Brisbane Boys' College v Blackwood (Workers' Compensation Regulator) (First Respondent) and Messenger (Second Respondent) [2013] QIRC 197

CITATION: Brisbane Boys' College AND Simon Blackwood (Workers' Compensation Regulator) (First Respondent) and Bevan Messenger (Second Respondent) (WC/2011/92) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - procedure for appeal Brisbane Boys' College AND Simon Blackwood (Workers' Compensation Regulator) (First Respondent) and Bevan Messenger (Second Respondent) (WC/2011/92) DEPUTY PRESIDENT BLOOMFIELD 20 December 2013 DECISION Introduction [1] This decision relates to an Appeal by Brisbane Boys' College* (BBC/the School) against a decision of the Review Unit of Q-COMP, which has subsequently become a part of the Workers' Compensation Regulator (the Regulator), in which the Regulator set aside an earlier decision of WorkCover Queensland (WorkCover) to reject an Application for workers' compensation lodged by Mr Bevan Messenger on 5 October 2010 and substitute the decision that Mr Messenger's Application was one for acceptance. (*Note: The actual legal identity associated with "Brisbane Boys' College" was not identified during the course of the proceedings. As such, I have recorded the "name" of the Appellant as it was referred to in all of the documents made available to me during the course of the hearing.) [2] In his Application for workers' compensation, Mr Messenger described the nature of his injury as "psychological system in general, anxiety/stress disorder" which was said to have arisen as a result of "Issues with colleague re dismissing ideas, not communicating. Requested external mediation - not done.". [3] Exercising the rights available to him at s. 549(3)(a) of the Workers' Compensation and Rehabilitation Act 2003 (the Act) Mr Messenger elected to become a party to the Appeal. Relevant Legislation [4] The Act relevantly provides: "32 Meaning of Injury (1) An injury is a personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury. … (3) Injury includes the following - … (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; (ii) a disease; (iii) a medical condition if the condition becomes a personal injury or disease because of the aggravation; … (5) Despite subsection (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances - (a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment; (b) the worker's expectation or perception of reasonable management action being taken against the worker; (c) action by the Authority or an insurer in connection with the worker's application for compensation.". -- 1 of 17 -- 2 Nature of the Appeal [5] The Appeal to the Queensland Industrial Relations Commission (the Commission) is by way of a hearing de novo. It is the Appellant which bears the onus of proof on the balance of probabilities (see State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne1 and SPE Pty Ltd v Q-COMP and Gary Clifford Fuller2). [6] In Coyne3 President Hall said: "… It would be odd if an employer aggrieved by a decision of WorkCover confirmed by the Statutory Review Unit had the right to require the worker to go to proof at a trial. … An appeal pursuant to s. 498* is not the trial of the worker's claim for compensation. The appeal pursuant to s. 498 is, as the language of s. 506* suggests, about the decision. One may readily accept that on an appeal against the decision the appellant bears the onus of satisfying the Tribunal that the decision appealed against was wrongly made, compare Traut v. Faustmann Brothers Pty Ltd (1983) 48 ALR 313 at 319 per Toohey J and 325 per Lockhart J. The appeal pursuant to s. 498 would be a very unusual appeal indeed if, by filing a notice of appeal, the appellant might impose upon the Statutory Review Unit (or the administrative agency acting for it) the carriage of the case in which it bore the onus of justifying the decision appealed against.". (*References are to the WorkCover Queensland Act 1996. The equivalent sections under the Act are s. 548 and s. 558.) [7] In SPE4 the President said: "It is necessary to say something about the onus of proof. Though the appeal to an 'appeal body' under the Act is by way of a hearing de novo, it is an appeal against a review decision. The appellant, in this case SPE Pty Ltd, seeks to disturb the existing review decision. There is no provision analogous to s. 226(2) of the Mining and Quarrying Safety and Health Act 1999 to require that the appeal body approach its task 'unaffected by the existing review decision'. If the Appellant is successful, the appeal body is required to make orders varying the decision, or setting aside the decision and substituting another decision, or setting aside the decision and returning the matter to Q-COMP with appropriate directions, see s. 558(1) of the Act. Additionally, whilst (as here) the worker may elect to become a party to an appeal by his employer against Q-COMP, see s. 549(3) of the Act, the worker is not a necessary party to any such appeal. I can see no foundation for the Appellant's submission that the onus of proof was not carried by SPE Pty Ltd.". [8] In order to succeed in its Appeal the Appellant must establish one of the following points:  at the relevant time Mr Messenger was not a worker within the meaning of the Act; or  at the relevant time Mr Messenger did not sustain an injury; or  if Mr Messenger did sustain an injury then that injury either did not arise out of or in the course of his employment or was one to which the employment was not a significant contributing factor; or  that any injury alleged (being of psychiatric or psychological nature) was one which arose out of reasonable management action taken in a reasonable way or, alternatively, occurred as a result of Mr Messenger's expectation or perception of reasonable management action taken against him. [9] In relation to those matters, the Appellant concedes the following points:  Mr Messenger was a worker within the meaning of the Act;  he sustained an injury of a psychological nature;  the injury arose out of, or in the course of, him employment; and  his employment was a significant contributing factor to his injury. Statement of agreed facts / Framing of questions for determination [10] In an endeavour to narrow the issues in dispute in the Appeal proceedings the legal representatives of BBC and Mr Messenger, respectively, reached agreement in relation to some of the factual matters involved as well as the questions to be answered which, in their view, would be relevant in my consideration and determination of the Appeal, as follows: "1. Mr Messenger was a worker as that term is defined in the Workers' Compensation and Rehabilitation Act 2003 ("the Act"). 1 State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447 2 SPE Pty Ltd v Q-COMP and Gary Clifford Fuller (C/2010/19) - Decision <http://www.qirc.qld.gov.au> 3 State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447. 4 SPE Pty Ltd v Q-COMP and Gary Clifford Fuller (C/2010/19) - Decision <http://www.qirc.qld.gov.au> -- 2 of 17 -- 3 2. Mr Messenger suffered a psychological/psychiatric disorder. 3. The psychological/psychiatric disorder arose during 2010, with psychological symptoms being experienced from approximately March 2010, culminating in Mr Messenger ceasing work in October 2010. 4. Mr Messenger's employment with the Appellant was a significant contributing factor to the development of the psychological/psychiatric disorder. 5. Conflict had developed between Mr Messenger, the Appellant's Director of Brass and Percussion, and Ms Emma Carey, the Appellant's Director of Woodwind. 6. Mr Messenger and Ms Carey disagreed as to the source of the conflict, but the general scope of the conflict was as recorded in the following documents: a. Mr Messenger's letter to Mr Graeme McDonald of 13 April 2010 (Document 2 in Exhibit 6); b. Ms Carey's letter to Mr Graeme McDonald of 13 June 2010 (Document 3 in Exhibit 6). 7. It is not relevant to the outcome of this Appeal for factual findings to be made as to Mr Messenger's and Ms Carey's contentions regarding the matters that caused their conflict. 8. The Appellant's application for compensation to WorkCover of 5 October 2010 included allegations in relation to matters that were "management action" by the Appellant. 9. The "management action" relevant to this Appeal is that taken by and on behalf of the Appellant in relation to the conflict between Mr Messenger and Ms Carey, between late November 2009 and late September 2010. Thus, the parties agree that the outcome of the Appeal will be determined by findings as to the following questions: "1. Whether the "management action" taken by the Appellant was reasonable management action taken in a reasonable way." and, if the answer to that question is "yes", 2. To the extent that management action may be found to be reasonable management action taken in a reasonable way, whether Mr Messenger's injury arose out of or in the course of that management action The "correct" question [11] With great respect to Counsel for BBC, Mr Harding, and for Mr Messenger, Ms McClymont, the questions framed immediately above do not properly reflect the inquiry I am required to make in deciding this matter. The correct inquiry is recorded in Q-COMP v Glen Rowe5 where President Hall stated: "It is the effect of the decision in Q-COMP v Hohn (2008) 187 QGIG 139 that a claimant may succeed though some of the operative events or stressors arise out of or occur in the course of reasonable management action taken in a reasonable way. However, 'may' cannot be read as 'must'; nor may the passage be read as asserting that an Appeal Body is at liberty to allow a claimant to succeed where at least one stressor does not "arise or occur in the course of reasonable management action taken in a reasonable way". In all such cases, the Appeal Tribunal will be required to embark upon the enquiry whether the psychological/psychiatric injury arose out of, or in the course of, reasonable management action taken in a reasonable way…". (underlining is my emphasis; bold is in the original decision) [12] Consequently, in deciding this Appeal, it is necessary for me to determine whether Mr Messenger's psychological or psychiatric injury arose out of, or in the course of, reasonable management action taken in a reasonable way. As such, the focus of my enquiry is on "the cause" (this term is used loosely, not literally6) of Mr Messenger's injury. If the finding is that it arose out of management action it is then necessary for me to 5 Q-COMP v Glen Rowe (2009) 191 QGIG 67. 