was again appropriate and measured. Nothing can reasonably be raised against Mr Robertson's handling of the matter. Stressor 7 - Mr Robertson attending her classroom unannounced and taking over the lessons from her in the period 25 January 2017 until 12 June 2017 without providing or identifying any required support [105] Mr Robertson adopted a practice whereby he would make unannounced classroom visits. There is nothing unusual about this practice. His approach is consistent with his obligations as a Principal to ensure, amongst other things, that he monitored teacher performance. [106] The evidence does not support the contention that Mr Robertson after intervening in the conduct of the class, did not provide or identify any required support. On each occasion an intervention was necessary, Mr Robertson spoke with the appellant to identify the problem. His evidence was clear that he identified, amongst other things: content knowledge; curriculum clarity; and lesson structure. Stressor 8 - Not being provided access to mentoring teachers and Mr Robertson allocating support teachers to Ms du Preez without consultation with her during terms 1 and 2 of 2017, and during the MUP process [107] This stressor as framed is internally inconsistent. On the one hand, the appellant asserts that she was denied access to mentoring teachers and, on the other hand, she asserts that Mr Robertson allocated her support teachers without consultation. [108] The stressor needs to be considered in the context that the appellant was not a new graduate or a person lacking in teaching experience. Whilst it is recognised that the appellant had not been full-time in a classroom setting, she nevertheless had been teaching primary school students for approximately 12 years and was regarded by the Department as a senior experienced teacher. [109] Mr Robertson outlined in his oral evidence his expectation of a senior experienced teacher in the following way. 40 TR7-56, L46-47. -- 21 of 37 -- 22 Mr Rashleigh: And with respect to phys. ed. teachers and somebody who was a senior, experienced teacher, what would you have expected then if they were moving from phys. ed. into a teaching role in a classroom? --- Proficiency. Mr Rashleigh: In what? Mr Robertson: Proficiency in - in the development of the program and in the delivery of lessons in the classroom. Mr Rashleigh: All right. Does it differ in any way - as to what's required on the phys. ed. teacher to properly present a lesson - to that of a classroom 5 teacher? Mr Robertson: No.41 [110] The evidence was that the MBSS comprised two year 6 classes. The appellant was responsible for 6B and Ms Dorante, a highly experienced primary school teacher was allocated 6A. [111] Mr Robertson offered support to the appellant as can be seen from an extract of the transcript. Mr Robertson's evidence was as follows: His Honour: And did you speak to Ms Dorante when Ms Du Preez started? Mr Robertson: I did, your Honour. His Honour: What did you ask of her? Mr Robertson: I - I mentioned to Mrs Dorante that as Ms Du Preez was starting in again, that she may have some teething issues and could she please support as much as possible.42 [112] Ms Dorante provided a significant level of support to the appellant by assisting her with the preparation of homework sheets; by teaching science43 and geography44 for both year 6 classes thereby minimising the amount of content that the appellant would have to become familiar with; assisting the appellant with discipline and behaviour management45; by offering to undertake "model" mathematics lessons46; offering advice on dealing with a "crowded curriculum" by suggesting that the appellant work back from the assessment period to ensure that all areas were covered; by reminding her of the deadlines for the diagnostic testing within the school; dealing with variations in school routines; and by offering advice on planning for the school camp and who might be able to assist. 41 TR7-204, L45-47; TR7-205, L1-5. 42 TR7-163, L1-3. 43 TR5-24, L1-6. 44 TR5-24, L6-8. 45 TR5-24, L30-33, 40-44. 46 TR5-25, L4. -- 22 of 37 -- 23 [113] Ms Dorante told the Commission that in a conversation with the appellant, she had acknowledged the support that she had received from Ms Dorante and on several occasions thanked her for it. [114] In terms of the provision of a support person for the MUP process, it must be remembered that the letter advising the appellant of the MUP process was sent on 2 June 2017. It was not until the meeting of 6 June 2017 that the process was discussed. There was a five-day period after which the improvement plan came into force; the appellant had left her employment before that commenced. [115] Ms Dorante was usually a week ahead of the appellant with her assessment. Ms Dorante would sit down with the appellant after an assessment piece to make sure that the marking was consistent between both classes.47 [116] The evidence does not support the contention that the appellant did not have access to a mentor during terms 1 and 2 of 2017. In terms of the MUP process, it needs to be remembered that it was in its early stages. It was put into abeyance when the appellant ceased work on 13 June 2017. Stressor 9 - Mr Robertson's decision to remove a child from her class - the process in which this