Adams v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 55

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Adams v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 055 PARTIES: Mary Adams (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) CASE NO: WC/2013/133 PROCEEDING: Appeal against decision of Simon Blackwood (Workers' Compensation Regulator) DELIVERED ON: 18 March 2014 HEARING DATES: 21, 22, 23 and 24 October 2013 24 January 2014 - Appellant's Submissions 18 February 2014 - Respondent's Submissions MEMBER: Industrial Commissioner Fisher ORDERS : 1. The appeal is upheld. 2. The decision of the Regulator is set aside and the claim is one for acceptance. 3. Costs are reserved CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Psychological injury sustained as a result of being bullied and harassed in workplace - Sexual harassment - Depressive illness - Post-traumatic stress disorder - Whether the injury is withdrawn from s. 32(3) of the Act because the aggravation injury arose out of or in the course of reasonable management action taken in a reasonable way - Seven stressors - Evidence - Language and conduct in the workplace - Swearing, shouting and inappropriate remarks - Use of derogatory remarks about women acknowledged - Management action on return to work reasonable - Failure to investigate behaviour - Uncomfortable and unpleasant work environment - Origin of the aggravation injury - Determined aggravation injury did not arise out of or in the course of reasonable management action taken in a reasonable way - Injury not withdrawn from -- 1 of 15 -- 2 s 32(3) because of the operation of s 32(5) of the Act - Appeal upheld. CASES: Workers' Compensation and Rehabilitation Act 2003, s 32(3), s 32(5)(a) Q-COMP AND Malcolm Hochen (C/2009/47) - Decision http://www.qirc.qd.gov.au Delaney v Q-COMP [2005] 178 QGIG 197 APPEARANCES: Ms L Willson, Counsel instructed by Parker Simmonds Lawyers for the Appellant. Mr S P Gray, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent. Decision [1] Mary Adams claims she sustained a psychological injury as a result of being bullied and harassed by her Manager, Lance Hippisley. Ms Adams lodged a Notice of Claim for damages with WorkCover Queensland which was rejected. Ms Adams then sought a review of that decision by Q-COMP. Q-COMP confirmed the decision of WorkCover and determined the claim should be rejected. Ms Adams now appeals that decision to the Queensland Industrial Relations Commission (the Commission). (Note: Since the filing of the appeal the Act has been amended with the result that Q-COMP has been abolished and replaced by the Workers' Compensation Regulator, Simon Blackwood (the Regulator). In this decision the Regulator is used in place of Q-COMP). [2] The parties agree, and the Commission accepts, that Ms Adams was a worker at the time she sustained her personal injury, which is a psychiatric or psychological injury. [3] The Regulator submits that the injury is more appropriately described as an aggravation of a personal injury in light of the opinion of Dr John Brown, Consultant Psychiatrist, who is Ms Adams' treating psychiatrist. Without descending into the reasons for Dr Brown's opinion, his diagnosis was that Ms Adams suffers from a recurrent major depressive illness and post-traumatic stress disorder. He described her injury as an exacerbation of a pre-existing injury. He opined that the illnesses flared as a result of the sexual harassment in the workplace. [4] Dr Harvey Whiteford, who provided a medico-legal report as well as giving oral evidence to the Commission, opined that Ms Adams had developed either an adjustment disorder with depression, or a major depressive episode, plus an exacerbation of a pre-existing post-traumatic stress disorder which Ms Adams primarily attributes to the bullying and harassment by and conflict with her supervisor. [5] The Regulator refrained from making a submission about which diagnosis was to be preferred noting that the Appellant had relied on that of Dr Brown. In those -- 2 of 15 -- 3 circumstances the Regulator was content to accept his diagnosis. In light of this concession, the Commission will also accept Dr Brown's diagnosis. Further, I am of the view that the injury was an aggravation of a pre-existing personal injury. Accordingly, the injury needs to be considered under the provisions of s 32(3) of the Workers' Compensation and Rehabilitation Act 2003 (the Act). [6] Although the Regulator contests that the events occurred in the manner described by Ms Adams, it accepts the aggravation injury arose out of or in the course of Ms Adams' employment and employment was a significant contributing factor to her injury. While noting the Regulator's caveat, the Commission accepts that the evidence establishes that the employment elements of s 32(3) of the Act have been met. Issue for Determination [7] The issue to be determined on this appeal is whether Ms Adam's injury is withdrawn from s 32(3) because the aggravation injury arose out of or in the course of reasonable management action taken in a reasonable way: s 32(5)(a) of the Act. Overview [8] Ms Adams commenced employment with Healthscope Ltd at the Allamanda Private Hospital (the Hospital) in the position of Enrolled Nurse in the endoscopy unit of the surgical centre from late August 2006. When that centre closed Ms