Carlton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 150

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Carlton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 150 PARTIES: Marian Carlton (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) CASE NO: WC/2011/358 PROCEEDING: Appeal against decision of the Workers' Compensation Regulator DELIVERED ON: 10 August 2015 HEARING DATES: 24, 25, 26 and 27 February 2014; 26 June 2014 (hearing) 30 July 2014 (Respondent's submissions) 17 September 2014 (Appellant's submissions) MEMBER: Industrial Commissioner Knight ORDERS : 1. The appeal is dismissed; 2. That the decision of Regulator of 29 August 2011 is confirmed; and 3. The Appellant is to pay the Respondent's costs of and incidental to the appeal to be agreed. In the event agreement cannot be reached between the parties with respect to the costs the Appellant has the liberty to apply. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - WHERE THE INJURY WHICH IS THE SUBJECT OF THE APPEAL IS A PSYCHIATRIC OR PSYCHOLOGICAL INJURY - whether the injury arose out of, or in the course of reasonable management action taken reasonable way by the worker's employer in connection with employment and therefore ousted from the definition of "injury" - where it was alleged the employer did not follow its own performance management procedures - where despite some flaws in the process the employer's actions were reasonable and -- 1 of 21 -- 2 undertaken in a reasonable way in all the circumstances - appeal dismissed. CASES: Workers' Compensation and Rehabilitation Act 2003 s 32 Bowers v Workcover Queensland [2002] QIC 18; 170 QGIG 1 Jones and Dunkel [1959] 101 CLR 298 Keen v Workers' Rehabilitation and Compensation Corp (1998) 71 SARS 42 Prizeman v Q-COMP (2005) 180 QGIG 481 QANTAS Airways Limited v Q-COMP [2006] QIR Comm 27; 181 QGIG 301 Q-COMP v Hohn (2008) 187 QGIG 139 Vesna Misevski v Q-COMP (C/2009/29) [27] - Decision <http://www.qirc.qld.gov.au.> Versace v Braun (2005) 178 QGIG 315 Workcover Queensland v Kehl [2002] QIC 23; 170 QGIG 93 APPEARANCES: Mr A. See instructed by Kerrin Lawyers for the Appellant. Mr S. McLeod directly instructed for Simon Blackwood (Workers' Compensation Regulator). Decision [1] This is an appeal by Marian Carlton ("the Appellant") pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act") against the decision of Simon Blackwood (Workers' Compensation Regulator) formerly known as QCOMP ("the Respondent" /"the Regulator"). The Regulator's decision confirmed the decision of the Insurer to reject Ms Carlton's application for worker's compensation for a psychiatric injury which was said to have arisen from lack of support and harassment from school management, inadequate human and financial resources and adverse workplace conditions. [2] The basis for the Regulator's decision was that the Appellant did not sustain an "injury" within the meaning of that term in s 32 of the Act, relying on the determination that the Appellant's complaints related to her expectation or perception and/or reasonable management action taken against her. -- 2 of 21 -- 3 Grounds of Appeal [3] The grounds of appeal upon which the Appellant relies are as follows: "1. Undue weight was given to the Employer testimony in regard to its motivation behind the meeting of the 8th of November 2010 and the intention of the hand delivered letter at the conclusion of the said meeting; 2. Due weight was not given to the correspondence exchanged between the legal counsels for the Employer and the claimant (self) which formed part of my original submission to WorkCover Queensland and supports my testimony in regard to point 1 above. 3. New evidence subsequent to the original WorkCover claim and Q-COMP submissions supports my testimony regarding the motivation and intention of points 1 and 2 above." Burden of Proof and Issues for Determination [4] Except for those matters conceded by the Respondent, the Appellant carries the burden of proof in this appeal. [5] The issue for determination in this appeal is whether the Appellant suffered an "injury", namely an adjustment disorder, with mixed anxiety and depressed mood within the meaning of that term in s 32 of the Act, and in particular, whether the psychiatric or psychological disorder is removed from the definition of injury by virtue of s 32(5) of the Act. Legislation and Relevant Authorities [6] Section 32 of the Act relevantly provides as follows: "32 Meaning of injury 1) An injury is personal injury arising out of, or in the course of, employment if - a) for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury; or b) for a psychiatric or psychological disorder - the employment is the major significant contributing factor to the injury. 2) However, employment need not be a contributing factor to the injury if section 34(2) or 35(2) applies. 3) Injury includes the following - -- 3 of 21 -- 4 a) a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease; b) an aggravation of the following, if the aggravation arises out of or in the course of, employment and the employment is a significant contributing factor to the aggravation; (i) a personal injury other than a psychiatric or psychological disorder: (ii) a disease; (iii) a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation; 4) For subsection (3)(b) and (ba), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation. 5) Despite subsections (1) and (3) injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances - a) reasonable management action taken in a reasonable way by the employer in connection with the workers employment; b) the workers expectation or perception of reasonable management action being taken against the worker; c) action by the Authority or an insurer in connection with the workers application for compensation." [7] In Q-COMP v Hohn,1 President Hall commented on the meaning of reasonableness at page ten, noting: "Reasonableness does not equate with perfection. It is also the case that reasonableness does not equate with industrial fairness." [8] Also of note is the matter of Misevski v Q-Comp,2 where the employer's processes included a Guide to Performance Management, which allowed for a non-performing employee to be put on a Performance Improvement Plan. Ms Misevski was placed on a Performance Improvement Plan, however in implementing the plan, the employer departed from the steps in the plan. In this matter, President Hall found that in circumstances where the Employer's Human Resource Guide to Performance Management ("the Guide") put in place a reasonable system; by choosing to unilaterally depart from the system, the supervisor had made the system unfair and a potential source of debilitating stress. [9] Of additional relevance in this case is the matter of Versace v Braun3 where President Hall found that reasonable management action had been taken in an unreasonable way, identifying that the lack of reasonableness was found in adequacies in the consultation and/or negotiations between the worker and the employer's 1 (2008) 187 QGIG 139. 