was conducted, the failure to consider the effect on the dynamics of her class, and the way in which this was communicated to Ms du Preez [117] On 5 May 2017 Mr Robertson informed the appellant that there had been a request from a parent for their child to be removed from the appellant's class. Mr Robertson explained the circumstances as follows: The parent came in and was concerned that a previously high achieving maths student was not achieving and he wasn’t being extended. And the relationship between that particular parent and Ms Du Preez was fairly rocky. The - this particular parent was also one of the parents who complained that - at the end of camp. So the relationship between Ms Du Preez and that parent was, to my mind, was probably irreparable. [118] Mr Robertson made a decision to remove the student from the class and place him into the other Year 6 class. [119] Mr Robertson said he had a conversation with the appellant and informed her that a student was being removed.48 [120] Mr Robertson was clear in his evidence regarding the rationale of the decision: 47 TR5-27, L10-13. 48 TR7-99, L1-3. -- 23 of 37 -- 24 It doesn't matter whether it's true or not. The relationship had deteriorated to a point where there would have been all sorts of problems had he been - had the child been left in your class, and the parent made no mistake about the fact that he would be pushing it very, very strongly had that - had shift not occurred.49 [121] Whilst the appellant asserted that the removal of the child from her classroom changed the classroom dynamics, she offered no evidence to support such a claim. [122] Mr Robertson made a decision to remove the student from the class and place him into the other Year 6 class. As Mr Robertson noted the relationship between the appellant and the parent was irreparable. Stressor 10 - Mr Robertson attending upon Ms du Preez in terms 1 and 2 of 2017, his failure on 2 June 2017 to provide adequate support to Ms du Preez, or check up on her, following the circulation of a petition by a child in her classroom to have her sacked and suffering abuse at the hands of a parent, as well as appraising her performance directly thereafter [123] In term 2 of 2017 some students in the appellant's class started a petition to have the appellant dismissed. Mr Robertson's evidence was that: I gathered all of the year 6s together, and had very strong wording about the inappropriateness of their behaviour, and also that that was not the way to proceed; if they had concerns about anything in their classroom that they needed to bring it to me with evidence.50 [124] Mr Robertson said that once he became aware of the issue, he got the students together and resolved the matter within half to three quarters of an hour after hearing about it.51 [125] The appellant was asked what she meant by support and the following exchange occurred: His Honour: If I can ask you about paragraph 10. You say that you - that Mr Robertson didn't provide you with, you know, adequate support, or check up on you. So what sort of support were you looking to get from him? Appellant: Well, firstly, the petition going around was started because I - because two girls had - of the study - had done a bit of a jig behind my back for a bit of fun. I was told about it. I caught them out, and in term 2, one of the boys who was struggling to be accepted, he then got up and did the same thing. So to make light of it, I didn’t get angry with him. I didn't - all I just said, "Oh, you're doing a [indistinct] jig". Which was the two girls names put together. And it was just as a light-hearted comment so that - to say that those girls were doing the wrong thing and he was doing the wrong thing. But I wasn't - I didn't feel that was inappropriate. 49 TR7-164, L34-37. 50 TR4-77, L1-2. 51 TR4-77, L21-24. -- 24 of 37 -- 25 Mr - when that petition and the circular went around, Mr Robertson didn't even talk to me about it. He didn't tell me what happened in it. I overheard because I was next door. His Honour: And you - did you make a complaint to Mr Robertson about it? Appellant: I --- Yeah. His Honour: And what did he say to you when you went and made a complaint about the petition? Appellant: He - he talked to the students. He told them if they want to get a teacher - to remove a teacher - or get a teacher sacked, that they need to bring evidence to him. His Honour: Right. Is that - and that's what he told you? Appellant: I was there, next door. He - he thought I was over at the library. But I went - I went - I started walking to the library and I thought, "No, I don't need to do anything at the library. Why am I running away? I've got work to do in my - my office". So I went in my office, in my classroom, and I could hear him telling the kids that he has - "If they have an issue with a teacher, they can't write petitions. If they want to get rid of a teacher, they need to bring evidence."52 [126] The response by Mr Robertson to the complaint by the appellant was, in my view, reasonable and appropriate. It was taken in a timely manner; it dealt directly with the concerns expressed by the appellant; and it made it abundantly clear to the students regarding the inappropriateness of their actions. Stressor 11 - Being required to have a 'demonstration' lesson without