Adams moved to a position of Enrolled Nurse (Surgical Technician) in the Central Sterilising Department (CSD). She held that position from July 2008 until her decompensation on 31 August 2011. [9] Lance Hippisley was Ms Adams' Manager in the CSD. Until about July 2011, Mr Hippisley also managed the stores department. During that period, because Mr Hippisley commenced work at 6.00 am and Ms Adams started at midday, Mr Hippisley estimated that there was a period of about 30 minutes to an hour when both he and Ms Adams were together in the CSD. [10] Much of this Appeal concerns the language and remarks allegedly made by Mr Hippisley in the workplace. The Regulator does not dispute that Mr Hippisley swore in the workplace but does dispute the particular language that Ms Adams alleged Mr Hippisley used, that it was directed at Ms Adams and that Mr Hippisley made inappropriate comments to Ms Adams and about other employees. [11] A series of events occurred on 29 and 30 August 2011 which involved Mr Hippisley and Ms Adams and extended to other staff. Ms Adams decompensated on 31 August 2011 and received medical certification for workplace stress from her General Practitioner, Dr Rajan Payyapilly, on 1 September 2011. Consideration and Findings - the Stressors [12] A Statement of Stressors was filed for the Appellant listing seven stressors. Stressors 1, 2 and 4 concern Mr Hippisley's language and conduct in the workplace. It is convenient to deal with these matters together. The third stressor concerns a complaint made to the General Manager of the Hospital about Mr Hippisley's -- 3 of 15 -- 4 conduct. The fifth stressor relates to a meeting between Ms Adams, Mr Hippisley and the Workplace Health and Safety Officer, Sandra Downs. Stressors 3 and 5 are considered separately. The sixth and seventh stressors concern the events which followed this meeting. They will also be dealt with separately. Stressors 1, 2 and 4 - Mr Hippisley's language and conduct in the workplace [13] Stressor 1 of Ms Adams' Statement of Stressors is that over the period of time between September 2010 and 2011, Mr Hippisley's "behaviour in the workplace towards her and other staff was often bullying, sexual in nature and caused the claimant significant distress. His behaviour included swearing, shouting and inappropriately (sic) personal remarks in front of other staff." Stressors 2 and 4 also relate to remarks allegedly made by Mr Hippisley directly to Ms Adams. Ms Adams was upset and embarrassed by these remarks. [14] It is common ground that Mr Hippisley regularly swore in the workplace. He was liberal with the use of the word "fuck", including in his dealings with Ms Adams, however, the evidence from him and other workers was that this word was not personally directed but a general term used to express annoyance. In the same way, Mr Hippisley regularly used the phrase "bang it up your freckle." [15] Ms Adams said that Mr Hippisley would also use particular derogatory terms when referring to women. Mr Hippisley and other witnesses denied that he would use those terms but used another. [16] Ms Adams also said that Mr Hippisley made derogatory comments about two particular employees, one female and one male. Fanny Franks, who was employed in the CSD at the time the alleged remarks were made by Mr Hippisley about the female employee, supported Ms Adams' evidence on this point. Ms Adams said Helen Law, another employee of the CSD, was also present when Mr Hippisley made the alleged remark. [17] Mr Hippisley acknowledged describing the female employee in a particular (derogatory) way under his breath but denied using the words attributed to him by Ms Adams and Ms Franks. [18] Both Ms Adams and Ms Franks said that Ms Law had responded to Mr Hippisley's comments by saying "that's disgusting." Ms Law's evidence was that she could not recall the remarks, commenting that given their nature she would have remembered them. She added that Mr Hippisley did not make comments of the nature that had been alleged. Ms Law also denied making the response attributed to her. [19] Mr Hippisley denied making any offensive comments about the male employee. In relation to this matter, Mr Hippisley said that at one point this employee was distressed and had asked for some time off work. Mr Hippisley arranged for him to have three months leave. Ms Margaret Law, the Nurse Unit Manager, Ms Helen Law and Chris Featherston, Enrolled Nurse (Sterilising Technician), did not hear Mr Hippisley make derogatory comments about this employee. [20] Mr Hippisley is alleged to have directed sexually offensive remarks to Ms Adams personally on two occasions. The first, (Stressor 2), occurred in September 2010 -- 4 of 15 -- 5 when Ms Adams was involved in a misunderstanding about the cleanliness of instruments used in the operating room. Mr Hippisley denied making the comments. In relation to the first occasion, Ms Adams said Ms Featherston was present when the remarks were made. Ms Featherston did not remember the incident. [21] Ms Adams said the other incident occurred on her return from leave in May 2011. This incident is Stressor 4. During her leave Ms Adams underwent a dental procedure in the Phillipines. Her evidence was that Ms Featherston and Ms Law were present when Mr Hippisley made the second set of remarks. Ms Law was said to have responded, "Lance, that's