6 Parker v Q-COMP [2007] QIC 3 at 5. -- 3 of 17 -- 4 decide whether the management action was, firstly, reasonable management action and, secondly, taken in a reasonable way. Evidence on behalf of BBC [13] Ms Emma Carey said she had occupied the position of Director of Woodwind since the beginning of 2001. She recalled attending a meeting in late November/early December 2009 with the School's Head of Music, Mr Stuart Quill. Mr Messenger, Director of Brass and Percussion, had also been invited to attend the meeting which Mr Quill had convened for the purpose of discussing "… issues relating to the bands for next year and putting in place some strategies to improve communication, clarify areas of responsibility and develop the program even further…". [14] According to Ms Carey there was really only one issue discussed, namely the composition of the "Big Band" Ensemble, which was raised by Mr Messenger. Mr Messenger asked her a number of questions about the issue but was unhappy with her responses to the point where he became aggressive and angry and started yelling and swearing. After becoming upset she left the meeting for a brief time in order to regain her composure. Upon her return the tone of the meeting did not improve and it ended shortly afterwards. [15] Ms Carey said that Mr Messenger's attitude towards her during the meeting was not something she was expecting. As a result of what had transpired she felt upset and quite hurt. She was not keen on confrontation "…so I basically just sort of withdrew from conversation with him and things like that". What happened at the meeting affected her subsequent dealings with him. [16] The day after the meeting Ms Carey sent Mr Quill an email regarding "grave concerns" she had about what happened the previous day. She said she did not feel that the issue of communication was discussed and recorded her belief that "we" will still come across the same problems in the future. "It is not what needs to be discussed but how it is communicated that is the problem.". Ms Carey also expressed the view she did not feel comfortable being alone around Mr Messenger and told Mr Quill she would be anxious if they had to work together without anyone else being present. [17] Several days later Mr Quill convened another meeting "regarding ways to resolve what I perceive to be ill feeling that seems to exist between you". The process he proposed was a three-way meeting during which each of Ms Carey and Mr Messenger would be provided with an opportunity to talk fairly and without interruption, from a pre-prepared statement, free from personal attacks. He also indicated "my main aim is for you to resolve the issues yourselves". [18] The meeting was held after the staff lunch on the last day of the school year. Mr Messenger just read a statement in which he, firstly, detailed why he thought she was unable to do her job and, secondly, listed the things he thought she was incapable of doing. In response, she read a short statement she had prepared which expressed her feelings about what happened during the earlier meeting. Overall, she felt devastated by the things Mr Messenger said about her. [19] When school resumed in 2010 there was no follow up to what transpired at the end of the previous year. She did not like being alone in the same room with Mr Messenger and avoided having conversations with him. Sometime later, she could not remember when, Mr Quill began to have weekly meetings with Mr Messenger and herself. However, she felt they became an avenue for Mr Messenger to attack her about things he was unhappy with. [20] In June 2010 she was provided with a copy of a formal grievance Mr Messenger had lodged about her in which he detailed numerous concerns he had about her behaviour and performance. She was extremely upset and angry, as well as being frustrated, because "we" had not yet addressed any of the issues that the original meeting was supposed to be about. From her point of view it was very difficult to work together with Mr Messenger whilst she was defending her integrity and her abilities. It was also very difficult, after reading a 20 page document about how someone felt about your ability, to work with them in a team relationship. [21] Under cross-examination Ms Carey agreed:  the two meetings held towards the end of 2009 did not go any way towards solving the communication issue that had arisen between herself and Mr Messenger;  she was asking Mr Quill for his help in reaching some sort of reconciliation with Mr Messenger to enable them to continue to work together;  the situation that had developed between Mr Messenger and herself made it very difficult for her to do her job;  the relationship between she and Mr Messenger had reached the point where they could no longer work things out between themselves; -- 4 of 17 -- 5  she needed the intervention of someone else to help her move forward;  the weekly meetings with Mr Quill were to deal with operational issues only;  Mr Quill was not attempting to address the underlying communication issues;  at the end of 2009 and in early 2010 she was quite distressed to be around Mr Messenger. As such it would have taken her "some time" before she would have been agreeable to participating in mediation designed to explore the communication issues between them;  her feelings about Mr Messenger resulted in her withdrawing from casual communication with him;  the meetings chaired by Mr Quill were assisting to address some of the day-to-day matters but not the overall situation which existed between Mr Messenger and herself; and  apart from a meeting with a work colleague (Mr Kotzas – see later) and a meeting with Ms Kirsten Ferguson, BBC's Human Resources Manger, no other assistance was provided by the School to help address the situation that had arisen between herself and Mr Messenger. [22] Mr Stuart Quill said that Mr Messenger approached him in mid November 2009 for a one-on-one meeting, which was held about a week later. During the meeting Mr Messenger expressed concerns about how different aspects of the music program were going in an operational sense. He also voiced concerns about his belief that Ms Carey was (perhaps) ignoring things he was saying or acting in a manner which he felt was injuring his ability to perform his role. [23] Mr Quill recalled there being a degree of tension between Mr Messenger and Ms Carey regarding the auditions for placement of boys in music ensembles in 2010. However, prior to that, there had been no indication that anything was particularly amiss. The only event he could recall was some concern on the part of Ms Carey, 12 months previously, about the fact she was always conducting the younger groups while Mr Messenger was conducting the older groups. However, this matter was resolved soon after and he did not think much more about it. [24] After Mr Messenger met with him he decided to call a meeting between Mr Messenger, Ms Carey and himself. His intention was to set out his expectations for the following year to try to provide a clear direction to them both. He recalled there was a degree of tension at the meeting during which Mr Messenger expressed his concerns to Ms Carey that she was ignoring him and doing things in a way which was hindering his ability to do his job. Ms Carey took offense at the way in which Mr Messenger put those matters to her and the way he spoke to her. [25] Later, after both Ms Carey and Mr Messenger expressed their separate concerns (via email) about the way the initial meeting had gone and requested a follow-up meeting, he spoke to Ms Ferguson to seek advice about how he should proceed. She talked about trying to resolve the issue at a local level rather than bringing in external people at that point. In the end result it was agreed that he would ask each of Mr Messenger and Ms Carey to come to the meeting with pre-prepared statements which they could read to each other as a starting point for any reconciliation. From Mr Quill's recollection Mr Messenger read his statement but Ms Carey left the meeting before she read hers. His further recollection was that Mr Messenger also requested peer mediation from the beginning of 2010 in his earlier email in which he asked for the second meeting. [26] Early in 2010 Mr Quill met with Ms Ferguson in order to:  try to clarify his role in the situation to ensure he was doing what he could "to support everyone who needed support";  discuss how to best continue the operations of the Music Department;  progress Mr Messenger's request for peer mediation and get that underway; and  attain Ms Ferguson's input in relation to what was happening rather than trying to manage the whole matter himself. [27] What came out of the meeting with Ms Ferguson was an agreement that he would conduct weekly meetings between himself, Mr Messenger and Ms Carey, with any email communication passing between them to be copied to him. The latter point was designed to address one of Mr Messenger's concerns that Ms Carey was ignoring him and not responding to his requests. One of