2 Vesna Misevski v Q-COMP (C/2009/29) [27] - Decision <http://www.qirc.qld.gov.au.> 3 (2005) 178 QGIG 315. -- 4 of 21 -- 5 representative, which occurred spasmodically over a period from on or about 21 April 2003 to 6 May 2003. [10] In Workcover Queensland v Kehl,4 Hall P when determining whether management action was reasonable or whether management action was taken in a reasonable way, took the position there was no reason why "reasonable" should not be treated as meaning "reasonable in all the circumstances of the case". Accordingly, the use of the word "reasonable" indicates that an objective test is to be applied to the management action and "it is the reality of the employer's conduct and not the employee's perception of it which must be taken into account"; (see Prizeman v Q-COMP [2005] QIC 53; 180 QGIG 48). [11] In QANTAS Airways Limited v Q-COMP5 and Bowers v Workcover Queensland,6 the Industrial Court, in respect of the operation of s 32(5) suggested that management action does not have to be perfect but merely reasonable. The Evidence [12] The Appellant relied on the evidence of the following witnesses: a) the Appellant, Ms Marian Carlton; b) Dr Alison Christensen, Psychologist; c) Dr Eric De Leacy, Psychiatrist; and d) Professor Jennifer Doust, General Practitioner (Report Only). [13] The Respondent relied on the evidence of: a) Mr Brian Savins, School Principal; and b) Vilma Gallinaro, Business Manager. [14] Ms Barnes, an employee within the boarding school for whom Ms Carlton was responsible did not give evidence at the hearing. The Appellant made a submission in reliance on Jones and Dunkel 7 that an adverse inference be drawn from her failure to provide evidence in circumstances where Ms Barnes had provided details of concerns to Mr Savins and Ms Gallinaro in respect of Ms Carlton's performance in the boarding house. [15] The Respondent contends it does not matter whether such matters had substance or not, Mr Savins and Ms Gallinaro were entitled to act upon them and they did just that. That is, the letter of 1 November 2010 foreshadowed the Appellant attending a meeting so the matters stated therein could be discussed. A process was outlined, the Appellant was afforded procedural fairness. There was no requirement for the Respondent (as part of its case) to call Ms Barnes. 4 [2002] QIC 23; 170 QGIG 93. 5 [2006] QIR Comm 27; 181 QGIG 301. 6 [2002] QIC 18; 170 QGIG 1. 7 [1959] 101 CLR 298. -- 5 of 21 -- 6 Amended Statement of Events and Stressor [16] The Appellant contends that there were a number of underlying factors that led to her suffering the on-set of symptoms. These factors can be summarised as follows: "a. Meeting that occurred between the Applicant and Brian Savins, School Principal on 8 November 2010. Issue 1 – Meeting with Principal Brian Savins that occurred on or about 8 November 2010 relating to a letter from the employer to the Applicant dated 1 November 2010. 4. On or about the 8th of November 2010, a meeting occurred which was conducted between Mr Savins and the Applicant. 5. The Applicant was informed of the meeting on the morning of 8 November 2010. Further, at no time prior to the meeting occurring was the Applicant advised that Ms Vilma Gallinaro, business manager and grievance officer was going to be present. 6. At the conclusion of the above meeting and despite not discussing any performance issues with the Applicant, during the course of the meeting, Mr Savins asked the applicant whether she was well enough to receive a letter from him and handed her a sealed envelope. 7. The letter dated 1 November 2010, raised a significant number of performance related issues alleged against the Applicant. 8. None of the performance issues had previously been raised with the Applicant."(underlining added) [17] Counsel for the Appellant, Mr See summarised the alleged stressor in the following terms: "The stressor that gave rise to this injury was the meeting of 8 November 2010 between Ms Gallinaro, Mr Savins and the Appellant, when at the conclusion of that meeting, the Appellant was handed a diminished performance letter." [18] Ms Carlton was engaged on a fixed term contract in the position of Head of Boarding by Clayfield College on or around 18 July 2008. The role encompassed a range of duties associated with the management of a boarding house, including supervision and responsibility for in excess of 100 students, eight boarding house staff and relevant budgets. She did not commence the role until the beginning of Term 4 of that year in the latter half of September after the previous Head of Boarding had retired. Prior to being appointed to the role, Ms Carlton held a series of teaching and boarding management roles in boarding and days schools in both Queensland and New South Wales. The Meeting of 8 November 2010 [19] Ms Carlton's recollection of the 8 November 2010 meeting was that she was not aware Ms Gallinaro was coming to the meeting. Ms Gallinaro's evidence was that she unsure as to whether Ms Carlton was aware she would also be attending. Mr Savins was somewhat vague as to who exactly requested the meeting for 8 November 2010. -- 6 of 21 -- 7 [20] He recalled Ms Gallinaro had informed him that she wished to meet with Ms Carlton because she had some concerns about the management of petty cash in the Boarding House [21] Ms Carlton's evidence was that she was not advised of the meeting until 9.30am on the morning of 8 November 2010. Mr Savins had called her on her boarding school phone, following a period of carer's leave she had taken, and indicated he wished to speak to her. He requested to have a meeting in the afternoon and that he wanted the meeting to take place in the boarding school office (Ms Carlton's office). The meeting time was fixed at 1.30pm. [22] She noted she was very surprised to see Ms Gallinaro, the Business Manager participating in the meeting. Ms Carlton's recollection was that Ms Gallinaro did not greet her at the commencement of the meeting. She recalled becoming somewhat alarmed and confused because she didn't understand what was happening or why Ms Gallinaro was also present in the room. [23] Mr Savins asked her if she was well on a number of occasions at the commencement of the meeting. After they were all seated in the room, Ms Gallinaro opened the discussions by asking about some recent takings from a boarder's tuck shop along with some other funds associated with fundraising by a particular boarder year group. Ms Carlton recalled having the impression that Ms Gallinaro was accusing her of misappropriating the boarder's tuck shop money. [24] Ms Carlton told both Ms Gallinaro and Mr Savins that she thought the funds had been sent across to the school business office. After this, the discussions turned to the estimated amounts that had been raised by the year 12 students and it was suggested to Ms Carlton that some discussions had been held with the boarding captains about money