disgusting." [22] Mr Hippisley denied making the comments. Ms Featherston said she had not heard the comments attributed to Mr Hippisley and had not heard Ms Law's alleged response. Ms Featherston said that people were laughing about Ms Adams' dental work and Ms Adams would smile and laugh. [23] Ms Law said she had not heard Mr Hippisley make the remarks and she would remember if he had because "it's not something people say." She could not recall saying "that's disgusting" but acknowledged that she would respond in that way when Mr Hippisley told a joke of a sexual nature. Mr Hippisley confirmed under cross-examination that he told jokes containing sexual innuendo and foul language. [24] Ms Adams also said in her evidence that Mr Hippisley had inappropriately questioned her about her sexual practices. Mr Hippisley denied that allegation. Other witnesses called by the Regulator confirmed that they had not heard Mr Hippisley ask these types of questions in the workplace. Findings [25] The Appellant contends that given Mr Hippisley's acknowledgement of his use of certain swear words and derogatory language, that the Commission could be satisfied as a finding of fact that the specific behaviour of Mr Hippisley of which Ms Adams complains occurred in the manner she described. [26] The Regulator rejects this contention, arguing that the particular derogatory or offensive words Ms Adams said Mr Hippisley used were not those to which Mr Hippisley admitted nor did the bulk of the evidence from other witnesses support Ms Adams' version. However, the Regulator acknowledged that Mr Hippisley used the word "fuck" and other derivatives as well as using the phrase "bang it up your freckle." [27] The Regulator also contends that the evidence does not support a finding that Mr Hippisley made derogatory comments about the two employees as alleged. Further, the weight of evidence does not support a finding that Mr Hippisley made the alleged remarks to Ms Adams in either September 2010 or May 2011. [28] Differences exist in the evidence of Ms Adams and that of Mr Hippisley about the language he used in the workplace. Mr Hippisley was remarkably, and somewhat disconcertingly, frank about the language he used. Despite its inappropriateness in the workplace, I prefer his evidence about the language he used. This includes his -- 5 of 15 -- 6 regular use of the word "fuck", the phrase "bang it up your freckle", the derogatory term he said he used to describe women and his telling of offensive jokes. [29] On Mr Hippisley's own admission, he made derogatory comments about the female employee, albeit that the words he used were not those alleged by Ms Adams. The weight of evidence does not support a finding that Mr Hippisley made derogatory comments about the male employee. [30] I am unable to find that Mr Hippisley made the remarks attributed to him in September 2010 and/or May 2011 because those who were said to have witnessed the incidents did not recall the remarks being made. In my view, given their nature, they would have been recalled. [31] Although it did not fall within the stated stressors, I would also note that the evidence does support a finding that other employees, including Mr Hippisley, made fun of Ms Adams' dental work. Some witnesses for the Respondent said that Ms Adams joined in, however, this was not put to Ms Adams for her response. Stressor 3 - Report of Mr Hippisley's behaviour and the failure to investigate [32] On 28 September 2010, Ms Adams' partner, Robert Hayes, telephoned the General Manager of the Hospital, Rodney Green, to complain about the conduct of Mr Hippisley. Mr Hayes did not give his name or that of Ms Adams but said his wife worked in the CSD. Mr Hayes told Mr Green of the sexually offensive remark that Mr Hippisley was said to have made earlier that month; Mr Hippisley's inappropriate questioning of his wife's sexual activity and use of foul language. He also reported that Mr Hippisley was bullying his wife and playing favourites in the CSD. Mr Hayes said Mr Green told him he would investigate the matter. [33] Mr Green called Mr Hippisley to his office. Mr Hippisley said Mr Green asked him about his swearing and showing favouritism. He explained that he swore but that swearing was commonplace in the health industry. He also advised Mr Green he had informed staff the previous day that some casuals were to lose their jobs and there had been a confrontation with one employee about the matter. [34] Ms Adams said that on Mr Hippisley's return to the CSD after meeting with Mr Green he said "some arsehole had put in a complaint" about him. Ms Adams said she was frightened as her partner had been encouraging her to make a complaint about Mr Hippisley for some time. Mr Hippisley denied informing staff that he had been the subject of a complaint and that he said the words attributed to him by Ms Adams. However, Ms Featherstone vaguely recalled under cross-examination that Mr Hippisley had commented that a complaint had been made about him to Mr Green. [35] Mr Hayes telephoned Mr Green again about three weeks later. Again, Mr Hayes did not identify himself. Mr Green told him that he did not investigate the matter but had called Mr Hippisley in to ask him about the matters. Mr Green advised that the matter had been resolved, however, Mr Hayes advised that Mr Hippisley was continuing