the other things he and Ms Ferguson agreed was that the meetings were to focus more on operational matters because they felt it was important to focus on the things which would keep the department running – particularly any issues that Mr Messenger and Ms Carey may have had in terms of co-ordinating the various bands in their performances and rehearsals. [28] During April 2010 he became aware of a grievance Mr Messenger lodged about Ms Carey's behaviour and conduct towards him. He recalled speaking to Ms Ferguson about it in late April at which time he expressed the view that if it proceeded it would be extremely disruptive and destructive to the music department. As such he wanted to try to see if "we" could hold off following through with the grievance. On 4 May 2010 Mr Messenger emailed him to say that he was temporarily suspending the grievance and that a meeting between he, his Union -- 5 of 17 -- 6 representative and Ms Ferguson later in the week would discuss possible conditions, actions and future progress in relation to the matter. [29] A little time later he became aware that two conditions attached to the suspension of the grievance were the review of all position descriptions within the Music Department and the development of a strategic plan for the Department. As a result he obtained copies of the existing job descriptions from Ms Ferguson and proceeded to review them. He also contacted* staff to indicate they would have the opportunity to make comment and any changes they wished to have made. In addition, he began to research what was involved in developing a strategic plan for the Department. (*Note: On 2 June 2010 Mr Quill sent an email to staff in the Department informing them he had been asked by Human Resources to undertake a review of their position descriptions. He requested a copy of their letters of appointment because the Human Resources Department did not have either hard or electronic copies of position descriptions of staff in the Music Department.) [30] Mr Quill said the three-way meetings formally wound up in early June 2010. This was after he sent an email to Ms Ferguson in which he expressed the view that the meetings had run their course as well as his belief that "we" (which I take to be the School or he and Ms Ferguson) needed to be doing something different to resolve the situation. [31] The email, sent very early on the morning of Thursday 3 June 2010, read as follows: "Hi Kirsten and Bevan I think we have reached a point with all this where we need to review and refocus. Bevan you are obviously still dissatisfied with the way things are and I would think that even if you were to reactivate your grievance and get the formal apology from Emma it asks for, you would not really have put in place concrete solutions to your concerns. The grievance does not ask for that, the meetings are merely operational, the review of position descriptions or development of a strategic plan will not necessarily do that. Even if we were to delve back into what happened last year to really get this going, it will not solve the problem. Therefore I call for a meeting between Kirsten, Emma, Bevan and myself to put in place recommendations for clear and formal solutions. Kirsten I ask that you chair this meeting. I am happy to discuss this tomorrow to sort out details.". (Note: Although the email was purportedly sent to just Ms Ferguson it is also clearly addressed to Mr Messenger as well. Whether Mr Messenger saw the email or not is unclear. Equally, based on Ms Fergusons evidence below, (at paragraph [58]), it does not appear she saw the email either.) [32] On the following day Mr Quill sent a second email to Ms Ferguson which, inter alia, said: "Dear Kirsten I am writing to request that there be formal, impartial and externally (to music department staff) run meetings between Emma Carey and Bevan Messenger to allow both the opportunity to seek resolution of the tensions that continue to persist between them. I request that these are conducted by staff who are trained in conflict resolution and not myself. I have always stated that I do not have the appropriate training to manage conflict resolution and I feel that my efforts to continue to support both staff in question and the rest of the department at an operational level is hampered by these unresolved issues. I understand the reason for and continue to support the need to have operational meetings however I feel that these will not be as effective as they could be until other issues are resolved.". [33] He also informed Ms Ferguson that the situation was adversely affecting his health and that he would like to "get something more positive in place now" so that he did not develop more serious symptoms in the future. [34] During the following week Mr Quill was informed that Mr Messenger had reactivated his grievance and that all of the conditions associated with its suspension (weekly three-way meetings, development of role descriptions and the development of a strategic plan) were no longer required. Notwithstanding this advice he continued to review the job descriptions and continued to develop the strategic plan. -- 6 of 17 -- 7 [35] Sometime later Ms Ferguson provided him with a draft copy of her investigation report into Mr Messenger's grievance to review and to suggest corrections where he thought appropriate. On 19 September 2010 he provided a detailed response by email in which he suggested a number of amendments. He also provided some additional information for Ms Ferguson to consider for incorporation in her report. [36] Under cross-examination Mr Quill agreed:  there was a great deal of necessity for collaboration between Mr Messenger and Ms Carey in terms of band programs;  it was plain there was a very fractured relationship between them by the end of 2009;  neither of them was perceiving the situation completely objectively;  he contacted Ms Ferguson in early 2010 and told her he did not feel able to manage a conflict resolution process;  he understood he would be dealing with the operational matters and Ms Ferguson would manage the conflict resolution issue;  notwithstanding his efforts in the three-way meetings there was still a serious degree of tension between Mr Messenger and Ms Carey;  on 18 February 2010 he informed Ms Ferguson, during a meeting they held, that Ms Carey had been crying a lot at work and seemed to be distressed by the situation;  he also informed Ms Ferguson that Mrs Messenger had mentioned her husband had been diagnosed with severe depression;  he understood Ms Ferguson would establish a "parallel process" to his three-way meetings in terms of trying to resolve the conflict between Mr Messenger and Ms Carey by mediation or conflict resolution;  he thought something needed to be done to address the "underlying issue";  he was concerned that if Ms Carey was made aware of Mr Messenger's formal grievance it "would be very, very detrimental to the department";  he became aware of the conditions attached to the suspension of the grievance after they were agreed to by the School (see paragraph [29] above);  he asked Ms Ferguson on 4 June 2010 to commence formal, impartial and external to the music department meetings between Ms Carey and Mr Messenger in order to resolve the tensions between them; and  such meetings had to be conducted by someone trained in conflict resolution, rather than himself. [37] Ms Kirsten Ferguson said she had been the Human Resources Manager at BBC for approximately seven years, with roughly 20 years experience in human resources matters. She became aware of the heated discussion between Mr Messenger and Ms Carey in late 2009 after Mr Quill approached her. They talked about the need to have a follow-up meeting prior to the end of the year where both parties could discuss their issues so that the matter was not left on a sour note over the Christmas recess. [38] She suggested to Mr Quill that the follow-up meeting be arranged in advance with both Mr Messenger and Ms Carey being asked to bring a pre-prepared list of their points or issues to speak to. It was also proposed that Mr Quill would facilitate the meeting and act as a mediator. [39] At the beginning of Term one in 2010 Mr Quill told her that there were still issues that needed to be dealt with. As such, and because the Music Department needed to continue to function, they agreed Mr Quill would conduct weekly three-way meetings and that she would hold a separate follow-up meeting with Mr Messenger once a fortnight. Ms Ferguson said she was loath to use the word "mediator" in respect of her role or that of Mr Quill because it suggested a formal context. Their respective roles were to make sure things went smoothly. She viewed the meetings she held with Mr Messenger as "touching-base meetings" in that it was an opportunity for him to talk about his perception of the way the three-way meetings were operating so that she could provide some feedback to Mr Quill. She also tried to touch base with Ms Carey a few times, in an informal manner, but she did not seem to want to talk about the situation. [40] Immediately after Easter 2010 Mr Messenger lodged a grievance (dated 13 April 2010) about his treatment at the hands of Ms Carey. After discussing its contents with Mr Quill and an external advisor it was decided not to show it to Ms Carey because it had the potential to divide the Department. On 30 April 2010 she held a meeting with Mr Messenger and his legal representative Ms Danielle Wilson, an industrial officer with the Queensland Independent Education Union. During the course of the meeting Ms Wilson asked Mr Messenger what he would need to have happen to resolve the grievance. [41] In the end result it was agreed that Mr Messenger would suspend the grievance if a number of conditions were met. Included