Cuttiford v Q-COMP [2012] QIRC 486

CITATION: Robyn Cuttiford AND Q-COMP (WC/2011/53) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - procedure for appeal Robyn Cuttiford AND Q-COMP (WC/2011/53) DEPUTY PRESIDENT BLOOMFIELD 21 December 2012 DECISION Background [1] This decision relates to an Appeal by Ms Robyn Cuttiford against a decision of the Review Unit, Q-COMP (Q- COMP), dated 31 January 2011, in which Q-COMP upheld an earlier decision of WorkCover Queensland (WorkCover), dated 21 July 2010, to reject Ms Cuttiford's claim for damages for an unassessed injury cited in a Notice of Claim for Damages first lodged with WorkCover on 2 March 2010, and amended on 9 April 2010. [2] In rejecting Ms Cuttiford's application for statutory review, Q-COMP accepted that while Ms Cuttiford had suffered a personal injury, which arose out of or in the course of her employment, the injury arose out of reasonable management action taken in a reasonable way and was thus excluded from the definition of injury at s. 32(1) of the Workers' Compensation and Rehabilitation Act 2003 (the Act) by the operation of s. 32(5) of the Act. [3] In her Notice of Claim for Damages, Ms Cuttiford said the events resulting in her injury occurred over a period of time, commencing in January 2006 and ceasing on 18 November 2008. Relevant Legislation [4] The Act relevantly provides: "32 Meaning of Injury (1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury. … (5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances - (a) reasonable management action taken in a reasonable way by the employer in connection with the 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.". Onus [5] The appeal to the Queensland Industrial Relations Commission (the Commission) is by way of a hearing de novo. It is Ms Cuttiford who bears the onus of proof on the balance of probabilities (see Eric Martin Rossmuller AND Q-COMP1 ). [6] In order to establish that she has an entitlement to workers' compensation for the purposes of the Act Ms Cuttiford is required to prove, on the balance of probabilities, that: (a) she is a worker; (b) she suffered a psychiatric or psychological injury; (c) her injury arose out of, or in the course of, her employment; (d) her employment was a significant contributing factor to her injury; 1 Eric Martin Rossmuller v Q-COMP (C/2009/36) - Decision <http://www.qirc.qld.gov.au>. -- 1 of 17 -- 2 (e) her psychiatric or psychological injury is not removed from the definition of injury at ss. 32(1) by virtue of the operation of s. 32(5) of the Act. [7] Q-COMP concedes points (a), (b), (c) and (d) immediately above but argues that Ms Cuttiford's injury is removed from the definition of 'injury' at s. 32(1) of the Act by the operation of s. 32(5). The case for Ms Cuttiford [8] Counsel for Ms Cuttiford (Cuttiford), Ms S.D. Anderson, submitted that Cuttiford's case was that it was unreasonable for Queensland Police Service (QPS) to require Cuttiford to change her work location from the Caboolture Watch House (the Watch House) to the Caboolture Police Station (the Station) with no advanced notice and without consulting her whether that move would likely negatively impact on her mental health. Further, Cuttiford says that while it may have been reasonable to require her to work in the Station in other circumstances, the action was carried out in an unreasonable way given the fact that she advised her managers that returning the Station was the cause of her stress (paragraph 2 of written submissions). [9] Ms Anderson also said that Cuttiford's evidence was that the event that caused her to cease work on 18 November 2008 was "when they called me from the Watch House and put me into the General Duties roster, which was totally contradictory to what my Doctor had said" (paragraph 12 of written submissions, quoting transcript at 1-80). Evidence on behalf of Ms Cuttiford [10] Cuttiford said she joined the Queensland Police Service in October 1997 and served in a number of stations in the Brisbane Metropolitan Area after graduation. In the beginning, she performed general duties as a First Response Police Officer for approximately three years. After a short period in the tactical crime squad she applied for an Inquiries position attached to the Morningside Police Station. [11] In that position her role was to follow-up outstanding matters such as to interview a witness to an accident in a provincial location who resided in Brisbane or possibly serve a warrant or issue a subpoena. The Inquiries position, which she worked in for approximately six years, did not involve first response policing. [12] Cuttiford said she applied for a lateral transfer, on compassionate grounds, to the Sunshine Coast area in order to be near her daughter who had relocated to that region in June 2005 following some attention seeking behaviour and difficulties she experienced with a group of friends she was hanging around. Cuttiford said her daughter was living with her best friend and she travelled to the Sunshine Coast every second or so day in order to be near her daughter. Eventually, she relocated to the Sunshine Coast herself in November 2005. At about this time she was offered, and accepted, a lateral transfer to the Station with a commencement date in late January 2006. [13] Cuttiford also said that she met a number of her new work colleagues at a Christmas party in December 2005. During this event she met, and spoke with, the District Officer, Inspector Michael Brady (Brady), Senior Sergeant Pat O'Loughlin (O'Loughlin), Officer in Charge at the Station, and Senior Sergeant Mark Hasenkam (Hasenkam) who was in charge of the Watch House. [14] In the course of her evidence about this event Cuttiford said: • she told O'Loughlin she had been in Inquiries prior to her transfer and asked him if there was a position in that role at the Station; • O'Loughlin told her there were no Inquiries positions in Caboolture; • she informed him she was anxious about working in first response policing because she had not worked in that role for many years; • she told him she didn't have any current skills in general duties and hadn't been trained in all of the new legislation; • O'Loughlin had a chuckle and said "well, basically, this is where you are going to be working, in general duties, so get used to it."; and • during her conversation with Hasenkam she asked him whether there would be an opportunity for her to rotate into the Watch House and he responded by saying he would see what he could do. [15] Cuttiford said that she commenced at the Station on 30 January 2006 and her first shift was a 2 to 10. She said she basically strapped on her gun and went off to her first job. Caboolture is an extremely busy area and she went from job to job. It was work she hadn't done for some time and she found it pretty stressful. She also said she had spoken to O'Loughlin about receiving training before she started first response policing but he did not offer any training to her, although that was her expectation. She said her expectation had arisen as a result of her observation of the way other officers were treated after a long period off the road. They were often placed into a -- 2 of 17 -- 3 general duties position in the Station for a week or two to familiarise themselves with the different things that happened in a general duties function. However, she was just "thrown out on the road". [16] She performed first response policing until about April 2006 when she was seconded to a position at the Morayfield Police Beat (the Police Beat). Although this rotation was approved by O'Loughlin it was actually Wendy De Berg (De Berg), who was the roster clerk at the Station, who came and asked her to rotate to this position. She also claimed not to know how it was that she came to be rotated to the Police Beat (transcript 1- 19). [17] She spoke to O'Loughlin on a number of occasions after she commenced in January 2006 about childcare difficulties she was experiencing because of the matrix roster which operated in the Station. This was a team- based roster where the teams rotated through day, afternoon and night work. She said that O'Loughlin's response was "that’s not his problem". [18] Cuttiford said she suggested the idea of having two Senior Constables stationed permanently at the Police Beat and O'Loughlin told her that he would make arrangements for her stay there permanently. However, this did not eventuate. O'Loughlin told her in an email that it did not happen because of a decision of the Regional Human Resources Manager, Kerry Hughes (Hughes). However, she later went back to the Police Beat for about a month. [19] In or around May 2006 she asked for a secondment to the Kawana Waters Police Station, which was only two minutes from her home, after her daughter had an incident. However nothing happened. As a result of this, and the Police Beat issue (immediately above), she didn't feel supported by O'Loughlin. Cuttiford also said that later, in or around August 2006, a planned rotation into the Watch House "was taken away from me", so she then had to do another eight weeks in the Station. She was eventually rotated into the Watch House in October 2006. [20] Cuttiford said that her role in the Watch House involved processing prisoners who had been arrested by a first response crew, CIB, or other officers. She would make sure that the matter they were being charged with was correct, identify whether they were eligible for bail, then fingerprint and process the person. She would also make sure