that had been raised. Ms Carlton recalled Ms Gallinaro stating she would need to go back to the Year 12 boarding captains to ask about the funds. [25] Ms Carlton's evidence was that it was at this point that she became quite panicky noting " …it was clear that the comments and the tone of the comments made by Ms Gallinaro and Mr Savins was an indicator that I had misappropriated these funds. I was horrified that the principal would have interviewed my senior girls, my two boarding captains and totally humiliated – that he would have interviewed them and questioned them, indicating that somehow I had, obviously been fraudulent and misappropriated their fundraising moneys."8 [26] At or around this point of the meeting, Ms Carlton recalled both Ms Gallinaro and Mr Savins both standing with Ms Gallinaro indicating they would be following up a number of matters arising out of their discussions. Ms Carlton recalled that as he was moving towards the door, Mr Savins handed her a sealed envelope, noting that there were some serious matters contained in the letter and that she would need to respond to those matters. [27] Ms Carlton told the Commission that after Ms Gallinaro and Mr Savins left the room she was in a great deal of distress. She recalled feelings of fear, disbelief and humiliation. She opened the letter and started to read through the contents noting that 8 Transcript of proceedings, Marian Carlton v Review unit Q-COMP (Queensland Industrial Relations Commission, WC/2011/358, Commissioner Knight, 25 February 2014) 45 (M.T. Carlton). -- 7 of 21 -- 8 this produced an overwhelming sense of fear and disbelief. Further, that it was in fact a letter indicating that she was going to be dismissed.9 [28] In contrast, Mr Savins' evidence to the Commission is that he recalled asking Ms Carlton how she was at the commencement of the meeting because she had been away. He said Ms Gallinaro did spend time discussing the processes that were being used in the management of petty cash in the boarding house. He recalled Ms Carlton did appear to be somewhat surprised that the questions were being asked about the funds and that she was "a little put out that the meeting was about this particular matter", but that the meeting was amicable.10 [29] Ms Gallinaro's evidence was that prior to the meeting she had spoken to Mr Savin's about some serious concerns she had in respect of some missing cash and that she would like to speak to Ms Carlton. She recalled previously speaking to Ms Carlton about the whereabouts of the funds and being told it was in the boarding house.11 [30] The Respondent contends that at no stage was Ms Carlton accused of theft or fraud, that it was open to Ms Gallinaro to ask questions about the location of the funds and that the approach was neither accusatory nor unreasonable. Further, Ms Gallinaro's evidence was consistent throughout the cross-examination, namely that by 3 November 2010 the monies in question had not been received from the Boarding House at the business office and this had motivated her to contact Mr Savins so that she could meet with the Appellant and ask her about the whereabouts of the petty cash. [31] According to Mr Savins, the meeting concluded with him producing a letter dated 1 November 2010 and handing it to Ms Carlton. At the time he recalled asking Ms Carlton to consider the letter and confirmed they would discuss it after she'd had a chance to consider the contents. The Letter to Ms Carlton [32] Mr Savins explained to the Commission the correspondence was developed "by [him] because of concerns that had continued to develop over the course of the year."12 His recollection was that a number of these concerns had also been raised with him by other senior managers and staff within the school. [33] Dated 1 November 2010, the letter contained 31 separate areas of concern relating to Ms Carlton's leadership and management of the boarding house, breaches of security, student welfare, staff welfare, business management of the boarding house, management of catering and laundry, boarding house maintenance and parental concerns. 9 Transcript of proceedings, Marian Carlton v Review unit Q-COMP (Queensland Industrial Relations Commission, WC/2011/358, Commissioner Knight, 25 February 2014) 50 (M.T. Carlton). 10 Transcript of proceedings, Marian Carlton v Review unit Q-COMP (Queensland Industrial Relations Commission, WC/2011/358, Commissioner Knight, 27 February 2014) 19 (B.F. Savins). 11 Transcript of proceedings, Marian Carlton v Review unit Q-COMP (Queensland Industrial Relations Commission, WC/2011/358, Commissioner Knight, 26 February 2014) 63 (V.O. Gallinaro). 12 Transcript of proceedings, Marian Carlton v Review unit Q-COMP (Queensland Industrial Relations Commission, WC/2011/358, Commissioner Knight, 27 February 2014) 19 (B.F. Savins). -- 8 of 21 -- 9 [34] The letter was headed, "Request to Attend Investigative Interview To Discuss Matters of Concern Related to the Leadership and Management of the Clayfield College Boarding House," with the first paragraph requesting Ms Carlton: "…please attend an investigative interview with me so we may discuss matters of concern that continue to be brought to my attention in regards to your leadership and management of our Boarding House. At our interview, I would like to discuss with you in more detail the following matters of concern and provide you with an opportunity to respond to those matters." And later: "Marian, these are major matters of concern to Clayfield College and the reputation of our Boarding House. It is important that these are shared with you so that you may have an opportunity to consider those matters, then discuss at length and respond during our meeting." [35] Ms Carlton's view was that none of the subject areas raised in the letter had previously been discussed between herself and Mr Savins in the context of her performance in so far as it related to operating the boarding house noting: "At no time Commissioner, was I made aware that any of those issues raised had any relation to my performance. Rather, I interpreted, by the tone and the tenor and the explicit language of those discussions, that they were day-to-day issues that we discussed about matters that had occurred, or things that had happened in the boarding house. At no time did I have any indication, or was I made aware at any time they were related to my performance."13 [36] During the proceedings Ms Gallinaro acknowledged she had some involvement in respect of the collation of certain areas of concern which were eventually incorporated in the letter by Mr Savins. Further, that she had seen a copy of the letter in early November 2010 prior to it being handed to Ms Carlton. She was aware from Mr Savins that steps would be taken to meet with Ms Carlton to discuss the contents of the letter but recalled she was unwell on or around 1 November 2010. Contents of the Letter to Ms Carlton [37] During the proceedings Ms Carlton told the Commission the points included in the letter had not previously been raised with her from a performance perspective. Mr See, on behalf of the Appellant has further submitted that Mr Savins in providing Ms Carlton with the 1 November 2010 letter had bypassed Step 1 of the disciplinary process contained in the PMSA Human Resources Policy Manual, moving essentially to the Diminished Performance Stage of the disciplinary process. The Respondent contends that Mr Savins and Ms Carlton regularly conducted informal meetings, at times every fortnight, where performance or role matters were raised and discussed and that these matters plainly went to how she was running the Boarding House. [38] As such, it is essential in this matter to consider in detail the various points contained in the letter and any discussions which may have occurred between Ms Carlton and school management in respect of those matters. 