Aigner v Q-Comp [2011] QIRC 2

CITATION: Elisabeth Aigner AND Q-Comp (WC/2010/88) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to commission Elisabeth Aigner AND Q-Comp (WC/2010/88) VICE PRESIDENT LINNANE 21 January 2011 Appeal against a decision of the Q-Comp Review Unit - Worker suffered an adjustment disorder with mixed anxiety and depression as a result of being rostered to work in a different ward - Whether management action in rostering the worker in that different ward was reasonable and taken in a reasonable way - Whether worker should have been given more notice and/or consulted about the movement - Held that management's action was reasonable and taken in a reasonable way - Appeal dismissed - Workers' Compensation and Rehabilitation Act 2003 s. 32. DECISION [1] This is an appeal by Elisabeth Aigner (Appellant) brought pursuant to s. 550 of the Workers' Compensation and Rehabilitation Act 2003 (Act) against a decision of Q-Comp dated 16 July 2010. That Q-Comp decision confirmed the decision of WorkCover Queensland to reject the Appellant's claim for workers' compensation for an injury described as "work related stress and anxiety". That Q-Comp decision also stated that the injury is said to have occurred "from 1 July 2004 as a result of being bullied and all of a sudden told" that the Appellant had "been transferred to the adult mental health ward". [2] At all relevant times the Appellant was employed by Queensland Health (Employer) as a registered mental health nurse at the Princess Alexandra Hospital (Hospital). [3] The issue in the appeal is whether the Appellant suffered a personal injury within the meaning of that term in s. 32 of the Act. There is no evidence before the Queensland Industrial Relations Commission of the Appellant being bullied in any fashion whatsoever as and from 1 July 2004. The evidence as to injury relates to a period late February/early March 2010 when the Appellant was rostered to move from one work area (Grevillea Place) at the Hospital to another (East Wing of the Adult Acute Psychiatric Unit (AAPU)) for a two week period. [4] It is conceded that the Appellant was, at all relevant times, a worker. Evidence [5] In addition to her own evidence, the Appellant relied on the evidence of the following witnesses: • Geoffrey Allen, a registered nurse also employed at Grevillea Place and the partner of the Appellant; • Dr Jacqueline Garden, a general medical practitioner; and • Dr Megan Archer, Child, Adolescent and Adult Psychiatrist. [6] Q-Comp relied upon the evidence of the following witnesses: • Neil Pratt, the current Nursing Director at Logan Hospital and the Acting Nursing Director of the Mental Health Unit at the Hospital during the period November 2009 to May 2010; • Teresa Burgess, the Nurse Unit Manager at Grevillea Place as and from 1 March 2010; and • Dawnette Le Roux, the Acting Nurse Unit Manager at Grevillea Place during the relevant period. [7] The following facts are not in dispute: • the Appellant completed her nursing training in Australia in 1982; • the Appellant had worked in the Mental Health Unit of the Hospital since 1992; • the Mental Health Unit at the Hospital is comprised of the following inpatient units; ¾ Grevillea Place which is an aged care mental health unit where the patients are generally aged 65 years and over, have a mental health illness or are being assessed for a mental health illness and have some other medical problems such as medical frailty, physical disability or age related disease. The patients are referred to Grevillea Place by general practitioners, Outreach or the Hospital Emergency Department. There are 16 inpatient beds in the unit; -- 1 of 16 -- 2 ¾ the AAPU section which is the acute mental health unit and is comprised of an East Wing, a West Wing and the Acute Observation Area (AOA). The three areas together have approximately 64 beds. • the Appellant had never worked at the AAPU at the Hospital; • the Appellant had generally worked at Grevillea Place at the Hospital; • the Appellant suffered depression during 2000 and 2001 which the Appellant stated arose from a difficult and abusive marriage which eventually ended at or about this time; • in September 2009, the Appellant attended a Hospital Health Service District Course in Aggressive Behaviour Management for Healthcare Workers which was titled Effective Team Response. A Statement of Completion was issued to her which certified that the Certificate expired on 16 March 2011. It is signed by the Lead Instructor, the Assistant Instructor and the Safety Officer. It is however noted that the Appellant did not complete two sections of the Course due to physical restraints i.e. the restraint techniques and the effective team response; • rosters at Grevillea Place and the AAPU are available to staff in those areas some three to four weeks prior to the commencement date of the roster; • in the roster for Grevillea Place for the period 9 February 2010 to 7 March 2010 (Exhibit 1) the Appellant is rostered at Grevillea Place to work rotational shifts; • the Appellant suffered an illness on or about 20 February 2010, so from that date until 27 February 2010 the Appellant was either on sick leave or on days off and did not attend work at the Hospital; • before the Appellant attended work on Saturday 27 February 2010, she had been shown a copy of the roster for Grevillea Place for the period 8 March 2010 to 4 April 2010 (Exhibit 2) by her partner, Geoffrey Allen. That roster has the Appellant noted as "seconded" for the first two weeks and on "secondment" for the remaining two weeks of the roster. No particular shifts were identified in that roster as the roster was a Grevillea Place roster; • the Appellant had previously had annual leave approved for the period 8 March 2010 to 21 March 2010 which was not shown on the Exhibit 2 roster and she was angry that this was not reflected on the roster; • when the Appellant returned to work on Saturday 27 February 2010, she saw another roster for Grevillea Place for the period 8 March 2010 to 4 April 2010 (Exhibit 3) which indicated, that the Appellant was on annual leave for the period 8 March 2010 to 21 March 2010 and then rostered to work at the East Wing of the AAPU during the period 22 March 2010 to 4 April 2010. No actual shifts are indicated on the Grevillea Place roster as they would have appeared on the East Wing of the AAPU roster for the period. This was the first occasion that the Appellant knew she had been rostered to work at the East Wing of the AAPU; • the day of the week on which the Appellant first saw the Exhibit 3 roster was a Saturday. The Nurse Unit Manager, the relevant Assistant Nursing Director and the relevant Nursing Director did not work on Saturdays so the Appellant was unable to address her concerns on that day. The Appellant also stated that she was not well enough on that day to address her concerns about the roster; • on Saturday 27 February 2010 the Appellant wrote the following diary entry: "1230 - 2100 Back to work Still unwell in charge Found out from new roster about T/F to EW. not been told by anyone.". • on 28 February 2010 the Appellant noted in her diary that she was rostered for an early shift and that she was still unwell. The nursing management for the Mental Health Unit were not at work on that day as it was a Sunday; • the Appellant attended work on Monday 1 March 2010 on the early shift. The Acting Nurse Unit Manager for Grevillea Place, Dawnette Le Roux, also commenced work early on that day. The Appellant indicated that she had been Ms Le Roux's preceptor some two years earlier when Ms Le Roux was just out of training as a registered nurse and now she was acting in a management role and senior to the -- 2 of 16 -- 3 Appellant. The Appellant met with Ms Le Roux early on that day at the Nurses' Station at Grevillea Place. There was no further conversation had by the Appellant with any of the nursing management team about the AAPU move on that day. The details of that discussion are dealt with separately in this decision; • the new Nurse Unit Manager at Grevillea Place, Ms Teresa Burgess, commenced work on 1 March 2010; • the Appellant made the following notation in her diary for 1 March 2010; "E New NUM Still not 100% well. Contact with QNU arranged meeting with Emily on Thursday.". The reference to QNU is a reference to the Queensland Nurses' Union of Employees and the reference to Emily is a reference to Emily Anderson, a QNU organiser; • the Appellant was on days off work on 2 and 3 March 2010 and thus did not attend work at the Hospital on those two days; • on Thursday 4 March 2010 the Appellant received a telephone call from Emily Anderson of the QNU who suggested to her that she speak with the new Nurse Unit Manager about the move to the AAPU; • following that conversation the Appellant then went to speak with Ms Burgess and Ms Le Roux was present. The details of this discussion will be dealt with separately in this decision. In her diary entry of 4 March 2010 the Appellant stated, inter alia; "Told NUM about contract of employment. She requested to bring it in. She