adequate notice and making an observation during an EMMS lesson directly after the parental abuse on 2 June 2017 [127] On 2 June 2017 Mr Robertson conducted a 'demonstration' lesson on angles. Mr Robertson had conducted the same lesson in Ms Dorante's 6 A class the week prior.53 [128] On the same date, Mr Robertson also undertook an observation of an EMM's lesson. [129] Mr Robertson recalled that a parent had attended at his office early in the morning of 2 June 2017. The parent was very agitated about some interactions between her daughter and the appellant. Mr Robertson told the Commission that the appellant was not at School at that time. The parent was asked to wait in his office. Mr Robertson went to locate the appellant. However, in the intervening period the parent left the office; found the appellant; and was argumentative and aggressive with her.54 52 TR1-120, L10-47; TR1-121, L1-4. 53 TR7-11, L25-42. 54 TR4-78, L42-47. -- 25 of 37 -- 26 [130] Following the altercation with the parent, as it was "bell time", Mr Robertson asked the appellant to return to her class and he spoke to the parent about the correct way of dealing with concerns that she may have. [131] On the Friday preceding 2 June 2017, Mr Robertson arranged to conduct a demonstration lesson. His evidence in relation to the conduct of the demonstration lesson was as follows: Mr Robertson: Direct - the EMMs program is a direct instruction which means that there - there - the actual wording that the teacher uses for each question is given and where there is a requirement for a visual resource or a visual background that's given. And at the end of the series of questions each - on - on each day, there's an opportunity for - for children to do what’s called "debugging", which is, "There's a question that I don't understand. Please explain." I went in and there was a question regarding a prism that had been truncated. One of the vertices had been cut off, leaving an extra plane and the question was, "How many vertices are there now in that particular shape?" Ms Du Preez started to - started to try and explain it and then she said, "Oh, I'm - I'm not sure. Can you - can you do it?" So I, once again, I just went through and explained to the kids how that - how that worked. I think I drew a diagram on the board at the time just to show how that - how that actually worked. Mr Rashleigh: All right. Now, did you speak to Ms Du Preez about that? Mr Robertson: Just about the fact that, once again, you know, she needed to know what she was teaching before she did it. And the - I think there was - I think I made a comment that it was as direct instruction. If she had read through it the - the night before, she may have identified that that was a problem. Mr Rashleigh: Did she make any response about the EMMs program? Mr Robertson: She indicated to me that she hadn't had training in it and that was why - and she didn't have time to read through it? Mr Rashleigh: All right. Was there training provided in that? Mr Robertson: No. Mr Rashleigh All right. Why not? Mr Robertson: Because we - as - as a staff, we simply - we got the resource people to recognise that it was a - an easy to use resource. It was very, very directed. The - the training, basically, was read the question and put the resource up on the whiteboard. Mr Rashleigh: All right. His Honour: So EMMs is a direct learning exercise? Mr Robertson: It's a direct instruction, your Honour, yes. His Honour: And so it's a lot easier in terms of teaching? -- 26 of 37 -- 27 Mr Robertson: Yes, your Honour. In fact, our teacher aides teach it, your Honour, as well.55 [132] The conduct of the demonstration lesson required the appellant to do no more than observe. She was not required to conduct the lesson, nor did it form any part of an assessment of her teaching capabilities. [133] Mr Robertson's observation of the EMM's lesson is discussed more fully in relation to stressor 12. It is sufficient at this stage to say that Mr Robertson was required to intervene in the conduct of the EMM's following a request from the appellant for assistance. Stressor 12 - On 2 June 2017, being provided a formal MUP letter and Mr Robertson using the subsequent observation made directly after this abuse for appraisal and requesting a demonstration lesson all on the same date as the parent abused Ms du Preez [134] The first element of this stressor is the contention by the appellant that Mr Robertson provided her with the formal MUP letter on 2 June 2017. The MUP process provides a mechanism for the identification and management of unsatisfactory performance of State School Teachers. The policy's stated purpose is to ensure that teachers are meeting or exceeding performance expectations.56 [135] The evidence before the Commission is that around 3.00 pm on 2 June 2017, Mr Robertson came to see the appellant in her room. He told her that he had not seen sufficient improvement in her teaching. Mr Robertson gave her the MUP letter together with a draft Improvement Plan and asked the appellant to attend a meeting with him on 6 June 2017 to discuss.57 [136] The second element of this stressor is the claim that Mr Robertson used a class appraisal observation directly after the appellant was abused by a parent. As noted in Stressor 11, Mr Robertson conducted a 'demonstration' lesson on 2 June 2017. Further, he assisted the appellant at her request when it became apparent to her that she was unable to undertake the lesson. [137] The contention advanced by the appellant is not supported by the evidence. Mr Robertson conducted a demonstration or a "model" lesson for the appellant. The appellant was not expected to do anything other than to observe. The appellant accepts she was not expected to conduct the lesson but says that, "I wasn’t in any state of mind to be watching."58 [138] Mr Robertson's evidence on the demonstration lesson was: 55 TR4-99, L22-46; TR4-100, L1-11. 