13 Transcript of proceedings, Marian Carlton v Review unit Q-COMP (Queensland Industrial Relations Commission, WC/2011/358, Commissioner Knight, 26 February 2014) 5 (M.T. Carlton). -- 9 of 21 -- 10 Leadership of the Boarding House The need to be seen as more involved in the day-to-day running of the Boarding House [39] Ms Carlton vaguely recalled having a discussion with Mr Savins in respect of her presence in the boarding house, but thought it was more in the context of her moving out of the boarding house to alternate accommodation rather than it being raised from a performance perspective. A lack of clear and open communication with Boarding House staff [40] Under cross-examination Mr Savins indicated the communication concerns arose due to a view about inadequate communication between Ms Carlton, Ms Barnes and Ms Ball. He was unable to specifically recall the time or date when he had a discussion with Ms Carlton about communication but recollected he had followed up and made inquiries about how things were progressing with Ms Barnes and her involvement in the boarding house. Mr Savins indicated he didn't hold a formal conversation with Ms Carlton in respect of her non-compliance in this area. A perception by staff and students that Ms Kellie Byrne is running the Boarding House and is afforded preferential treatment in regards to practices and procedures in the Boarding House [41] Mr Savins' evidence in respect of this area of concern was that a number of the boarding house staff had met with him separately to raise concerns about Ms Byrnes receiving favourable treatment, as well as a perception that she was running the boarding house. Whilst he wasn't clear about the timing of the meeting he recalled raising the concerns with Ms Carlton somewhere between March and June. Ms Carlton's evidence was that this issue had never been raised with her in a formal sense by Mr Savins. Delegation of roles and accountability to Assistant Heads of Boarding without pro- active support to them in undertaking these roles [42] Mr Savins recalled Ms Barnes had approached him directly on two occasions about feeling somewhat unsupported in her role as Assistant Boarding Manager - Resources. He recalled raising the issue with Ms Carlton and that she wasn't surprised by the matter. He also recalled requesting Ms Carlton meet with Ms Barnes before each Boarding House staff meeting so they could go over various matters beforehand. Certainly, in late 2009 an email from Mr Savins to Ms Carlton requests her to speak to Ms Barnes prior to a staff meeting in respect of a new proposed structure within the boarding house. [43] In relation to the proposed new leadership structure within the boarding house, Mr Savins confirmed he was supportive of Ms Carlton's proposal and was alive to the fact that Ms Barnes might have been somewhat disappointed about losing her 2IC status which is why he encouraged Ms Carlton to speak to her about the changes before the staff meeting. Lack of respect for Ms Carlton's leadership [44] Mr Savins told the Commission Ms Gallinaro and Ms Tamer had suggested to him a number of boarding staff had expressed a lack of respect for Ms Carlton's leadership -- 10 of 21 -- 11 style. However, he also acknowledged that he had not previously raised this issue with Ms Carlton prior to its inclusion in the 1 November 2010 correspondence. Challenges associated with Ms Carlton's lack of availability and failure to respond to urgent communication [45] Ms Carlton was of the view her availability and failure to respond to a lack of communication had never been raised as a performance issue. Mr Savins' evidence was there was at least one occasion and possibly more (in cross-examination) where the issue had been raised. Management of the Boarding House Staff Staff perception of authoritarian attitude and threatening tone [46] Ms Carlton told the Commission this issue had not been previously raised by Mr Savins. In contrast, Mr Savins, who would be provided with a copy of the boarding school staff meeting minutes recalled raising some concerns with Ms Carlton in respect of the tone and the approach. Staff rosters are seen as inequitable [47] Ms Carlton was quite clear this issue had not been raised as a performance issue. In contrast, Mr Savins recalled asking her why Ms Byrne, unlike other assistant boarding managers in the leadership team, was not required to remain at the school on duty until 8.00am. He was advised Ms Byrne was unable to work on Monday mornings due to study commitments. Roles and duty expectations not clearly defined [48] Mr Savins recalled this matter linked back to previous concerns raised in respect of communication with other senior boarding school staff. He noted the relationships were strained, negative and were being observed by students in the boarding school. Parents were reporting these observations back to Mr Savins. He intervened in late August 2010 and arranged a meeting with the boarding house senior leadership team with the objective of improving the dynamics and relationships between the team members. The agenda was quite prescriptive and he recalled that at the end of the meeting, all the participants had given a commitment to creating a more harmonious working and boarding environment. [49] Ms Carlton's evidence was that the meeting had been arranged after she had approached Mr Savins and advised him of her own concerns in respect of boarding house harmony following a particularly challenging fortnightly staff meeting where members of the senior leadership team had become openly critical of other members within the team and the meeting had to be stopped. [50] Her recollection was Mr Savins called the meeting to provide her with more support and to revisit some of those issues. Mr McLeod, Counsel for the Respondent also highlighted a previous email from Ms Carlton to Mr Savins that had been tendered during the proceedings where she had expressed a desire for more harmony within the boarding house -- 11 of 21 -- 12 Inexperienced supervisors in charge on some shifts notwithstanding previous instructions from Principal [51] Mr Savins raised his concerns in respect of inexperienced supervisors being left in charge of the boarding house in or around March or April 2010. He acknowledged it wasn't an ongoing issue, but had advised Ms Carlton he had an expectation that there would be a senior boarding staff member or experienced supervisor on every shift. Ms Carlton acknowledged the matter had been raised with her previously by Mr Savins. Reduced numbers of Supervisors [52] Whilst Ms Carlton said she had not been cautioned or warned in respect of this concern, she acknowledged it had previously been raised with her and later, indicated that she had suggested to Mr Savins that the pool of available supervisors be enlarged to make it easier to find a replacement where staff were unwell or another supervisor was required. Mr Savins recalled discussing the matter and Ms Carlton also raising concerns about the challenges associated with maintaining a sufficient pool of supervisors. Breaches of Security Boarding House Staff Disengaging Alarms At Night - Risk to Students [53] Whilst Mrs Carlton told the Commission she was neither cautioned nor warned in respect of alarms, she did recall a conversation with Mr Savins in respect of an incident where Ms Byrnes had disengaged the alarm system in the early hours of the morning. [54] The Respondent submits that when she was told it was effectively part of her role to "fix it up", Ms Carlton had stated, "I cannot be held responsible for a performance breach of another staff member in this regard", although she did advise Mr Savins she would communicate her expectations to the boarding staff in respect of alarms and security. The matter was also recorded in the staff minutes of a boarding house leadership team meeting. Student Absence - Late Detection [55] Mr Savins was notified by another member of the Boarding House that a student had gone missing on Saturday, 16 October 2010. The absence had come to the attention of the boarding house at approximately 11pm. [56] He forwarded an email to Ms Carlton advising he was shocked that he hadn't been informed of the incident at the time it occurred and told the Commission: "I was very disappointed that a student had gone missing without being reported to me as soon as possible", noting he was disappointed because, "…as the principal of the school, I'm responsible, ultimately, for the welfare of every child in our care, and it would be normal practice in any boarding school that the principal would be advised immediately of such a – such an important situation"14 14 Transcript of proceedings, Marian Carlton v Review unit Q-COMP (Queensland Industrial Relations Commission, WC/2011/358, Commissioner Knight, 27 February 2014) 36 (B.F. Savins). -- 12 of 21 -- 13 [57] Ms Carlton considered the issue to be a simple oversight and that the situation had been resolved perfectly well in the end, with the student being returned within a short time frame. Student Welfare  Student Unhappiness in Boarding House  Student Untidiness and Lack of Respect for Boarding House Facilities  Unacceptable student presentation and behavior [58] Ms Carlton highlighted the ongoing challenges in respect of standard of dress in a boarding school in the context of nurturing and rearing children in a boarding school environment, suggesting these sorts of difficulties were an issue in any boarding school. [59] That aside, Ms Carlton acknowledged that student dress, presentation and behavior was an ongoing issue in the boarding house. Further, a close review of various emails between Mr Savins and Ms Carlton, along with the boarding school leadership team minutes indicate it was a matter that was an ongoing challenge for the boarding house and Ms Carlton over a reasonable period of time. [60] The Respondent, in its submissions, drew the Commission's attention to what it described as Ms Carlton's view that she was not responsible for the poor performance of her staff when it came to monitoring uniform standards, dress, manners and behavior highlighting her comments where she noted "…the buck stops with the staff member who is in charge of running that particular shift…running that particular meal."15 [61] Mr Savins' evidence in respect of these issues was that Ms Carlton had responded to his concerns but had also advised there were not enough staff to police the problem. Staff Welfare  Staff feel uncomfortable working in the Boarding House  Low Staff Morale  High Staff Turnover [62] Mr Savins' told the Commission he had raised concerns regarding ongoing conflict between boarding house staff members with Ms Carlton in one of their meetings earlier in 2010. A meeting agenda provided to all boarding house staff in August 2010, including Ms Carlton, in respect of achieving a more harmonious work environment (see Item Number 9 above) suggested Mr Savins considered the issue was serious enough to get involved in a team meeting to try to create a more constructive environment. Further mention of challenges associated with boarding house harmony were also raised in staff minutes in October 2010. [63] Mr Savins' recalled an incident where there had been an altercation between Ms Byrne and Ms Kilpatrick in respect of some clothing being left in a washing machine which had become quite robust. 15 Transcript of proceedings, Marian Carlton v Review unit Q-COMP (Queensland Industrial Relations Commission, WC/2011/358, Commissioner Knight, 25 February 2014) 29 (M.T. Carlton). -- 13 of 21 -- 14 [64] In final submissions, the Respondent drew the Commission's attention to Ms Carlton's evidence in cross-examination in respect of staff morale and her relationships with various team members when she said: "…this incident, coupled with your relationships with Mrs Barnes and Mrs Ball were now quite difficult, weren't they? ---Yes Things weren't rosy were they, let's be frank? ---No There was a lot of tension between yourself and other Boarding House staff members, particularly the assistants? That's correct."16 [65] In respect of staff turnover, Mr Savins recalled raising the matter with Ms Carlton but was unsure about the timing. He was of the opinion that the turnover in 2010 was quite abnormal and beyond anything he had experienced, though later acknowledged the senior boarding house staff had remained with the school during this time. Ms Carlton noted that turnover of supervisors was not uncommon in a challenging boarding school environment. Business Management of Boarding House 1) Failure to follow business practices as requested by Business Manager [66] Included in the letter were concerns raised by Ms Gallinaro in respect of certain business practices of Ms Carlton including the use of residential staff to cover shifts and the associated Fringe Benefits Tax (FBT) implications, procedures associated with the collection of boarding house fund raising monies and the correct processes associated with engaging staff. [67] In particular, Ms Gallinaro had expressly requested on three separation occasions that additional casual hours of work be drawn from the existing pool of residential staff due to the issues associated with FBT. Ms Carlton acknowledged this issue had been raised with her but said she was aware she needed to go outside of the guidelines on occasions due to staffing requirements [68] Ms Carlton also acknowledged she had been informed on at least two occasions of the proper procedure in respect of handling boarding school fund raising monies and the need for the funds to be provided directly to the business office. 