in the conditions was a requirement that the School would conduct a collaborative review of all job descriptions and responsibilities for the eight full time staff members in the Music Department by the end of term and that a strategic plan across all aspects of the Music Department would be developed collaboratively -- 7 of 17 -- 8 and implemented by the end of the year. This arrangement was confirmed by correspondence from Ms Wilson dated 7 May 2010, but not received by the School until 17 May 2010. [42] On 8 June 2010 Ms Wilson informed her that, as a result of their assessment of various options Ms Ferguson had provided, Mr Messenger had decided to reactivate the grievance lodged on 13 April 2010 so that it could be investigated in accordance with the School's grievance procedures. Three days later Mr Messenger sent her details of further events concerning Ms Carey during Term two which motivated him to reactivate his grievance. [43] As a result of the grievance being reactivated, but before the additional complaints were sent to her by Mr Messenger, Ms Ferguson met with Ms Carey and gave her a copy of the 13 April 2010 grievance, explaining as she did so why the matter had not been brought to her attention when it was initially lodged. She also requested Ms Carey to take the grievance away and read it privately. Within a few days Ms Carey provided her response to the matters raised in the grievance. [44] After providing Ms Carey with a copy of the grievance, Ms Ferguson contacted Mr Messenger by email to inform him of that fact. She also informed him that as part of her investigation of the grievance "I will need to interview you formally as well, but I think it is better that I conduct the other interviews (at least the preliminary ones) first.". Finally, she told Mr Messenger that the three-way weekly meetings would be suspended, "as discussed last night with Danielle", until the grievance investigation was completed. [45] On 18 June 2010, which she thought was the last day of Term two, she interviewed Ms Carey about the matters raised by Mr Messenger in his grievance. When the School resumed after a three-week break she interviewed Mr Quill and Mr Kotzas, the Director of Strings. Ms Ferguson said it was difficult to arrange meetings in Term three because that term was notoriously busy with music events. It was also difficult to meet with Mr Kotzas, because he was reluctant to get involved, and she did not think he was all that forthcoming about his availability. In the end result, she met him on 21 July 2010. [46] Ms Ferguson said that the month of July and into August was also quite a busy period for her in that she had to deal with some redundancies, some other staffing issues and a grievance submitted by a probationary teacher. It was "a lot busier than normal". In addition, she was suffering from bronchial pneumonia for the better part of August. [47] Eventually, after Ms Wilson sent several emails to her inquiring about timelines, she was finally able to respond on Friday 20 August 2010. In her email to Ms Wilson she apologised for the delay, explaining she had contracted bronchial pneumonia. She also said that now the interviews had been completed she needed to meet again with Mr Messenger to discuss a way forward. To this end she suggested a number of possible dates when she could meet with both Ms Wilson and Mr Messenger. It was ultimately agreed they would meet on 31 August 2010. [48] During the meeting she spoke about the feedback she had received from Ms Carey, Mr Quill and Mr Kotzas in relation to individual matters that had been brought up by Mr Messenger in his grievance. She believed she spoke about having formed the view there was a broken or fractured relationship and interpersonal communication was not happening. She also informed Ms Wilson and Mr Messenger that, on the basis of the interviews, she could not see any evidence of harassment or bullying by Ms Carey. At that stage she had not written the report stating "I had always intended to come back and meet again with Bevan before – after the final interviews and before I wrote the report. That was always my intention. … that was the purpose of the meeting…" (Transcript 1-62). [49] On 1 September 2010 Ms Wilson sent an email as a follow-up to the meeting held the previous day. In it Ms Wilson said "We were both encouraged that things seem to be moving in the direction of resolution.". However, Ms Wilson also expressed the disappointment of herself and Mr Messenger that the process had taken so long. Ms Wilson also said: "… given the feedback you provided yesterday, it is clear to us that if Bevan's initial enquiries had been dealt with more swiftly at the beginning of the year by the College things may well have been resolved by now. … It is important to Bevan that things do move quickly from this point. I note that you indicated you would write (the) report within the next week and provide that to us after seeking further input from those whose information will be provided. Given you advised that Bevan's written complaint was provided to the relevant parties, your report should offer full disclosure of the responses provided in defence of the complaint. It concerns us that parties may have a choice in what is said in your report. Any defences offered that have been considered as part of your determinations must be available for scrutiny and we do not agree that permission or approval from the parties in question is required. At the risk of sounding like we are pre-emptying the situation somewhat we will be very disappointed if there are further delays in obtaining the report, particularly if we are told that this is due to being unable to -- 8 of 17 -- 9 contact the parties or being unable to receive their permission to publish their responses. Bevan has been overwhelmingly patient to this point, but his threshold of tolerance for any further delay has been reached. This matter simply must be resolved.". [50] On Friday 10 September 2010 Ms Wilson sent an email to Ms Ferguson in which she enquired whether the final report had been written. After this email was (apparently) not responded to, Ms Wilson sent a further email on Friday 17 September 2010 during which she referred to the commitments given at the meeting of 31 August 2010. In the course of her email Ms Wilson wrote "This situation is now critical. Bevan entered into this process in good faith, with the belief that the College would undertake his grievance seriously and investigate it diligently. However, in every phase, the process has been stalled by the College and now his patience has been exhausted. … We were given a commitment that a copy of the investigation report would be provided a week after our meeting… but this has not occurred. We now require this as a matter of urgency. Please provide us with this report immediately… We also seek a commitment that the resolution of this matter will be given absolute priority by the College. Should the College not be forthcoming with the report and this commitment, we will have no choice but to advise Bevan of his industrial options. … We look forward to your prompt response.". [51] Ms Ferguson contacted both Ms Wilson and Mr Messenger by email on the same day. In her email she expressed regret that her eight-page report had taken longer to prepare than anticipated. She said the report had been provided to the three staff members interviewed for their comments as to the accuracy of her note-taking, interpretation and reporting of their responses, "not to change or dilute the content". She also said that once she had received feedback from the three staff interviewed (not censoring or deletion) she would provide the report to the Headmaster as well as copies to you both (i.e. Ms Wilson and Mr Messenger). The final report was completed on 23 September 2010 and copies sent to both Ms Wilson and Mr Messenger. [52] Ms Ferguson said the grievance took a long time to investigate – which included a period during which the grievance was suspended, the mid-year, three week, school holiday break and her absence with bronchial pneumonia. She estimated she had spent 20 hours in meetings, transcribing and formulating the report "... trying to tie the report back to a very, very lengthy detailed grievance". [53] Under cross-examination Ms Ferguson agreed:  Mr Quill "may have" informed her on 29 January 2010 that he did not feel confident managing the conflict resolution aspect of Mr Messenger's and Ms Carey's difficulties;  dealing with a relatively intractable communication conflict "was certainly outside (Mr Quill's) experience";  Mr Quill did ask that somebody with conflict resolution experience handle that side of Mr Messenger's and Ms Carey's difficulties;  Mr Quill was, effectively, acting as "a referee" in terms of the decisions that had to be made between the two employees;  Mr Quill was not attempting at all to deal with the underlying communication difficulties;  Ms Carey was quite distressed by the situation that had arisen with Mr Messenger;  Mr Messenger was also distressed and upset about the issue he perceived had arisen between himself and Ms Carey;  both of those staff members, from her own observations, were suffering emotionally from the situation that had arisen between them;  she had three fortnightly meetings with Mr Messenger in Term one and may have held another one earlier in the term;  at a meeting with Mr Quill on 18 February 2010 he informed her there was an underlying structural issue in the Music Department with four directors but no Director of Bands. This structural issue may be able to be remedied, but not in 2010. As such, Mr Messenger and Ms Carey had to work together;  at the same meeting Mr Quill informed her that Ms Carey had been crying a lot at work;  there were no role