Family Day Care Association of Queensland Inc v Workers' Compensation Regulator [2016] ICQ 18

INDUSTRIAL COURT OF QUEENSLAND CITATION: Family Day Care Association of Queensland Inc v Workers’ Compensation Regulator [2016] ICQ 018 PARTIES: FAMILY DAY CARE ASSOCIATION OF QUEENSLAND INC (appellant) v WORKERS’ COMPENSATION REGULATOR (respondent) FILE NO/S: C/2016/10 PROCEEDING: Appeal DELIVERED ON: 7 September 2016 HEARING DATE: 12 August 2016 MEMBER: Martin J, President ORDER/S: Appeal dismissed. CATCHWORDS: WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – GENERALLY – where an employee of the appellant claimed workers’ compensation in respect of a psychiatric or psychological injury – where the employee had been required by her employer to attend an overnight staff retreat but WAS unable to do so due to childcare commitments – where the employer stood down the employee before the retreat by means of a telephone call – where there was a factual dispute as to what was said during the telephone call – where the appellant’s appeal before the Commission to set aside the decision of the Regulator accepting the employee’s claim was dismissed – where the Commissioner made various factual findings and concluded that the cause of the employee’s injury was not reasonable management action taken in a reasonable way – whether the Commission’s decision was affected by appellable error Industrial Relations (Tribunals) Rules 2011, r 139(1)(d) Workers’ Compensation and Rehabilitation Act 2003, s 32(5)(a), s 32(5)(b) APPEARANCES: M Healy instructed by Livingstones for the appellant P O’Neil directly instructed by the respondent -- 1 of 6 -- 2 [1] Lisa McConnell was employed as an administrator in the appellant’s Coorparoo office. The terms of her employment included requiring her to contribute to “team development and growth” and that would entail, among other things, her attendance outside working hours at professional development activities. Ms McConnell had fixed hours of employment designed to suit her family responsibilities. [2] Every two years the appellant held a retreat for all employees as part of their professional development. In February 2014 employees were informed that there was to be a retreat on 28 and 29 August of that year. All the full time employees were expected to attend. (As it turned out, four were exempted on the basis of arrangements made with the employer.) Of the 18 offices operated by the appellant, 17 were closed for the two days of the retreat and only an after-hours school facility remained operating. [3] Ms McConnell had intended to attend the retreat and would have had to make arrangements with her husband to drop their children off at school and pick them up afterwards so that she could attend. About a week before the retreat was held, Ms McConnell became aware that there would be a difficulty with her husband getting the necessary time off to undertake those tasks. Ms McConnell advised her employer that she would be able to attend during part of each day of the retreat and could not attend the evening when the dinner for all employees was to be held. She then had conversations with members of management in which she was reminded that it was a compulsory event. Ms Robinson (a regional manager of the organisation) told Ms McConnell that she was adamant that she was to attend. [4] On 27 August 2014, Ms McConnell took part in a telephone conversation with Ms Robinson and Ms Joyce (a manager within the appellant organisation). In that conversation, Ms McConnell was told that she was being stood down for the two days of the retreat and that she should leave the office immediately. [5] The issue before the Commissioner was whether or not the action taken by management in that telephone call was taken in a reasonable way. He held that it was not and that, therefore, s 32(5)(a) of the Workers’ Compensation and Rehabilitation Act 2003 (the Act) did not apply. [6] The amended application to appeal consists of 23 separate grounds, four of which were abandoned. The document does not comply with the rules in this jurisdiction. Rule 139(1)(d) of the Industrial Relations (Tribunals) Rules 2011 provides that this type of application must “state concise grounds of appeal”. This applicant did not do that. In most of the grounds the first sentence might, in a properly drawn application, constitute a ground of appeal, but it is then followed by what amounts to a submission. This error is compounded by the outline of submissions not containing sufficient specific reference to the grounds of appeal and then making submissions with respect to them. The amended application to appeal does not comply with the rules and is, therefore, susceptible to being struck out. The respondent did not seek such an order. [7] The hearing in the Commission concerned the proper characterisation of a 10 minute telephone call. In order to characterise it, it was necessary to consider it in context. To that end, very detailed and very lengthy evidence was led about what was said and done by the various persons involved. In setting out his reasons, the Commissioner recorded, in a summary form, a large part of the evidence given by each witness. Many of the -- 2 of 6 -- 3 grounds of appeal mistake this recording of the evidence for findings of fact. For