Crummer v Q-COMP [2010] QIRC 32

CITATION: Sandra Gai Crummer and Q-COMP (WC/2009/78) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to commission Sandra Gai Crummer and Q-COMP (WC/2009/78) COMMISSIONER FISHER 26 May 2010 Appeal against decision of Q-COMP - Whether personal injury is excluded from s. 32(1) of Act because of the operation of s. 32(5) - Personal injury arose out of or in the course of reasonable management action taken in a reasonable way - Evidence - Factors contributing to injury - Alleged incidents of harassment and sabotage - Stress and anxiety - Inappropriate conduct - Management actions - Compliance with company policy - Some unreasonable management action determined - Globally actions taken were reasonable and taken in a reasonable way - Injury withdrawn from s. 32(1) because of the operation of s. 32(5) of the Act - Appeal dismissed - Appellant to pay respondent's costs. DECISION 1. Introduction 1.1 The Appeal [1] Sandra Crummer (the Appellant) has appealed against the decision of the Review Unit, Q-COMP confirming the decision of the insurer to reject her claim for workers' compensation. [2] To facilitate the conduct of the hearing of the Appeal the parties agreed that the subject of the proceedings were to be heard and determined on the following agreed facts: "1. The Appellant is a worker within the meaning of the Workers' Compensation and Rehabilitations Act 2003 ('the WCRA'); 2. The Appellant sustained an 'injury' (psychiatric or psychological disorder) within the meaning of the WCRA; 3. The Appellant's injury arose out of or in the course of employment; 4. The Appellant's employment was a significant contributing factor to that injury; and 5. The Appellant's personal injury, being a psychiatric or psychological disorder arose out of or in the course of management action taken by the employer Checkpoint Systems (Aust/NZ) Pty Ltd". [3] As the case was presented the issue to be determined by the Commission is whether Ms Crammer's personal injury is excluded from s. 32(1) of the WCRA because of the operation of s. 32(5), that is, the personal injury arose out of, or in the course of, reasonable management action taken in a reasonable way. 1.2 Evidence [4] The following witnesses gave evidence: For the Appellant: Sandra Gai Crummer; and Kirsty Munro, Queensland Key Account Manager, Checkpoint Systems (Aust/NZ) Pty Ltd (Checkpoint). For the Respondent: Andrew Toop, Director of Operations, Checkpoint; Sharyn Hartnett, Human Resources Adviser, Checkpoint; Vicky Hollis, Operations Field Supervisor, and formerly Project Coordinator, Checkpoint; Sarah Jane Love, Field Service Administration Manager and formerly Project Coordinator, Checkpoint; and Mark Gentle, Managing Director, Checkpoint. 1.3 Background [5] Ms Crummer was initially employed by Checkpoint in January 1999 and left in early 2004 to start a family. In mid-2006 Ms Crummer was asked by Mr Gentle to return to Checkpoint as the Business Development Manager for Woolworths source tagging. (Source tagging is a process whereby security labels are attached to products at the place of manufacture). This was a part-time position and involved Ms Crummer, who resided at the Gold Coast, commuting to Sydney once every 4-6 weeks. In February 2007 Ms Crummer moved into a full-time position of Key Account Manager and continued to have responsibilities for source tagging. When Ms Crummer -- 1 of 18 -- 2 accepted the position of Key Account Manager, Checkpoint agreed to keep the Business Development Manager position open so that Ms Crummer could return to it at any time within 12 months of her appointment. [6] In December 2007 Ms Crummer was appointed as Sales Director, commencing in the role on 1 January 2008. Again Checkpoint agreed to keep her former position of Key Account Manager open for a period of three months. Her contract specified Ms Crummer's primary location as Melbourne with travel as required interstate and overseas. For the duration of her employment, however, Ms Crummer continued to reside at the Gold Coast and commuted to Melbourne. [7] Checkpoint is a global organisation and its business includes selling security products such as tagging systems for products and CCTV systems to retailers. As Sales Director Ms Crummer was responsible for a team of sales staff of approximately 10 people in Australia. The organisational structure showed that two New Zealand sales staff also reported to Ms Crummer however because of the demands of the role Mr Gentle took responsibility for the New Zealand operation. As Director of Operations Mr Toop held an equivalent position in the hierarchy to Ms Crummer. Both Mr Toop and Ms Crummer formed part of the Executive Team and reported to the Managing Director, Mr Gentle. The Finance Manager, Vivien Nip, was also a member of the Executive Team. Ms Hartnett reported to the Regional Human Resources in Hong Kong for strategic matters but on day to day matters reported to Mr Gentle. [8] Both Ms Hollis and Ms Love reported to Mr Toop while Ms Munro reported to Ms Crummer. [9] The Service and Projects Teams reported to Mr Toop. The Projects Team was responsible for implementing the products sold by Ms Crummer's team. This involved contacting the customer, coordinating the stock, ensuring the necessary work was carried out on site and invoicing the customer. The Service Team was responsible for planned maintenance and ad hoc service calls. [10] Tension inevitably arose between the Sales and Operations Divisions. Once a product had been sold pressure was on to have the equipment installed proficiently and expeditiously. Conflict could arise should the cost of installation exceed the quote given by sales. If the extra cost could not be borne by the customer then the issue was which Division should absorb it. The Operations Division was a profit centre. Unexpected costs could impact on the commission of the sales member concerned or the bonus paid to an employee in the Projects Team as well as the profit and revenue targets. The success of the Sales Division could also impact on the profit target which in turn could impact on Mr Toop's remuneration. Given the nature of the business it was critical to its success that the positions of Sales Director and Director of Operations (and their respective teams) work closely together and communicate effectively. 2. Factors contributing to the injury 2.1 Three Nominated Factors [11] In the Psychological or psychiatric claim information summary form Ms Crummer nominated three main factors which she believed contributed to her injury. As the three nominated factors are quite lengthy I do not intend to recite them in full here however they will be considered in some detail in this Decision. For present purposes they can be summarised as follows: 1. harassment from, and sabotage by, her peer, Mr Toop; 2. stress and anxiety associated with a constant lack of support from Mr Toop and his team which prevented Ms Crummer from carrying out her role effectively; and 3. failure by senior management to provide support to Ms Crummer or to take action against Mr Toop. [12] In closing submissions, Counsel for Q-COMP, helpfully gathered the evidence, which had been given over six days, into incidents falling under the above nominated factors. I intend to follow the approach adopted by Q- COMP, although my view about the various incidents departs from that of Q-COMP on occasion. I note that Counsel for the Appellant did not take issue with the allocation of incidents to the three factors. Given the large number of incidents raised it is not feasible to deal with each and every one. Rather I consider the incidents on which the parties largely focussed their attention during the proceedings. The fact that an incident is not described does not mean that I have failed to consider it. 2.2 Other Issues [13] There are also a number of other matters that were canvassed in evidence including: • Ms Crummer's appointment as Sales Director; • Ms Crummer's proposed relocation to Melbourne; • the bonus payment; and • the termination of Ms Crummer's employment. -- 