with his behaviour. Mr Hayes expressed his dissatisfaction with Mr Green's actions at which point Mr Green terminated the conversation. -- 6 of 15 -- 7 Findings [36] Mr Green was not called to give evidence in the proceedings but the Appellant did not seek that any adverse findings be made as a result. [37] I am satisfied that Mr Hayes made a complaint to Mr Green about Mr Hippisley's alleged behaviour in the workplace about which he was questioned. The reasonableness or otherwise of the action taken by Mr Green is considered later in this decision. [38] I am satisfied that Mr Hippisley remarked to staff in the CSD that a complaint had been made about him as this is consistent with his behaviour when he is upset. I am not entirely satisfied that he used the word "arsehole" in making the remark as this does not appear to be a word that he used. However, I consider that he was likely to have used another inappropriate term given this is also consistent with his behaviour. Stressor 5 - Intimidation by Mr Hippisley on Ms Adams' return to work [39] Ms Adams injured her back at work on or about 18 July 2011 while Mr Hippisley was on leave. Ms Adams said that shortly before her return to work Mr Hippisley telephoned her about the incident and he was "a bit annoyed." [40] Mr Hippisley's evidence, confirmed by that of Ms Downs, was that he had telephoned Ms Adams from Ms Downs' office to enquire when she was returning to work as it was understood she was to return on 29 August 2011. Ms Downs explained that it was customary for the line manager and the Workplace Health and Safety Officer (WHSO) to be in the same room to telephone injured workers about a week before they were to return to work so that the return to suitable duties could be arranged. Both the line manager and the WHSO needed to be present when the call was made so that an appointment time could be made which suited all parties. [41] Ms Downs recalled Mr Hippisley asking Ms Adams how she was; to bring her medical certificate in and that a meeting would be arranged with Ms Downs to discuss a suitable duties plan. It was agreed they would meet at 9.30 am on 29 August 2011. [42] Ms Adams said that when she arrived at work, Mr Hippisley did not enquire about her back but said they were going down to see the WHSO. Ms Adams said that while walking to that office, Mr Hippisley said words to the effect of, "you have put my department under the scope." Ms Adams also claimed to have changed from her street clothes into her scrubs. [43] Both Mr Hippisley and Ms Downs rejected Ms Adams evidence that she arrived with Mr Hippisley. Their evidence was that Mr Hippisley was in Ms Downs' office when Ms Adams arrived. Further, they said that Ms Adams was wearing street clothes and not scrubs. Ms Adams would not be permitted to work in CSD without first obtaining a suitable duties plan. [44] Both Mr Hippisley and Ms Downs also denied that Mr Hippisley made the comment that Ms Adams had "shown his department up and it didn't look good." (This was -- 7 of 15 -- 8 an allegation made in the Statement of Stressors but not repeated in the evidence of Ms Adams). However, Ms Downs said that Mr Hippisley had told Ms Adams that she would be given a written warning if he found her lifting. Ms Downs said that Mr Hippisley was very firm as he was concerned that Ms Adams would reinjure herself. Findings [45] The Regulator submits that Ms Adams has been shown to be an unreliable witness because matters outlined in the Statement of Stressors, were disavowed by her in her evidence. [46] On this matter I prefer the evidence of Ms Downs and Mr Hippisley. Their description of the background to the meeting as well as its conduct is the more likely when an injured worker is returning to work. I am also satisfied, based on their evidence, that Ms Adams arrived at the meeting to find Ms Downs and Mr Hippisley already present. It follows that I am not satisfied that Mr Hippisley said to Ms Adams on the way to the meeting that, "you have put my department under the scope." [47] Further, and based on the evidence of Ms Downs, that during the meeting, Mr Hippisley did not make the comments as alleged by Ms Adams in the Statement of Stressors. I also accept that other parts of Ms Adams' oral evidence were inconsistent with the matters asserted in the Statement of Stressors such as being marched into Ms Downs' office by Mr Hippisley and not being allowed to speak during the meeting. Stressor 6 - Events of 29 and 30 August 2011 [48] The witnesses have differing recollections of the events of 29 August 2011. I do not propose to set out each of them as there are simply too many. Rather, what follows is my findings about the events of 29 August 2011. [49] Ms Adams returned alone to the CSD after meeting with Mr Hippisley and Ms Downs. On his return Mr Hippisley advised staff that Ms Adams was on light duties and could only do one tray of instruments at a time so as not to reinjure her back. (It is common ground that Mr Hippisley had spoken to Ms Adams about this in the past.) [50] Mr Hippisley then left the room. Ms Helen Law told Ms Adams that she should not do more than one tray at a time at which point Ms Adams abruptly responded by saying to Ms Helen Law that she was "nothing"; words to the effect that she was not qualified to work in the CSD and had only obtained the position in CSD