that the Court briefs were correct and would then monitor the prisoners in their cells. The Watch House had three cells which could house up to twenty prisoners. [21] Normally, two staff members worked in the Watch House on any shift. This number was supplemented when Court was sitting. On those days, the Watch House would have four to five officers on duty, the bulk of whom were supplied from the Station. [22] Cuttiford said she had no difficulties while she was working in the Watch House and differentiated in her mind the duties in the Watch House compared to first response policing, as follows: • a Watch House is a very controlled environment; • you are aware of everything that is about to happen, apart from the occasion that a prisoner may act out; • when an arrest comes in the officers concerned take that person into a holding cell; • you can hear when the officers are on their way in and can prepare the holding cell and have the door open before they actually come in; • the officers would put that person into the holding cell and you would know what that person is there for, their demeanour, their whole history, everything about that person; • they would eventually calm down and you would process them at the counter. You would also have staff around if someone was a known violent person; • there is a lot more information available to you in a Watch House environment than in a first response situation; • in a first response situation you are told to attend a particular address. If you haven't been to that address before there is not much intelligence or information about that location; • you don't know whether you are about to attend a suicide, a car accident that someone has died in, a SIDS death, a domestic violence incident, a drink driving incident, a pub brawl, or a seizure; and • you don’t know what you are going to get until you arrive there. It can be basically anything. [23] She did not experience anything like a first response situation while working in the Watch House for two years from October 2006. Further, she could not think of any unusual circumstance that she encountered in the Watch House. [24] However, on 20 October 2008 she was told she was going to be leaving the Watch House. Much earlier than this (in or around April 2008) O'Loughlin mentioned to her one morning, as they were walking into the Watch House, that he was going to rotate a couple of the longer serving officers from the Watch House up to the Station towards the end of the year. He did not say why and she did not ask him why (transcript 1-28). -- 3 of 17 -- 4 [25] Cuttiford said that earlier in the year she "had feelings" about being rotated back to general duties and also thought her time in the Watch House was up. Because of this, she decided to make other arrangements so she would not be rotated back to first response policing. As such, she lodged a number of applications for advertised positions and applications for transfer, as follows: • 18 February 2008 - advertised position - Sergeant - shift supervisor (Watch House), Maroochydore Police Station; • 1 March 2008 - expression of interest - general duties position, Sunshine Coast District (with preparedness to work anywhere between Caloundra Police Station and Maroochydore Police Station); • 6 May 2008 - application for transfer - Maroochydore Watch House / Kawana Waters Police Station / Caloundra Police Station; • 16 June 2008 - advertised position - Sergeant - shift supervisor (Watch House), Caboolture Police Station; and • 19 July 2008 - application for transfer - permanent position within the Caboolture Watch House (on compassionate grounds). [26] In early October 2008 Cuttiford took a standard application for long service leave form to Hasenkam for him to sign as the Officer in Charge of the Watch House. He told her that she needed to take the form to O'Loughlin because he (Hasenkam) would not be able to approve her leave in January 2009 on the basis she would be starting in the Station for a three month period at the end of December. Cuttiford said that this was the first time that she was given an actual date from which time she was likely to be rotated back to the Station. [27] On the following day she received a memorandum from O'Loughlin in relation to her application for long service leave, between 12 January 2009 and 25 January 2009. In the course of this memorandum O'Loughlin noted that the reason listed for the leave request was to care for children. He then wrote: "in order that I can properly assess this period of leave, please indicate the reasons why you specifically have to care for your children, the type of care, family movements or any other issues you wish me to consider relating to your application…please respond within 7 working days in report format so I can give early consideration to your request…". Cuttiford said this was the first time in her twelve years of police service that she received a memo like this about any request for long service leave. [28] After she received the memorandum from O'Loughlin she went to discuss the matter with him. She said she discussed not going back to the Station at all as well as having put in for a lateral transfer (on 8 October 2008) to a non-OSA (non-shift work) position. She claimed O'Loughlin became quite angry because the lateral transfer didn't go through him. She also said that she told O'Loughlin that she didn't know why, but she could not perform first response policing. She told him that she was feeling stressed and had anxiety and at that stage she wasn't sure "in relation to coming back to first response policing, so that's why I applied for the transfer". (transcript 1-44). [29] She also said that while she felt an overwhelming sense of anxiety, stress and panic, with sweaty palms and a racing heart, she (only) told O'Loughlin that she felt anxious and stressed. She also said that he did not inquire any further about her feelings. [30] Cuttiford said that she responded to O'Loughlin's memorandum by way of report dated 16 October 2008. By that date O'Loughlin had commenced a period of leave and she handed her response to Acting Senior Sergeant Tanwan (Tanwan) who assumed the role of Acting Officer-in-Charge of the Station during O'Loughlin's absence. In her response, Cuttiford asked that the dates of leave be amended, to run from 2 until 30 January 2009. She also wrote that she would have put her leave application in a year previously (because she was faced with this situation every school holidays) but it was only after Hasenkam informed that she would not be in the Watch House in the relevant period that she was told she had to put the leave form in through him (O'Loughlin). Previously, she made applications for leave to the OIC of the Watch House and he approved her requests. [31] Cuttiford said that she told Tanwan that she had applied for a lateral transfer and that she couldn't perform first response policing. However, she did not mention any issue about her concern in relation to performing first response policing in her lateral transfer application because of the stigma attached to that type of thing within QPS. [32] Cuttiford also said that when she handed her response to O'Loughlin's memo to Tanwan on 16 October 2010 he asked her some questions about why she did not want to return to general duties. She responded by saying that she didn't fully understand why at this stage, but she was feeling quite stressed and was seeing a psychologist to try to sort the issue out. Tanwan then asked her to supply a letter from her psychologist in relation to what she had just told him. He also told her, she could not remember his exact words, that she may not be working in the Watch House after that because of the psychological injury. Cuttiford said that she told Tanwan that working in -- 4 of 17 -- 5 the Watch House was completely fine. However, he told her that she needed to supply a letter which identified the suitable duties she could perform. [33] On 20 October 2008, Cuttiford handed Tanwan a letter (of even date) from Dr Jane Gibbs, psychologist, which stated inter alia: "On 10/10/08 Robyn presented to my office exhibiting all the signs of a panic attack. Robyn's symptoms were consistent with the existence of anxiety with panic. I strongly urge you to place Robyn Cuttiford on Restricted Operational Duties. In my opinion she would be able to fully perform duties in several areas including for example: Intel, Enquiries, Property Office, Communications and Watchhouse. These are controlled environments where she could maintain a sense of calm. In my opinion it would be very detrimental for her to work as a first response police officer.". [34] Later in the day, Tanwan contacted her at home and told her to report to him for her next shift and that she would no longer be working in the Watch House. He told her that this decision had been made by Brady. She phoned Brady to ask him why she was being shifted from the Watch House. He told her that it was due to the psychologist's letter. Cuttiford said Brady told her, in words to the effect, that he needed to make sure she was safe. She told him that she was safe in the Watch House and that she felt completely comfortable working there. She also told him that removing her at such short notice was causing more stress, and this was the whole reason why she went to see the psychologist in the first place. [35] Cuttiford also said: • Brady did not tell her why he was concerned about her safety in the Watch House; • he did not tell her what she would