example, ground 1(a)(i) asserts that the Commissioner erred in finding that Ms McConnell had child care arrangements in place prior to 18 August 2014 so that [she] could attend the full program of the staff retreat on 28 and 29 August 2014. The ground of appeal asserts that this error is to be found in [201] of the reasons. That paragraph provides: “[201] On a closer examination of the evidence the appearance of McConnell as a keen and willing participant in the Retreat from the time of notification until the telephone call to Robinson in the week prior to 28 August 2014 is quite clearly underpinned by having arranged her child care responsibilities for the time in question to be undertaken by her husband who interestingly enough gave at times conflicting evidence to that of his wife in that the sum contribution he could have made was to pick up the children on the afternoon of Thursday 28 August 2014 which would have allowed for her attendance for only parts of the Retreat and would have seen her effectively miss the gala dinner and likely the last session on Friday 29 August 2014. Peter McConnell’s evidence of discussions with his wife about her attendance at the Retreat and of him making himself available for the drop-off and pickups was that those discussions occurred in the week commencing 25 August 2014 which was contrary to his wife’s evidence of having had earlier discussions. McConnell gave evidence in cross-examination that definite arrangements had been made for her husband to look after the drop- off and pickups for the two days of the Retreat.” [8] That part of the Commissioner’s reasons does not contain a finding as asserted in ground 1(a)(i). A finding contrary to that asserted by the appellant can be found in [202] where the Commissioner said that the evidence of Mr McConnell “confirmed in my view that McConnell had not put in place child care arrangements of a nature that would have allowed for her full attendance and participation at the Retreat”. [9] The same error on the part of the appellant was repeated in grounds 1(a)(iv), (vi), (vii), (viii) and (ix). The appellant did not pursue grounds 1(a)(iii) and (v). [10] I turn now to the other grounds of appeal. [11] Ground 1(a)(ii). In [204], the Commissioner referred to the retreat as being a “biannual” event”. It was, in fact, biennial. This is nothing more than an irrelevant, probably typographical, error. In the amended application to appeal, it is said that it is conceded that it may be a typographical error but it is “included as part of the grounds of appeal because it is relevant to matters of fact and law on the appeal”. That is not correct. It is entirely irrelevant to the issue which had to be decided. [12] Ground 1(a)(x). The appellant does not clearly identify what the alleged error is. This ground of appeal merely recites some findings but then there is no argument as to why it should be regarded as being an error. [13] Ground 1(a)(xi). This is a highly pedantic and irrelevant complaint about whether Ms McConnell sought “clarification” or “confirmation” as to whether she would be paid for the days of the retreat. This is irrelevant to the issue. -- 3 of 6 -- 4 [14] Ground 1(a)(xii). This was a finding made in the context of a discussion of the nature of Ms Robinson’s participation in the telephone call. Ms Robinson gave evidence that she had to repeat what she was saying because she thought that Ms McConnell did not understand her. Ms McConnell did not accept that she was confused in the conversation and the Commissioner preferred her evidence as to what was said in that conversation. The Commissioner was entitled to draw an inference in the manner in which he did on the evidence which he had accepted. No error is disclosed. [15] Ground 1(b). This ground was withdrawn. [16] Ground 1(c). This is an assertion that the Commissioner erred by finding that Ms Robinson informed Ms McConnell that as the retreat was the second staff retreat she had not attended, that it showed that Ms McConnell had no commitment and that the decision to stand her down was reaffirmed. The appellant relies on [219] to demonstrate that this is a finding. It is not. It is nothing more than a recitation of the evidence. [17] Ground 1(d). The appellant asserts that the Commissioner erred when he found, in [223], that Ms McConnell was not informed that the telephone “meeting” was part of a disciplinary process. The submission advanced in support of that is that there was no evidence that it was part of a disciplinary process. Further, it was said that there was no evidence upon which the Commission could find that any dealings between Ms McConnell and her employer were disciplinary in nature. This misconstrues the finding made by the Commissioner. He simply found that Ms McConnell was not informed the meeting was part of a disciplinary process. Whether or not it was a disciplinary process is a separate question. In any event, there was no evidence to support a finding contrary to that which was made by the Commissioner. This ground is based upon a misconception of the finding. [18] Ground 1(f). This ground refers to [208] of the reasons. In that paragraph, the Commissioner merely recites evidence which had been received. No finding is made. He could not, therefore, have failed to give proper