because she was related to the "boss" i.e., Ms Margaret Law. Ms Helen Law became very upset and went to Mr Hippisley's office in tears. Mr Hippisley returned to the room and found Ms Adams in a heated verbal exchange with Ms Featherston who had defended Ms Law. He told Ms Adams to stop behaving as she was and offered the staff involved to go home if they wished. No-one took up that opportunity. -- 8 of 15 -- 9 [51] At some point the conversation between Mr Hippisley and Ms Adams became very loud, and was heard by Anne-Marie Buhmann, a Nurse Educator who was walking past the CSD. [52] On 30 August 2011, Ms Adams claimed that Mr Hippisley told her, "this is not over." A co-worker informed her that Mr Hippisley was calling staff into his office to ascertain what had happened the previous day. However, as a result of the events of 29 August 2011, Ms Adams was largely ostracised by other CSD staff. [53] Mr Hippisley acknowledged that he had spoken to Ms Adams and she had asked him whether everything was alright. Mr Hippisley said that the matter was not closed because he had determined that Ms Adams conduct, which he described as bullying, needed to be addressed. He also said he did not call staff into the office as he was aware of what had occurred the previous day. [54] On 30 August 2011, Ms Adams discussed the events of 29 and 30 August with Judy Falcke, a Level 2 Registered Nurse who was in charge of the floor on Tuesday nights. Ms Falcke recalled that Ms Adams had spoken to her one Tuesday night in 2011, distressed about an altercation the previous day and concerned about comments with a sexual connotation that Mr Hippisley had made to her previously. Ms Falcke said that she had calmed Ms Adams down and recommended that Ms Adams document any further comments. She had not personally heard the words attributed to Mr Hippisley and did not take Ms Adams' concerns any further. Findings [55] Based on my findings about the course of events of 29 August 2011, I am satisfied that it was inappropriate and unnecessary for Ms Helen Law to involve herself in the instructions about the work Ms Adams was to perform. Despite that, Ms Adams overreacted. Her comments were hurtful and in respect of the manner in which she obtained employment, simply wrong. There was also no need for Ms Adams to argue with Ms Featherston in heated tones. [56] Based on the evidence of Ms Buhmann, I am satisfied that at some point Mr Hippisley and Ms Adams were speaking to each other using raised voices. I am also satisfied that both Ms Featherston and Ms Helen Law were visibly upset by their interactions with Ms Adams. [57] I am also satisfied that Mr Hippisley was not calling staff into his office. As he said, he was aware of the events as they transpired. Stressor 7 - Complaint to the Director of Nursing [58] Ms Adams, in the company of Mr Hayes, met with the Director of Nursing (DON) on 31 August 2011 to complain about Mr Hippisley's behaviour and to request a full investigation. She said she and Mr Hayes told the DON about Mr Hippisley's behaviour, including those mentioned in Stressors 1, 2 and 4 above. Ms Adams said she told the DON that she was feeling depressed, humiliated and could not sleep. She could not work under the pressure any more and wanted a transfer from the CSD. -- 9 of 15 -- 10 [59] After the meeting Ms Adams consulted Dr Payyapilly and was provided with a WorkCover medical certificate diagnosing "work related stress." Findings [60] The Commission accepts that Ms Adams made a complaint to the DON on 31 August 2011 about her treatment by Mr Hippisley and the effects on her health of this. Consideration and Findings - Management Action [61] The Appellant contends that the management action should be considered globally as the stressors did not each act upon Ms Adams in a discrete way but combined to have an overall effect on her psychological/psychiatric condition. However, the Regulator rejects this approach and contends that there is a significant causal link between the events of 29 August 2011 and the aggravation of Ms Adams' injury. This is said to be shown both by the evidence from Ms Adams' General Practitioner, Dr Payyappilly and from a letter by Ms Adams to WorkCover dated 1 September 2011 in which she said: "After returning to work on Monday the 29th of August I was harassed by the Supervisor of the CSD Department over the incident that caused my injury and statements I made regarding work related concerns to the Work Health and Safety Cordinator (sic) Sandy Downs. I reported the harassment to the Director of Nursing Mary Ann Mc Bean, along with other serious complaints regarding this Supervisor and as a result of the pending hospital investigation I have been so distressed and found it impossible to work due to my mental state under this intimidating environment which has developed from this incident." [62] Under cross-examination by the Regulator Ms Adams said the intimidating environment resulted from the events of 29 August 2011 and their aftermath. Dr Payyapilly agreed in answer to a question by the Regulator that Ms Adams was describing current rather than past events in the workplace. [63] The Commission accepts that Ms Adams had not reported work related stress to Dr Payyapilly prior to 1 September 2011. However, Dr Payyapilly's evidence about the currency of events is belied by his notes