also told me T/F are alphabetical and not negotiable.". • the Appellant had indicated to Ms Le Roux and Ms Burgess on 4 March 2010 that, if the roster was to be alphabetical, there were two nurses whose surnames were prior to her surname suggesting that there was one nurse whose surname commenced with "AA" and another whose surname commenced with "AD". On Exhibit 1, the roster commencing 8 February 2010, there is only one registered nurse whose surname commences earlier than the Appellant's and that is Archibald Adams. There is no registered nurse whose surname commences with "AA". The Appellant agreed that Mr Adams worked a contract that was specifically negotiated for him - it was a special shift from 9.15 pm to 7.15 am, was a 10 hour shift and it was the only one of its kind at Grevillea Place. • on Friday 5 March 2010 the Appellant met again with both Ms Burgess and Ms Le Roux where she was asked to sign a Movement Form which she refused to sign. Once again that discussion is detailed further in this decision. The Appellant's diary entry for 5 March 2010 is as follows: "Was asked to NUMs (sic) office. Was shown my new roster. Mon - Fri 0700 - 1530 both weeks. I told them the first week was acceptable. I was asked to sign movement form to east wing which I refused. Also if I brought my employment contract. I didn't bring it. I felt harassed by both of them. Dawnette held the pen for me. Asked me twice to sign. Also told them that I was only given 9 shifts that fortnight. They put me down for E shift Sunday.". • on Sunday 7 March 2010 the Appellant was rostered to work at the East Wing of the AAPU just for the one day. The Appellant's evidence is that she did not want to work on that ward so she called in sick as a family day off. She was on annual leave as and from 8 March 2010. She has not returned to work at the Hospital since Saturday 6 March 2010; • on 16 March 2010 the Appellant had a discussion with Mark O'Connor of the QNU and her diary for that date states: "Mark O'Connor spoke to the PA to negotiate the transfer or the length of time, not negotiable but apparently only for 2 weeks.". • the Appellant's diary entry for 17 March 2010 states: "Outcome from QNU. I can be sent to any area where I am qualified, this is not acceptable to me.". -- 3 of 16 -- 4 • on the following day, 18 March 2010, the Appellant consulted Dr Jacqueline Garden, a general medical practitioner. This was the first time that Dr Garden had seen the Appellant. Dr Garden issued the Appellant with a Workers' compensation medical certificate (Exhibit 6) on that day certifying the Appellant not able to work at all during the period 18 March 2010 to 1 April 2010 as she was suffering "work related stress and anxiety" with the worker's stated cause of injury being "transfer of workplace causing anxiety and stress". Dr Garden on that day prescribed psychological support and to attend her on a weekly basis; • on 31 March 2010 the Appellant again attended Dr Garden where she was provided with a further Workers' compensation medical certificate (Exhibit 7) stating that the Appellant was unable to work for the period 1 April 2010 to 30 April 2010 with the same diagnosis being identified. [8] Directive to move Registered Nurses from Grevillea Place to the AAPU: Mr Pratt was the Acting Nursing Director of the Mental Health Unit at the Hospital during the period November 2009 to May 2010. Mr Pratt said that he had known the Appellant for quite a few years having previously worked with her at the Hospital. [9] It was Mr Pratt's evidence that, whilst the Nurse Unit Managers in the various wards actually formulated the particular rosters, he oversaw the finalisation of the rosters in the Hospital's Mental Health Unit to ensure that each roster had an appropriate skills mix. Mr Pratt stated that whilst he was the Acting Nursing Director there was a need to move staff within the Mental Health Unit rosters. Mr Pratt said that there was approximately one extra full-time equivalent registered nurse on the Grevillea Place roster and a shortage of registered nurses at the AAPU and that this situation was one which would exist for approximately six months as there were two registered nurses at the AAPU on maternity leave and one registered nurse on sick leave. Mr Pratt's evidence was that movement between various wards within the Mental Health Unit within the Hospital was usual nursing practice. Mr Allen agreed that it was not out of the ordinary for the Nursing Director to move staff between Grevillea Place and the AAPU. [10] Mr Pratt's evidence was that he had input into the Grevillea Place roster as he would not move a person who did not have the necessary skills e.g. he would not move an enrolled nurse when a registered nurse was needed and he would not move a newly graduated nurse when what was required was a more experienced nurse. [11] The term "secondment", according to Mr Pratt, is a substitute for a movement from Grevillea Place to the AAPU or a transfer for a short period of time. According to Mr Pratt's evidence, nurses can be moved or transferred in and out of particular areas for just one shift, two shifts or maybe for a month. Mr Pratt's evidence was that he had hoped that a particular contracted nurse would have accepted a further six month contract to work at the AAPU to accommodate the two nurses at the AAPU who had gone on or were going on maternity leave and the one nurse who was on sick leave. The six month period was the anticipated timeframe that the AAPU would be under-resourced with registered nurses. That particular nurse, however, indicated that she did not wish to go to the AAPU for a further six months. When the one contracted nurse for a six month period proposal did not eventuate, Mr Pratt said that another resolution needed to be found to accommodate the lack of registered nurse resources at the AAPU and the over supply of registered nurses at Grevillea Place. According to Mr Pratt, there had been regular movement of registered nurses between Grevillea Place, the East Wing, the West Wing and the AOA wards at the AAPU over the previous four year period at the Hospital. [12] The use of agency nurses or casual nurses for the six month period, was not an alternative according to Mr Pratt, as the cost for such a period was prohibitive. It was Mr Pratt's evidence that the movement of the Appellant to the AAPU was never a permanent move - it was not open ended. Exhibit 11 which is the Grevillea Place roster for the period 5 April 2010 to 2 May 2010 has the Appellant rostered for four days at the AAPU West Wing in the second week of the roster, for a further two days in the fourth week of the roster and otherwise the Appellant is either rostered on at Grevillea Place or on days off during the four week period. This roster was formulated after the Appellant had not performed her shifts at the AAPU in the Exhibit 3 roster. [13] When Mr Pratt's preferred outcome of having a contracted registered nurse work at the AAPU for the full six month period did not eventuate he was required to find an alternative. The alternative that was adopted was to roster one Grevillea Place registered nurse at the AAPU on initially a two week rotational basis which was later extended to a four week movement. The means of so rostering registered nurses was to rotate the registered nurses on an alphabetical basis. [14] It was the evidence of Ms Le Roux that she had been given a directive from the Assistant Nursing Director, Craig Moffat, that one registered nurse would be rostered at the AAPU on a rotational basis and that the rotation was to be done on an alphabetical basis. Ms Le Roux said that she came to decide on the Appellant as the first registered nurse to be rostered at the AAPU as it was to be done in an alphabetical order and her surname commenced with "A". Ms Le Roux's evidence on the term "secondment" was that it was a short secondment to one of the other wards in the Mental Health Unit given that all staff are employed across the Mental Health Unit of the Hospital and can be moved through all four wards. -- 4 of 16 -- 5 [15] It was accepted by the Appellant that, as a registered mental health nurse she was qualified to work across the Mental Health Unit of the Hospital. [16] Discussion between the Appellant and Ms Le Roux on 1 March 2010: It was the evidence of Ms Le Roux, that she was unable to notify the Appellant of her rostered move to the AAPU prior to the roster being posted because the Appellant had been on sick leave and/or on days off in that week. When the Appellant commenced work on Saturday 27 February 2010, Ms Le Roux was not at work. Ms Le Roux gave evidence of a Hospital policy that staff were not to ring nurses whilst they were on sick leave and therefore Ms Le Roux did not telephone the Appellant. It was during the week that the Appellant was on sick leave and/or on days off that the roster for Grevillea Place became available to staff at Grevillea Place. When the Appellant returned to work after sick leave it was on a weekend and Ms Le Roux did not work weekends. Ms Le Roux spoke with the Appellant on the