56 Exhibit 11, Managing Unsatisfactory Performance - State School Teachers V1.1. 57 TR4-19, L1-2. 58 TR1-122, L13. -- 27 of 37 -- 28 Mr Rashleigh: Were there any suggestions of help with respect to Mathematics? Mr Robertson: There were. I - I had suggested that I could do some demonstration lessons, and I ended up doing one for order of operations, which is a process that's quite particular that I think is important that's done a certain way. So I did that for both classes.59 [139] The appellant appears to be under the mistaken belief that by conducting a demonstration lesson Mr Robertson was somehow undertaking some form of assessment of her performance. As the evidence suggests, he was not. [140] During the day Mr Robertson attended the appellant's classroom to observe an EMM's lesson. It became apparent to Mr Robertson that the appellant was struggling with the execution of the lesson and the subject content. In cross-examination, the following exchange took place: His Honour: And what did you - on that occasion, what did you observe?---I observed that Ms Du Preez was attempting to explain an answer to some students around a problem that had been presented and was unable to do so so deferred to me to explain it to the children. Appellant: By deferring, did I ask - did I say, "Considering what happened this morning, could I ask you to take over, please"? ---You didn't say "considering what happened this morning". You said, "Can you please explain this? I'm not sure how it goes." His Honour: Okay. This occurred directly after the parental abuse? Appellant: It occurred that morning, yes. His Honour: Okay. Appellant: So I contend that I said - yeah, anyway. That - my contention - or my recall is that I was having difficulty, and I asked for your help. Is that - - -? --- Mr Robertson: That's correct. You couldn't answer the question for the students, and you asked me to do it. 60 [141] As the evidence suggests the reality is that the appellant was struggling with the lesson and sought the assistance of Mr Robertson. It is not, in my view, a situation where the appellant was unable to undertake the lesson as a consequence of the claimed parental abuse. Rather it is a case where the appellant was unprepared or ill-equipped to take the lesson. 59 TR5-26, L9-12. 60 TR7-105, L15-31. -- 28 of 37 -- 29 [142] The demonstration lesson together with the intervention were opportunities for the appellant to gain an insight into both teaching technique and curriculum content. They were designed to assist, to inform and to support. It was reasonable management action taken in a reasonable way. Stressor 13 - The timeframe in which the performance feedback review was undertaken, and the information within this review being incorrect was unfair and unjust, as well as being denied natural justice in respect of Mr Robertson's Performance Feedback Review provided to Ms du Preez by WorkCover on 28 June 2017 [143] Mr Robertson prepared a performance record of the appellant's teaching performance in advance of the commencement of the formal MUP process. The record was commenced sometime in May 2017 and reflected the areas of concern that Mr Robertson had raised with the appellant. He told the Commission that the record was commenced because nothing that he was saying to the appellant was having an impact on her teaching. As he made clear, "There was no - performance record"61. The record taken by Mr Robertson merely reflected the matters he discussed with the appellant in relation to her teaching performance. [144] Mr Robertson said that he was under no obligation to provide his record to the appellant for comment but was requested to supply his notes to WorkCover as part of the appellant's Workers' Compensation claim. [145] Mr Robertson's notes were subsequently disclosed to the appellant. Apparently, the appellant took exception to what Mr Robertson had recorded. [146] As the evidence demonstrates, the appellant was provided with the draft improvement performance plan at the meeting on 6 June 2017. The draft was discussed, and amendments made. However, the appellant declined to sign the documentation necessary to commence stage 1 of the MUP process instead wanting to first discuss this with her daughter. The document was not signed prior to the appellant commencing sick leave on 13 June 2017. [147] Under the MUP process, Mr Robertson would have been obliged to ensure "…that natural justice is afforded to the State school teacher to properly consider and respond to statements, written reports and decisions".62 However, as the process had not been initiated there was no requirement on Mr Robertson to make his notes available to the appellant. The actions of Mr Robertson in maintaining what is in effect a file note on the performance of the appellant in advance of a more formal process was not unreasonable. Stressor 14 - Instigation of the MUP process including Mr Robertson 61 TR7-120, L42-44. 