be doing on the general duties roster; • he told her that he would be putting "light duties" under her name on the general duties roster; • Brady did not explain to her why he was putting her on light duties; • she had not provided a medical certificate to QPS which said that said she needed to be on light duties; and • instead of reporting for duty on 21 October 2008 she visited her GP, Dr Trudy Honore, and took three days sick leave. [36] On 23 October 2008 Cuttiford spoke with, then emailed, Miss Jennifer Crawford (Crawford) who was acting in an injury management role (in place of Ms Janine Hoffman) for the North Coast Region of QPS. In the course of her email, Cuttiford sought some advice about what might be happening when she returned to work after three days sick leave and rostered days off. In the course of this email she told Crawford that she did not want there to be any gossip about: why she might be in the Station; why she could not perform general duties; and, why she had been pulled from the Watch House. She also said she wanted it to be made very clear to the District Officer (Brady) that regardless of what had occurred at the Watch House over the past year (violence, aggression) none of it had any effect on her. It was a controlled environment where you knew what was coming through the door, "so I am unsure why he thinks I need protection from this ???". [37] Cuttiford also told Crawford that Brady was very much aware that she could not work on the team matrix roster on general duties without having major family issues in relation to childcare needs. She also explained that those issues would not continue forever as her son was now 8 years old and in a couple of years he would be able to exercise more responsibility about coming home and letting himself in. [38] Just prior to returning to duty at 2:00p.m. on 29 October 2008, Cuttiford attended a meeting (at 1:00pm) with O'Loughlin, Hoffman and Senior Sergeant Des Hanson, an office bearer of the Police Union. She did not recall everything that happened in the meeting but did recall that she was extremely upset and crying. Both Hoffman and herself spoke about other work she might be able to perform - including the Police Beat, Watch House and going non-shift work (non-OSA). In the course of her evidence about this meeting, Cuttiford stated: • no-one said to her they were not aware of her medical issues; • she did not specifically talk about any medical issues because everyone had the letter from Dr Gibbs prior to going into the meeting; • there was discussion about the stress which first response policing caused her; • there was discussion about the difficulties which the matrix roster caused when compared to the ad hoc roster which operated in the Watch House; and • there was discussion about the lack of childcare for her son, whose school did not provide after-school- care. -- 5 of 17 -- 6 [39] Later in her evidence, Cuttiford complained that the Watch House roster issued on 15 October 2008 had her rostered into the Watch House until 21 November 2008 and the decision of Tanwan Brady on 20 October 2008 to move her to the general duties roster from the following day came completely without warning. Her name was simply removed from the previously issued Watch House roster and placed onto the general duties roster from 21 October 2008. [40] She said that seven days notice was usually given before a roster came into effect. If a roster was amended after it was issued the word "Amended" was written on it. However, there was no such notation on the general duties roster to which her name was added from 21 October 2008. She said she had never experienced a change of rosters like that before. [41] Cuttiford also said that she did not know why the words "light duties" appeared under her name on the general duties roster. She said she had never presented any medical certificate that required her to be on light duties. [42] Two days after the meeting on 29 October 2008, Cuttiford received an internal email inviting staff in the Station to express an interest in rotating to the Watch House for a three to six month period. She responded to this expression of interest and also emailed Hoffman seeking her support to obtain this rotation. In her email to Hoffman, she noted that the expression of interest usually applied to Constables, "not that this email specified this". [43] Cuttiford claimed that she did not receive a response from Hoffman about this email (see transcript 1-75). However, shortly after making that statement, she said that Hoffman did have a conversation with her, after she (Hoffman) spoke to Hughes, in which Hoffman told her there was nothing that she could do in relation to securing the rotation. (see transcript 1-77). [44] Following the meeting on 29 October 2008, Cuttiford also spoke with Hoffman about the feelings she was experiencing in relation to returning to first response policing. As a result of these discussions, Hoffman made arrangements for Cuttiford to participate in the Early Intervention Treatment Program (EITP). The EITP involves QPS paying for up to 3 x 1 hour consultations with a registered psychologist or psychiatrist of the treating GPs choice. Information about this program was sent to Cuttiford on 31 October 2008. [45] Some time later (the date was not provided) Cuttiford again spoke to Hoffman after she received a telephone call from an administrative officer in the Regional Office, during which she was informed that an appointment had been made with Dr Honore on 18 November 2008 which she was to attend with Hoffman and Brady. In the course of this conversation Cuttiford told Hoffman that she was prepared to attend the appointment with her but did not want Brady to be present. She said that Hoffman told her "well, Inspector Brady is coming. So too bad.". In response, she told Hoffman that she had spoken to the Union, which informed her that she did not need to attend. Cuttiford said that Hoffman did not tell her why Brady needed to be present at the meeting. She also said that she did not want him to attend because of the lack of support she had received from him previously and because he was very intimidating towards her. [46] Cuttiford said that she did not attend the meeting between Dr Honore, Brady and Hoffman. However, she attended an appointment on that same day when Dr Honore told her: • she needed to go on full sick leave; • she (Honore) could tell that she (Cuttiford) was not getting support from her senior officers; • she would not get better by continuing to work at the Station; and • the only way she was going to get better was if she actually took full sick leave and went and got better. [47] Cuttiford said she was really scared to take sick leave and remembered shaking and crying and telling Dr Honore that there had to be a different solution. This was because the stigma attached to taking sick leave was very bad within QPS and it was going to reflect badly on her career. After Dr Honore helped her to see that taking sick leave was the only way forward, she took her advice and went on full sick leave. [48] Cuttiford said she ceased employment on that day, 18 November 2008, and had not returned to work. What caused her to leave work at that time was "when they pulled me from the Watch House and put me directly into the general duties roster, which was totally contradictory to what my doctor had said.". There was nothing else that caused her to go off work at that time (transcript 1-80). [49] Under cross-examination, Cuttiford said the discussion with O'Loughlin at the Christmas party was casual. She did not recall him mentioning the team based matrix roster for general duties' staff at the Station. However, she did recall asking him about opportunities to work in Inquiries because that is where she wanted to work. Nonetheless, she understood that she would be starting work at the Station in a general duties role. -- 6 of 17 -- 7 [50] Cuttiford also agreed that in her previous role in Inquiries at Morningside she was required to serve domestic violence orders, execute warrants of arrests and execute warrants of possession. [51] She also agreed that a short time after she arrived at the Station she spoke with O'Loughlin about the trouble she was having with the matrix roster due to family commitments. She acknowledged that she asked him if it would be possible to work in an environment where a Family Court Order, to the effect that her son stay with his father every second weekend, could be accommodated (she was rostered to work three weekends out of five on the matrix roster). She also agreed that as a result of those discussions, O'Loughlin rotated her to the Police Beat for a two week period in April followed by a three week period in June. However, she claimed not to know why O'Loughlin might have rotated her to the Police Beat in June, simply stating that she knew he had to find someone to relieve the officer-in-charge, who was also a Senior Constable. [52] Cuttiford agreed that O'Loughlin spoke to her in early June 2006 about the options available to her to address her personal circumstances. She accepted that he gave her three options in a memo dated 9 June 2006, as follows: • go on non-OSA (not working shift work) for a period of time until her family situation was resolved, then resume OSA; • perform duties at the Police Beat on a "semi-permanent" basis, which was a non-OSA position requiring her to work on one Saturday each fortnight, with overtime of four hours per fortnight also being available