first opportunity she had i.e. early on 1 March 2010. The Appellant was not rostered to work at the East Wing of the AAPU until 22 March 2010 and therefore had 21 days notice of the move: see Exhibit 3. [17] During this discussion the Appellant stated that she told Ms Le Roux that she had seen the Exhibit 3 roster, that she was not happy about going to the East Wing of the AAPU and that she "was not going there". [18] Ms Le Roux's evidence is that when she spoke with the Appellant on that day, the Appellant seemed reluctant to go to the East Wing of the AAPU but the Appellant said that she thought the change would be good. Ms Le Roux explained to the Appellant that it was only for a short duration. Ms Le Roux said that this conversation was only a brief discussion. [19] There was no further conversation had by the Appellant with management of the Mental Health Unit of the Hospital about the AAPU move on that day. [20] I accept the Appellant's evidence that she made it clear to Ms Le Roux on that occasion that she "was not going" to the AAPU. [21] Discussion between the Appellant and Ms Le Roux and Ms Burgess on 4 March 2010: Ms Burgess commenced work at the Hospital on 1 March 2010. Her evidence was that the topic of conversation at Grevillea Place in that first week of her employment was the movement of registered nurses from Grevillea Place to the AAPU and that she was informed that the Appellant was the first registered nurse to be rostered to work at the AAPU for a two week period. Ms Burgess further stated that she was aware the Appellant was not happy about the movement to the AAPU. [22] Following the conversation had with Ms Anderson from the QNU, the Appellant accepted the QNU's advice and went to speak with Ms Burgess. Ms Le Roux was also present during that discussion. The Appellant's evidence is that she told Ms Burgess she was not happy going to the East Wing of the AAPU and, further, the Appellant told Ms Burgess that she was "not going". The Appellant says that Ms Burgess told her it was a management decision that one registered nurse from Grevillea Place would be moved to the AAPU, that it would be done on a rotational basis in alphabetical order and that the move was only for a two week period. The Appellant told Ms Burgess and Ms Le Roux that she had a letter of appointment to work only at Grevillea Place. The Appellant said that she was encouraged to provide that letter of appointment to the Nurse Unit Manager so as to enable nursing management to review their decision to move her to the AAPU. This is confirmed by the Appellant's diary entry of 4 March 2010. [23] The Appellant agreed, under cross-examination, that she did not have any contract to work only in Grevillea Place and that she did not have any such letter of appointment. The Appellant's evidence is that she questioned why she was the first nurse to move to the AAPU contending that there were two other staff members whose surnames commenced with "A". The Appellant said that she told Ms Burgess and Ms Le Roux that there was a person whose surname commenced "AA" and another with "AD". It was the evidence of the Appellant that neither Ms Burgess nor Ms Le Roux took this matter up. The Appellant's evidence is clear - at that time she was just not going to go to the AAPU to work. The Appellant's evidence was that as Ms Burgess had only started at Grevillea Place on 1 March 2010 "she had no idea" when she advised the Appellant that all nurses on the Grevillea Place roster were employed across the Mental Health Unit. [24] The Appellant agreed that, at the meeting on 4 March 2010, she was assured that she was not the only person at Grevillea Place who would be rostered at the AAPU, further that all registered nurses would be rotating into the AAPU and the rostering of registered nurses was being done on an alphabetical basis. The Appellant further agreed that, at the meeting, she was told to contact the Acting Nursing Director about the issues of concern to her in being rostered at the AAPU. There is no evidence before me that the Appellant made any contact with, or even attempted to make contact with, the Acting Nursing Director. The Appellant did say that she did not think any such approach would be successful. -- 5 of 16 -- 6 [25] The Appellant's evidence is she knew that it was only the registered nurses who were being moved to the East Wing. She further agreed that, whilst she did not like the Assistant Nursing Director, she could have gone and seen the Acting Nursing Director about her concerns with working at the AAPU. [26] Ms Burgess stated at a meeting in her first week of employment at the Hospital in March 2010, that: • the Appellant indicated that she was being singled out; • the Appellant was told that she was not being singled out and that everyone was going to have to take a stint in doing either two weeks or a month's work at the AAPU - initially it was for a two week period but subsequently nurses did go for one month; • the Appellant was told that if she could bring in her contract of employment or her letter of appointment which said that she was to be employed at Grevillea Place then management would act upon the terms of the contract; • the Appellant was told to go and see the Assistant Director of Nursing if she wasn't happy; and • the Appellant told her and Ms Le Roux that she was going to the Union. [27] Discussion between the Appellant and Ms Le Roux and Ms Burgess on 5 March 2010: The Appellant again met with both Ms Burgess and Ms Le Roux on Friday 5 March 2010. During that discussion the Appellant was asked to sign a Movement Form. It appears that, as part of that Movement Form, the Appellant's roster at the East Wing of the AAPU for the period 22 March 2010 to 4 April 2010 was attached. It is the evidence of the Appellant that she was rostered to work day shifts Monday to Friday for those two weeks. Her evidence is that she would lose approximately $240 per week if she did not work late shifts or weekend shifts. It was the Appellant's evidence that she told Ms Burgess and Ms Le Roux that the first week of the roster was okay but she could not afford the second week. Under cross-examination, the Appellant said that she agreed to the roster for the first week as she was "playing for time". She further agreed that she was told to contact either the Assistant Nursing Director or the Acting Nursing Director concerning the issues she had with being rostered on at the East Wing of the AAPU. The Appellant agreed she was also told that if she disagreed with the roster for the second week, she should take the matter up with the Nurse Unit Manager at the East Wing. The Appellant said she did not want to speak with the Nurse Unit Manager of the East Wing. The Appellant further agreed that, rather than seeing the East Wing Nurse Unit Manager, she could have telephoned him about the roster for the second week. [28] The Appellant's evidence is that she found the meeting with Ms Burgess and Ms Le Roux intimidating and said she felt terrible and felt she was given no choice. The Appellant said that, at that time, she was so angry with nursing management i.e. the Nurse Unit Managers, the Assistant Nursing Director and the Acting Nursing Director. The Appellant indicated she had no time for the Assistant Nursing Director, Craig Moffat, as he had handled an incident involving the Appellant some two years prior and she did not agree with the outcome of his investigation and said she did not trust Mr Moffat to resolve any issue whatsoever. Yet during that discussion with people she "was so angry with", when the Appellant raised the fact that she only had nine shifts on the roster, Ms Le Roux and Ms Burgess immediately changed the roster at the AAPU giving her a shift on the Sunday: see the Appellant's diary entry for 5 March 2010. [29] In that meeting, Ms Burgess and Ms Le Roux told the Appellant to take her issue up with either the Acting Nursing Director or the Assistant Nursing Director. The Appellant said she was also asked whether she brought the letter of appointment and her evidence is she did not bring the letter of appointment with her as "she didn't want to show it to them". Yet, under cross-examination, the Appellant said she had no such letter of appointment. [30] Ms Le Roux said that in the discussion on 5 March 2010; • it was confirmed with the Appellant that the work at the East Wing was for a two week period i.e. from 22 March 2010 to 4 April 2010; • the Appellant indicated that she thought she was being singled out to work at the AAPU however it was explained to her that all registered nurses at Grevillea Place were to be rostered at the AAPU; • the Appellant indicated a reluctance to work at the East Wing; • the Appellant was asked to sign the Movement Form which she refused; • it was confirmed with the Appellant that the work at the AAPU was being done by registered nurses on a rotational basis in alphabetical order; and • the Appellant was told to approach the Assistant Nursing Director about the issue or, if that was not helpful she should approach the Acting Nursing Director as Mr Pratt was