2 of 18 -- 3 [14] None of these issues fall within the three nominated factors and accordingly are not relevant to the decision I have to make. However, because Ms Crummer identified her relationship with Mr Toop was an issue in respect of the first two mentioned issues it is appropriate to briefly deal with them now. [15] Ms Crummer said the reason the Key Account Manager position was kept open, when she was appointed as Sales Director, was because she was already experiencing difficulties with Mr Toop. She alerted Mr Gentle to her concerns. Mr Gentle said the trial period of three months was included in Ms Crummer's contract because of her concerns about her ability to perform the role. He denied being advised of any difficulty with Mr Toop. [16] Checkpoint twice left open positions for Ms Crummer. I am not satisfied that when she was appointed as Sales Director Ms Crummer sought for her previous role to be left open predominantly because of reservations about Mr Toop. I accept that at the time of the contract negotiations concerning her appointment to the Sales Director position Ms Crummer was experiencing some difficulty with Mr Toop. The particular issue was drawn to Mr Gentle's attention in an email of 17 December 2007. In my view however the main reason for the three month trial period was because she had expressed reservation about her ability to perform in the position. Ms Crummer had expressed similar concerns when appointed to the Key Account Manager role. In addition she was aware that the previous incumbents in the Sales Director role had not been successful. For these reasons she sought, and Mr Gentle again provided, a safety net for her in the form of her former position. [17] In respect of the failure to relocate to Melbourne Ms Crummer said this again related to her concerns about her ability to work with Mr Toop which she had expressed to Mr Gentle. Ms Crummer suffered a serious health issue in early 2008 which required surgery and prevented her from travelling for a period of four weeks. The issue of Ms Crummer's relocation to Melbourne was discussed in an email exchange between Ms Crummer and Mr Gentle in late March 2008, because, according to Ms Crummer, a lot of comments and questions were being asked of her. Mr Gentle replied that she should advise her staff that "due to your personnel (sic) situation you are not in a position to move. You are going to travel each month and we are reviewing in Q4". [18] Having reviewed the evidence I am satisfied that Ms Crummer's relocation to Melbourne was delayed due to her health issues and not for any reason associated with Mr Toop. In my view had her relationship with Mr Toop been the reason for not relocating then it is more likely that the advice Mr Gentle suggested giving to staff would not have related to her personal situation. If the relationship was an issue it is more likely that operational or organisational reasons would have been suggested. 2.3 Factor 1: Harassment from Mr Toop [19] In her claim Ms Crummer stated that the harassment took the form of abuse and threats and was carried out in writing (via email) and verbal (either via phone or face to face). Further, she said Mr Toop sabotaged her work and unreasonably countermanded instructions given by her to her staff, the effect of which was to make her work difficult. He also denigrated her in front of her staff and colleagues. [20] The particular incidents of harassment identified by Q-COMP that Ms Crummer complained about as coming within this factor are: (a) the email exchange on 9 July 2008; (b) the telephone conversation on 11 July 2008; (c) approach from Mr Toop to Ms Crummer to meet on 12 August 2008; and (d) approach from Mr Toop to Ms Crummer on 28 August 2008. [21] To this list I would add the meeting on 27 August 2008 attended by Mr Gentle, Ms Hartnett, Mr Toop and Ms Crummer. It will be considered prior to item (d) above as it gives context to that matter. 2.3.1 Alleged Incidents of Harassment (a) Email exchange 9 July 2008 [22] The email exchange commenced by Gayle Martini, Marketing Coordinator, asking Mr Toop by email on 7 July 2008 for the services of one of his staff to help set up Checkpoint's stand at a trade show on the Gold Coast. When no response had been received by 9 July 2008 Ms Martini sent a follow up email to Mr Toop. On that day the Product Manager (male) also emailed Mr Toop to follow up the request. It commenced "Hi Mate". [23] Mr Toop responded to both saying that the request had been actioned and proceeded to chastise Ms Martini for following the matter up with him. He then emailed Ms Crummer complaining about Ms Martini and unnamed others in her sales team "who consistently communicate with myself, my managers and my staff in general with -- 3 of 18 -- 4 a basic lack of class and respect for a fellow worker. …but take it that I'm not about to put up with the master/slave stuff, or just plain rudeness (like I see here) any longer". [24] Ms Crummer replied to Mr Toop in a short email rejecting his criticisms of Ms Martini and praising her performance. Ms Crummer also commented that a matey email should not be required to get things done. Mr Toop responded with a lengthy email saying he "patently disagree(d)" with Ms Crummer. He then explained at length his concerns about the lack of respect shown to him and his team. He referred to being "wild" and "cranky" and foreshadowed the need to "start shaking the tree again". [25] Understandably, Ms Crummer was disturbed to receive Mr Toop's response. She forwarded it to Mr Gentle with a lengthy covering email. In her email she asked Mr Gentle whether she should feel threatened by Mr Toop's remarks. Ms Crummer also expressed her concerns about the Operations Division. She then said: "As far as I am concerned, we need to make change and make change right now. I know that you like to manage through cooperation and collaboration … but to me this is not working. People need to be put in their place and left with no doubt about what is required. Conversely, if you don't agree with my view on things, please let me know". [26] Mr Gentle said that the email from Ms Crummer was the catalyst to him scheduling an offsite executive meeting in August 2008. However, three days earlier he had also received another email from Ms Crummer identifying various concerns with the sales team and seeking assistance from him in relation to those matters. (This email had been sent in response to Mr Gentle offering to support Ms Crummer in her role and asking about things he could do to help). The receipt of two emails in close proximity made him realise that it was necessary to get his key reports together and to set the parameters in place as to how people were to work together going forward. [27] In the email sent to the Executive Team and Ms Hartnett on 10 July 2008 Mr Gentle identified the key issue to be addressed as whether Checkpoint was the sales focussed organisation delivering superior customer service it was supposed to be. He went on to list a number of issues that had to be addressed and in doing so picked up on issues identified by Ms Crummer in her email of 6 July 2008 and matters included in the email exchange between Ms Crummer and Mr Toop on 9 July 2008. The matters arising from the 9 July 2008 exchange included the Executive not working as a team but in silos; whether the Executive Team communicated with each other asking for ideas and support and people reminiscing about the past. [28] In his evidence Mr Gentle did not agree that the lengthy email from Mr Toop could be viewed as threatening. However, he had concerns about the tone of the emails from both Mr Toop and Ms Crummer. He believed he had spoken to each of them and asked them to speak to each other rather than engage in lengthy email writing. He said he also told Mr Toop he needed to portray his message in a more professional manner. (b) Telephone conversation 11 July 2008 [29] According to Ms Crummer, Mr Toop had tried to contact her several times during the day on Friday 11 July 2008, however, she had been unable