to supplement her pay; and • to remain in the team matrix and, where possible, one or two afternoons to be modified as Brady and he had discussed with her. [53] O'Loughlin also wrote: "Management is quite happy to work with you given your current situation. I understand that you are soon to go on two weeks long service leave then have another two weeks in the Beat. To assist us in future rostering, you are to consider the above options and advise myself what best suits your needs. You are to notify me prior to you going on long service leave...". [54] However, it was not until 20 July 2006 that Cuttiford responded to O'Loughlin's email. In her response she indicated that she had been at the Police Beat for a two week period, before commencing long service leave, and then for another four weeks, which would leave her at the Police Beat until 4 August 2006. She asked if it was possible for her to stay for another four week period, which would take her through until 1 September 2006. [55] In response, O'Loughlin said he would make enquiries as to "what was needed to make her request happen" and to determine an appropriate amount of time (at the Police Beat) that suited both her and QPS. He also pointed out that if she went off OSA, QPS may have a greater need of her skills and services in performing other duties, e.g. shift supervisor, rather than working at the Police Beat. [56] On Saturday 29 July 2006, Cuttiford sent an email to Brady, O'Loughlin and De Berg (plus two others). In her email, Cuttiford complained that while De Berg told her earlier that week that she was to be rostered at the Police Beat for the next month, and she (De Berg) needed to know if she (Cuttiford) was going to remain there for a three or a six month period, this "verbal guarantee/offer" had since been taken away. She complained that this was the second time something which had been offered to her had been taken away (the first occasion was the proposed rotation to the Watch House - see paragraph [18] above). [57] Cuttiford also complained that De Berg told her on the previous Thursday that she could no longer stay at the Police Beat and that she had to go non-OSA at the Station or OSA back on the team. She said she was under the impression, from discussions she had with both De Berg and O'Loughlin, that going off OSA at the Police Beat was an option. She also said, "it wasn't OSA, but it was better than nothing. I am feeling really frustrated, annoyed and let down (to name a few) with the way things have been offered and taken away at the moment that its basically given with no regard to how this might affect someone.". [58] The following Monday morning, O'Loughlin responded to the above email during the course of which he explained that Hughes was the one who put a stop to the Police Beat proposal due to budget considerations as well as the Union insisting that non-OSA personnel could not work weekend units - even if an officer agreed to work and not claim a penalty rate. "That threw our plans for you and your circumstances out. We tried our best but that plan also didn't work out.". [59] O'Loughlin also expressed concern about Cuttiford's comments regarding being offered things and having them taken away. In doing so he said "this office and this station have done nothing but tried (sic) to find the best options for you and your family's circumstances, trying various strategies to meet your needs while still taking -- 7 of 17 -- 8 into (account) the considerations of the QPS. I will be talking to you further on this point and other options that may be available when we again meet.". [60] Cuttiford acknowledged that she had spoken to Sergeant Andrea Reeves (Reeves) during the course of 2006 about problems she was experiencing with the inflexibility of the matrix roster and she had subsequently learned that Reeves had made approaches to O'Loughlin on her behalf. [61] She also agreed that she had discussions with O'Loughlin in April 2008 when he informed her that there would be a shortage of Senior Constables towards the end of 2008 and that she and another Senior Constable would need to work in general duties for three months each during the period October 2008 - March 2009, after which they would each be rotated back to the Watch House. [62] She also accepted that O'Loughlin told her he didn't mind which officer did the first rotation and that they could work it out between themselves. Notwithstanding this advice, she did not go back and tell O'Loughlin about her preference. Later (see transcript 2-29), she said he told her, in April 2008, that her rotation would be "around December 2008" for a three month period. [63] A short time after giving the above evidence, Cuttiford claimed (see transcript 2-40) that her April 2008 conversation with O'Loughlin was "rather a casual conversation. There was nothing in writing. It was something that was just a two-second conversation… it was quite a flippant conversation, if I can put it in that type of term.". [64] However, when pressed, Cuttiford resiled somewhat, saying that she was informed that it was "on the cards" that she would be rotate, before (finally) conceding that she was told that it was going to happen. [65] Cuttiford claimed that the first time she knew of the date of her rotation back to general duties was 7 October 2008, when Hasenkam told her it would be from 20 December 2008. Previously, the date had not been fixed. In any event, she acknowledged that she understood the rotation would be for a three month period after which she would be rotated back to the Watch House. [66] Cuttiford confirmed that Dr Honore provided her with a medical certificate on 3 November 2008 which certified that she was "unwell medically" and that she was to perform "light duties as in place, Monday - Friday… 7am to 3pm… review 5/12/08.". She also confirmed that the words "as in place" was reflective of the nature of the work (light duties) she was performing at that time. [67] In relation to her discussion with Brady on 20 (or 21) October 2008, Cuttiford agreed that he said, in words to the effect, that she would not be sent on the road until she felt comfortable and would be able to assist within the Station environment. She also acknowledged that she understood this to mean that while she would be back on "general duties", she would be performing light duties by assisting in the Station (transcript 2-51). She also understood this meant that she would not be back on the road and that QPS would have to find some position for her within those restrictions (transcript 2-53). [68] In re-examination Cuttiford said she did not recall the exact things Brady said to her during their conversation. She knew she would be returning to the Station but she was not aware of the exact job she would be doing. She also said that she could not remember him conveying any comment to her about not having to go out on the road. Nor did her conversation with him give her any sense of comfort (transcript 2-54). [69] Cuttiford also said, in essence, that she did not place much store in O'Loughlin's advice to her in April that she would be returning to the Station at the end of the year. She said a new Watch House had opened at Strathpine and many staff were moving to that location. She was of the belief that those changes were so numerous it would result in a change of plans in respect of the rotation which O'Loughlin had discussed with her. However, it only became apparent in October that the rotation would definitely happen. [70] In response to a question from the Commission as presently constituted about the duties she performed after she returned to the Station in October 2008, Cuttiford said: • she worked as Second in Charge to Sergeant Ryan, the shift supervisor; • her work involved receiving jobs at the Station, doing computer work, detailing jobs to staff and helping staff do their paperwork as well as look up legislation, that type of thing; • she undertook an audit of all the equipment within the Station, which O'Loughlin asked her to perform. [71] She also confirmed that none of this work could be described as "first response policing". -- 8 of 17 -- 9 [72] Cuttiford also confirmed that she did not hold a Bachelor of Behavioural Sciences - Psychology nor a Bachelor of Arts in Humanities, which she claimed she possessed in her applications for advertised positions and applications for transfer. She had only partly completed each of these degrees. [73] Under further re-examination, Cuttiford said that she had completed about 1.5 years of each degree course. She said that she "obviously forgot" to put the word "incomplete" against each of these qualifications, because that is what she normally did. [74] Sergeant Darren Taylor (Taylor) was Acting Officer-in-Charge of the Watch House at the time when Cuttiford was moved from the Watch House to the Station. He understood the Station was struggling for rank structure in the teams in the roster and he understood that Cuttiford was being moved to team 1 for that reason. [75] Later, he received information that her move to the Station was as a result of a Certificate from a psychiatrist she had been seeing about her mental state. [76] Under cross-examination, Taylor acknowledged that an officer working in the Watch House might, at times, work by themselves. He also said that under the matrix roster which operated in the Station it was possible to swap shifts with other officers if someone was prepared to swap. He also said that if an officer was assigned to