a "very approachable man". [31] Ms Burgess said that the Movement Form was one which moved the Appellant from Grevillea Place to the AAPU for a two week period only. Ms Burgess said that, as the Appellant had not attended work during the period she was initially rostered to work at the AAPU, she still had to perform this work when she returned to work at the Hospital. Thus, she was rostered to perform shifts at the AAPU in the April roster i.e. exhibit 11. -- 6 of 16 -- 7 Ms Burgess also stated that in addition to the two weeks or four weeks work at the AAPU, nurses also did the odd shift on a daily basis at the AAPU. If there was a shortfall in the staffing levels at the AAPU, then any qualified staff member at Grevillea Place may have been required to perform the odd shift at the AAPU. [32] Fear of working at the AAPU: In giving evidence, the Appellant said she was frightened to work at the East Wing of the AAPU. However, when she was asked whether she had any fear of going to work at the AAPU she responded "not really. I probably have less fear of the patients than I have of the staff". The Appellant's evidence was that she felt the ward was very badly run and she did not like the Nurse Unit Manager stating that "he gave her the creeps". The Appellant also stated that there were a couple of nurses at the AAPU that had come through Grevillea Place as students on rotation and they were now classified as more senior registered nurses at the AAPU and she would have great difficulty in working under them if she was moved to the AAPU. [33] Medical Evidence: Dr Archer, Psychiatrist, first examined the Appellant on 4 May 2010. On 12 May 2010, Dr Archer completed a Q-Super Income Protection Benefit Claim (Part C) which states that her diagnosis of the Appellant was that she was suffering an "Adjustment Disorder with Mixed Anxiety and Depression". In detailing her "findings/clinical notes relevant" to the Appellant's condition, Dr Archer stated that "it is likely that she would relapse into significant major depression if she had to work where transferred to". In detailing the "specific medical barriers preventing" the Appellant from working, Dr Archer stated "transferred without her input to a ward she knew would be too stressful for her now - quite depressed and anxious - unable to go to that job". Dr Archer agreed that the information she had to hand when making her diagnosis was the information given by the Appellant and/or her medical practitioner. [34] In a medical report to Q-Super dated 13 October 2010, Dr Archer states that the Appellant could not go to the AAPU "as it would involve her working with staff whom she reported had bullied her over a number of years and that she became too depressed and anxious" to be able to work in the area. Dr Archer also records that the Appellant had some difficulties associated with her applying for WorkCover. In this Report, Dr Archer states that the Appellant's "condition is moderately severe, and of moderately severe intensity such that she is unable to return to work in her previous role, and was unable to work in any role for some months". [35] Once again there was no evidence adduced at the hearing of the Appellant being bullied over a number of years. [36] Dr Archer notes at point 5 in that Report that the treatment plan would continue until the issues before the "Court" are resolved and for sometime thereafter, or until she is well. Under this point Dr Archer notes the following: "It is likely that if she is able to return to work in a different area - without the staff previously involved in her work area including the Acting or Assistant Director of Nursing being involved - she would be recovered sufficiently to possibly cease the medication after some months, and remain well. The Court Mention was 1 September 2010, and is to be heard in the Industrial Commission 24-26 November 2010. She is appealing against QCOMP's (sic) rejecting her application for WorkCover due to harassment and bullying in the workplace. She reports that her Employer turned her application down as they don't believe that she has a depressive illness, nor that it is work-related.". [37] Further in that Report, Dr Archer states that the "specific medical barriers which prevent her from returning to work are that if she returns to work in the area where she will have to work with, or under the staff, who have been involved in the harassment, bullying and rejection of her WorkCover claim her depression and anxiety will worsen to a level such that she will be unable to go to work there.". [38] Dr Archer concludes that, based on her clinical findings, the Appellant "is never likely to be capable of undertaking her role as a full-time Registered Nurse with Queensland Health in Grevillea Unit at Princess Alexandra Hospital. She would have to work with the staff who have been involved in the bullying and harassment and the depression and anxiety would prevent her from being able to work in that environment and with the staff involved.". Finally, Dr Archer concludes that the Appellant "is not able to return to her previous role". [39] Dr Garden saw the Appellant for the first time on 18 March 2010. On that date she diagnosed the Appellant's medical condition as "anxiety disorder". Dr Garden completed a referral letter to Dr Archer on 29 April 2010. In that referral letter Dr Garden states that the Appellant "has a previous history of agitated depression in 2000- 2001. She is going through workcover claim at present for workplace harassment causing an acute worsening of her mental state. She is anxious, agitated, low in mood. We thought she was coping but it is now come to light that she is deteriorating. I have commenced citalopram". When asked what were the details of workplace harassment, Dr Garden said it was the transfer in the workplace. -- 7 of 16 -- 8 [40] The evidence before me does not reveal that the Appellant suffered any harassment or bullying in the workplace whilst she was employed at the Hospital as that term is generally known. She, like other registered nurses, was rostered to work initially on a two week basis, at the AAPU. She is a qualified registered mental health nurse and was rostered to work in a Hospital Mental Health Unit ward. [41] Further, it is apparent that the Hospital did not support the Appellant's claim for workers' compensation. It was WorkCover Queensland who rejected the Appellant's workers' compensation claim. This is in contrast to the comments in Dr Archer's medical report that the Hospital had rejected the Appellant's workers' compensation claim. Dr Archer thus formed the view that the Appellant could not now work under Ms Burgess as the Grevillea Place Nurse Unit Manager because she rejected the Appellant's workers' compensation claim. This is so even though the Appellant worked with Ms Burgess on 1, 4 and 5 March 2010 only. So the Appellant, because Ms Burgess did not support her workers' compensation application, has formed the view that she cannot work with Ms Burgess again. Onus of Proof [42] The Appellant bears the onus of proof: see Briffa v Q-Comp1. Legislation [43] Section 32 of the Act relevantly provides as follows: "32 Meaning of injury (1) An injury is personal injury arising out of, or in the course of, employment if 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. Examples of actions that may be reasonable management actions taken in a reasonable way - • action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker • a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment". [44] Worker: It is conceded that the Appellant was, at the relevant time, a worker. [45] Personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury: The evidence of both Dr Garden and Dr Archer is that the Appellant suffered a psychiatric injury in or about March 2010 described by Dr Archer as "adjustment disorder with mixed anxiety and depression". The injury that the Appellant suffered was causally related to the decision to roster the Appellant at the AAPU for the period 22 March 2010 to 4 April 2010 i.e. a decision that the Appellant became aware of on 27 February 2010 and which management advised her of on 1 March 2010. The causal connection does not need to be a direct or proximate relationship2. The Appellant thus suffered an "injury" within the meaning of s. 32(1) of the Act. The medical evidence supports that the Appellant's condition arose following the decision to move her to the AAPU for the two week period commencing 22 March 2010 thus the employment was "a significant contributing factor to the injury". [46] Management Action: As the decision to move the Appellant from Grevillea Place to the AAPU was a decision of the nursing management of the Mental Health Unit, the injury to the Appellant arose out of or in the course of management action. 1 Briffa v Q-Comp (2005) 180 QGIG 70. 