62 Exhibit 11. -- 29 of 37 -- 30 [148] Mr Robertson wrote to the appellant on 2 June 201763 regarding her teaching performance. In that correspondence, the following four areas of concern were identified: (i) A lack of effective curriculum clarity in planning and enacted lessons (ii) Behaviour management processes and student engagement in learning (iii) Lesson structure including pacing of instruction, clarity of learning intent and success for students (iv) Knowledge of curriculum content. [149] A meeting was convened to discuss the MUP process and the draft Identification and Improvement Plan. The meeting was designed to provide the appellant with the opportunity to comment, amend or make suggestions or inclusions in relation to the Plan. The appellant was encouraged to bring a support person. [150] The meeting was held on 6 June and minutes were taken. The minutes record that the following matters were discussed: Ms du Preez expressed her views that: • she had not received sufficient support in the lead up to this process • some children were showing progress across the year • she was transitioning into a new role and needed more support • as she was under financial strain, this needed to be taken into consideration as a mitigating circumstance I reiterated to her that my concerns were based on my observations of her classroom performance with the lessons lacking clarity of purpose, structure, pace and clear outcomes for students. I elaborated to her on the support she had been given and the support people she had been working with - her teaching partner, our year to teacher and the HOC. I also pointed out to her the feedback I had given her previously around lesson clarity, differentiation and clear and specific outcomes each lesson. I also reminded her that I had both given her hard copies of school-based documents relating to lesson design and given her the pathway to their location on G Drive. Ms Du Preez continued to assert that she had not had sufficient support given her transition into the classroom role and that the stress she was under as a result of her financial position impacted negatively on her classroom performance. I referred her back to the documents I had given her previously, including the role description for a teacher, and reminded her that as a Senior teacher with considerable experience, I should be able to expect clear lesson design and implementation as per the role description, even if the content was challenging. I also pointed out that assistance had always been available to build content knowledge and part of her responsibility is to seek out that assistance rather than attempt to implement a lesson being unsure of the content herself.64 [151] The appellant identified the following areas of concern in the implementation of the MUP process: a. failing to consider mitigating circumstances; 63 Exhibit 8. 64 Exhibit 24. -- 30 of 37 -- 31 b. not making observations relating to the concerns identified in the preliminary meeting or providing appropriate feedback after the preliminary meeting on 2 May 2017; c. failing to negotiate adequate timeframes to improve performance; d. failing to use appropriate data about children's outcomes placing her on the MUP process; e. failing to be equitable and confidential; f. failing to document the MUP process correctly. [152] The appellant’s Statement of Facts and Contentions is a narrative lacking both structure and clarity. Many of the contentions advanced by the appellant are concealed amongst irrelevant material thereby making an appreciation of her case difficult to understand. In dealing with stressor 14, the identified points are, in many respects a repeat of issues already raised by the appellant. However, for completeness let me briefly deal with each in turn: (a) deals with an apparent failure to take into consideration the mitigating circumstances before initiating the MUP process. The evidence does not support such a contention. The appellant has not established how the mitigating circumstances, principally how her financial position, impacted on her abilities as a teacher; (b) subsequent to the meeting on 2 May, the feedback given to the appellant by Mr Robertson arising out of his observations were consistent. He identified that the appellant had consistently failed to engage in direct and structured learning and establishing a clear learning intent at the start of a lesson. Mr Robertson emphasised that he was concerned about the appellant's lack of knowledge, the clarity of the lessons, and her failure to use the explicit teaching format; (c) Stage 1 of the MUP required the settling of the Identification and Improvement Plan, including a timeframe for improvement against each performance goal. For reasons stated elsewhere the MUP process never progressed; (d) The appellant contended that Mr Robertson did not give consideration to the student performance data. He did. He did not regard the data in relation to one student as of any value; and (e) the appellant has failed to identify how Mr Robertson