2) Staff recruitment and paperwork not completed [69] Likewise, Ms Carlton said she understood the correct procedures to follow in respect of the recruitment of staff but denied being involved in the preparation of an employment contract for Ms Byrne. Ms Gallinaro said she had also raised concerns in respect of leave forms not being completed or in a timely manner on at least two occasions and possibly more, recalling that Ms Carlton would need to be followed up in order to get the forms. Ms Carlton could not recall the leave form matters being raised with her. [70] Ms Carlton denied being formally counselled by Mr Savins in respect of the staffing, FBT concerns or fund raising processes. 16 Transcript of proceedings, Marian Carlton v Review unit Q-COMP (Queensland Industrial Relations Commission, WC/2011/358, Commissioner Knight, 26 February 2014) 34 (M.T. Carlton). -- 14 of 21 -- 15 3) Unacceptable budgetary submission for 2011 budget [71] The Respondent contends Ms Carlton acknowledged Ms Gallinaro held a number of discussions with her in 2008, 2009 and 2010 in respect of her budgetary responsibilities and the need for her to prepare a boarding house budget. Ms Carlton acknowledged that in September 2010 there was an occasion where she was unable to give the Business Manager, Ms Gallinaro, a clear response in respect of particular items or matters included in her proposed budget. [72] Ms Carlton's evidence was that she was eventually able to provide a response to the Business Manager in respect of a number of line items. Ms Gallinaro's evidence was despite being advised to provide a spreadsheet, Ms Carlton provided her with four or five pieces of paper and that she considered the material provided by Ms Carlton to be incomplete and incompetent in certain areas. 4) Unacceptable management of allocated budgets despite clear direction from Business Manager [73] This issue was principally in relation to overspending associated with the use of taxis for boarding students in 2009 and 2010 for transportation where it was necessary for students to attend medical appointments, sporting events or other travel commitments. [74] Previously, Ms Carlton had been accessing a school vehicle for her private use, which was also utilised to transport boarding students where required. Under her terms and conditions of employment, the Respondent submits, Ms Carlton was entitled to swap the car for a cash equivalent amount, which she took advantage of in April 2009. At the time, Ms Gallinaro's evidence was that she raised the question of how students would be transferred. The understanding was that Ms Carlton would utilise her car to assist with some of the transport requirements and then be reimbursed for fuel. [75] Instead, Ms Gallinaro recalled the spending on taxis increasing throughout 2009 and 2010. She recalled raising the issue with Ms Carlton who agreed to address the concern. Ms Carlton acknowledged during the course of the hearing that Ms Gallinaro had raised the matter with her. 5) Repeated budget requests for matters of a low priority or previously rejected [76] Ms Carlton could not recall raising such issues in respect of the glazing of windows and a new bathroom on a repeated basis, however in cross examination she conceded that multiple requests had been made despite being informed by Ms Gallinaro that the requested changes were cost prohibitive. Management of Catering and Laundry Staff 6) Food wastage due to poor communication between Boarding House and Kitchen 7) Kitchen and laundry staff excluded from staff meetings [77] The Respondent submitted this was an ongoing area of concern which had been raised by Mr Savins, Ms Gallinaro and Mr Klein the head chef and that issue of food wastage and in particular the number of students attending meals had become a serious problem. -- 15 of 21 -- 16 [78] Certainly, the Commission was provided with an email where Mr Klein had raised his concerns and where Ms Carlton has undertaken to address the issue. Likewise, Mr Savins had raised food wastage as a serious concern via email later that year in August 2010. [79] Ms Carlton indicated that part of the challenge with assessing meal numbers was that it wasn't compulsory to eat and noted that many boarding schools were trying to de-institutionalise. She also denied being requested to be more inclusive with Mr Klein in respect of the catering operations of the boarding house. Likewise, Mr Savins acknowledged he hadn't raised an issue with respect to the inclusion of laundry staff. Boarding House Maintenance 8) Reluctance to provide guidance to Assistant Head of Boarding – Resources 9) Boarding House Appearance, does not present at its best [80] The Respondent contends it is clear there were accepted challenges in respect of the relationship between Ms Carlton and Ms Barnes. Further, that on a number of occasions Mr Savins would have requested Ms Carlton maintain an open dialogue with the Assistant Head of Boarding – Resources. Ms Carlton on the other hand recalled being asked by Mr Savins about how she was going with all of the Assistant's but was unable to recall a specific conversation in respect of Ms Barnes. [81] That aside, earlier email correspondence indicates Mr Savins had specifically requested Ms Carlton speak to Ms Barnes about new structure of the leadership team in late 2009 and subsequent meetings between Mr Savins and the entire boarding house leadership team in August 2010, suggest he had become involved in attempts to restore a degree of functionality and harmony into the boarding house at a time when various team members were not getting along. [82] Challenges associated with the appearance of the boarding house in respect of maintenance and cleanliness had previously featured in the Boarding School team leadership minutes of May 2010. Ms Carlton agreed that Mr Savins had also raised concerns about the general appearance of the boarding house. Mr Savins acknowledged there were limitations around what could be undertaken to address the physical appearance of the boarding house in circumstances where budgetary restrictions were in place. Parental Concerns to Principal 10) Lack of availability to students and parents 11) Lack of presence in Boarding House 12) Concerns regarding standard of personal dress and presentation at public events [83] Ms Carlton recalled Mr Savins raising concerns in respect of her availability to parents and where he indicated he had received