Inquiries they could still be called upon to perform a first response policing task, such as attending an armed hold up. [77] Taylor said the only time that an officer might not be called upon to perform first response policing duties would be if they were pregnant or, for whatever reason, had been placed on light duties. [78] Evidence was also given by Ms Leah Dique, a registered psychologist, and Dr Trudy Honore, a General Practitioner. However, on my reading of the submissions of the respective parties, as well as the concessions made by Q-COMP (see paragraph [7] above), there is no need to make any mention of their evidence at this juncture. However, if it is necessary to refer to aspects of their evidence in my findings and conclusions, I shall make the appropriate references at that time. Evidence on behalf of Q-COMP [79] Tanwan said he took up the position of Acting Senior Sergeant, Officer-in-Charge, of the Station on 15 October 2008 for a period of 10 days while O'Loughlin took leave. During the handover O'Loughlin informed him that the Station was experiencing staff shortages, particularly through the Christmas break, and that some of the senior staff who had been relieving in the Watch House would need to come back to the Station. Cuttiford was one of the officers mentioned and O'Loughlin also mentioned that she had been a "bit reluctant" to come back and had also put in a long service leave application. O'Loughlin also told him that he asked Cuttiford to put in a report in relation to her long service leave application but he had not yet received that report. [80] On 16 October 2008 Tanwan spoke to Cuttiford about the outstanding report as well as about moving up to the Station. She told him that she would submit the report in relation to long service leave but that she would not be coming up to the Station, saying "no, I won't be.". When he asked her why she simply responded "I've just got my reasons.". Tanwan said he told Cuttiford that before he, or O'Loughlin, could make a decision about returning to the Station she needed to provide some reasons why she could not return to her general duties role. Later in the day, when she handed in her report in relation to long service leave, he again explored with her the issue of returning to the Station. She told him that she was seeing a psychologist and she could not return to first response duties. [81] Tanwan said that his initial feeling was that this was "out of left field" and he needed to find out more about her actual condition. As such, he asked her if she could produce something from her Doctor in relation to her condition so that QPS could make a decision about her duties, including what duties might be suitable for her to perform. [82] Several days later Cuttiford handed him a letter from a Dr Gibbs. His recollection was that he informed her that he would need to take the matter before the District Officer (Brady) and he also told her that "this changes everything" and that she might not be working in the Watch House anymore because he considered it to be a safety risk. He also recalled asking her if she could return to an administrative role in the team environment, but not in a first response role and not going out on the road at all (transcript 3-11). He recalled that her response was that that was not acceptable. [83] Under cross-examination, Tanwan agreed he was of the view that Cuttiford would be at risk if she stayed in the Watch House and that he expressed this view to Brady. He also proffered the view that any officer in the Watch House was at risk of assault, it did not matter if there was one or two officers in attendance. Tanwan also opined -- 9 of 17 -- 10 (transcript 3-21) that Cuttiford was at less risk of being hurt working in the Station than she was on the road (including performing a role in Inquiries) or in the Watch House. [84] Tanwan also rejected the proposition that Cuttiford had told him that she didn't understand the reasons why, but she could not go back to first response policing. He did, however, recall her being upset and crying as well as expressing her anger at, and dislike of, O'Loughlin. [85] Under re-examination, Tanwan said that part of Dr Gibbs letter, where she mentioned that Cuttiford's symptoms were consistent with the existence of anxiety with panic, helped inform his decision-making process as to what he should do with her. "It meant to me that she should not be in any way put in a position where - that anything that could cause an anxiety or to cause her to panic.". This was because his experience as a police officer suggested she would be subjected to many stressors in the Watch House - not just fear of assault but also the behaviour of prisoners who, by their nature, had no respect for anything, they just wanted what they wanted. "…it does get very, very - extremely busy when they are clanging on doors, whatever, and all those things can cause stress and the last thing is that I did not want her to get in a situation where she has an anxiety attack, panics, and particularly if there is the processing of a prisoner and the other officer may need to deal with something and maybe be put at risk for that reason.". [86] Tanwan also said that the officers in the Watch House were very dependent on each other, particularly if they were processing multiple prisoners. Further, the counter in the Watch House was in an exposed area in that it did not have a screen, unlike the Station. [87] Brady said he was aware from discussions with O'Loughlin that the Station would experience difficulties towards the end of 2008, into early 2009, because it would be losing two or three senior constables towards the end of that year. He recalled having a discussion with O'Loughlin about utilising several senior constables who were working outside the general duties environment to provide supervision and support to the junior staff until additional senior constables came on board. Cuttiford was one of four or five senior constables who were asked to return to general duties for a period of time. [88] He recalled Tanwan informing him that Cuttiford had been seeing a psychologist who told her she would not be able to return to a general duties role. He recalled telling Tanwan that he was to place her in an environment of safety within the Station "in a bubble", and she was not to go out on general duties or anything like that until they could work out what her medical condition was. [89] In relation to the "Restricted Operational Duties" mentioned in Dr Gibbs letter (see paragraph [33] above), Brady gave the following evidence about each of the duties mentioned by Dr Gibbs: • there was no Intel unit at Caboolture. It was district based and had no vacancies; • Inquiries was more closely aligned to a general duties role than any other task mentioned. An officer working in Inquiries might be serving a summons or arresting someone for a breach of a domestic violence order but would still be expected to respond, as would a first response police unit, to any jobs that might be allocated to them; • the properties office was managed by an Administrative Officer, not a police officer; and • Communications roles were only available in Communications Centres which were staffed by specialists, none of whom were supplied by the Station. [90] Brady said he decided to direct that Cuttiford be placed in "a bubble" in the Station until QPS could sort through the issue. This was because he didn't know what the anxiety or panic attacks were or how they might impact on Cuttiford or other persons in the Watch House. "… you've got to look at other police coming in there. You've got to look at prisoners. You've got to look at how the whole operation works…". [91] Brady recalled speaking with Cuttiford on 21 October 2008 when she wanted to know why she had to come out of the Watch House and move to general duties. He explained to her it was all about supervision of the junior staff and that it was only for a short period of time. She expressed concern about going out on the road and her lack of knowledge and the like. He recalled telling her that she did not have to go out on to the road until she felt comfortable. Her response was to say that she did not accept what he was saying, she was going to ring the Union and "I won't be in.". [92] On the following day Brady sent an email to Hoffman (cc to Hughes and Tanwan) which said: "Just an update on Cuttiford. She called me yesterday to advise me she was not happy about coming out of the watchhouse to assist the Generals crews for the 3 months. She made it clear that she had seen a doctor and the doctor had clearly advised the service she was not to work as a first response officer and was suitable to watchhouse duties. -- 10 of 17 -- 11 When (sic) I told her that she had produced the medical certificate which we now needed to follow up on, we would not be sending her out as a first response officer, however, she would be in the station working as the assistant to the shift supervisor. She then advised she would not be accepting that, she would not be coming in and hung up. She later rang the station and reported sick, 'with a medical condition known to Inspector Brady'. This morning she has rung in sick for the rest of the week with an undisclosed medical condition. I know you are at the conference, however, is it possible to send a letter to her doctor and have her independently assessed.". [93] Under cross-examination Brady agreed that he was aware that Cuttiford wanted to remain in the Watch House