descriptions in place;  it was agreed between she and Mr Quill that he would deal with operational issues in his three-way meetings and that she would work with both Mr Messenger and Ms Carey towards addressing their underlying communication issues;  she had no documented record of attempts made by her in meetings with Mr Messenger to assist him to deal with the communication difficulties with Ms Carey. Her notes of meetings with him (only) recorded what he said to her, not the reverse;  after Ms Carey declined to participate in one-on-one discussions, because she was far too upset, she did not make any further attempts to have any formal meetings;  she did not discuss with Ms Carey her perception of whether there had been an improvement or deterioration in her communication and relationship with Mr Messenger. This was "because it wasn't on the radar at the time. The radar was on the operational issues."; -- 9 of 17 -- 10  although Ms Carey told her she was upset at the way she was being treated by Mr Messenger "at that point in time I didn't do anything about it";  when Mr Messenger lodged his formal grievance on 13 April 2010 that signalled to her that, at least from Mr Messenger's perspective, the situation was very serious and was not being improved by the three-way meetings held in Term one;  when she met with Mr Quill on 30 April 2010 he informed her: o Ms Carey had been reluctant to attend the operational meetings; o Ms Carey had been very distant with Mr Messenger since the conflict at the end of 2009; o for a variety of reasons Ms Carey was often late for the meetings; and o Mr Messenger seemed to be suffering from severe depression.  at the same meeting they discussed how the grievance could be put on hold "for the good of the Music Department";  the conditions attached to the suspension of the grievance were proposed by Ms Wilson and Mr Messenger and she agreed to most of their points;  she did not recall making any suggestions of her own designed to achieve agreement that the grievance be suspended;  she was not qualified to fulfil a conflict resolution role with Mr Messenger and Ms Carey. It would possibly require an external mediator;  although there was no record of it "I know that an external mediator was discussed, and I know that Emma was not comfortable participating";  although Mr Quill requested formal, impartial and externally facilitated meetings between Ms Carey and Mr Messenger to resolve the tensions between them, on 4 June 2010, that did not happen before Mr Messenger left BBC on stress leave (in October 2010);  in June 2010 there were three staff members who were suffering emotionally because of this issue;  after the three-way weekly meetings were suspended in early June there was nothing being done to mediate, moderate, improve or manage the relationship between Mr Messenger and Ms Carey;  notwithstanding this, they had to continue to work collaboratively despite their very fractured and damaged relationship;  she made no attempt to deal with that situation when it became apparent that her investigation of Mr Messenger's grievance was being delayed;  in correspondence sent to WorkCover on 12 October 2010 she advised the claims manager that: o she had emailed Ms Wilson on 20 August 2010 to advise that her investigation of Mr Messenger's grievance, including interviews with relevant staff, was complete; and o she subsequently met with Mr Messenger and Ms Wilson on 31 August 2010 to advise them her investigation of the grievance had concluded;  her investigation of Mr Messenger's grievance involved: o an interview with Mr Quill on 30 April 2010 in relation to matters contained in Mr Messenger's grievance of 13 April 2010; o consideration of Ms Carey's written responses to the matters contained in that grievance; and o a later interview with Ms Carey and an interview with Mr Kotzas;  the 20 hours she spent on investigating and then writing up the grievance was over a six month period, between April and September 2010;  before providing the report to Mr Messenger she provided a draft of it to Ms Carey, Mr Kotzas and Mr Quill for their comment;  she could not explain why she provided the whole of the draft report to each of these persons rather than just the parts relevant to them;  although her report to the School's Principal recorded she had interviewed Mr Messenger that was not correct, "it's misleading"; and  it was the case that after the submission of the grievance and right up until the completion of her report she made no attempt to bring about some form of conflict resolution between Mr Messenger and Ms Carey. [54] Elsewhere in her cross-examination Ms Ferguson said it was agreed between she and Mr Quill that they would hold the three-way operational meetings before any attempt was made to resolve the conflict between Mr Messenger and Ms Carey "and I'm quite sure that Mr Messenger was aware of that and a party…to that". She believed that was agreed between Ms Carey, Mr Quill and Mr Messenger. [55] In relation to Mr Quill's evidence that he understood the HR Department was to run a parallel process to his own to address the underlying communication difficulties between Mr Messenger and Ms Carey, Ms Ferguson said Mr Quill "may possibly have misspoken on that because the intention was to have meetings between myself and Bevan and meetings between myself and Emma to discuss their issues. I offered that opportunity to Emma and she declined.". -- 10 of 17 -- 11 [56] When she was asked what further options she considered to deal with the situation in terms of the communication issues between the two staff members, Ms Ferguson simply said that she and Mr Quill had discussed getting the operational matters back on track first and then approaching the communication issues. When she was asked how, and when, she was going to do that she responded by saying "I don't know… After the operational issues were under control.". [57] In terms of her email to Mr Messenger on 9 June 2010, Ms Ferguson said she could not recall what she had in mind when she told Mr Messenger she would need to interview him formally as part of her investigation. However, she did meet with Mr Messenger, on 31 August 2010, after concluding the other interviews. When it was put to her that she had concluded her investigation and reached an opinion by that stage Ms Ferguson responded by saying she had not "concluded her opinion" because she had not written her report. [58] Finally, Ms Ferguson said that she had not seen Mr Quill's email of 3 June 2010 (see paragraph [31] above). Indeed, she seemed somewhat taken back when it was shown to her. [59] In re-examination Ms Ferguson agreed that neither Mr Messenger nor Ms Wilson made a request for a formal interview or the opportunity to respond to anything she may have found in the course of her investigation. [60] Mr Bevan Messenger gave the following evidence:  he started work at BBC at the beginning of January 2003 as the Director of Brass and Percussion;  his letter of appointment was very generic without any specific reference to his position. In that sense, the description of his role was largely verbal;  the running of the band program was very closely linked because the woodwind, brass and percussion sections involved the same students;  there was no formal structure in place in terms of the way in which the overlapping of responsibilities was handled out on a day-to-day basis;  although he began to experience communication difficulties with Ms Carey in late 2008 it reached a head at the end of 2009. At that time he started to make formal complaints to Mr Quill both verbally and via email;  the two meetings Mr Quill held at the end of 2009 did nothing to alleviate the situation;  in Term one of 2010 Mr Quill held weekly three-way planning meetings "so that the Department could operate";  Ms Carey was regularly late to those meetings and always had to be fetched from her room;  he would describe his other dealings with Ms Carey within the school environment and outside the meetings as very cold and non-existent;  during Term one of 2010 he found it very difficult to do his job properly and became very distressed. He struggled to do the best he could but it affected him personally;  he participated in three meetings with Ms Ferguson during Term one. During those meetings he suggested that the development of more detailed job descriptions might be a good step forward and that it might be a good idea to investigate other schools' music departments rather than reinventing the wheel;  he believed that such job descriptions would make the day-to-day running of the Department easier in that people would know where they were able to exercise authority or required to collaborate before making a decision;  he turned to Ms Wilson to seek her assistance because he was very distressed and thought she might help clarify his thoughts. This was because he was concerned not to overstep his authority or do the wrong thing and make the situation worse;  on 13 April 2010 he submitted a formal grievance because he thought that was his only option. His verbal requests for assistance were not being taken seriously;  after he lodged the grievance with the Headmaster Ms Ferguson contacted him about it. She said there would be an investigation and then she would report back to him;  a few weeks later he was approached by Mr Quill who asked if it was possible to suspend the grievance because, in his opinion, the management of the overall situation would be less damaging than if it remained live;  on 30 April 2010 he and Ms Wilson met with Ms Ferguson. In the course of that meeting he agreed to suspend the grievance under certain conditions, the main ones being: o Ms Carey's behaviour towards him and her communication with him would be improved; o the School would