reports her phone had simply rung out on occasion leading to a perception she was not in attendance when she should have been. [84] The Respondent acknowledged concerns in respect of Ms Carlton's personal dress and presentation at public events had not been raised directly with her. -- 16 of 21 -- 17 Diminished performance, counselling and guidance processes [85] The PMSA Human Resources Policy Manual which is followed by the school sets out what is required in circumstances where there is an expectation that an employee address performance issues, with the first step requiring guidance and the second step moving onto a diminished performance process. [86] Mr See, on behalf of the Appellant contends the contents of the 1 November 2010 letter, much of which was prepared by Ms Gallinaro, arose as a result of a formal grievance process that Mr Savins did not want Ms Carlton to know about, rather than her competence or performance. Further, that as of late as 16 October 2010, no serious performance issues had been raised by Mr Savins with Ms Carlton but that it is clear from a confidential memorandum provided to the Clayfield College Board in December 2010 and a subsequent later email from the school's industrial relations advisor that he intended to commence the diminished performance process, bypassing Stage One which incorporated the provision of guidance on an informal level. [87] The Appellant submitted the school did not follow its own Grievance Policy or Diminished Performance Policy and the conduct was designed to bring Ms Carlton's employment to an end. [88] The Appellant further submits the evidence of Mr Savins indicates there were no occasions where the matters listed in the 1 November 2010 correspondence were raised in the context of providing a warning or highlighting a significant performance deficit. Further, that up to and until the September PPR's which were held on 1 and 9 September 2010, there was no mention of any of these matters forming the basis of any improvement discussions. [89] In contrast, the Regulator submits the evidence clearly supports the conclusion that various concerns and related problems were discussed with Ms Carlton as part of regular meetings she had with Mr Savins and to a lesser extent, Ms Gallinaro. Also, that the matters raised by Mr Savins and Ms Gallinaro plainly went to how Ms Carlton was managing the boarding house, but that on many occasions she attempted to distance herself from the concerns, taking no responsibility and blaming other staff from the boarding school. Further, that the correspondence of 1 November 2010 expressly provided Ms Carlton with an opportunity to take some time to prepare a response to the issues being raised in a future meeting. Medical Evidence [90] Dr Eric De Leacy, psychiatrist, gave evidence and prepared a report, dated 11 May 2012. He noted the 1 November 2010 letter came as a shock to Ms Carlton and this proved to be quite a stressful event for her noting: "Mrs Carlton indicated that at no stage were any of those performance issues previously raised with her…in any manner or significant way and that's why it came as a bombshell."17 And later: 17 Transcript of proceedings, Marian Carlton v Review unit Q-COMP (Queensland Industrial Relations Commission, WC/2011/358, Commissioner Knight, 25 February 2014) 66 (E. De Leacey). -- 17 of 21 -- 18 "Well they may have been raised - I can't remember exactly why - but they may have been touched on, but certainly not raised in the way they would have been threatening. ... I can't say with my level of recollection that they may not have been touched on in a minor way, but certainly not in a way that led her to believe that she was going to be under the gun, so as to speak."18 [91] In cross-examination Dr Christensen confirmed that the history provided to her was that Ms Carlton had not been aware about any concerns in respect of her work performance until receiving the letter on 8 November 2010.19 Findings and Conclusions [92] Given the evidence of De Eric De Leacy, I have concluded the Appellant suffered a psychological injury which was diagnosed as an "Adjustment Disorder with Anxiety and Depressed Mood. [93] Whilst the Respondent argued Dr Christensen and Dr De Leacy based their opinions on Ms Carlton's reported history that she had never been made aware of the issues contained in the 1 November 2010 letter prior to being handed the correspondence on 8 November 2010, I'm satisfied, in the absence of any other evidence demonstrating external factors which may have contributed to the Appellant's psychological injury, that Ms Carlton's employment was a significant contributing factor to the psychological disorder. [94] The key remaining issue for determination before the Commission is whether the Appellant's psychological injury was withdrawn from the category of compensable injuries by operation of s 32(5) of the Act. [95] Accordingly, s 32(5)(a) and (b) of the Act requires consideration as to whether the Appellant's injury has arisen out of, or in the course of, circumstances that involve reasonable management action taken in a reasonable way by the employer in connection with the Appellant's employment and/or the workers expectation or perception of reasonable management action being taken against the worker. [96] The question of "reasonableness" is also a question of fact having regard to all the circumstances of the matter. In Abby Emma Holt and Q-COMP (WC/2012/44), Deputy President O'Connor applied Keen v Workers' Rehabilitation and Compensation Corp (1998) 71 SARS 42, Lander J, in dealing with s 30A of the Workers' Rehabilitation and Compensation Act 1986 (SA), who discussed whether "the administrative action was reasonable and, if reasonable, whether it was taken in a reasonable manner by the employer", writing: "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 18 Transcript of proceedings, Marian Carlton v Review unit Q-COMP (Queensland Industrial Relations Commission, WC/2011/358, Commissioner Knight, 25 February 2014) 67 (E. De Leacey). 