to take the calls because she had been otherwise occupied. Before she could return his calls Mr Toop contacted her on her mobile phone while she was in her home office. She said the conversation started quite amicably with general pleasantries exchanged and then Mr Toop became very angry, yelling down the phone complaining that it was because of her that the offsite meeting was being arranged. [30] Ms Crummer said that during the call Mr Toop had said that "there are members of his team that hate your fucking guts" and "they can't stand the way she has to tell them every little detail of what she wants them to do". Mr Toop then allegedly went on to say that "she had better watch herself". [31] Ms Crummer said the conversation lasted an hour and 45 minutes. It only ended because the battery in her phone went dead. She denied being aggressive to Mr Toop but acknowledged she raised her voice in order to be heard. [32] Mr Toop said the call lasted approximately 45 minutes. It was heated for about five or six minutes and that both he and Ms Crummer were angry. After initial heated exchanges they discussed a range of issues. Mr Toop denied swearing at Ms Crummer and could not recall making any threats towards her. [33] Later that evening Ms Crummer attempted to telephone Mr Gentle. When she could not contact him she left a voice mail message asking him to return her call. Ms Crummer then telephoned Ms Hartnett at home at about 9.00 p.m. She believed she needed to report the incident and that the appropriate process to follow was to contact Ms Hartnett from human resources. She said she told Ms Hartnett that Mr Toop had threatened her, had sworn at her, had yelled down the phone at her and had been quite abusive and intimidating. It was Ms Crummer's evidence that by talking to Ms Hartnett she had reported the incident and was making a complaint about his behaviour. -- 4 of 18 -- 5 [34] Ms Hartnett was in bed with a migraine that night and had very little recollection of the call except that Ms Crummer told her that she had had a heated conversation with Mr Toop. Ms Hartnett did not interpret the call as Ms Crummer complaining about the behaviour of Mr Toop rather she just wanted to talk to someone about it. [35] Ms Crummer said she followed the matter up with Ms Hartnett and Mr Gentle on Monday 14 July 2008. [36] Ms Hartnett reported the conversation to Mr Gentle the following Monday. In her view the telephone call reinforced the need for the offsite meeting. She also spoke to Mr Toop on 14 July 2008 where he said that both he and Ms Crummer had been out of line in the conversation. [37] Mr Gentle acknowledged receiving the voice mail message from Ms Crummer but did not return it over the weekend. He initially spoke with Ms Hartnett on the Monday who relayed the conversation. She told him it was about the offsite meeting and although it had not started well it had ended amicably. Mr Gentle initially said in his evidence that he asked Ms Hartnett to investigate the matter. He then said he did not recollect any complaint being made and asked Ms Hartnett to speak to Mr Toop. When asked in cross-examination about instigating an investigation (as opposed to speaking to Mr Toop) Mr Gentle said that "it was a play on words". [38] On the Monday Mr Gentle spoke with Ms Crummer who reported a long conversation with Mr Toop the previous Friday evening. Although his recollection of the detail of the conversation was poor he did not recall Ms Crummer making any formal complaint about Mr Toop or having felt threatened by him. [39] Mr Toop said that about one week later Mr Gentle advised him that Ms Crummer was disappointed with the telephone call of 11 July 2008. Mr Gentle told Mr Toop that he (Toop) was tired, had been on the run for a long time and that he wanted him to resolve the fighting with Ms Crummer. Mr Gentle advised him to take some annual leave that he planned to take but had not taken. On 28 July 2008 Mr Toop took leave for two weeks. Mr Gentle also told him, that whilst on holidays, to think about how matters between sales and operations could be improved. Mr Toop said that over his period of leave he spoke to a couple of mentors who made suggestions about how to mend the rift. Essentially, that advice was to "extend the olive branch". [40] Ms Crummer said Mr Gentle informed her that he had told Mr Toop to take some leave, to get his life back into balance and to resolve his anger management issues. She said this conversation occurred because she had persistently asked what was happening as a result of the telephone call on 11 July 2008. Ms Crummer said she was pleased that action was being taken and that Mr Toop was going to meet with a mentor. Ms Crummer believed the action was a direct result of the telephone call on 11 July 2008. (c) Approach from Mr Toop to Ms Crummer to meet on 12 August 2008 [41] Mr Toop returned from annual leave on 11 August 2008. In light of the advice Mr Toop had received from a mentor he telephoned Ms Crummer on 12 August 2008 to try to organise an opportunity for the two of them to meet and talk. Ms Crummer returned Mr Toop's telephone call in the evening and advised that she was unable to meet that night as she had a presentation to prepare. Mr Toop denied Ms Crummer's accusation that he had yelled and abused her after she had declined his request. He said he had two people in his office at the time Ms Crummer phoned him and he did not want them to know what he was talking about. [42] Later that evening, and on the advice of Ms Hartnett, Mr Toop sent an email to Ms Crummer expressing his disappointment at being unable to meet with her that night but acknowledging her work commitments. He indicated his sincerity about addressing the issues before them and his desire to do that prior to the offsite meeting. He said he was willing to fit in with her commitments and, if nothing could be arranged before she travelled back to the Gold Coast the following evening, would have Mr Gentle try to arrange another opportunity prior to 25 August 2008. [43] Mr Gentle said he was aware of Mr Toop's attempts to mend the fences with Ms Crummer. [44] For her part Ms Crummer said she felt uncomfortable going to dinner with Mr Toop when he had been abusive towards her. (d) Meeting of 27 August between Mr Gentle, Ms Hartnett, Mr Toop and Ms Crummer [45] The offsite meeting occurred on 25 August 2008. The participants at the meeting agreed that Ms Crummer would be responsible for decisions relating to new business whereas Mr Toop would be responsible for decisions relating to existing business. Such an agreement had not previously been in place. [46] During the meeting Mr Gentle received a text message from Ms Love advising of her resignation. On 26 August 2008 Ms Crummer, Ms Hartnett and Mr Gentle met to discuss various matters including whether to accept Ms -- 5 of 18 -- 6 Love's resignation. Ms Hartnett and Ms Crummer agreed in evidence that it was decided it would be best if Ms Love's resignation was accepted. [47] Mr Gentle and Ms Hartnett met with Ms Love on 27 August 2008. According to Mr Gentle it became apparent during the meeting that Ms Love did not really want to leave the organisation, she did not have another job to go to and he could see benefits in Ms Love remaining with the organisation. He put a proposition to Ms Love about whether she would be receptive to working within the sales team as the organisation started to build the new structure based on the decisions taken at the offsite meeting. Ms Love agreed to consider it. [48] Following that meeting and prior to the scheduled Executive Team meeting Mr Gentle hastily organised a meeting with Ms Crummer and Mr Toop. Ms Hartnett was also present. Mr Gentle informed them of his proposal to Ms Love. He said Ms Crummer reacted angrily by raising her voice. Mr Toop then also responded. [49] It is generally agreed that Mr Toop in a raised voice said that "I'm telling you Sarah will not report to Sandra" to which Ms Crummer responded "Maybe I don't want Sarah in my team". Mr Toop then said words to the effect that "you think every body likes you. I'm telling you they don’t. Even members of your sales team hate your fucking guts". [50] Ms Crummer said that at this point Mr Toop was red in the face, was angry and pointing at her. This was denied by Ms Hartnett and Mr Toop. Ms Crummer then turned to Ms Hartnett and said "Is this right?" to which Ms Hartnett responded "Well, you could soften your approach sometimes". After this Mr Gentle intervened, told them to stop and asked them whether the outcomes from Monday's meeting had been forgotten. [51] Shortly after the Executive Team meeting commenced. Ms Crummer said that she was quiet during this meeting. Mr Toop and Mr Gentle agreed that Ms Crummer was upset or subdued during the meeting. Ms Hartnett thought Ms Crummer was sulking. [52] Following the Executive Team meeting Ms Crummer went to her office. Ms Hartnett followed her into the office to check on her well-being and remained with her for about half an hour. During that time it seems that Ms Hartnett told Ms Crummer that Mr Toop's conduct would be dealt with and spoke to Mr Toop about it the following day. [53] Mr Gentle also called in three times for the same purpose. Ms Crummer said that Mr Gentle described Mr Toop's behaviour as despicable and said it would not be tolerated. He was prepared to cancel his trip to Madrid later that night in order to deal with the situation. Ms Crummer encouraged Mr Gentle to go. (e) Approach from Mr Toop to Ms Crummer on 28 August 2008. [54] The next day Mr Toop passed Ms Crummer outside the Checkpoint building. He spoke to her stating that he wanted to talk to her to resolve their differences. Ms Crummer replied that she did not want to talk to him and had nothing to say. [55] Mr Toop acknowledged in evidence that given the events of the previous day it was unsurprising that Ms Crummer would not want to talk to him. [56] Ms Crummer reported Mr Toop's approach to her to Ms Hartnett who said that she would speak to Mr Toop to see what she could work out between the two of them as it was not appropriate to have two senior managers who were not communicating. She had previously spoken to Mr Toop about the events of 27 August 2008 and spoke to him again to relay Ms Crummer's position of not wanting to communicate with him. 2.3.2 Alleged Incidents of Sabotage [57] By the time the alleged incidents which fell within this allegation occurred Mr Toop had been temporarily transferred to take up the position of Sales Manager in New Zealand. This followed the resignation of the previous Sales Manager. Mr Toop did not lose any salary or conditions on the transfer. Mr Gentle took over the role of Director of Operations from Mr Toop. The responsibility for sales in New Zealand had not yet been taken on by Ms Crummer so Mr Toop would report to Mr Gentle about New Zealand sales matters. [58] Ms Crummer said that Mr Gentle told her that Mr Toop's behaviour was not going to change and his behaviour had continued for too long. Accordingly, he proposed to move Mr Toop to New Zealand effective 1 October 2008 until the replacement was found, anticipated to be in January 2009. [59] Mr Gentle denied that the temporary transfer of Mr Toop was as a consequence of his behaviour although he believed that by giving Mr Toop responsibilities in the sales area it would bring him and Ms Crummer closer together. -- 6 of 18 -- 7 [60] The main complaints raised under this heading are: (a) meeting on 8 October 2008 with a product supplier; and (b) preparation for the Shanghai conference. (a) meeting on 8 October 2008 [61] This meeting was called to discuss some serious issues Checkpoint was having with a supplier. Mr Gentle, Ms Crummer and Checkpoint's Product Manager attended the meeting along with a representative of the supplier, Ian Angus. During the meeting Mr Angus advised that Mr Toop had said that he (Angus) was no longer to communicate with the sales team and Ms Crummer. Mr Gentle told Mr Angus that as Managing Director he could communicate with the sales team and Ms Crummer and it was important to keep communication open. [62] After the meeting Ms Crummer stated to Mr Gentle that this was the type of interference that was causing ongoing concern for the sales team, customers and the provision of service. However, Mr Gentle responded by saying that the supplier was trying to come between people in Checkpoint. [63] It is to be noted that Mr Toop denied telling any supplier not to talk to Ms Crummer or the sales team. He advised a supplier who was trying to organise or coordinate works to speak to the project team. It was not a prohibition on talking to the sales team. (b) preparation for the Shanghai conference [64] Ms Crummer was asked by Mr Gentle at relatively short notice to make a presentation in Shanghai to senior managers of Checkpoint in early (3, 4) November 2008. To do this she needed information from various members of the sales team, including those in New Zealand. On 28 October 2008 Ms Crummer sent an email with clear instructions of the information required together with an email from Riccardo Muttoni, Vice President and General Manager of the Asia Pacific Region, also setting out the required information and asking that it be provided by close of business on 29 October 2008. [65] The information was not received from New Zealand by the date requested. Ms Crummer then telephoned the relevant staff member in New Zealand to find out what was going on. The person told her that Mr Toop had asked her not to do anything about it until he had spoken to Ms Crummer. [66] A conference call was held on 29 October 2008 about a separate matter in which Mr Gentle, Ms Crummer and Mr Toop participated. Ms Crummer asked Mr Toop why the information for the Shanghai meeting had not been sent through. After Mr Toop said he did not know what she was talking about Ms Crummer told him what she had been informed. When Mr Toop said there had been a misunderstanding Ms Crummer became angry and accused Mr Toop of deliberately not supplying the information and undermining her. At that point Mr Gentle intervened and said he believed there had been a misunderstanding. Mr Toop promised to supply the information and it was delivered. [67] Ms Crummer later complained to Mr Gentle that she was starting to look like the "bad guy" and was being unreasonable. She was also concerned that Mr Gentle believed Mr Toop had changed. 2.4 Factor 2: Stress and anxiety associated with a constant lack of support (and at times, interference) on the part of Mr Toop and his team [68] Ms Crummer said that the effect of this stress and anxiety prevented her from carrying out her role effectively and frequently had an adverse effect on customers. She was left with no alternative but to take such matters directly to her Managing Director to action, which further undermined her authority and ability to do her job. [69] In respect of this factor Q-COMP identified four emails of 10 and 11 November 2008: (a) email 10 November 2008 - 9.14 pm Re New Zealand Forecast; (b) email 10 November 2008 - 9.35 pm Re Site Surveys BNT; (c) email 11 November 2008 - 8.43 am Re Dummy Barcode; and (d) email 11 November 2008 - 8.55 am Re Cotton On People Counters. [70] The Commission notes that these email exchanges were not specifically addressed by Counsel for Ms Crummer in closing submissions. Given that in the scheme of things they were relatively minor matters it is not my intention to dwell on them. -- 7 of 18 -- 8 [71] In summary, Ms Crummer sought information from New Zealand, however, it was delayed because the forecast document was being revamped by Mr Toop. When she had raised that matter previously he was dismissive of the idea. However, Mr Gentle said he had asked Mr Toop to review the New Zealand operations. When he received an email from Ms Crummer forwarding one from Mr Toop on the subject he did not take any action as Ms Crummer had not asked for any. [72] The second and fourth emails referred to issues concerning the allocation of work and involved Ms Crummer and Ms Love. [73] The third email concerned Ms Crummer's seeking assistance from Mr Gentle when another employee did not respond to a request because he (the employee) was engaged in another project as directed by Mr Toop. [74] Except for the New Zealand forecast issue where no express request was made by Ms Crummer, once Mr Gentle became involved the matters were resolved. [75] Further, as Q-COMP pointed out in its submissions, after the offsite meeting occurred attempts were made to improve the communication between the Operations and Sales Divisions as evidence by a series of emails regarding weekly project overview meetings. 