undertake the task of writing up job descriptions; and o the School would undertake the preparation of a strategic plan;  in early June 2010, after Ms Carey's behaviour appeared to decline even further and no three-way meetings were held, he decided to re-enliven his grievance. In doing so, he provided additional reasons and evidence for re-activating the matter;  the following day he received an email from Ms Ferguson in which she advised, firstly, she would re- commence the formal investigation, in the course of which she would need to formally interview him, -- 11 of 17 -- 12 and, secondly, the three-way weekly meetings would be suspended until the grievance investigation was completed;  he expected the investigation process to take a few weeks;  during the intervening period he was in touch with Ms Wilson about the delay. They both thought it was taking an inordinately long amount of time;  the lack of a definite time line for the completion of the investigation affected his health, which was declining. He was worried and found it difficult to make decisions;  when he and Ms Wilson met Ms Ferguson (on 31 August 2010) she informed them that her investigation had concluded, that she could not find any fault on the part of Ms Carey. She also told them she was about to write up her report;  he was "kind of stunned" because he expected he would have been interviewed before any conclusions were reached;  during the meeting Ms Ferguson told them she would issue her report in about a week. However, the report did not come. He understood Ms Wilson was following the matter up with emails to try to find out when it would be released;  the report was eventually emailed to him during the September/October school vacation;  he was totally devastated when he read the report. He was heartbroken at how it was written and thought it was biased and inaccurate;  he went to see his doctor for medical attention and found that he could not go back to work. As a result, he put in a workers' compensation application to WorkCover. His doctor also referred him to a psychologist for treatment and to assist him to return to work; and  two attempts at return to work, one in about mid November and the other in 2011, both failed. [61] Under cross-examination Mr Messenger gave the following evidence:  during the first meeting in December 2009 he used the word "bullshit" in response to Ms Carey's refusal to answer direct questions;  Ms Carey was visibly distressed during the meeting and left it at one stage;  at the end of the second meeting in December 2009 there remained a degree of tension between he and Ms Carey and there were unresolved issues;  he did not have any criticism about the way in which the School had attempted to manage the situation in 2009;  the issues existing between himself and Ms Carey re-surfaced pretty much at the commencement of Term one in 2010;  at his request three-way meetings started almost immediately upon everyone's return to the School;  attempts were made to deal with the issues that were arising in two ways: o three-way meetings between himself, Mr Quill and Ms Carey; and o two-way meetings between himself and Ms Ferguson;  there were also weekly Music Department staff meetings;  it would not be fair to talk about the three-way meetings as "mediation and planning meetings" notwithstanding that was how he described them in his written grievance lodge on 13 April 2010;  his recollection was that it was he who requested periodic meetings with Ms Ferguson, in that he called to arrange each of those meetings by telephone. They had not been convened at her suggestion;  during those meetings Ms Ferguson did not provide much input into what she thought should happen. She basically listened and did not provide much direction as to how he and Ms Carey could improve communication;  while both Mr Quill and Ms Ferguson listened to what he had to say during his meetings with them he could not say whether they took his concerns seriously;  it would not be correct to say he was happy with the efforts made by the School during Term one to deal with the tensions between himself and Ms Carey;  all of the matters identified in his grievance related to concerns he had about Ms Carey's conduct towards him;  none of the concerns related to any perceived lack of action, or less than optimal action, on the part of the School. However, that was not to suggest he was happy about how the meetings were conducted. He simply did not put it in the grievance;  initially he thought the respective meetings (with Mr Quill and Ms Carey and then with Ms Ferguson) were a good idea in that he thought it would be a way to get the Department functioning;  he continued to participate in the meetings in the hope they would improve and that the Department would operate better. It was the only way there was any actual communication;  he knew the contents of the grievance were likely to cause distress to Ms Carey and that it had the potential to cause disharmony in the Music Department. However, the "existing disharmony" operated to such extent that lodgement of the grievance would become less of a distraction than continuing with things as they were; -- 12 of 17 -- 13  Ms Ferguson reacted positively to his suggestions and conditions about what would be necessary to suspend the grievance, saying his terms would be acceptable;  his condition that the School develop a strategic plan for the Music Department and implement it by the end of the year was relevant to his complaint against Ms Carey. He felt it would clarify everyone's duties, that operational issues would be defined and common goals identified. He also believed that having such a plan would reduce the issues between Ms Carey and himself;  although he knew his grievance was likely to cause problems or disharmony within the Department he pressed the matter because he was trying to improve communication within the Department. He also reasoned that having position descriptions in place would allow he and Ms Carey (and others) "to work properly and professionally together";  one particular reason why he wanted position descriptions in place was because the woodwind and brass positions "are highly, closely, linked to each other";  although he believed Ms Ferguson took too long to investigate the grievance he accepted it wasn't the case that she could necessarily drop everything else and concentrate solely on his grievance;  he did not correspond with, nor correct, Ms Wilson's email to Ms Ferguson of 1 September 2010 in which she said "we were both encouraged that things seemed to be moving in the direction of resolution";  at this time he was very sick and found it incredibly difficult to make decisions. He would probably have glossed over a sentence like that; and  he did not ask Ms Ferguson for an interview during her investigation because he assumed she would come to ask him to attend a meeting when she had aspects she wished to discuss with him. He also did not ask for a meeting with her after 31 August 2010 because she had already decided what she was going to report. [62] Under re-examination Mr Messenger said that Ms Ferguson did not have any discussion with him about any arrangements that might be made to enable him to work effectively with Ms Carey during the time she was investigating his grievance. She had also not informed him of any delay in her investigation caused by her being unwell. Medical Evidence [63] Dr Wendy Jeays, in a written report dated 1 December 2010, said she had been treating Mr Messenger since March of that year. At that time he reported he had a harassment issue at school which had been present since the end of 2009. There had been some attempt to mediate the issue and while things had settled for a while they had subsequently re-activated and matters were as bad as they had been before. He had reported experiencing symptoms of panic and anxiety, poor sleep, loss of appetite and increased blood pressure. [64] She saw him again on 9 April 2010, at which stage he was working on a document to present to his employer as things were continuing to be difficult, and 15 June 2010 when he was having a reoccurrence of vegetative symptoms. She next saw Mr Messenger towards the end of Term three when he reported that he was still waiting for a report which had been fifteen weeks in coming. He reported feeling very frustrated and unsupported at school. [65] On 5 October 2010 he reported real deterioration in his symptoms. "The report had been received and he felt it was biased and contained factual errors. He felt as though he was not being listened to – that the internal mediation that had occurred had not been successful and that a promised further mediation had not taken place… He had been to school on the previous Saturday to get ready for the term but felt completely unable to go back.". [66] In concluding her report Dr Jeays wrote: "His main concern (has) been the perceived lack of support from school with the length of time taken to arrange meetings and organise a process. He is keen and willing to return to work but until a mediation process, preferably independent, has taken place, I do not think he will be well enough…". Findings and Conclusions [67] In the course of his submissions Mr Harding, who represented BBC, said it was agreed between his client and Mr Messenger's legal representatives that the "management action" relevant to the determination of this Appeal is that taken by and on behalf of BBC in relation to the conflict between Mr Messenger and Ms Carey between late November 2009 and late December 2010. On the basis of the evidence given by Dr Jeays and Ms Ferguson, respectively, there can be little doubt that Mr Messenger's psychiatric or psychological condition arose out of management action – that action being the way the School