19 Transcript of proceedings, Marian Carlton v Review unit Q-COMP (Queensland Industrial Relations Commission, WC/2011/358, Commissioner Knight, 25 February 2014) 21 (A. Christensen). -- 18 of 21 -- 19 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."20 [97] The Appellant has submitted this case is a story about a woman who was undermined at work from Day 1, even when she arrived with her removalists at the school. Thereafter she fell victim to this ongoing undermining and paranoid behavior that ultimately gave rise to the central stressor. That is, the action of the employer to interrogate Ms Carlton in the manner that it did on 8 November 2010, in relation to "missing money" was unreasonable and taken in an unreasonable way. [98] Mr See on behalf of the Appellant also argued the "diminished performance/disciplinary letter", was not reasonable management action, highlighting the respondent did not follow its own policies and the conduct was clearly designed to bring the employment contract to an end. Further, that Ms Gallinaro and Mr Savins had plotted a path that later had become exposed for its sheer impotence and unfairness. [99] I have some difficulty accepting the proposition that Ms Carlton was "interrogated" in respect of the missing monies. She was contacted earlier in the day by Mr Savins who on her own evidence politely asked her to attend a meeting in the boarding house office. However, I accept that she was more than likely not aware Ms Gallinaro would be attending the meeting. [100] Certainly, another course of action could have been to have sent an email in respect of the missing boarding house monies, however I accept the evidence of Ms Gallinaro that she had previously advised Ms Carlton about the processes that needed to be followed in respect of those monies being taken directly to the Business Office and that it was reasonable to want to raise these concerns verbally. [101] In my opinion, the manner in which the meeting was facilitated by Mr Savins and Ms Gallinaro was somewhat clumsy and certainly not perfect. However, Ms Carlton had been on carer's leave immediately prior to the 8 November 2010 meeting, which meant there had been limited time within which to arrange a meeting in respect of the missing monies. [102] Whilst it is clear that Mr Savins had previously not "formally" warned Ms Carlton in respect of all of the matters contained in the correspondence, I am satisfied that most of the issues had been raised with her either in fortnightly discussions, via email or general discussions. I'm also satisfied Mr Savins was not an autocratic fellow and instead had attempted to provide Ms Carlton, an experienced, qualified and senior member of the management team with guidance in respect of many of the matters contained in the correspondence. Certainly, on her own evidence Ms Carlton acknowledged many of the matters contained in the correspondence had been raised with her, albeit not in a formal sense. 20Keen v Workers’ Rehabilitation and Compensation Corp (1998) 71 SARS 42. -- 19 of 21 -- 20 [103] In my view the school's human resource manual was not so prescriptive that it required Mr Savins to provide such "guidance" in a particular manner such that discussions needed to be formally documented or regimented. From a management perspective, one can appreciate the benefits of a senior principal being able to tailor his approach towards individual teaching or boarding house staff such that he was able to assist them to overcome challenges in a constructive and encouraging manner. [104] Whilst I do accept the correspondence provided to Ms Carlton could have been more condensed and tailored to reflect his priority concerns, in my opinion it was not unreasonable to prepare such correspondence in circumstances where he had mounting concerns in respect of Ms Carlton's management of the boarding house. [105] It's more than likely that he had turned his mind to what he was going to do in circumstances where he was unable to turn Ms Carlton's performance around. It may well have been the case, that subject to Ms Carlton's responses on or around their next meeting, that a diminished performance process may have been formally commenced, however in my opinion it was not unreasonable for Mr Savins and Ms Gallinaro to raise concerns in respect of the missing monies, along with other matters in respect of the boarding house. [106] Whilst I also accept that Ms Barnes, did at times, take the opportunity to undermine Ms Carlton, it is also clear, Ms Carlton, in the performance of her duties would distance herself from accepting full responsibility for the operations of the Boarding House, at times blaming other staff and/or pointing to budgets or other restrictions as excuses for some of the challenges, in circumstances where it was up to the Manager of Boarding to identify solutions and address Mr Savins concerns. [107] At times, during the course of the proceedings, Ms Carlton made a number of comments in respect of the matters of concern raised in the 1 November 2010 correspondence which indicated she did not appreciate it was her responsibility as Boarding Manager to identify solutions to issues such as boarding house food wastage, inadequate supervision and boarding resident's behavior and conduct. [108] For example, she was quite detailed in her explanation to the Commission around the way in which boarding schools are moving toward a less institutionalised structure which meant in turn that the rules in respect of eating and attendance were now less rigorous, yet she seemed to lack an appreciation for the more commercial aspects of the operation of the boarding house and how she might have better assisted the Chef and Ms Gallinaro to reduce costs and wastage in this area. [109] In circumstances where there was a view Ms Carlton was not fully understanding the extent of her responsibilities, Mr Savins and Ms Gallinaro's attempts to raise their concerns and seek a response via the 1 November 2010 correspondence was not unreasonable. The handing over of the letter at the conclusion of the discussions around the location of the boarding house monies was certainly a little clunky, but in my opinion not unreasonable in all the circumstances. Further, the letter was clearly providing Ms Carlton with an opportunity to respond to the concerns at a time of her convenience and in a manner she had a degree of control over. [110] In Prizeman v Q-COMP (2005) 180 QGIG 481 his Honour President Hall wrote: -- 20 of 21 -- 21 "And it must be remembered that it is a consequence of s. 34(5)(b) of the WorkCover Queensland Act 1996 (s. 32(5)(b) of the Act) that, in determining whether action was reasonable management action taken in a reasonable way by the employer in connection with the worker's employment, it is the reality of the employer's conduct and not the employee's perception of it which must be taken into account."21 [111] In considering the evidence before the Commission and assessing the "reality of the employers conduct" it was not reasonable for the Appellant to form the view that she was being targeted. This is particularly so when regard is had to the totality of the circumstances which precipitated her injury. Likewise, I have not been persuaded Mr Savins and Ms Gallinaro engaged in unreasonable management action in an unreasonable way; or reasonable management action in an unreasonable manner. [112] For the reasons advanced, I dismiss the appeal and find that the Appellant has not sustained an "injury" within the meaning of that term in s 32 of the Act. I make the following orders: 1) That the decision of the Respondent dated 29 August 2011 is confirmed; and 2) That the Appellant pay the Respondent's costs of, and incidental to, this appeal, such costs to be agreed between the parties, or failing agreement, to be the subject of a further application to the Commission. 21 Prizeman v Q-COMP (2005) 180 QGIG 4. -- 21 of 21 --