2.5 Factor 3: Failure by senior management to provide support to Ms Crummer or to take action against Mr Toop [76] In the Psychological or psychiatric claim information summary form Ms Crummer identified the following issues under this factor: • no concrete actions or steps were taken by the Managing Director to stop Mr Toop from continuing to harass her, speaking rudely and threateningly to her, both directly and indirectly; • Ms Crummer repeatedly expressed her concerns to the Managing Director and the Human Resources Adviser and yet, received no further assistance. This left her feeling overwhelmed and with a sense of helplessness; • raised her concerns with the Senior Director of Human Resources for Asia Pacific; and • attempted to discuss the matter with the Vice President and General Manager of the Asia Pacific Region. No follow up was received and this reinforced the lack of concern about the situation and her personal wellbeing. [77] These matters will now be considered in turn. 2.5.1 No concrete actions or steps were taken by the Managing Director to stop Mr Toop from continuing to harass her, speaking rudely and threateningly to her, both directly and indirectly [78] The alleged incidents of poor behaviour on the part of Mr Toop have been outlined earlier in this Decision. Ms Crummer's complaint is that although Mr Gentle spoke about creating a supportive working atmosphere he failed to take concrete action to ensure that occurred. [79] Of the matters identified in Factor 1 where Mr Toop is said to have behaved inappropriately (see 2.3.1), Mr Gentle's responses to the following incidents are relevant: • the email exchange of 9 July 2008; • the telephone call of 11 July 2008; and • the meeting of 27 August 2008. [80] In respect of the email exchange of 9 July 2008 Mr Gentle said that he did not consider Mr Toop's response to be threatening. However, in response to that exchange and, to an extent, the email of 6 July 2008, he decided to organise an offsite management meeting. Although conflict resolution was not on the Agenda, it is clear that the respective roles and responsibilities of Mr Toop and Ms Crummer were discussed and agreed. [81] Ms Crummer contacted Mr Gentle after the telephone call of 11 July 2008 and the evidence shows there was some discussion between them the following week. Mr Gentle acknowledged advising Ms Crummer to leave the matter with him and the evidence of Ms Hartnett and Mr Gentle is that the incident reinforced the need to have the offsite management meeting. [82] Following this telephone call Mr Gentle also told Mr Toop to take some leave and to reflect on how matters could be improved. Although Ms Crummer understood this action to be a form of discipline, Mr Gentle's evidence is that was not the view he expressed to Mr Toop. -- 8 of 18 -- 9 [83] The third issue concerns Mr Gentle's advice to Ms Crummer and Mr Toop about his proposal that Ms Love work in the sales team. Both Mr Toop and Ms Crummer reacted angrily to the suggestion but Mr Toop was abusive towards Ms Crummer. Mr Gentle did not take any disciplinary action against Mr Toop. [84] The evidence shows that as a result of this incident Mr Gentle raised the tension between Mr Toop and Ms Crummer with Mr Muttoni and Ms Wong in Madrid. Mr Gentle also told Ms Crummer that there was going to be a change within the Divisions and other actions emanating from the offsite meeting relating to improved staff relations were to be fast tracked. [85] Ultimately, Mr Gentle transferred Mr Toop to New Zealand for a short period and by doing so, removed him from day to day involvement in the Operations Division. [86] Various other attempts by Ms Crummer to have Mr Gentle address the situation were raised by her. As these have not previously been outlined it is appropriate to deal with them now. They are: • Events of 4 and 5 September 2008 [87] Mr Gentle departed Australia for Madrid on 27 August 2008 and after attending a meeting there travelled to the United Kingdom. While overseas Ms Crummer telephoned Mr Gentle. It was her evidence that during this conversation Mr Gentle shared with her his plans for Mr Toop moving to New Zealand. While acknowledging that he would have advised that some changes were going to be made, Mr Gentle denied telling her of the New Zealand transfer. He said he could not have done so as the person in New Zealand had not yet resigned. [88] Ms Crummer sent an email to Mr Gentle on 4 September 2008 advising him that she: "could not remain with Checkpoint if things stay the same. Whilst I appreciate your sharing with me the other day, I fear that the thinking will revert as time passes. I am unable to perform my role properly under the circumstances and in the end, my sales team and others are losing confidence in me. Just like you Mark, I hate to lose and yet I feel I am on a roller coaster ride and someone else is in control". [89] Mr Gentle's response on 5 September was: "I understand totally we have to and we will get this fixed.". [90] Ms Crummer said she believed that Mr Gentle's email was confirming that Mr Toop would be dealt with whereas Mr Gentle said Ms Crummer was giving her view and his response was a "four line email, flick back quickly". • Cypress Lakes car trip 6 November 2008 [91] On this date Ms Crummer and Mr Gentle were travelling together by car to attend a conference at Cypress Lakes outside of Sydney. The travelling time was about 2½-3 hours. During that time a number of issues were canvassed including the relationship between Ms Crummer and Mr Toop. [92] According to Ms Crummer she told Mr Gentle that she would be the next person to resign at which point Mr Gentle diverted the conversation to a discussion about succession planning which would require her to move to Melbourne. Ms Crummer said that if this was to happen then Mr Toop could not also be in Melbourne. After a period discussing the succession planning Ms Crummer raised the issue of her continued involvement with Mr Toop. She had previously understood that Mr Gentle was not requiring this interaction. Mr Gentle responded by saying it was business and the interaction was necessary. [93] Ms Crummer also said that several times during the conference she told Mr Gentle that she needed to know what was happening with Mr Toop. [94] Mr Gentle confirmed that during the trip to Cypress Lakes Ms Crummer foreshadowed her resignation and said she made a generic statement that she would not go to Melbourne if Mr Toop was there. He was flabbergasted by her comment as she had only once previously made a derogatory comment about Mr Toop. He believed that inroads were being made in the resolution of the difficulties between Ms Crummer and Mr Toop. He also denied telling Ms Crummer that she would not have to deal with Mr Toop and that she raised concerns about Mr Toop 's future with him during the conference. • Email from Ms Crummer to Mr Gentle 11 November 2008 [95] Ms Crummer said that when she expressed her concerns to Mr Gentle during the trip to Cypress Lakes his reaction was like he was hearing them for the first time. She described it as being a "light bulb moment". Ms -- 9 of 18 -- 10 Crummer considered that by this time she had expressed concerns about Mr Toop to Mr Gentle at least 20 times and about 10 times to Ms Hartnett. Because she had believed them up to this point that action was going to be taken in respect of Mr Toop she had not formalised her concerns in writing. However, in light of Mr Gentle's reaction on 6 November 