2 See Lackey v Work Cover Queensland (2000) 165 QGIG 22. -- 8 of 16 -- 9 [47] Was the management action reasonable and taken in a reasonable way? Section 32(5)(a) of the Act withdraws the "injury" from the scope of s. 32(1) of the Act where the psychiatric or psychological disorder arises out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with the worker's employment. Thus the issue for determination is whether or not the Appellant's injury arose out of, or was in the course of, reasonable management action taken in a reasonable way in connection with her employment. [48] I concur with the submission of Mr Watson, Counsel for the Appellant, that the term "reasonable" is to be read as reasonable in all the circumstances of the case3. The Appellant submitted that the following factors show unreasonableness in management action and the taking of it: • firstly, there was no notice given to the Appellant of the change in the location of her performance of work. The Appellant only received an indication that she was being moved to the East Wing when she saw the roster on Saturday 27 February 2010. The Appellant contended that to be "reasonable", proper communication is required and reliance is placed on the decision in Manly Pacific International Hotel v Doyle4 at paragraph 6 where Fitzgerald JA with whom Mason P agreed said: "[6] In my opinion, the act of transfer of a worker by an employer, ie, the communication of a decision to transfer (or a proposal to transfer) the worker, is an 'action taken or proposed to be taken by or on behalf of the employer with respect to transfer …' of the worker within the meaning of subs11A(1). The worker is entitled to be compensated for psychological injury caused or predominantly caused by the communication of a decision or proposal to transfer him or her where the decision or proposal or the manner in which the decision or proposal is communicated were unreasonable.". The Appellant further relied upon the decision of President Hall in Delaney v Q-Comp5 where the decision of the trial Judge in Doyle v Manly Pacific International Hotel6 is referred to as follows: "In reliance upon the decision of the trial judge (Walker J) in Doyle v Manly Pacific International Hotel [1998] NSWCA (sic) 44 at [106], counsel for the Appellant seeks if not to subsume 'reasonableness' in 'industrial fairness' to elevate 'industrial fairness' a dominant consideration. The relevant passage in Doyle v Manly International Hotel, ibid, is: 'In Jackson's case I endeavoured to come to terms with the difficult concept of "reasonable" in s 11A(1). My conclusion was "reasonable" means reasonable in all the circumstances of the case. Because the employer's actions are in an industrial law setting, the test I applied was whether a reasonable observer of all the circumstances of the case would find the employer action fair.'. [I accept that His Honour's view was not adversely commented on when the matter went on (an unsuccessful) appeal, see Manly Pacific International Hotel v Doyle [1999] NSWCA 465.] Whilst I accept that because s. 34(5) operates upon occurrences in the course of an employment relationship and work related disorders of the mind, considerations of 'fairness' will always be relevant, I can see no advantage in seeking to improve on the statutory test. Indeed, in cases in which an employer bears the burden of displaying fairness to multiple employees with divergent interests the improvement may well prove a distraction. None of those remarks I should add, are intended to detract in any way from the cardinal role to be played by 'fairness' when (as here) management are dealing with a staff member known to management to have decompensated in the face of workplace pressure on an earlier occasion.". The Appellant submitted that there is some similarity in the present case to the actions disapproved of in Versace v Braun7 where the President stated: "I appreciate that restructuring a major workforce may require an employer to show resolution and determination, rather than the consideration that the employer might otherwise extend to the disaffected and stressed. I also accept that reasonable people will from time to time differ about whether a particular management decision has been reasonably implemented. However, on the view of the evidence most favourable to the Appellant, I am unable to say that it was not open to the 3 See Work Cover Queensland v. Kehl (2002) 170 QGIG 93. 4 Manly Pacific International Hotel v Doyle [1999] NSWCA 465. 5 Delaney v Q-Comp Review Unit (2005) 178 QGIG 197. 6 Doyle v Manly Pacific International Hotel [1998] NSWCC 44 at [106]. 7 Versace v Braun (2005) 178 QGIG 315. -- 9 of 16 -- 10 Industrial Magistrate to treat the firmness of Mr Spurway's dealings with the Appellant, the communications by way of leaving short sentences on the Appellant's mobile message bank and by leaving SMS messages of that phone and in particular the distribution of a memorandum indicating that the Appellant had accepted the new position when he had not done so, amounted to a failure to implement the restructuring exercise in a 'reasonable way'. The appeal being by way of rehearing, it follows that the appeal must be dismissed.". • secondly, there was no consultation with the Appellant prior to the decision being made to transfer her to the AAPU. The Appellant submitted that it appeared likely that the proposed transfer of the Appellant would have been known for some time: see also the evidence of Mr Pratt. In such circumstances, the Appellant contended that the need for consultation with the Appellant was paramount. Consultation would have enabled her to put forward reasons why she should not have been transferred e.g. the length of time she had been out of acute adult mental health, her failure to complete the whole of the Aggressive Behaviour Management Course and her fears of working with the staff at the East Wing. In this regard the Appellant relied upon the decision in Queensland Police Service v Q-Comp8 . The Appellant also contended that Queensland Health was bound to comply with its Transfer Policy (Exhibit 10). As for the submission that the "proposed transfer of the Appellant" was known for some time, I accept that nursing management of the Mental Health Unit knew for some time that there would be a need for registered nurses at the AAPU. I do not accept that the need to move the Appellant was known for some time. Mr Pratt's evidence was that nursing management had been investigating alternatives and when those alternatives did not become viable a decision was made to move all registered nurses from Grevillea Place to the AAPU for a two week period. I do not accept that the Appellant was, at any time, being transferred to the AAPU. Thus the Transfer Policy has no application in this matter. The Appellant's name continued to appear on the Grevillea Place roster. Had she been transferred to the AAPU her name would not have appeared on the Grevillea Place roster but rather would have appeared on the AAPU roster. I have formed the view that the Appellant knew at all times that she was not being transferred to the AAPU. There was simply a short term (six month) undersupply of registered nurses at the AAPU with a corresponding oversupply of registered nurses at Grevillea Place. The Appellant was told, at all times, that the move was for a two week period. The evidence of Ms Burgess, which I accept, was that initially all registered nurses were to be rotated to the AAPU for a two week period however ultimately it was extended to a four week period. As the Appellant did not attend work at the Hospital after 6 April 2010, the extension of the movement time did not impact on the injury suffered by the Appellant. The Appellant further submitted that the decision to move the Appellant to the AAPU was not reasonable and that a reasonable decision by nursing management would have taken into account factors that the Appellant would have raised had she been consulted prior to the decision being made. Consultation was required to enable the Appellant to have input into whether or not the decision to move her to the AAPU was a reasonable decision. The blind adherence of the Nurse Unit Manager to the directive given to her by the Assistant Nursing Director was not reasonable as it did not take into consideration the individual circumstances of the Appellant. The evidence however is that the Nurse Unit Manager had no ability to alter the directive. Ms Le Roux had composed the roster in line with a directive issued by more senior nursing management. She was only an Acting Nurse Unit Manager at the time. She did the appropriate thing in referring the Appellant to the Acting Nursing Director if she was unhappy with the outcome. Further, the Appellant was only rostered to work at the AAPU at that time - there was still some three weeks before the roster became operational. It was not an unusual practice for registered nurses at Grevillea Place to be moved to the AAPU for short periods. The Appellant was to perform registered nurse duties at another ward at the Mental Health Unit of the Hospital for a two week period. In those circumstances, I do not accept that consultation with the Appellant was a necessary prerequisite for management's actions to be seen to be reasonable in all the circumstances. When the Appellant became aware of the roster