weight to evidence as all that was being done was the setting out of evidence before the Commission. [19] Ground 1(g). This ground asserts that the Commissioner erred by failing to give proper weight to the evidence of Ms Robinson, Ms Joyce and exhibit 10 with respect to the telephone conference on 27 August 2014 when to do so would have affected the reasons for decision. This ground and ground 1(h) are the same except that (g) refers to [210], whereas (h) refers to [232]. The reference to [210] is wrong. Paragraph [210] does not deal with the telephone conference on 27 August 2014 and I assume it is inserted in error. With respect to [232], in that paragraph the Commissioner makes conclusions about the content of the telephone conversation. This ground of appeal, though, does not say what the consequence of failing to give proper weight to the evidence outlined is. It is asserted that it would have affected the reasons for decision, but no argument is advanced to support that assertion. [20] Ground 1(i)(i). This is an assertion that the Commissioner erred in law in finding that reliance ought be placed upon the records and expert opinion of Dr Masel. No argument was advanced which demonstrated how this affected the decision. [21] Ground 1(i)(ii). In this ground it is asserted that the Commissioner erred in law in finding that Ms Robinson reiterated her decision three times in a discussion with Ms McConnell -- 4 of 6 -- 5 for no acceptable or rational reason. The Commissioner made no such finding – nowhere does he say that the reiteration occurred for no acceptable or rational reason. In any event, the Commissioner gave reasons for preferring the evidence of Ms McConnell. [22] Ground 1(i)(iii). It is asserted that the Commissioner erred in law in finding that the telephone conference on 27 August was, or formed part of, a disciplinary process. The appellant argues that there was no evidence which could support such a finding and that it was not part of the case conducted by the respondent at first instance. [23] The issue before the Commissioner was, as has been set out above, the proper characterisation of the telephone call. The reason for that, which is not in dispute, is that all the expert evidence was to the effect that Ms McConnell decompensated as a result of that telephone call. [24] The appellant argues that there was no evidence to support a finding that the telephone call could be regarded as being of a disciplinary nature. There was such evidence. There was evidence of the context of the call, the instructions to take the call in a private area, the fact that three senior managers had been involved in the whole issue, that those managers had formed the view that Ms McConnell did not have a valid reason for attending the retreat, that instructions had been given to Ms Joyce that she was to, in effect, provide Ms McConnell with a last chance to attend the retreat and, if that was rejected, to hand the telephone to Ms Robinson to continue “the process”, that the issue of Ms McConnell resigning was raised in the conversation, that Ms McConnell’s “lack of commitment” was referred to in the conversation, and that even though the retreat was not to take place until the following day Ms McConnell was stood down immediately and told to leave. All of those matters, taken together, allowed the Commissioner to form the view that the management action which was being undertaken was of a disciplinary type. [25] The appellant asserts that it was no part of the case conducted by the respondent at first instance that this conduct should be regarded as falling within the category of disciplinary action. That is not correct. In the respondent’s written submissions provided to the Commissioner from [171] through to [186], the characterisation of the telephone call as a “disciplinary process” is raised on a number of occasions. [26] Ground 1(j). In this ground of appeal, the appellant asserts that the Commissioner erred in law by failing to decide whether the injury was excluded from the definition in s 32 of the Act by virtue of the application of s 32(5)(b). The appellant acknowledges that the Commissioner found that the management action taken by the appellant was reasonable but that because of the manner in which it conducted the telephone call, it was not reasonably taken. It is argued that, in those circumstances, it was necessary for the Commission to decide whether the injury arose out of, or in the course of, Ms McConnell’s perception of reasonable management action being taken against her. The failure to decide at that point was, the appellant submits, an error of law. [27] This ground is not supported by the findings made by the Commissioner. He found, in [232], that “The management action engaged in by the Appellant in and around the telephone conference of 27 August 2014 was not reasonable management action taken in a reasonable way in connection with McConnell’s employment …”. In other words, the Commissioner did not, as asserted by the appellant, find that the conduct of the respondent was reasonable management action. In those circumstances, s 32(5)(b) can have no application. -- 5 of 6 -- 6 Conclusion [28] The appellant has failed to demonstrate any error in the reasoning of the Commissioner. The appeal is dismissed. -- 6 of 6 --