2008 she thought she needed to record her concerns. [96] It was in that context that she wrote the email of 11 November 2008. There, Ms Crummer identified that: • the individual episodes of harassment by Mr Toop had heightened her stress levels to a point which was both unacceptable and intolerable; • the problem was compounded by the lack of cooperation afforded to her by people associated with Mr Toop; • senior managers had failed to address her concerns and follow up after she had raised concerns with them; • Mr Gentle persisted in trying to bring Mr Toop and Ms Crummer together over the stated concern about this by Ms Crummer; and • Checkpoint had failed to follow its Global Ethics Policy which should have afforded her protection. [97] For these reasons Ms Crummer advised that she was taking some time off to restore balance in her life and to determine her way forward. [98] Mr Gentle allowed Ms Crummer to take the week off and asked her whether it was possible for her to come to Melbourne the following week as "certain things are occurring that I have not shared with you and it would be more appropriate to talk face to face". In response Ms Crummer asked to be told what the certain things were over the telephone or for Mr Gentle to travel to Brisbane or the Gold Coast. She said she did not wish to leave herself vulnerable or be ambushed. As events unfolded Ms Crummer did not meet with Mr Gentle or return to work for Checkpoint. Her Application for Compensation was lodged on 24 November 2008. 2.5.2 Expressed concerns to Managing Director and Human Resources Adviser but to no avail [99] The issue here relates to whether Ms Crummer was making complaints about Mr Toop's behaviour by raising concerns with Mr Gentle and Ms Hartnett. [100] Ms Crummer said she repeatedly expressed her concerns about Mr Toop with Mr Gentle and to a lesser extent with Ms Hartnett. At no stage did management advise Ms Crummer to make a formal complaint about Mr Toop. However, the evidence shows that Ms Crummer was aware of the Global Ethics Policy, which contained provisions about harassment and respect for people, and in which she had recently been trained. [101] One of the times when Ms Crummer said she raised her concerns with both Mr Gentle and Ms Hartnett was in a telephone conversation with them on 17 September 2008. Ms Crummer commenced the conversation by saying that she had not seen any change in Mr Toop's behaviour since his return from leave and asked Ms Hartnett and Mr Gentle what was going to be done about it. [102] In response Ms Hartnett replied that she had seen changes in his willingness to get the Sales and Operations Divisions working together, however, in evidence she said that she had not however witnessed any personal interaction between Mr Toop and Ms Crummer. Ms Hartnett also said in evidence that she was helping him in his communication by reviewing his emails. 2.5.3 Raised her concerns with the Senior Director of Human Resources for Asia Pacific Region [103] In or around mid-2008 Selena Wong was appointed to the position of Senior Director of Human Resources for the Asia Pacific Region. Ms Crummer had dinner with Ms Wong when they were both in Melbourne on 21 July 2008. According to Ms Crummer, Mr Gentle informed her that she could raise anything she wanted to at that dinner. Ms Crummer took the opportunity to tell Ms Wong about the telephone call of 11 July 2008 and to express her concerns about the difficulties she had encountered with Mr Toop and his behaviour. Ms Crummer said that she informed Ms Wong she was concerned these difficulties were affecting her performance and that this could impact on her evaluation. [104] Ms Crummer said that Ms Wong gave some advice as to how to manage the situation, however, Ms Crummer did not consider the advice to be helpful. [105] Ms Crummer said she hoped Ms Wong would have relayed her concerns to Mr Gentle and Ms Hartnett given the seriousness of the issues. This did not occur. Ms Wong simply sent an email in response to one sent by Ms Crummer after the dinner thanking her for the dinner and expressing her belief that Ms Crummer could "break the ice" and she and Mr Toop could form a cohesive team. Ms Crummer considered that Ms Wong's response had "swept her concerns under the carpet". -- 10 of 18 -- 11 2.5.4 Attempted to discuss the matter with the Vice President and General Manager of the Asia Pacific Region [106] When Ms Crummer attended the conference in Shanghai she attended a dinner and happened to sit next to Mr Muttoni. She said Mr Muttoni mentioned that he understood there was a problem with Mr Toop and he was surprised as he liked Mr Toop. Mr Muttoni said he would like to talk about it and arranged to meet Ms Crummer the following day. Regrettably, Mr Muttoni failed to attend and did not contact Ms Crummer again. [107] Ms Crummer believed that Mr Muttoni raising the matter demonstrated that senior people within Checkpoint had knowledge of the problems and would attempt to resolve them. [108] The evidence is that Mr Gentle alerted both Mr Muttoni and Ms Wong to the strained relations between Mr Toop and Ms Crummer when attending the Madrid conference. 3. Contentions 3.1 The Appellant's contentions [109] It is contended that Ms Crummer was submitted to repeated incidents and events of bullying and harassment while she was employed with Checkpoint. Further, senior management of Checkpoint failed to address and resolve the complaints despite Ms Crummer reporting them and even though some of the incidents occurred in front of senior managers. It is also contended that senior managers failed to comprehend the seriousness of the complaints. [110] The complaint is also made that Checkpoint failed to advise Ms Crummer of the relevant policies and procedures and failed to resolve the issue by meeting their obligations under the applicable workplace harassment policies. Further, there was systemic inaction by senior management and human resource professionals across the organisation about Ms Crummer's complaints as Ms Crummer had made known her concerns to a number of senior managers and they had failed to rectify matters. This pointed to systemic failure rather than single issues of irregularities practised by senior management. [111] It was submitted that because there was a continuum of management action an assessment for the purposes of s. 32(5)(a) of the WCRA must be undertaken on a global basis, see Delaney v Q-COMP (Delaney)1. As was found in Delaney the incidents in this case were linked by subject matter, personality and time. 3.2 Q-COMP's contentions [112] Q-COMP submitted that it was not Mr Toop's behaviour that needed to be scrutinised by the Commission but rather the management action taken. Q-COMP's case was that Checkpoint had taken reasonable management action in relation to Ms Crummer's concerns and although some matters may have been handled better, such as Mr Muttoni's neglect to meet Ms Crummer in Shanghai, these only amounted to blemishes. [113] Q-COMP did not accept that a global assessment was relevant in the circumstances of this case. Rather this was a case where the law relating to multiple stressors should be applied. It was submitted that the first set of complaints up to 27 August 2008 related to Mr Toop's alleged harassment of Ms Crummer. After that date the allegation is a failure to cooperate. As these are separate and distinct issues it is necessary to consider them individually and to reach findings about the management action taken in respect of each of the factors. For this approach Q-COMP relied on the decisions in Rossmuller v Q-COMP2 and Q-COMP v Rowe3. 