dealt with and handled the interpersonal issue between he and Ms Carey, which first became apparent in late November 2009, as well as the way it dealt with -- 13 of 17 -- 14 and handled his grievance after it was re-activated in early June 2010. The question for my consideration is whether the management action involved was reasonable and taken in a reasonable way. [68] In that respect, Mr Harding said that what was meant by reasonable management action had been discussed by President Hall in Q-COMP v Hohn7 at page 10 where the President said "Reasonableness does not equate with perfection. It is also the case that reasonableness does not equate with industrial fairness.". At page 11 of the same case the President went on to confirm that "management action might be reasonable though blemished". Mr Harding submitted that it was on the basis of those principles that the question of whether the management action taken by BBC was "reasonable management action taken in a reasonable way" had to be considered. [69] In an attempt to establish that the management action taken by BBC was both reasonable and taken in a reasonable way, Mr Harding highlighted a number of matters which, he submitted, were relevant to my consideration of that issue. In that respect he made a number of points including:  Mr Messenger had no criticisms about the way in which the School attempted to manage the situation in late 2009;  steps were taken in early 2010 to attempt to address the issue of the difficult working relationship between Mr Messenger and Ms Carey;  this involved a discussion between Mr Quill and Ms Ferguson, as a result of which weekly three-way meetings were set in train to discuss operational matters, with fortnightly meetings between Ms Ferguson and Mr Messenger;  it would have been inappropriate to attempt to force Ms Carey to participate in an external mediation process that she did not wish to participate in;  Mr Messenger's grievance made no complaint about any concerns he might have had regarding any perceived lack of action on the part of BBC. As such, nothing in the School's conduct was in any way consistent with the allegation now being made that the management action taken by the Appellant during Term one of 2010 was not reasonable;  upon the grievance being lodged on 13 April 2010 Ms Ferguson commenced the process of investigating it. However, following a meeting on 30 April 2010 between Mr Messenger, Ms Wilson and Ms Ferguson, Mr Messenger agreed to suspend the grievance. As such, it is apparent that at that stage Mr Messenger and Ms Wilson were happy with the manner in which matters were being dealt with by BBC. Ms Wilson's letter of 7 May 2010 confirms this point;  the position which Ms Ferguson and BBC found themselves in was a difficult one. Mr Messenger readily admitted he was aware his grievance was going to cause distress to Ms Carey and disharmony in the Music Department;  notwithstanding this knowledge, Mr Messenger put conditions upon his agreement to suspend the grievance. These included the development of position descriptions by the end of the term and development of a strategic plan by the end of the year;  these conditions are unrelated to Mr Messenger's complaint about Ms Carey. He was, in effect, holding the School to ransom by saying "if you don't do these things I am going to continue my complaint";  conduct of this nature was consistent with Mr Messenger's conduct in other respects. He acknowledged he was aware of his wife's telephone call to Mr Quill in February 2010 in which she said he had been diagnosed with depression. However, while Mr Messenger initially said he was receiving treatment from his general practitioner at that stage he later conceded, under cross-examination, that at the time the telephone conversation took place he had not received any such treatment or diagnosis;  Mr Quill actively worked on the development of job descriptions and the development of a strategic plan after Mr Messenger imposed those requirements as a condition of suspending the grievance. Mr Quill also continued to work on the development of job descriptions and the strategic plan after Mr Messenger re-activated the grievance in early June 2010;  although the three-way weekly meetings were suspended after Mr Messenger re-activated his grievance, Ms Carey's evidence was that she would not have continued her participation after the grievance was made known to her on 8 or 9 June 2010. Further, Mr Messenger did not ask for the three-way meetings to be reinstated;  after the grievance was re-activated Ms Ferguson immediately met with Ms Carey to provide her with a copy of the grievance and to discuss it. Ms Carey provided a response on 13 June 2010 after which Ms Ferguson met with her again on 18 June 2010, the last day of Term two;  upon the resumption of school Ms Ferguson had further discussions with Mr Quill and a meeting with Mr Kotzas on 21 July 2010. Soon after this she contracted bronchial pneumonia, a condition which Mr Messenger conceded would have delayed the finalisation of the investigation report. On top of this Ms Ferguson also had other duties and responsibilities which she could not ignore to concentrate solely on Mr Messenger's grievance. It was also a very busy time for Ms Ferguson; 7 Q-COMP v Hohn [2008] QIC 56. -- 14 of 17 -- 15  Mr Messenger's criticism that he had not been interviewed by Ms Ferguson as part of her investigation has to be considered in light of the fact he provided a very detailed written complaint. In addition, he did not ask for a further interview with Ms Ferguson either before or after the meeting on 31 August 2010 despite being aware she had not written her report at that point in time;  similarly, while Ms Wilson provided some comments about the manner in which she thought the report should be prepared, and steps taken to finalise it, she made no suggestion that an interview should be held with Mr Messenger;  although it took approximately three weeks to finalise the report after the meeting of 31 August 2010 this is not a matter of any real significance. "From a reading of the report it is apparent that its preparation would have taken a considerable amount of time."; and  to the extent that it is necessary to explain this short delay Ms Ferguson did so in her evidence. In particular, she was concerned to ensure that in taking her notes during interviews she had not mis- interpreted anything she had been told. To that end it was necessary to check that her note taking was correct with the persons she had interviewed. [70] With great respect to Mr Harding's well developed and well crafted submissions they largely gloss over, or avoid discussing, a number of very real considerations in determining whether the management action taken in this matter was both reasonable and undertaken in a reasonable way. [71] The agreed statement of facts records that conflict had developed between Mr Messenger and Ms Carey by late November 2009 (see agreed fact No. 9) but does not require me to make any findings in relation to what might have caused that conflict (see agreed fact No. 7). [72] As would be apparent from even a cursory reading of the evidence recorded above the conflict between the two parties was quite pronounced and very entrenched from the beginning of the 2010 school year. Indeed, the depth and degree of the ill feeling and lack of trust between Mr Messenger and Ms Carey (and vice versa) was so pronounced it was adversely impacting the day-to-day operation of a large portion of the Music Department. In my opinion, the way Ms Ferguson, and thus the School, reacted to and dealt with that situation was unreasonable. [73] Rather than try to address with the matter head on, as Mr Quill requested early in the year, Ms Ferguson's whole focus was to put in place some arrangement which would allow the Music Department to function in an operational sense without much, or perhaps any, concern about how the overall situation was impacting Mr Messenger, Ms Carey and even Mr Quill. This is reflected in the following evidence:  her comment in paragraph [39] above that the role of herself and Mr Quill was to make sure things in the Department went smoothly;  her evidence (in the same paragraph) that she viewed her meetings with Mr Messenger as an opportunity to receive feedback about his perceptions of how the three-way (operational) meetings were going so that she could provide feedback to Mr Quill;  her evidence, as well as Mr Quill's, that the School's objective in asking Mr Messenger to suspend his grievance was because it would cause disruption in the Department; and  her evidence that she did not discuss with Ms Carey whether there had been an improvement or deterioration in her communication and dealings with Mr Messenger "because it wasn't on the radar at the time… The radar was on the operational issues." (see paragraph [53] above). [74] Importantly, in terms of the issue I am required to consider, Ms Ferguson's focus on operational matters, to the exclusion of any consideration of also attempting some conflict resolution process – which does not necessarily equate to "mediation" – was against a background where she had been informed, as early as 18 February 2010, that Ms Carey had been crying at work and Mr Messenger had been diagnosed with depression. Even when Mr Messenger lodged his grievance on 13 April 2010 it appears that her focus, and that of Mr Quill, was to take all steps necessary to persuade him to shelve it "for the good of the Music Department". [75] No-one thought to step back and assess the whole situation and the apparent failure to achieve any improvement in the relationship, level of trust and communication between Mr Messenger and Ms Carey through the three- way meeting process during Term one. It was a case, quite bluntly, of