there was still in excess of three weeks before she was to perform work at the AAPU. She was informed of the move to the AAPU at the first opportunity i.e. 1 March 2010. She was given the opportunity to speak with the Acting Nursing Director, having been told by the Nurse Unit Manager that she could not vary the directive she had been given. The Appellant did not avail herself of the opportunity to speak with the Acting Nursing Director. The Appellant also submitted that the requirement to sign the Movement Form consenting to her transfer was inherently unreasonable when Ms Le Roux and Ms Burgess knew that she did not want to go to the 8 Queensland Police Service v Q-Comp (2009) 190 QGIG 193. -- 10 of 16 -- 11 AAPU. The Appellant had, prior to being given the Movement Form to sign, been told that if she did not want to work at the AAPU she should raise the issue with the Assistant Nursing Director and/or the Acting Nursing Director. As of 5 March 2010 she had not done so. I do not consider the actions of Ms Le Roux and Ms Burgess in requesting the Appellant to sign the Movement Form to be in any way unreasonable in those circumstances. It was a Hospital requirement. [49] It was conceded by the Appellant that the decision to move registered nurses from Grevillea Place to the AAPU in the circumstances faced in the Hospital's Mental Health Unit at the relevant time was reasonable management action. However, the decision to move registered nurses from Grevillea Place to the AAPU on an alphabetical basis was not reasonable as it ignored individual factors. Mr Watson submitted that fairness to the Appellant must be considered in addressing the issue of reasonable management action and also whether that action was reasonably implemented. In all the circumstances it was submitted that the Appellant was not treated fairly. [50] Mr Rashleigh, Counsel for Q-Comp, submitted that the management decision to move a registered nurse from Grevillea Place to accommodate a shortage of registered nurses at the AAPU could not be seen as anything other than reasonable. The Hospital Mental Health Unit, at the relevant time, was over staffed by one registered nurse at Grevillea Place and was under resourced with registered nurses at the AAPU. The Appellant was a registered mental health nurse qualified to work at the AAPU. [51] Q-Comp submitted that the Appellant knew that she was not rostered for work in Grevillea Place prior to 27 February 2010 as Mr Allen had provided the Appellant with Exhibit 1. Exhibit 1 was the roster which had the Appellant seconded from Grevillea Place. The term "seconded" was not unknown to the Appellant as, in that roster for Grevillea Place a Grade 5 registered nurse is noted as being "seconded" i.e. the roster prior to the roster which is said to have caused the Appellant's injury. [52] It was further contended by Q-Comp that the Appellant was, at no stage, ever going to work at the AAPU. On the Appellant's evidence, she informed Ms Le Roux in a short discussion on 1 March 2010 that "she was not going there". The Appellant confirmed this position with Ms Burgess and Ms Le Roux on 4 March 2010. Q- Comp submitted that if I form the view that the Appellant was never going to go to the AAPU then that should be the end of the matter and the Appellant is not entitled to workers' compensation because of s. 32(5) of the Act. [53] It was further submitted that the Appellant had the ability to raise her concerns with the decision maker and that the roster for the period 22 March 2010 to 4 April 2010 was not set in stone. The roster for the period 8 March 2010 to 4 April 2010 had already been changed to accommodate the Appellant's annual leave approved for the period 8 March 2010 to 21 March 2010. Further, it was the Appellant's evidence that the roster was further changed by Ms Le Roux and/or Ms Burgess when she complained that she was only rostered for nine shifts in the fortnight commencing 22 March 2010. Upon receipt of that complaint, either Ms Le Roux or Ms Burgess immediately arranged for the Appellant to be rostered for an additional Sunday shift: see the Appellant's diary entry of 5 March 2010. [54] The Appellant agreed that she was informed as of 1 March 2010 that the decision was one that the Nurse Unit Manager could not overturn. She also agreed that she was further informed on both 4 March 2010 and 5 March 2010 to speak with either the Assistant Nursing Director or the Acting Nursing Director in respect of her concerns. Both Ms Le Roux and Ms Burgess also indicated to the Appellant on 4 March 2010 that they would consider the terms of any such contract or letter of appointment if she provided the contract or letter of appointment indicating that she was employed at Grevillea Place. At no time prior to 6 March 2010, was the Appellant left with the impression that the roster could not be changed. The only thing she had been told by Ms Le Roux and Ms Burgess was that they had received a directive and they could not change that directive. It was a decision that only the Assistant Nursing Director or the Acting Nursing Director could change. [55] The Appellant decided not to speak with either the Assistant Nursing Director or the Acting Nursing Director but instead decided, as she had a right to do, to take the matter up with the QNU. When told by the QNU on 17 March 2010 that she could be sent to any area where she was qualified, she responded that it was not acceptable to her. Q-Comp further submitted that the reason for her not wanting to go to the AAPU was that she was "frightened". However, she was not frightened about the work or the patients but rather about the nursing staff, the Nurse Unit Manager that she said "gave her the creeps" and two other registered nurses who had, since she previously worked with them at Grevillea Place, progressed to be more senior registered nurses. Whilst the Appellant gave evidence that she had difficulty with the Assistant Nursing Director because he had not given her the satisfaction that she required from an earlier incident, the Appellant gave no indication of any difficulty with the Acting Nursing Director. [56] As for the implementation of the management decision, Q-Comp submitted that the Appellant was not at work (on sick leave and/or on days off) when the roster was posted and available for staff at Grevillea Place. The Nurse Unit Manager spoke with the Appellant on the first occasion available to her i.e. 1 March 2010. Q-Comp submitted that the evidence of Mr Allen that nurses are moved from Grevillea Place to the AAPU but that the -- 11 of 16 -- 12 Appellant should not have been included should carry no weight given his relationship with the Appellant. Mr Allen's evidence that registered nurses are often moved from Grevillea Place to the AAPU does confirm the evidence of Mr Pratt. Mr Pratt's evidence was that there had been regular movement of registered nurses between Grevillea Place and the AAPU over a four year period. [57] Q-Comp also submitted that the Appellant was not required to go to the AAPU until 22 March 2010 i.e. in excess of three weeks after she first became aware of the roster for the period and three weeks prior to her being informed by the Nurse Unit Manager of the movement. Further, the Appellant was informed at all times that she was not being singled out, that all registered nurses in Grevillea Place were to be rostered to work at the AAPU, that the movement was for a two week period only and that the movement was to be done on an alphabetical basis. [58] Q-Comp contended that it was the movement to the AAPU that was the problem for the Appellant and that her evidence was that she was not going to go to the AAPU no matter what and that her diary notes reveal that she contacted the QNU on 1 March 2010 in an attempt to avoid going to the AAPU. [59] Exhibit 1 (the roster for the period 8 February 2010 to 7 March 2010) shows that: • a registered nurse was rostered on 27 February 2010 to work at the West Wing of the AAPU and on 3 March 2010 was rostered to work at the East Wing of the AAPU; and • another registered nurse was seconded for the full four week period. [60] Exhibit 2 (roster for the period 8 March 2010 to 4 April 2010) indicates that: • the Appellant was seconded for a four week period; and • another registered nurse was seconded for a four week period. [61] Exhibit 3 (roster for the period 8 March 2010 to 4 April 2010) indicates that: • the Appellant was rostered at the East Wing of the AAPU for a two week period commencing 22 March 2010; and • another registered nurse was seconded for a four week period. [62] Exhibit 11 (roster for the period 5 April 2010 to 2 May 2010) shows that: • a registered nurse was rostered on West Wing of the AAPU on 9 April 2010 and 27 April 2010; • another registered nurse was rostered at the West Wing of the AAPU on 13 April 2010 and 30 April 2010; • a further registered nurse was rostered to work in the West Wing on 14 April 2010 and 21 April 2010; • the Appellant was rostered to work in the West Wing of the APPU for six days commencing 13 April 2010; • a fifth registered nurse