4. Considerations [114] In the Psychological or psychiatric claim information summary form Ms Crummer nominated three main factors which she believed contributed to her injury. On an examination of these factors and as can be seen from the outline given above the incidents which contributed to the injury have a consistent theme. That theme is that Ms Crummer was concerned about inappropriate conduct on the part of Mr Toop, which on occasion influenced the conduct of members of his team, and management's response those matters. The events took place within a four month period. The critical participants were Ms Crummer, Mr Toop, Mr Gentle and Ms Hartnett. In my view the limited time period involved, the consistency of both the participants and the nature of the concerns lend weight to the Appellant's submission that a global assessment is to be preferred. [115] The focus of this Decision is on whether the actions of management were reasonable and taken in a reasonable way. It is not Mr Toop's behaviour per se that is being examined, rather consideration is given to management's 1 Paul Andrew Delaney v Q-COMP [2005] 178 QGIG 197. 2 Eric Martin Rossmuller v Q-COMP (C/2009/36) - Decision http://www.qirc.qld.gov.au. 3 Q-COMP v Glen Rowe [2009] 191 QGIG 67. -- 11 of 18 -- 12 responses to Ms Crummer identifying concerns or witnessing the impact of Mr Toop's conduct on Ms Crummer. In light of the information contained in the Psychological or psychiatric claim information summary form and the way the case was led, which was to focus on the reasonable management action exclusion, Ms Crummer's decompensation occurred on 11 November 2008, not in response to any conduct on the part of Mr Toop or his team but as a result of Mr Gentle showing Ms Crummer that he had not understood that the relationship between herself and Mr Toop had deteriorated to a point where it was unworkable from her perspective. This lack of understanding had manifested in an absence of any concrete action to address Mr Toop's conduct towards Ms Crummer. [116] In this context and, although earlier in this Decision the various incidents raised by Ms Crummer in her evidence were outlined, it will not be necessary to consider each incident in reaching a conclusion. Only those incidents which attracted, or failed to attract, a management action will be considered. The actions of Mr Gentle and Ms Hartnett are the key management actions to be considered. Ms Hartnett is included because although not senior to Ms Crummer in the organisational hierarchy, she occupied a critical management position being the Human Resources Adviser. [117] Although Ms Crummer raised issues concerning her contract and the termination of her employment, the Claim for Compensation nominates that symptoms commenced on 11 July 2008 and continued until 11 November 2008. Accordingly, it is unnecessary when making my findings to consider events preceding or occurring after these dates. The only exception to that is the email exchange which occurred on 9 July 2008. It is useful to include it because on the evidence it was the first time Ms Crummer had questioned in writing the conduct of Mr Toop with Mr Gentle since referring to him an email exchange between Mr Toop and herself on 17 December 2007. 4.1 Management actions concerning alleged incidents of harassment [118] Mr Gentle's response to receiving the email from Ms Crummer dated 9 July 2008, which also forwarded Mr Toop's email of the same date, was to arrange an offsite management meeting. Although Ms Crummer's earlier email of 6 July 2008 also identified an issue with the projects team Mr Gentle said it was of no real substance. That earlier email did however raise other issues about the Sales Division which he believed were important. On receipt of 9 July 2008 email exchange Mr Gentle realised that problems were occurring in both the Sales and Operations Divisions and there was a need to agree on how the Divisions were to work together in future. It is clear that by this email exchange Mr Gentle had been alerted to a problem between Ms Crummer and Mr Toop and their respective teams and took action to try to resolve the issues before they festered. [119] In addition, Mr Gentle spoke to each of them and told them to speak to each other rather than engage in lengthy email writing. He also addressed Mr Toop about his tone and style. The action taken by Mr Gentle was a reasonable response to the situation as it had arisen. [120] The next incident concerned the telephone call on 11 July 2008. I accept that there were some robust exchanges between Ms Crummer and Mr Toop. Ms Crummer herself recognised that she will stand up for herself when issues arise which she believes are unfair. However, I consider that at least initially the conversation was more than a robust exchange of views and that Mr Toop was indeed abusive. He was angry about the email exchange of 9 July 2008 being the catalyst for the offsite meeting and his being seen to have contributed to the problem. Mr Toop acknowledged that he has a deep, loud voice. Having observed Mr Toop giving evidence I can confirm that this is accurate and I further consider that when angry, this vocal expression could be perceived as intimidating and even threatening. Although I also accept from the length of the call and the way that it ended that the conversation moved on and became more amicable this does not make Mr Toop's initial conduct acceptable or lessen its impact. [121] Ms Crummer telephoning Mr Gentle and Ms Hartnett late on a Friday night to report the conversation is indicative of a person being distressed by it. I accept that Ms Hartnett was in no fit state to receive the call or to discuss it in any detail with Ms Crummer. I also accept that her own ill health impaired her recollection of the conversation she had with Ms Crummer that evening. However, Ms Hartnett had sufficient recollection to alert Mr Gentle to the conversation the following Monday. [122] Although I accept it was Ms Hartnett's belief that Ms Crummer simply wanted to talk to someone, I do not consider this was a reasonable view for a human resource professional to hold. She acknowledged that it was unusual for Ms Crummer, or indeed anyone, to call her at nine o'clock at night. Ms Hartnett was aware that the purpose of the offsite meeting was to bring the Sales and Operations Divisions together because tensions had arisen between them. In a couple of days the problem had escalated beyond an interdepartmental miscommunication and was developing into a personal issue. As an experienced human resources professional and the person responsible under the Global Ethics Policy, it would have been appropriate for her to offer support to Ms Crummer and specifically, to advise or remind her of the existence of the relevant workplace -- 12 of 18 -- 13 policy dealing with harassment or treatment of staff. In the circumstances I accept that such support could not be offered on Friday evening however it should have been proffered the following Monday. [123] I accept that Mr Gentle did not ask Ms Hartnett to investigate the incident. To do so would have been inconsistent with the other actions he had taken thus far and subsequently. Mr Gentle does not appear to have had a management style, at least as far as his Executive Team was concerned, of being particularly interventionist or disposed to formal discipline. Although he spoke to Mr Toop and advised him to take some overdue leave Mr Toop did not understand, nor does it appear that Mr Gentle intended, that to be disciplinary action. Ms Crummer was however, pleased with the management action taken to send Mr Toop on leave and have him speak to a mentor. In the circumstances Mr Gentle took reasonable management action in a reasonable way. [124] The third incident complained of by Ms Crummer is Mr Toop's attempt to arrange to meet with her on 12 August 2008. I accept his evidence that he was not abusive or threatening on this occasion. There was no cause for him to be so. He had just returned from two weeks leave where he had sought guidance on how to respond to the situation with Ms Crummer. He was attempting to act on that advice by initiating contact and suggesting an informal discussion in a setting away from work. In any event this incident did not involve any management action, that is, action taken by Ms Crummer's managers or the human resources staff. [125] There is no doubt that in the next incident, the meeting of 27 August 2008, Mr Toop behaved most inappropriately. I