Ms Ferguson putting on a pair of blinkers and ploughing on regardless. [76] On my interpretation, Ms Ferguson's desire to persuade Mr Messenger to "shelve" his grievance was so great that she readily agreed to his somewhat unusual conditions to suspend it during her discussion with he and Ms Wilson on 30 April 2010. Absent that motivation, there is little apparent reason why she would have agreed to the conditions proposed. However, having agreed to them, she was duty bound to see they were complied with and/or implemented. -- 15 of 17 -- 16 [77] In this respect, while Mr Quill said that he (reluctantly) undertook the task of writing up job descriptions for the eight staff members in the Department and the preparation of the strategic plan, it does not seem that he (or the School) took much action in relation to the first issue until around 2 June 2010. As noted above (see paragraph [29]), it was not until that date that he engaged Music Department staff in relation to that topic and asked them to provide him with any documents they might have had in their possession in connection with their duties and/or position descriptions. [78] Further, one of the conditions which Ms Ferguson agreed to was that Ms Carey's behaviour towards Mr Messenger and her communications with him would continue to improve (see Mr Messenger's evidence at paragraph [60] above and Ms Wilson's letter of 7 May 2010). How Ms Ferguson proposed to meet this condition is a mystery. On Ms Ferguson's evidence, Ms Carey had rejected her overtures to discuss the situation in any formal setting and Ms Ferguson was only having brief conversations with her in the corridors of the School. She had agreed to a condition she could not deliver. As such, it was not surprising Mr Messenger decided to re-activate his grievance in early June – primarily as a result of his perception and/or belief that Ms Carey's behaviour towards him had, if anything, deteriorated. [79] Relevantly, in terms of my consideration of the management action involved, Mr Quill also wrote to Ms Ferguson at about this time (see paragraph [32] above) to request her to set up "a formal, impartial and externally (to the music department staff) run meetings between Emma Carey and Bevan Messenger to allow both the opportunity to seek resolution of the tensions that continue to exist between them… I understand the reasons for and continue to support the need to have operational meetings however I feel that these will not be as effective as they could be until other issues are resolved.". As noted at paragraph [33] above he also informed Ms Ferguson that the situation was now affecting his health and wished to "get something more positive in place now" so that he did not develop more serious health issues. [80] However, rather than attempting to act on Mr Quill's request, and in apparent disregard for his clear warning about the state of his health, Ms Ferguson took the step of cancelling the three-way meetings but doing nothing else to address his request about taking some steps to address the underlying problem. This left the three persons who were exhibiting emotional distress floating together in a "tinnie" on the ocean, without a motor, paddle or compass. [81] They were left to deal with a situation they demonstrated they had been incapable of resolving, in an environment made worse by the disclosure of Mr Messenger's grievance to Ms Carey. There was no back-up plan to help any of them move forward. Rather, it was proposed they remain in "limbo land" until Ms Ferguson completed her investigation into Mr Messenger's grievance. In my view, steps should have also been taken to sit all of the parties down and talk openly and frankly about achieving a way forward, as Mr Quill suggested. It was not appropriate to leave the unresolved interpersonal and communication issues to simply drift along with the tide. [82] Despite the apparent dire situation the Music Department was in, Ms Ferguson appears to have made little attempt to expedite her investigation of the grievance. She spoke to Ms Carey on 8 or 9 June 2010 and again on 18 June 2010. However, it was not until 21 July 2010 that she spoke to Mr Kotzas. Even allowing for the three- week mid-year vacation such time frame demonstrates a lack of appreciation of the seriousness of the situation she had left each of Mr Messenger, Ms Carey and Mr Quill in. [83] Compounding her failure to act expeditiously, Ms Ferguson also chose not to interview Mr Messenger in circumstances where she informed him on 9 June 2010 that she would need to "interview you formally" after she conducted the other interviews. Given this clear advice it was not up to Mr Messenger to chase Ms Ferguson to have a meeting, as Mr Harding's submission seems to suggest. Rather, it was incumbent on Ms Ferguson to follow through and do what she said she would do. [84] It was not until 20 August 2010 that Ms Ferguson contacted Ms Wilson and Mr Messenger to discuss her report. Even allowing for a period of absence with bronchial pneumonia (and a school vacation) this was an extraordinarily long time after she told Mr Ferguson on 9 June 2010 that she would commence the investigation. However, when she met with them on 31 August 2010 she only provided a precise of her findings and provided a clear indication to both Ms Wilson and Mr Messenger that she would forward them a copy of her completed report in a week. [85] The day following the meeting Ms Wilson sent an email to Ms Ferguson in which she noted the promised timeline and raised Mr Messenger's concern that it be complied with and because "his threshold of tolerance for any further delay has been reached" (see paragraph [49] above). In the course of this email Ms Wilson reiterated concerns she and Mr Messenger had apparently raised with Ms Ferguson during the meeting about the process she might adopt to check the accuracy of information she had gleaned during the course of her meetings with those persons who had been interviewed. In particular they expressed concern that Ms Ferguson not -- 16 of 17 -- 17 provide witnesses with the opportunity to censor or otherwise "correct" anything which Ms Ferguson might have recorded. [86] The week came and went without the promised report being delivered. As a result, Ms Wilson sent an email to Ms Ferguson on 10 September 2010 asking about its whereabouts. This email was not responded to. It was only when Ms Wilson sent a further, pointedly worded, email on 17 September 2010, in which she told Ms Ferguson that the situation was "now critical" and that his "patience has been exhausted", that Ms Ferguson responded. In doing so she promised the report the following week. Eventually, the report, dated 23 September 2010, was forwarded to both Mr Messenger and Ms Wilson during the school vacation. [87] The approximate two-week delay between the scheduled delivery of the report and its ultimate release seems to be associated with Ms Ferguson's decision to release the entire report to each of Mr Quill, Ms Carey and Mr Kotzas for their consideration and comment. Why she would have taken this step, when her declared intention was to get each witness to check the accuracy of comments attributed to them in relation to matters canvassed with them, was not able to be explained by Ms Ferguson. [88] In my view, there could be no possible justification for Ms Ferguson's decision to release her draft report to the three witnesses mentioned immediately above. It was done either through carelessness or a complete lack of appreciation of the ramifications of allowing each of the three staff members concerned to read anything and everything she had learned during her investigations. Either way, it was inappropriate management action. [89] Ultimately, after he received the report, read its contents, and realised that no steps whatsoever were being taken, or proposed to be taken, by the School in relation to the serious interpersonal and communication difficulties between himself and Ms Carey, Mr Messenger decompensated on or around 5 October 2010. [90] The "cause" of his decompensation was the unreasonable management action engaged in by the School from at least the beginning of Term one 2010 up to and including the release of the investigation report on or about 23 September 2010. The failures of the School to handle the issue of, firstly, the interpersonal and communication difficulties between Ms Carey and Mr Messenger and, secondly, the grievance from the time it was re-activated in early June 2010, involve layer upon layer of inappropriate, and therefore unreasonable, management action. [91] Given the statement of agreed facts, the School's concessions in relation to the matters recorded at paragraph [9] above and my findings that Mr Messenger's injury arose out of unreasonable management action (which was also taken in an unreasonable way) the Appeal cannot succeed. [92] For the foregoing reasons I confirm the decision of the Regulator to accept Mr Messenger's Application for worker's compensation lodged on 5 October 2010 and dismiss Appeal No. WC/2011/92. [93] The Appellant is to pay the Second Respondent's costs of, and incidental to, the Appeal. I reserve the question of costs in relation to the First Respondent. [94] I determine and Order accordingly. A.L. BLOOMFIELD, Deputy President. Hearing Details: 2012 20 February (Mention) 8 October (Hearing) 9 October (Hearing) 31 October (Second Respondent's Submissions) 4 December (Appellant's Submissions) Released: 20 December 2013 Appearances: Mr C. Harding of Counsel instructed by Middletons for the Appellant. Mr P. O'Neill of Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the First Respondent. Ms J. McClymont of TressCox Lawyers (formerly Macrossans Lawyers) for Mr Bevan Messenger, the Second Respondent. -- 17 of 17 --