and the conversation she had with him was to the effect of her asking him why she had to come out of the Watch House. Brady said he could not allow her to remain in the Watch House because there was more to it than just one individual. He had to look at the safety of everyone else, which is why he created "a bubble". He also clarified (transcript 4-33) that the proposed rotation, later in the year, from the Watch House to the Station to provide supervision for the junior officers, had nothing to do with his decision to remove Cuttiford from the Watch House at that time. He knew she had panic and anxiety or something to that effect but he did not know exactly what it was. As such, he said, one created a safe environment and worked through the issues to find out what needed to be put in place and how everyone could move forward (transcript 4-33 to 34). In the North Coast region, the injury management coordinator (Hoffman) arranged meetings with the treating doctor, so that everyone could understand what they were dealing with, before anyone worked on developing a rehabilitation plan (transcript 4-48 to 50). [94] Under further cross-examination, Brady agreed that he understood Cuttiford did not wish him to attend any meeting with Dr Honore and that she had refused to come to the meeting if he was present. However, he said, the reason for his attendance was to let the doctor know that QPS had "a myriad of different avenues" to progress medical issues as well as to demonstrate his support for what he was saying. He would have left the room if there was any need for a discussion about "medical stuff" (transcript 4-52 to 53). [95] Brady also agreed that at the time he decided Cuttiford should be removed from the Watch House and placed in the Station, on restricted duties, he had not spoken to her about her views in relation to that proposal. He also said, in retrospect, that one of the tasks he told Hoffman and Hughes that Cuttiford might be able to perform, viz assisting counter staff, may have been outside "the bubble". However, while he understood the psychologist was providing suggestions as to the type of work Cuttiford could perform, he was not going to just act on those suggestions - he would put the officer concerned into a place of safety and utilise the injury coordinator (Hoffman) to find out what the injury was and what QPS could do to accommodate that officer. [96] Brady also acknowledged that the words "light duties" were written under Cuttiford's name when she was placed on the Station roster on 21 October 2008 in circumstances where there was no medical certificate specifying that she be on "light duties" until 3 November 2008. In doing so, he said that the words used indicated to anyone who read the roster that she would not be going out on the road. Everyone knew that if there was a job on they would not be able to take her, they would have to take somebody else instead. Brady also rejected a proposition put to him to the effect that the words indicated to anyone who might look at the roster that Cuttiford was injured. [97] Brady said that he did not have the opportunity to fully explain to Cuttiford the nature of the duties she would be performing in the Station, after she moved from the Watch House, because she hung up on him. However, he did tell her that she would not have to go out on the road until she felt comfortable. [98] In response to a multi-barrelled question which contained the following propositions: • in terms of safety, there is little difference between the situation in the Watch House and the situation in the Station, with the exception that the Station is more unpredictable because people could be brought back into an interview room and you did not know how they might behave; • Cuttiford informed him that she had not been on general duties for years and he (simply) made the assumption that she was anxious about going back in the station because she would be performing new duties; and • he understood she had difficulties in the past being on the matrix roster Brady replied: • anything can occur in the Watch House and, at times, you can have a single person working there; • Cuttiford's role was to change anyway, in that she was to come up to the Station (later in the year) and provide support for the junior staff; and -- 11 of 17 -- 12 • in the Station she was working under a supervisor, for everybody's protection, and, at the same time, QPS proposed to utilise Hoffman to clarify Cuttiford’s situation, identify how everyone could move forward and what QPS could do to get her back into her usual position. [99] Brady also said it was in his responsibility to make the decision, which he was comfortable with, about the appropriate area in which to place Cuttiford and not that of her treating doctor. He had to determine the best possible situation to place her in for her safety and for the safety of other persons, at the same time as engaging professionals, such as Hoffman, to move the issue forward. It was not a question of talking to Cuttiford about where she might feel most comfortable. He could not guarantee her safety in the Watch House or the safety of the other people who might be there. The safest place, in his mind, was to have her working under the shift supervisor (transcript 4-83). [100] Brady also said if there had been another officer with that same certificate from Dr Gibbs or another psychologist - it didn't matter where the officer was working - he would have put them into that same position in the Station under the direct supervision of the shift supervisor. "I believe that that is a safe environment while we get the professionals to work through the issues to see where we're going.". (transcript 4-84). [101] In Cuttiford's case, Brady said, it was more than a possibility that she would be the senior person on duty in the Watch House, working with junior officers. "That then created the full responsibility upon Ms Cuttiford. That's not sensible. You bring them upstairs under the supervisor, who is a senior person.". (transcript 4-85). [102] In re-examination, Brady indicated that he did not fully comprehend what Dr Gibbs was referring to when she urged QPS to place Cuttiford on "restricted operational duties". In his mind, there was no such distinction. Nonetheless, he took the letter to mean that Cuttiford should not be put in a situation where she would be on the road. He also said that he would never place an officer who was on restricted duties in the Watch House. [103] O'Loughlin said that Cuttiford raised problems she was experiencing with the matrix roster and family issues pretty much from the start of her employment in the Station. One of her issues was her desire to be at home when her children came home from school. Over the ensuing months he discussed various options with her, to alleviate her issues, including working in the Beat. However, in June 2006 he received advice from the Union and Hughes that it was not possible to rotate her to the Beat for a lengthy period because an officer who was not receiving the operational shift allowance (OSA) could not be rostered to perform ordinary duty on a Saturday. [104] Ultimately, Cuttiford was rotated into the Watch House in October or November 2006. His decision to move her to that area was designed to assist her to accommodate her family needs, in that the Watch House utilised an ad hoc rostering arrangement which was based on both operational needs as well as the individual requests of staff. In O'Loughlin's view, Cuttiford's rotation to the Watch House appeared to be a good fit for both the Service and her. Not only did it seem to accommodate her family issues much better than previously, the Watch House, in O'Loughlin's view, required skilled and competent senior police to be there "and Robyn was certainly that.". In terms of the operational needs of the Watch House it was a good fit to have a senior constable positioned down there. [105] In about April 2008 O'Loughlin identified a problem with future staffing levels, in that there would be a shortage of senior constables around October that year, going into the next year. As a result, he spoke to four senior constables who were performing duties elsewhere than on the matrix roster system about rotating back to the Station for a limited period of time. In Cuttiford's case, he mentioned to her, and another officer in the Watch House, that he would require them to come back to the Station for a three month period each, within the six month period starting in October 2008, after which they would be rotated back into the Watch House. At the time that he spoke to her, or a short time afterwards, Cuttiford told him that she did not wish to come back up to the Station. The reason she gave was that she was feeling a bit rusty, or a bit nervous, because of a lack of skills in that she had been out of the mainstream for a period of time. In response, he told her that there was still six to eight months before she would need to come up to the Station and she could use that time to be trained up in areas she thought she needed to address and that she should coordinate that through Hasenkam. [106] When neither Cuttiford or the other officer put up their hand about which of them wished to come up to the Station first he made the decision that the other officer would come up in October and that Cuttiford would work her three months during December, January and February. He conveyed that intention to Cuttiford. While he could not remember her response, he said there