of that consultation, which record that Ms Adams said the person "in charge sterilisation dept intimidating"; "on her return from phillipines was abusive" and "unable to do work under intimidating abusive conditions." It is clear from these notes that Ms Adams was referring to past events as well as those of 29 and 30 August 2011. Dr Payyapilly's evidence can be explained by his lack of independent recollection of the consultation. [64] I do not have quite the same view as the Regulator of Ms Adams' letter of 1 September 2011, which was written after her consultation with Dr Payyapilly. Although Ms Adams highlighted the incident of 29 August 2011, reference is also made to the "other serious complaints" she made about Ms Hippisley. It is a poorly written letter and, like much of her oral evidence, is confused. I do not consider that too much weight should be placed on it, rather consideration should be given to the -- 10 of 15 -- 11 totality of the evidence and especially the specialist medical evidence. The enquiry the Commission must make is whether the aggravation injury arose out of or in the course of reasonable management action taken in a reasonable way.1 [65] All of the medical evidence before the Commission attributes the aggravation injury to the alleged harassment by Mr Hippisley as well as the conflict in the workplace on 29 and 30 August 2011. In my view it is not appropriate to consider the management actions globally as they were not "joined by subject matter, time and personality."2 I propose to consider the management action with respect to Stressors 1, 2 and 4 together because they involve similar issues concerning Mr Hippisley. Although Stressors 5 and 6 also involve Mr Hippisley, they relate to the events of 29 and 30 August 2011 and are considered separately. Stressor 3 is a discrete stressor as it relates to the management actions (if any) taken by Mr Green and Stressor 7 concerns the actions by the DON. Stressors 1, 2 and 4 - Mr Hippisley's language and conduct in the workplace [66] The Regulator submits that the medical evidence is that Ms Adams' claims relate to a protracted period of abuse and specific grossly offensive insults directed towards her as well as inappropriate questioning about her personal life. However, the medical evidence does not support any finding that the word "fuck" or the phrase "bang it up your freckle" in isolation, caused or contributed to the development of Ms Adams' psychiatric or psychological condition. [67] Despite not accepting all of the remarks Ms Adams attributed to Mr Hippisley, I made findings earlier that he used inappropriate language, made offensive jokes and used derogatory terms to refer to women. I was not satisfied that Mr Hippisley made sexually offensive remarks to Ms Adams personally. [68] The evidence from both Drs Brown and Whiteford was that Ms Adams was offended, humiliated and upset by Mr Hippisley's conduct in this regard. I accept that their evidence was based on Ms Adams' report of what Mr Hippisley said and that included some evidence that the Commission has not accepted. Dr Whiteford was asked in cross-examination about the impact of the use of different words that have the same impact. He responded by saying the issue is the intent that the person places on the comments: "…so if it were deemed to be sexual harassment, then the change of the word would be less relevant than whether it was perceived as actual harassment by the person who heard the comments." [69] The evidence shows that Ms Adams met with some of her co-workers in February 2011 in an attempt to have them join with her to complain to Mr Hippisley about his language in the CSD. However, for various reasons, she was unable to garner support from her colleagues to do this. [70] I have concluded that despite not accepting all of Ms Adams' evidence about the language and conduct of Mr Hippisley, at times it constituted sexual harassment. In this regard reference is made to the evidence from Mr Hippisley and others that he 1 Q-COMP AND Malcolm Hochen (C/2009/47) - Decision http://www.qirc.qd.gov.au 2 Delaney v Q-COMP [2005] 178 QGIG 197. -- 11 of 15 -- 12 tells jokes of a sexual nature and that they can be disgusting. On Mr Hippisley's own evidence he refers to women in derogatory terms. There is sufficient evidence to find that because of this conduct, Ms Adams was offended. Her reaction was a reasonable response in the circumstances I found to have existed. Ms Adams found the working environment in the CSD at times to be uncomfortable as shown by her attempt to have her co-workers join with her to complain to Mr Hippisley. That the other workers did not see Mr Hippisley's use of language and behaviour in the same way it was viewed by Ms Adams does not diminish the effect of those things on her personally. [71] In addition, Mr Hippisley admitted to regularly swearing, although not in an argument. He acknowledged having a loud voice, which increases in volume when he is upset. He was described by Ms Falcke as being volatile and could present as intimidating. That other employees also swear in the workplace is not to the point. Mr Hippisley has the responsibility as the Manager of the CSD to set the appropriate tone and to ensure that the workplace is respectful and free from sexual harassment. Given his own admitted behaviour and the findings made, I