has failed to properly document the MUP process. Finally, the assertion in (f) that the MUP process has not been properly documented is not established on the evidence before the Commission. [153] As identified in the letter of 2 June 2017 to the appellant, the purpose of the meeting on 6 June 2017 was to settle the Identification and Improvement Plan: to discuss with the appellant the intended process consistent with the policy including the various stages of the MUP; timeframes; and possible disciplinary outcomes. The Identification and Improvement Plan is designed to collect information regarding the ongoing concerns, the identification of performance goals and ascertain what forms of assistance are available to assist the teacher to reach the prescribed performance goals. [154] The minutes of the meeting of 6 June 2017 indicate that a revised Identification and Improvement Plan was prepared as a consequence of the matters raised. However, the appellant declined to sign the document instead indicating that she wished to raise the matter with the Teachers' Union and family. [155] As the following exchange illustrates, the appellant was not concerned by the MUP itself but rather the way in which it was conducted. She told the Commission: -- 31 of 37 -- 32 Appellant: My issue is not with the MUP. It's with how it was conducted. The policies not being followed. Not just the MUP policy, but there's the induction policy, because I transferred from PE to classroom. There's an annual performance review, which is supposed to have started in 2015, which if he had done that in 2015, I could have identified what support I needed. As well as there's, like - with a parent. He actually went to look for another parent to - - - His Honour: Okay. Let me take a step back. You say that you - your problem is not with the action being put on a MUP. It's how it was conducted. In what respect have you got concerns about the way it was conducted. If you say as well that they're not breaches of the policy, well, I don't know what policy there is. Appellant: Yeah, and - - - His Honour: And what way has it been breached? Appellant: The policies being breached, he started a performance review and he started that on the third day into the school year. His Honour: Yes. Appellant: He didn't inform me of that. He was coming to my classroom and assessing me without any notice. He wasn't doing formal observations and sit-down feedback, which in this document, which was an audit done 2014, it clearly states that he needs to do that.65 Is the injury excluded from being compensable because the injury was the consequence of 'reasonable management action taken in a reasonable way'? [156] The respondent contends that the appellant's injury is excluded by operation of s 32(5) of the WCR Act because it arose out of or in the course of reasonable management action taken in a reasonable way in connection with her employment. [157] Section 32(5)(a) of the WCR Act operates to remove a psychological or psychiatric injury from the statutory definition of "injury" where reasonable management action is taken in a reasonable way. [158] The management action said to enliven s 32(5) of the WCR Act was expressed in the list of 14 stressors. The stressors share a common theme in that they relate both factually and sequentially in the lead up to the commencement of the MUP process and the meeting held on 6 June 2017. As will be recalled, at that meeting the appellant was informed of the key issues regarding her performance as a primary school teacher. For the appellant, the MUP process was a continuum which commenced shortly after she started back in the year 6 classroom teaching role in early 2017 and continued until the meeting on 6 June and her subsequent departure from MBSS on 13 June 2017. 65 TR1-88, L18-42. -- 32 of 37 -- 33 [159] In Lawton v Simon Blackwood (Workers' Compensation Regulator) the Commission considered the relevant jurisprudence on reasonable management action: In determining the reasonableness of the management action, reference is made to the reasoning of Hall P in Sabo v Q-COMP his Honour President Hall wrote: "In the absence of argument, I do not accept that the exercise of determining whether a managerial decision is 'reasonable' and 'taken in a reasonable way' is so like an exercise of discretion that an appellant seeking to reverse a decision of a tribunal of first instance, should be required to meet the standard set by the principles in House v The King at 505 per Dixon, Evatt and McTiernan JJ; compare Macauslane v Fisher Paykel Finance Pty Ltd (a 'reasonable notice' case). However, the exercise of assessing 'reasonableness' for the purposes of s. 32(5) (a) of the Act, is evaluative as well as judgmental. There is room for difference of opinion. The judicial officer dealing with the matter at first instance should be allowed a measure of latitude; compare IOOF Building Society Pty Ltd v Foxeden Pty Ltd at 554 to 556 (a 'reasonable notice' case)." In Keen v Workers' Rehabilitation and Compensation Corporation , Lander J, in dealing with s 30A of the Workers' Rehabilitation and Compensation Act 1986 (SA), and discussing whether "the administrative action was reasonable and, if reasonable, whether it was taken in a reasonable manner by the employer", wrote: "Both of these further matters will be an inquiry of fact to be determined objectively. Whether the administrative action is reasonable is simply a matter of fact. Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administrative action was taken in a reasonable manner by the employer." Commissioner Blades in Qantas Airways Limited v Q-Comp wrote: "There must have been some connection between the injury and the management action. It may have been that had he attended the meeting and decompensated after being confronted with accusations and harassment complaints without warning (an ambush), it may have been argued that the management action was not taken in a reasonable way. But it will depend on circumstances. What management must do is be reasonable, not perfect, and if it be that before a meeting can be held with a worker, he has to be told specifically what it is about, I think it is placing too high a duty upon management. Surely management asking a worker what happened in an incident is not in breach of the principles of natural justice. Each case depends on its own facts and circumstances but what is "reasonable" is "reasonable in all the circumstances of the case" and "reasonableness" does not necessarily equate with "industrial fairness" although considerations of "fairness" will always be relevant - Delaney v Q-Comp Review Unit (2005) 178 QGIG 197." In WorkCover Queensland v Kehl his Honour President Hall said that "reasonable" should be treated as meaning "reasonable in all the circumstances of the case". It is thus the reality of the employer's conduct and not the employee's perception of it which must be taken into account.66 (references omitted) [160] In Davis v Blackwood, Martin J set out the role of the Commission when embarking upon an enquiry as to whether a psychological or psychiatric injury arose out of, or in the 66 Lawton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 99, [64]-[67]. -- 33 of 37 -- 34 course of, reasonable management action taken in a reasonable way. In that matter his Honour stated: The task of the Commission when applying s 32(5) does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances. There may be any number of actions or combinations of actions which would satisfy s 32(5). The proper task is to assess the management action which was taken and determine whether it was reasonable and whether it was taken in a reasonable way. Sometimes, that may involve considerations of what else might have been done but that will only be relevant to whether what was done was, in fact, reasonable.67 Conclusion [161] Mr Rashleigh advised the Commission the Regulator accepted that the appellant suffered a personal injury in the form of an exacerbation or an aggravation of a pre-existing psychiatric disorder or disorders. Further, it was accepted by the Regulator that the appellant's injury arose out of or in the course of her employment, and that her employment was the major significant contributing factor to her injury. Therefore, the only issue for the Commission to determine is whether s 32(5) of the WCR Act operates to exclude from the definition of injury a psychiatric or psychological disorder arising out of, or in the course of reasonable management action taken in a reasonable way by the employer in connection with the worker's employment.68 [162] The management action undertaken by the Department of Education in the form of the MUP was precipitated by demonstrated concerns regarding the appellant's teaching capabilities. The identified shortcomings were particularised in the letter of 2 June 2017. [163] It is reasonable in circumstances where an employee's performance falls below the standard expected of a person in that role, or when an employee's conduct does not accord with prescribed practices and procedures, for corrective steps to be undertaken. The MUP is such a process. As the policy identifies, the objective of the MUP process is to ensure employees are meeting or exceeding performance expectations. In that regard, the MUP is not a punitive mechanism but rather is a corrective procedure designed to ensure that student outcomes are achieved and that the reputation of the School and the Department are maintained. The MUP is a means of identifying and addressing demonstrated areas of concern and deploying appropriate responses to address those concerns. [164] The appellant recognised that she had no concerns being involved with the MUP itself. Rather, her concerns were directed towards the manner in which the MUP was conducted. Whilst that may be the appellant's view, she has nevertheless failed to articulate, in any meaningful way, the areas in which the process has failed. 67 Davis v Blackwood [2014] ICQ 009, [47]. 