was no outrage or any indication that she was not going to rotate. [107] O'Loughlin said that when he spoke to Cuttiford and the other officer about rotating back to the Station for three months he told them both that he did not want to see any leave applications for that same period. However, Cuttiford later submitted a long service leave application during the proposed time of her rotation. As such, he requested written clarification about the reasons why she was applying for long service leave in January. -- 12 of 17 -- 13 [108] After taking leave between 13 and 25 October 2008, inclusive, O'Loughlin returned to work on 27 October 2008 to be informed that during his absence Cuttiford had presented some type of medical certificate and that he had been programmed to attend a meeting with her, Hoffman and Hansen on 29 October 2008. Part of the reason for the meeting was to discuss Cuttiford's family situation and the other purpose was to canvass the reasons for her being unwell or sick. [109] O'Loughlin said he understood the reason why Cuttiford was unwell was that she was anxious about being on the road, but he had nothing in front of him to support that. (Indeed, when shown Dr Gibbs letter of 20 October 2008, he said that he could not remember having seen that document previously). Cuttiford was upset and cried during the meeting and she was also a little bit agitated. Aside from that, he couldn't remember anything striking about her behaviour. O’Loughlin also said he approved her application for long service leave during the course of he meeting on the basis she had demonstrated sufficient reasons and also because he believed it would benefit her to go on long service leave. [110] O'Loughlin said that when Cuttiford returned to the Station in October 2008 under the designation "light duties" she would not have been sent on the road. However, depending on what other staff were doing, it was possible that she might find herself in the Station at night time by herself. Even then, there would still be officers in the Watch House and staff in other sections, like the CIB or CPUI, might also be on duty in the building. [111] Under cross-examination, O'Loughlin said that he could not recall having seen a memorandum from Tanwan to Brady, dated 24 October 2008, in which Tanwan referenced the letter from Dr Gibbs (see paragraph [33] above) and the resultant decision to move Cuttiford from the Watch House to the Station from 21 October 2008. However, while he said he could not recall having read the memo, he opined that the document would have come to him at some stage, on the basis he was OIC of the Station and the memorandum was also addressed to him. [112] Under further cross-examination, O'Loughlin agreed that during the meeting on 29 October 2008 he told Cuttiford: • he needed a Senior Constable in the teams to provide stability and to act as a 2 I/C; • she would be placed in a team on the matrix and she could plan her family situation accordingly; • she could talk to her shift supervisor about making changes to the roster; • she would not be able to write her own roster; • until advice was received from her GP, through Hoffman, she would be restricted to Station duty but would stay on the team matrix and roster; and • if her GP stated that her anxiety was a factor then that would be addressed by Hoffman. If not, she was to go back on the road in a car. [113] He also agreed that during the course of the meeting Cuttiford canvassed other positions or duties she might be able to perform, including: • working from 8am to 4pm in a non-OSA position; • working as a full-time counter person between 8am and 4pm; and • working in an intelligence role, in the property office or in the Watch house. [114] O'Loughlin also agreed that Cuttiford conveyed to him that she was upset about being placed on the matrix roster as well as being rotated back to a general duties position in the Station. In any event, after she worked a single 2 to 10 shift on 29 October 2008, he rostered her to work 8 to 4, as a result of matters discussed at the meeting, to help her organise herself and her family. Subsequently, on 3 November 2008, she supplied a medical certificate from her GP certifying that she was to remain on light duties between 7am and 3pm, Monday to Friday. [115] Q-COMP also called Dr Jane Gibbs and Dr Prabel Kar, a psychiatrist, to give evidence. However, as very little of this evidence has been raised by the parties in their submissions, and Q-COMP has made certain concessions (see paragraph [7] above), I do not propose to deal with their evidence at this point. (Note: it would also be difficult to deal with Dr Kar's evidence on the basis that he took ill during the course of his cross-examination and was not recalled to complete his evidence). Impressions of the witnesses [116] Because there are occasional conflicts in the evidence of the primary witnesses it is necessary to say something about my impressions of the various witnesses. [117] While Cuttiford was a reasonably reliable historian there were occasions when I believe she was less than frank in recounting her recollection of events, particularly the discussions she had at various times with O'Loughlin, -- 13 of 17 -- 14 Tanwan and Brady. One such example was where she claimed that her discussion with O'Loughling in April 2008, about the rotation to the Station in December 2008, was "flippant" but when pressed, revealed that the conversation was much more detailed than she alleged (see paragraphs [61] to [64] above). Another example was where she claimed Brady did not give her any information, when she telephoned him on 21 October 2008, about the nature of the duties she would be performing when she returned to the Station. Her conflicting evidence on this point, under cross-examination and then re-examination, is recorded at paragraphs [67] and [68] (above). [118] It is also clear that Cuttiford was simply dishonest in recording in her applications for lateral transfer and advertised positions that she held two degree qualifications - Bachelor of Behavioural Sciences (Psychology) and a Bachelor of Arts (Humanities) (see paragraph [72] (above)). Given her preparedness to be untruthful in relation to this matter, and my overall concerns about her inclination to enhance her evidence when she thought it would assist her case, I have decided to be somewhat circumspect in my consideration of her evidence. [119] By contrast, I thought that each of Tanwan, Brady and O'Loughlin did their best to provide an honest recollection of their dealings with Ms Cuttiford in circumstances where those events occurred over 3.5 years previously. In particular, I did not think that any of them tried to "gild the lily" or otherwise enhance their recollections. [120] As a result, I prefer the evidence of Tanwan, Brady and O'Loughlin whenever their recollections of events clash with those of Cuttiford. This is particularly so in relation to the evidence of Tanwan and Brady about their conversations with Cuttiford on 16, 20 and 21 October 2008, respectively. Findings [121] As noted at paragraphs [8] and [9] (above), the case for Cuttiford was that: • it was unreasonable for QPS to require her to change her work location from the Watch House to the Station with no advance notice and without consulting her about whether that move would negatively impact on her mental state; and • while it may have been reasonable to require her to work in the Station in other circumstances, QPS's action was carried out in an unreasonable way given the fact that she had advised her managers (Brady, O'Loughlin and Tanwan) that returning to the Station was the cause of her stress. [122] It was also part of Cuttiford's case that the event that caused her to cease work on 18 November 2008 was when "they" (Tanwan and Brady) relocated her from the Watch House and put her into the general duties roster in the Station, which was "totally contradictory to her doctors' recommendation.". [123] A number of things need to be said about the case advanced on behalf of Cuttiford, especially the submissions made on her behalf. [124] The recurrent theme throughout the submissions presented on behalf of Cuttiford was to the effect that: • she was rotated from the Watch House to the Station earlier than she had previously been told; • the rotation was brought forward from December to October; • there was no advanced notice of the early rotation; • she was placed into a general duties role in the Station in circumstances where both Brady and O'Loughlin knew she could not perform first response policing; • in that role she was required to switch to a matrix roster on short notice; • Brady and O'Loughlin were both aware that she could not work the matrix roster because of family difficulties; and • she was not consulted about the decision to relocate her and, as a result, was deprived of the opportunity to have any input into the decision. [125] However, the evidence reveals a totally different picture to that suggested in Cuttiford's submissions, as follows: • Cuttiford knew in April 2008 that she would be rotated back to the Station for approximately a three month period, around December 2008, after which she would be returned to the Watch House; • Hasenkam informed her on or about 7 October 2008, when she handed him her long service leave application for January 2009, that she would be rotating back to the Station from around 20 December 2008; • she informed O'Loughlin, sometime between Wednesday 8 and Friday 10 October 2008, and