am satisfied that Mr Hippisley's management actions in respect to his language and conduct in the CSD were not reasonable or reasonably taken. Stressor 3 - Report of Mr Hippisley's behaviour and failure to investigate [72] The Appellant submits that Mr Hippisley's behaviour did not change after the complaint had been made to Mr Green and no further investigation was undertaken. This was unreasonable management action taken in an unreasonable way. [73] The Regulator contends that Mr Green acted on an anonymous complaint by speaking with Mr Hippisley. Mr Hippisley said that he moderated his behaviour as a consequence. Further, the Appellant's submissions assume that the Commission will make a positive finding that Mr Hippisley behaved in the manner as alleged by Ms Adams and moreover, it continued even after being spoken to by Mr Green. In any event the Regulator submits that reasonable management action was taken in a reasonable way in the conduct of an anonymous complaint. [74] I accept that Mr Hayes made an anonymous complaint and as such, there was little Mr Green could do to investigate except to discuss the matter with Mr Hippisley. However, it was open to Mr Green to encourage the caller, Mr Hayes, to advise his "wife" to make a formal complaint so the matter would be investigated and resolved. Given that the complaint was being made anonymously and on behalf of an employee, Mr Green could have also advised the caller of the steps that would be taken by the employer to support the employee in the process. Although I am loathe to describe Mr Green's actions as unreasonable management action taken in an unreasonable way because it was an anonymous complaint, I nonetheless consider his omissions were significant blemishes. [75] I have not accepted Mr Hippisley said the offensive remarks he was alleged to have made in May 2011. This was the one specific stressor relied on by Ms Adams which occurred after Mr Green had spoken to Mr Hippisley on 28 September 2010. However, despite the rejection of Ms Adams' evidence on this point, I do not accept that Mr Hippisley moderated his behaviour after the interview with Mr Green. This is evidenced by his comment on return to the CSD. It is apparent that Ms Adams -- 12 of 15 -- 13 remained troubled about Mr Hippisley's language and conduct in the CSD as she met with her co-workers in the CSD in February 2011 to try to address her continuing concerns. Stressor 5 - Intimidation by Mr Hippisley on Ms Adams' return to work [76] I earlier found that Ms Adams' evidence did not confirm a number of the allegations made in her Statement of Stressors. In my view the telephone call made by Mr Hippisley in the presence of Ms Downs was reasonably conducted. I do not accept that he was angry when the call was made or that Mr Hippisley acted unreasonably at the meeting on 29 August 2011. [77] I accept Mr Hippisley said he may give Ms Adams a written warning if he found her lifting, however, it is to be recalled that Ms Adams had previously been spoken to about lifting multiple trays and this was the way in which she had injured her back in July. Ms Adams may have been intimidated by this remark but given the context I consider that Mr Hippisley's actions in respect of Ms Adams return to work on 29 August 2011 were not unreasonable or taken in an unreasonable way. Stressor 6 - Events of 29 and 30 August 2011 [78] This stressor concerns the event that occurred after Mr Hippisley and Ms Adams had returned to the CSD following the meeting with Ms Downs. In my view, except for the yelling as it was described by Ms Buhmann, Mr Hippisley otherwise managed the situation in the CSD on 29 August 2011 reasonably. He directed Ms Adams to stop her errant behaviour as it was having a deleterious effect on other staff. He allowed those staff who were upset to leave the workplace if they wished. Given Ms Adams' outburst it is no surprise that other staff kept their distance from her. His yelling was inappropriate conduct for a manager but overall the management action taken by Mr Hippisley that day was reasonable and reasonably taken. [79] Mr Hippisley also took reasonable management action in a reasonable way on 30 August 2011 by advising Ms Adams that the matter was going to be escalated. Her behaviour in the workplace needed to be addressed because of the particular nature of the comments she directed to Ms Helen Law as well as having a heated exchange with Ms Featherston. I accept that Ms Adams was upset and intimidated by Mr Hippisley in this respect because she was to face consequences for her unacceptable behaviour. However, that does not make Mr Hippisley's behaviour unreasonable or unreasonably taken. [80] The Commission accepts that Ms Falcke did not escalate the matters raised with her by Ms Adams. However, she was of the view that Ms Adams was "venting" that night rather than requesting any specific action be taken. I note that she offered Ms Adams some support as to how to deal with a similar situation in future. Further, and as the Regulator noted in its submissions, this is no evidence before the Commission as to how any omission on the part of Ms Falcke contributed to Ms Adams' condition. -- 13 of 15 -- 14 Stressor 7 - Complaint to the Director of Nursing [81] The Appellant's submissions do not address the unreasonableness of the management action with respect