68 TR8-8, L21-32. -- 34 of 37 -- 35 [165] It must be borne in mind that the MUP process was only at the beginning of stage one. The observations undertaken by Mr Robertson in the fourteen weeks leading up to the issuing of the letter on 2 June 2017 were antecedent to the commencement of the MUP process. It was through those observations that a problem was identified. [166] Many of the appellant's comments relate to her perception of the process; of the motives of Mr Robertson; and her teaching colleagues. The suggestion that Mr Robertson was working against her were unfounded and reflected a perception of the process which did not align with reality. [167] Much of the appellant's attention has been directed towards Mr Robertson and his supervision of her. In that regard, the appellant has taken exception to Mr Robertson visiting her classroom and making observations. Of course, the MUP policy requires that "Unsatisfactory performance will be the subject of ongoing informal performance feedback between employee and their Principal. The ongoing informal communication of performance expectations and performance concerns to employees will enable emergent performance concerns to be identified and addressed as they arise."69 [168] On any view of the evidence, Mr Robertson has conducted himself as one would expect of a Principal of a School who has an obligation to monitor teacher performance and in doing so has provided the appellant with timely, clear and appropriate feedback. [169] It appears to me that the appellant struggled in her role as a year six teacher. Her mode of instruction was confused; she did not have a strong understanding of lesson content; and was otherwise unprepared. The appellant failed to take advantage of the professional guidance that was offered. [170] Notwithstanding what is alleged, I am of the view that the appellant had access to professional development both prior to the commencement of the 2017 school year and at various stages throughout her time as a classroom teacher. This involved a combination of professional development offered on pupil free days, a weekend "Masterclass", and having access to an extensive array of school-based teaching resources. Moreover, the appellant had the support of Ms Dorante, an experience year 6 teacher who offered practical and constructive support. This involved, amongst other things, sharing resources and the teaching load and offering practical suggestions on managing a crowded curriculum and the pressures of assessment. [171] It was the view of Dr O'Hare that the work relationships and the issues around the appellant's alleged underperformance are wholly responsible for deterioration of her mental health in 2017. The report identified that the appellant's underlying psychiatric condition was exacerbated or aggravated by the challenge to the appellant's professional performance; the lack of support in the workplace such as when she was abused by parents and by students; the lack of training; marginalisation; and the failure of her 69 Exhibit 11. -- 35 of 37 -- 36 employer to adhere to recognised process in performance management undertaken which appears to have not met the legislative requirements.70 [172] As the above examination of the list of stressors indicate, many of assumptions relied upon by Dr O'Hare to make her diagnosis were not supported by the evidence. What constituted the challenge to the appellant's professional performance was in fact the identified shortcomings in the appellant's teaching performance necessitating the MUP. There was, for example, no evidence of marginalisation or a failure of the Education Department, in particular, Mr Robertson to adhere to a recognised process in performance managing the appellant, including, a suggestion that legislative requirements had not been met. [173] What the evidence before the Commission suggests is that the appellant was appropriately supported as she transitioned into her year 6 class; she was provided with professional development; and had the support of Ms Dorante. Mr Robertson recognised that the appellant was struggling in her role and offered demonstration classes and modelled teaching through his interventions. He provided informal feedback and advice to her and when it became apparent that a greater level of management of the identified problems was necessary, the appellant was placed on a MUP. However, the MUP was never able to be implemented. As the evidence shows, by 13 June 2017, the appellant left her teaching role and the MUP was placed into abeyance. [174] The task of the Commission is to assess the management action which was taken and determine whether it was reasonable and whether it was taken in a reasonable way. Such a task does not involve the Commission setting out what it might regard as reasonable in the circumstances. [175] I am satisfied that the appellant's psychological or psychiatric injury arose out of, or in the course of, management action; and the management action was reasonable management action taken in a reasonable way by the Department of Education in connection with the appellant's employment. Section 32(5)(a) of the WCR Act therefore operates to remove the appellant's psychological or psychiatric injury from the statutory definition of "injury". [176] I accept that the appellant has not discharged her onus of demonstrating that any action taken by her employer, leading to her psychological or psychiatric condition, was either unreasonable or taken in an unreasonable way. Accordingly, it must follow that the appeal is dismissed, and the decision of the Regulator is confirmed. Order 1. Appeal is dismissed; 70 Exhibit 21, Report of Dr O'Hare dated 4 June 2019. -- 36 of 37 -- 37 2. The decision of the Regulator is confirmed; and 3. The appellant is to pay the respondent's costs of and incidental to the appeal. -- 37 of 37 --