was rostered to work in the West Wing of the AAPU on 27 and 28 April, 2010; and • a sixth registered nurse was rostered to work in the West Wing of the AAPU for the period 5 April 2010 to 18 April 2010. [63] Another example of how the rosters were changed following posting is that, according to Exhibit 1, the Appellant was rostered to work an early shift at Grevillea Place on Sunday 7 March 2010. Yet the Appellant in her evidence said that she was due to work at the East Wing of the AAPU on 7 March 2010 when she called in sick as a family day off as she did not want to work at the East Wing of the AAPU. Exhibit 1 had thus been varied following the posting of the roster. [64] These instances confirm the evidence of Mr Pratt, which I accept, that registered nurses at Grevillea Place had been rostered to work, on a regular basis, at the AAPU - it could be for a day, two days, four days, ten days and/or twenty days. I also accept his evidence that this had occurred over a four year period. The Appellant must have been aware that Grevillea Place registered nurses had been rostered to work at the AAPU on a regular basis. The rosters for Grevillea Place were available to all registered nurses on a four weekly period. [65] Clearly, the decision of the Acting Nursing Director and/or the Assistant Director of Nursing to move a registered nurse from Grevillea Place to the AAPU on a two week basis was a reasonable management decision. The Hospital's Mental Health Unit had, at the relevant time, an excess of registered nurses at Grevillea Place and a requirement for registered nurses at the AAPU given that two registered nurses were on maternity leave and one registered nurse was on sick leave. It was an appropriate use of registered nurses in the Mental Health Unit of the Hospital. I accept the evidence of Mr Pratt that the use of agency and/or casual registered nurses to fill the -- 12 of 16 -- 13 undersupply of registered nurses at the AAPU over a six month period was not an option for him because of the economic cost. [66] The Acting Director of Nursing had sought to remedy the situation at the AAPU via contracting with a registered nurse for a period of six months. That option was thwarted when the registered nurse indicated that she did not want a six month contract to work at the AAPU. The Acting Director of Nursing was then required to find an alternative solution. The solution adopted was to move all registered nurses at Grevillea Place for a two week period and to do this on an alphabetical basis. [67] The President in Delaney v Q-Comp 9 indicated that considerations of fairness will always be relevant. In this matter the Acting Nursing Director had an obligation to display fairness to multiple employees with divergent interests i.e. all of the registered nurses on the Grevillea Place roster. It seems to me that, in all the circumstances, the Acting Director of Nursing did take into account the interests of all registered nurses on the Grevillea Place roster i.e. a decision was made that all such registered nurses would perform work at the AAPU for a two week period and that the registered nurses would be rostered on an alphabetical basis. That management action appears to be imminently reasonable in the circumstances. The Applicant was the first of the registered nurses on the Grevillea Place roster when the basis of movement was alphabetical. The only registered nurse with an earlier alphabetical surname was Mr Adams. He clearly had a contract of employment which stipulated that he would work certain long shifts at Grevillea Place which were "ZH" shifts. No other employee appears to perform a "ZH" shift. Mr Adams must therefore have been exempted from the decision to move registered nurses from Grevillea Place to the AAPU. The Appellant was next in line alphabetically. [68] The Appellant submitted that she should have been consulted about the move. When it was not disputed that the Appellant was employed to work in the Mental Health Unit, I cannot agree that she ought to have been consulted about placing her on the AAPU roster for a two week period. Given the rosters in evidence in this proceeding, the nursing management would be continuously consulting registered nurses about movement to and from Grevillea Place. In the absence of any contract of employment and/or letter of appointment which provided that the Appellant was to be employed at Grevillea Place, I can see no problem with the Appellant not being consulted about being placed on the roster to work at the AAPU for a single day or a two week period. [69] In addition, when the Appellant ceased work at the Hospital on 6 March 2010, the situation was that her name was placed on a roster to work at the East Wing of the AAPU during the period 22 March 2010 to 4 April 2010. She had not been required to work at the East Wing of the AAPU. She was informed that it was a decision of nursing management above the Nurse Unit Manager. She was further told, on at least two occasions, to contact either the Assistant Nursing Director or the Acting Nursing Director in order to raise her concerns about working at the AAPU. The Appellant well knew the nursing hierarchy and who she should contact in order to vary the particular roster. She had previously raised matters with the Assistant Nursing Director. She raised no concerns about contacting the Acting Nursing Director. The Appellant knew, by 5 March 2010, that the roster was not set in stone. The roster for the period 8 March 2010 to 4 April 2010 had already been changed on two occasions as a result of her raising issues with the Nurse Unit Manager. [70] The Appellant knew that the roster was not set in stone. She knew that rosters were varied on a regular basis. She chose not to speak with the Assistant Nursing Director or the Acting Nursing Director. Had she raised her concerns with either of those persons she may have got a different outcome. [71] Having considered the evidence of the Appellant, I do not accept that her failure to complete all components of the Aggressive Behaviour Management Course in September 2009 played any part in her not wanting to work at the AAPU. Her evidence was clear in that she was concerned about working with the nursing staff at the East Wing of the AAPU. I further find that she was not concerned about the patients at the East Wing of the AAPU when she decided that she did not want to work in that ward. On the Appellant's own evidence, as well as the evidence of both Ms Le Roux and Ms Burgess, she did not raise any concerns about her ability to work at the East Wing of the AAPU during the period 1 March 2010 to 5 March 2010. The Appellant's primary concern was the nursing staff at the AAPU. These people were referred to by Dr Archer in her medical report as having bullied the Appellant over many years. However no evidence of those staff bullying the Appellant was raised in the hearing. In fact, the Appellant's evidence was that she had not worked at the AAPU. At best, the Appellant in her evidence spoke of some nurses not treating patients appropriately but there was no evidence of them having bullied her. [72] I had the following concerns about the Appellant's bona fides in this matter: • the Appellant's evidence that she had informed Ms Le Roux and Ms Burgess on 4 March 2010 that she had a contract of employment or letter of appointment which stipulated that she was employed at Grevillea Place. Whilst I can understand that she may have thought this to be the case on 4 March 2010, 9 Delaney v Q-Comp Review Unit (2005) 178 QGIG 197. -- 13 of 16 -- 14 she agreed under cross-examination that she did not have any such contract or letter of appointment. Yet her evidence about the discussion she had with Ms Le Roux and Ms Burgess on 5 March 2010 was that she told them that she did not bring the letter of appointment with her as "she didn't want to show it to them". Exhibit 16, the File Note of Ms Le Roux, indicates that when asked had she brought in a copy of her contract, the Appellant replied "no I did not I will give it to the necessary people". This is in circumstances where the Appellant would have known that she did not have such a letter. In her evidence the Appellant said that she gave her letter of appointment to the QNU; • the Appellant was told, on at least two occasions, to contact either the Assistant Nursing Director or the Acting Nursing Director about her concerns with working at the AAPU and yet she made no attempt to contact either person. The Appellant knew the nursing hierarchy and knew that it was the Assistant Nursing Director and/or the Acting Nursing Director who had the ability to change the decision as she had previously raised a matter with the Assistant Nursing Director; • the Appellant's evidence that she could not work with staff at the AAPU because she found the Nurse Unit Manager to be "creepy" and because two nurses who had done training in Grevillea Place (she had mentored them) were now more senior to her. There was no other evidence which would have supported a finding that this should have been a concern. Early in her evidence, the