to this stressor. In my view, there is nothing unreasonable about it. It appears the DON listened to Ms Adams and Mr Hayes. However, as Ms Adams decompensated later that day and did not return to work, there was no opportunity for the DON to take any action. Conclusion [82] In the section of his report of 17 September 2012 headed "Summary and Opinion," Dr Whiteford opined that "the conflict in the workplace was the most significant factor in the aggravation of her post traumatic stress disorder and the onset of the depression." Although Dr Whiteford does not specifically detail the conflict, the body of the report references bullying, criticising and swearing by Mr Hippisley. More of his report is devoted to Mr Hippisley's telephone call the week she was due to return to work and the events of 29 and 30 August 2011. [83] Dr Brown said Ms Adams' illness had flared as a result of sexual harassment in the workplace. The conflict that occurred in the workplace on 29 August 2011 was the "final straw" - having followed "months and months of awful stuff" i.e., abusive and sexually charged questions. However, Ms Adams did not tell Dr Brown of her exchanges with Ms Law or Ms Featherston. [84] It is apparent from both the written reports and the oral evidence that both Drs Brown and Whiteford formed their opinions based on the information provided by Ms Adams. This information was not comprehensive and included some incidents that have not been accepted by the Commission. In particular, the Commission has not accepted that Mr Hippisley made the particularly offensive remarks to Ms Adams personally as she alleged. It was these remarks which Dr Whiteford said significantly distressed Ms Adams. Dr Brown said that these remarks were "like petrol on a fire" given Ms Adams' personal history. The issue confronting the Commission is how, in circumstances where those remarks have not been accepted, to assess whether the aggravation injury arose out of or in the course of reasonable management action taken in a reasonable way [85] It is important to note that both psychiatrists referred to Ms Adams' psychiatric vulnerability to abuse and sexual references because of her personal history. I note that some evidence was given about Ms Adams' making jokes with sexual references. This proposition was not put to her in her evidence. However, it is clear from her evidence and that of the Doctors, that Ms Adams did not feel comfortable about such matters. [86] The Commission accepts that much of the evidence given by Ms Adams has not been accepted. It was at times neither coherent nor consistent with the Statement of Stressors. However, even though offensive comments were not personally directed to Ms Adams, I am reasonably satisfied that the workplace over which Mr Hippisley presided was uncomfortable for her because of his swearing and his use of derogatory terms to describe women, jokes with sexual innuendo, loudness and volatility. In her evidence Ms Adams said that this type of behaviour took her back to her childhood where she was subject to such conduct by adults. Such behaviour -- 14 of 15 -- 15 (and worse) was the original cause of her post-traumatic stress disorder and depression. [87] The Commission also acknowledges that Mr Hippisley and Ms Adams only worked together in the CSD for short periods. In my view it is not a matter of the quantity of the time they were both in the CSD but the nature of that time. [88] I accept that Mr Hippisley's conduct on 29 and 30 August 2011 caused Ms Adams distress because she found it intimidatory and precipitated her decompensation. However, his actions were found to be reasonable and taken reasonably in the circumstances. [89] Those actions occurred against a backdrop of an uncomfortable and unpleasant work environment in which Mr Hippisley spoke and behaved inappropriately, including engaging in sexual harassment. I am satisfied that the origin of the aggravation injury was Mr Hippisley's actions in the CSD i.e., his language and behaviour as discussed earlier. That she was uncomfortable with it is evidenced by her attempt to co-opt other workers to confront Mr Hippisley in February 2011 and her partner's complaint to Mr Green in September 2010. All of this pre-dated the events of 29 and 30 August 2011. [90] Despite not being able to accept all of the evidence from Drs Brown and Whiteford about the cause of the injury because I have found some of the matters of which Ms Adams to have complained not to have been substantiated on the evidence, their evidence is that Ms Adams was affected by Mr Hippisley's language and conduct. I consider that Ms Adams psychological/psychiatric condition had been reduced by Mr Hippisley's language and conduct in the CSD such that Ms Adams was unable to cope with the events of 29 and 30 August 2011 despite the management action taken in respect of those events being found to be reasonable and reasonably taken. [91] Accordingly, I am satisfied that her aggravation injury did not arise out of or in the course of reasonable management action taken in reasonable way and thus, the injury is not withdrawn from s 32(3) because of the operation of s 32(5)(a) of the Act. [92] The appeal is upheld. I set aside the decision of the Regulator and find that the claim is one for acceptance. [93] Costs are reserved. [94] Order accordingly. -- 15 of 15 --