Tanwan on Thursday 16 October 2008, that she was feeling anxious about returning to first response policing. She -- 14 of 17 -- 15 also told Tanwan that she was seeing a psychologist about the matter and that she would not be coming up to the Station later in the year; • Tanwan told Cuttiford that before he, or O'Loughlin, could make a decision about returning her to the Station she needed to provide some reasons why she could not return to a general duties role; • on Monday 20 October 2008 Cuttiford handed Tanwan a letter from Dr Gibbs (see paragraph [33] above), in which Dr Gibbs recorded that Cuttiford had presented to her office on 10 October exhibiting the signs of a panic attack. Dr Gibbs also expressed the opinion that her symptoms were consistent with the existence of anxiety with panic. Further, Dr Gibbs strongly urged QPS to place Ms Cuttiford on restricted operational duties; • Tanwan informed Cuttiford that "this changes everything" and that he would need to talk to Brady about the letter. He also told Cuttiford that she may not be able to work in the Watch House in the future; • after discussing the issue with Brady, Tanwan phoned Cuttiford and informed her that she would need to report to him, in the Station, the next day. He also spoke to her about being a shift supervisor or second in charge, and not performing first response duties or going out on the road. However, she declined to talk about the duties he proposed and referred him to the suitable duties listed by Dr Gibbs (exhibit 38 and transcript 3-11); • on Tuesday 21 October 2008 Cuttiford phoned in sick; • the same day she telephoned Brady to ask him why she was being shifted from the Watch House. He told her that it was as a result of the psychologist's letter and that he needed to make sure she was safe (see paragraph [34] above) and that she would not be sent on the road until she felt comfortable; • Cuttiford understood that while this meant that she would be back on the general duties roster, she would only perform light duties by assisting in the station (see paragraph [67] above); • on Wednesday 22 October 2008 Cuttiford phoned in sick for the balance of that week (22-25 October 2008); • between Saturday 25 and Monday 27 October 2008 Cuttiford took rostered days off in accordance with the Watch House roster; • on the afternoon of Monday 27 October 2008 De Berg telephoned her to inform her that her next rostered shift would be a 2-10 in the Station on 29 October 2008; • at 1pm on 29 October 2008 Cuttiford participated in the meeting with O'Loughlin, Hoffman and Hansen; • during this meeting O'Loughlin informed her that her long service leave application for January would be approved. He also informed her that her working hours would change from the following day (Thursday 30 October 2008), to an 8 to 4 shift, to help her organise herself and her family; • on Saturday 1 and Sunday 2 November 2008 Cuttiford took rostered days off in accordance with her new roster; • on Monday 3 November 2008 she presented a medical certificate from her general practitioner certifying that she was to remain on light duties between 7am and 3pm, Monday to Friday; • she undertook limited light duties work (see paragraph [70] above) between 30 October and 18 November 2008; and • on Tuesday 18 November 2008 Cuttiford ceased work after meeting with Dr Honore (see paragraph [46] and [47] above). [126] On the basis that the case presented on behalf of Cuttiford, and responded to by Q-COMP, was that Cuttiford's psychiatric or psychological injury arose as a result of the decision of Tanwan and Brady, on 20 October 2008, to relocate her from the Watch House to the Station - without warning her or consulting her - I have decided to accept (and find) that: • Cuttiford's injury arose out of, or in the course of, her employment; • her employment was a significant contributing factor to the injury; and • her injury arose out of management action. [127] In such circumstances, the issue which needs to be considered is whether the management action involved was reasonable and taken in a reasonable way. [128] After considering all the evidence and submissions, not all of which has been referred to above, I have concluded that the decision of Tanwan and Brady to relocate Cuttiford from the Watch House to the Station on 20 October 2008 constituted reasonable management action taken in a reasonable way. [129] In arriving at this conclusion I have considered the following matters: • the decision of Brady and Tanwan to relocate Cuttiford from the Watch House to the Station was based upon their mutual concern about Cuttiford's psychiatric condition, as disclosed in Dr Gibbs letter of 20 October 2008, and did not involve any "bringing-forward" of the programmed December rotation; • their mutual concern about Cuttiford's mental state and her capacity to work in any stressful environment was well founded given Dr Gibbs' advice that Cuttiford had presented to her only ten days earlier with -- 15 of 17 -- 16 signs of anxiety and panic, as well as the doctor's recommendation that she be placed on restricted operational duties; • both Brady and Tanwan had a duty of care to ensure the safety not only of Cuttiford but also other serving police officers as well as prisoners in the Watch House; • it was appropriate for Brady and Tanwan to act on the recommendation of Dr Gibbs that Cuttiford should be placed on "restricted operational duties" - especially since she had "urged" them to take that course of action; • it was also appropriate for Brady and Tanwan to decide to place Cuttiford in a light duties role in the Station, in "a bubble", rather than in one of the identified positions, until further information about the nature of Cuttiford's condition was obtained; • it was not for Dr Gibbs to specify the nature of work Cuttiford could perform in that she had no knowledge of the work involved, nor the risks to Cuttiford and others if Cuttiford was placed into any of those roles, and had only listed the nominated positions on the "say so" of Cuttiford; • it was also not appropriate for Cuttiford to try to dictate the environment in which she might have felt most comfortable. Her psychologist had informed her employer that she was demonstrating signs of anxiety and panic and QPS (through Brady and Tanwan) had a duty to act on that advice by moving her to a position they regarded as being safe; • the "safest" place to assign her was to the Station, on light duties, under the supervision of a more senior officer (see Brady's evidence, which I accept as validly-based given his knowledge of police work and his experience, at paragraphs [89], [90] and [99] to [102] above); and • Brady informed Cuttiford, from the outset, that she would only be performing light duties in the Station and would not be sent out on the road (which meant that she would not be performing any first response police duties). As such, he addressed her concerns about being assigned to those duties from day one. [130] While Cuttiford was initially rostered onto the matrix roster which applied to staff performing general duties in the Station, this did not constitute unreasonable management action by either Brady or Tanwan. Their immediate priority, in my view, was to place her in a safe position while they tried to establish the nature of her psychiatric condition and how it might impact the work she could perform. [131] Further, as a sworn police officer, Cuttiford understood that she might be assigned to work rostered shift work and that she did not have the right to choose which rosters she would, or would not, work. In addition, Cuttiford was singularly uncooperative in engaging with either Brady or Tanwan about the nature of the work she might be performing as well as any impact on her family situation that the relocation might have occasioned. [132] As it turned out, on the first occasion she spoke to anyone about the impact that the matrix roster would have on her family circumstances, on 29 October 2008, O'Loughlin agreed to change her working hours to 8 to 4 from the following day. [133] In summary, everything that Brady and Tanwan (and later O'Loughlin) did in relation to their management of Cuttiford between 16 October and 18 November 2008, not just on 20 and 21 October 2008, constituted reasonable management action taken in a reasonable way. Conclusions [134] On the basis of my findings that Cuttiford's psychiatric or psychological condition arose out of reasonable management action taken in a reasonable way, it follows that her injury is withdrawn from the definition of "injury" at s. 32(1) of the Act by the operation of s. 32(5)(a). [135] Accordingly, for the foregoing reasons, I dismiss Appeal No. WC/2011/53. I confirm the decision of Q-COMP dated 31 January 2011 and find that Ms Cuttiford's Application for Workers' Compensation is one for rejection. Costs [136] Ms Cuttiford is to pay the costs incurred by Q-COMP in its defence of her Appeal, assessed in the usual manner, with recourse to the Commission if the parties are unable to settle the quantum. -- 16 of 17 -- 17 [137] I determine and Order accordingly. A.L. Bloomfield DEPUTY PRESIDENT Hearing Details: 2011 14, 15 and 16 November (Hearing) 2012 2, 3 and 9 February (Hearing) 29 February (transcript received) 14 and 30 March (written submissions received) Released: 21 December 2012 Appearances: Ms S.D. Anderson of Counsel, instructed by Shine Lawyers for the Appellant. Mr P. Gray of Counsel, directly instructed by the Respondent. -- 17 of 17 --