Appellant also made a comment that she had been Ms Le Roux's mentor or preceptor and that Ms Le Roux had been acting in the Nurse Unit Manager position for some two to three months and therefore senior to the Appellant. Ms Le Roux whilst acting in the position was employed at a Level 7 registered nurse i.e. two levels above the Appellant. It seems to show some reluctance on the part of the Appellant to work with registered nurses who she had once mentored but who are now either acting or permanently in more senior registered nurse positions; • the allegations of the Appellant in her application for workers' compensation that she had been "bullied" as and from 1 July 2004 and the information she gave to Dr Archer that she had been bullied over a number of years are of concern when there was no evidence throughout the course of this hearing of any bullying of the Appellant during that time; • the actions of Ms Le Roux and Ms Burgess in seeking to have the Appellant sign the Movement Form was perceived by the Appellant as bullying given that one of the Nurse Unit Managers held a pen out for her to sign the document. I could see no bullying in the actions of either Ms Le Roux or Ms Burgess in requesting that the Appellant sign the Movement Form as it was a Hospital requirement that such forms be completed when a nurse was being moved for a two week period; • the evidence of Dr Archer that the Appellant had indicated to her that she could not now work at Grevillea Place because Ms Burgess, as the Nurse Unit Manager of Grevillea Place, had not supported the Appellant's application for workers' compensation. Yet the Appellant only worked with Ms Burgess on 1, 4 and 5 March 2010. She obviously took a dislike to Ms Burgess in a very quick amount of time. The Appellant's evidence that Ms Burgess "had no idea" of what she was saying given that she had only started work at the Hospital on 1 March 2010, when she gave evidence that Ms Burgess had informed her that the Nursing Director had said that all mental health employees at the Hospital were employed across the Mental Health Unit. Such comments indicated a lack of respect for a senior nurse who was in the Appellant's direct line of authority. Ms Burgess at the time was a Grade 7 registered nurse whereas the Appellant was a Grade 5 registered nurse; • the Appellant, when rostered to work at the AAPU on 7 March 2010, went on sick leave rather than work at the AAPU; and • the Appellant did not visit a medical practitioner until 18 March 2010 i.e. the day after she received advice from the QNU that she was required to work at the AAPU. [73] In the circumstances I have formed the view that: • the decision to move one registered nurse from Grevillea Place to the AAPU was reasonable; • the decision to move registered nurses on a rotational basis and on an alphabetical basis was also reasonable; • further, the decision to move the registered nurses for a two week period on a rotational alphabetical basis was reasonable; -- 14 of 16 -- 15 • the implementation of the decision whereby the Appellant was the first registered nurse to be rostered to move was also reasonable. It was reasonable because: ¾ the Appellant was qualified to work at the AAPU; ¾ registered nurses had regularly been moved from Grevillea Place to work at the AAPU for various periods over the previous four years; ¾ the Appellant had at least twenty-one days notice of the first day that she was required to work at the AAPU; ¾ in that regard the Appellant had ample opportunity to speak with the Assistant Nursing Director or the Acting Nursing Director (the only nursing management who could vary the directive) about the rostered move and she chose not to speak with either person; ¾ as at the first week in March 2010, the only issues the Appellant had with working at the AAPU concerned working with certain AAPU staff; ¾ those concerns the Appellant had with working with the AAPU staff were not concerns that management ought to have considered prior to moving the Appellant to the AAPU for a two week period i.e. whether the Nurse Unit Manager of the AAPU was seen by the Appellant to be "creepy" or whether two of the registered nurses at the AAPU who had previously worked at Grevillea Place with the Appellant would now be senior to the Appellant. Nursing management's decision to rotate registered nurses on an alphabetical basis is not rendered unreasonable by virtue of the fact that they did not consider these concerns of the Appellant. In fact, these concerns were not raised by the Appellant with either Ms Le Roux or Ms Burgess during the course of the first week of March 2010. The issue raised by the Appellant with Ms Le Roux and Ms Burgess was that the Appellant had a contract of employment or a letter of appointment which stipulated that she was to work at Grevillea Place. Ms Le Roux and Ms Burgess advised the Appellant to bring that correspondence in and, if she had such correspondence, they would take into consideration the terms of that correspondence. As at 1 March 2010 the Appellant had simply decided that she was "not going" to the AAPU; and ¾ as at 6 March 2010 when the Appellant ceased work at the Hospital she was simply rostered to work at the AAPU for a two week period commencing 22 March 2010. She had not been, as at that date, required to actually work at the AAPU. [74] I have formed the view that, as at 27 February 2010 to 5 March 2010, the Appellant was not concerned about the fact that she had not worked in an acute mental health ward for some considerable time nor was she concerned about the fact that she had failed two segments of the Aggressive Behaviour Management Course. The Appellant agreed that at the AAPU there were security personnel to assist nurses in dealing with violent patients and further agreed that violent situations also occurred at Grevillea Place although not as frequently. [75] The Appellant's evidence was that at least, as and from 1 March 2010, she was not going to the AAPU. It was the Appellant's evidence that all she had to say to Ms Le Roux in the discussion on that day was "I'm not going" and "that's all I wanted to say to her". In those circumstances, the concerns she had with the roster attached to the Movement Form which was shown to her on 5 March 2010 was not a cause of concern to her as she agreed that she advised Ms Le Roux and Ms Burgess that the first week's roster was okay but not the second week. In cross-examination, the Appellant said that she only made those comments as she was "playing for time". In any event, Ms Le Roux and Ms Burgess arranged for the roster for the second week to be varied to provide her with an additional shift on a Sunday. Further, in Dr Archer's medical report it was stated that the Appellant "could not go to that area to work as it would involve her working with staff whom she reported had bullied her over a number of years". As indicated earlier, there was no evidence before the Commission of staff at the AAPU bullying the Appellant at all, let alone over a number of years. [76] As at 13 October 2010, when Dr Archer prepared her medical report to Q-Super, the only other issue the Appellant raised with the doctor appeared to be "the difficulties associated with her applying for WorkCover for the depression and anxiety related to the stress of harassment and bullying at work". -- 15 of 16 -- 16 [77] In any event the President in Bowers v Workcover Queensland 10 held that: "… The circumstance that a system of work or its implementation has miscarried does not necessarily lead to the conclusion that either the system of work or its implementation was unreasonable. Reasonable schemes reasonably implemented can miscarry ...". [78] If, as the Appellant submitted, the Appellant ought to have been given notice of the move to the AAPU prior to her seeing it on the roster, the evidence was that she would have been given such notice but for the fact that she was on sick leave and/or on days off when the roster was posted. When she did return to work on a Saturday, the Appellant well knew that no member of the nursing management would be on duty on that day. She was advised of the move on 1 March 2010 i.e. at the earliest opportunity. This was at least twenty-one days prior to the date when she was to commence duty at the AAPU. The failure to inform the Appellant of the move prior to her seeing the roster does not make the implementation of the decision unreasonable. The posting of the roster was, in itself, more than twenty-one day's notice of the move. [79] In all the circumstances, I find that the Appellant has not discharged the onus placed on her of showing that Q-Comp erred in its decision to reject her claim for workers' compensation. I therefore dismiss the appeal. Order accordingly. D.M. LINNANE, Vice President. Hearing Details: 2010 1 September 1, 22 and 23 November Released: 21 January 2011 Appearances: Mr K. Watson, Counsel, instructed by Susan Moriarty and Associates for the Appellant. Mr P. Rashleigh, Counsel, directly instructed by the Respondent. 10 Bowers v Workcover Queensland (2002) 170 QGIG 1. -- 16 of 16 --