do not accept, as was said by Ms Hartnett and Mr Gentle, that it was just a frank exchange of views between executives. While Mr Toop denied pointing at Ms Crummer he said he had raised his voice. I have previously commented on the effect of that. He also acknowledged using foul language but denied swearing at Ms Crummer. There may be a difference but regardless of that the effect is still offensive behaviour which humiliated Ms Crummer and denigrated her in front of her colleagues. The conduct can also be construed as aggressive. [126] Mr Gentle's intervention was directed at telling both Mr Toop and Ms Crummer to stop and shutting the meeting down but he took no further action at that time in relation to Mr Toop's use of foul language and aggression. He did not counsel or warn Mr Toop that his use of foul language was offensive and humiliating. His omission was therefore unreasonable. [127] Certainly, Ms Crummer was angry, forceful and spoke loudly. However, she did not swear, nor was she abusive or threatening in her behaviour. After Mr Toop told her that people "hate her fucking guts" Ms Crummer sought confirmation of this from Ms Hartnett who told her that she "could soften her approach". Even if that were true it was hardly an appropriate response to give a person who had just been verbally attacked and who was obviously shocked. [128] After the verbal altercation occurred the Executive Team meeting went ahead as planned. Although this was perhaps necessary because of Mr Gentle's imminent departure to Madrid it was unfortunate. The evidence supports the view that Ms Crummer remained distressed. I accept that may have been in part because of the bombshell Mr Gentle had dropped about Ms Love working for Ms Crummer but Mr Toop's behaviour was also a contributing factor. That Ms Crummer was distressed is also borne out by the actions of Ms Hartnett visiting Ms Crummer in her office and Mr Gentle's proposal to cancel his trip to Madrid. Again no mention was made by Mr Gentle or Ms Hartnett either then or later to Ms Crummer about accessing any recourse under the Global Ethics Policy. It was unreasonable on the part of Mr Gentle and Ms Hartnett not to have so advised Ms Crummer. [129] The incident did however cause Mr Gentle to ask Ms Hartnett to monitor the relationship between Ms Crummer and Mr Toop in his absence. Ms Hartnett emailed him on 6 September 2008 advising that relations between Ms Crummer and Mr Toop had been quite civilised at a management meeting held the previous day which Ms Crummer attended by telephone. Also as a result of the incident Mr Gentle raised the relationship with Mr Muttoni and Ms Wong when he was in Madrid and discussed the possibility of organisational changes being made within the region. I consider that Mr Gentle disclosed to Ms Crummer around 4 September 2008 his plans to make some organisational changes and this, together with his email of 5 September 2008 which indicated his acceptance of needing to get things fixed, tempered Ms Crummer's concerns about Mr Toop at the time. [130] I do not accept all of the proposition put on behalf of the Appellant that by his proposal to have Ms Love move to sales Mr Gentle ambushed Ms Crummer and Mr Toop with the intention of sitting back to watch what happened before he intervened. I accept that an ambush occurred given that Mr Gentle had discussed Ms Love's resignation with both Ms Crummer and Mr Toop the previous day. Ms Crummer was left with the understanding that Ms Love's resignation was going to be accepted. No discussion with her had occurred about Ms Love joining the sales team, which was Ms Crummer's responsibility. Ms Crummer had experienced some difficulties in having Ms Love cooperate with her in the past. Given this and her understanding of Mr Gentle's intentions it is entirely unsurprising that Ms Crummer would have reacted angrily and forcefully on being given -- 13 of 18 -- 14 the news of the proposal about Ms Love. Mr Gentle's email of 27 August 2008 where he apologised to Ms Crummer for not sharing his thoughts about Ms Love supports the view that Ms Crummer was ambushed. [131] To suggest though that the ambush was done to prompt an altercation between Mr Toop and Ms Crummer is simply not believable. From 10 July 2008 Mr Gentle had been attempting to develop closer working relationships between Mr Toop and Ms Crummer. The offsite meeting had only occurred two days earlier where agreements had been reached about the Divisions working more closely together. Discussions had also occurred previously about staff exchanges between sales and operations to foster greater understanding of each other's areas. The proposal regarding Ms Love was made in this context. It was raised in a clumsy way without real thought being given to the likely reaction but given the apparent peace reached at the offsite meeting it could not be seen to be an action designed to provoke an altercation between Ms Crummer and Mr Toop. [132] The remaining incident of harassment is said to be Mr Toop's approach to Ms Crummer on 28 August 2008, the day after he abused her. This of itself is not management action so does not need comment although I note that Mr Toop acknowledged that Ms Crummer might have wanted to avoid him given the events of the preceding day. This in itself is recognition that his conduct was inappropriate. [133] Ms Crummer reported the approach to Ms Hartnett who told Mr Toop that Ms Crummer did not want to communicate with him. It does not appear that Ms Hartnett reported the matter to Mr Gentle, however, her advice to Mr Toop was reasonable and appropriate action in the circumstances. 4.2 Management actions concerning alleged sabotage and allegations of lack of support [134] It is convenient to deal with the incidents of sabotage and those arising under Factor 2 together as they raise not dissimilar issues. [135] Although I do not accept that Mr Toop (or members of his team) engaged in sabotage the real issue is the action taken by management when issues were raised by Ms Crummer. In respect of the incident where the supplier alleged Mr Toop had told them not to deal with Ms Crummer and the sales team, Mr Gentle did not believe that of Mr Toop. Given that Mr Gentle had by that time temporarily transferred Mr Toop to New Zealand it was not unreasonable for him to be dismissive of the remarks and to be more concerned about the relationships into the future. [136] When the information Ms Crummer requested from New Zealand for the Shanghai conference was not provided by the due date Mr Gentle intervened. The information was then delivered promptly. No criticism can be levelled at Mr Gentle for this. [137] Where the matters identified as arising under Factor 2 required action by Mr Gentle, on the evidence presented, he responded and the concerns raised by Ms Crummer were resolved. Had they been of great significance the Commission would have expected these matters to have been addressed in the closing submissions of the Appellant. As they were not, and bearing in mind the summary given in 2.4 above, the Commission can only find that management's actions in respect of these incidents were reasonable and taken in a reasonable way. [138] Ms Crummer also complained that Mr Toop's actions left her no alternative but to take matters to Mr Gentle which further undermined her authority. However, the evidence from Ms Crummer is that even when she was in the position of Key Account Manager she regularly took issues to Mr Gentle for direction and resolution. That in part was due to the vacancy in the position of Sales Director from late 2006 but it nonetheless shows that Ms Crummer was not reluctant to take matters to Mr Gentle. Moreover, when Ms Crummer was Sales Director and referred matters to Mr Gentle he responded to them without criticism of Ms Crummer. The evidence of Mr Gentle shows that he was trying to be supportive of Ms Crummer, to develop her in the position of Sales Director and to have her succeed beyond that into higher positions in Checkpoint. [139] For the above reasons I am not satisfied that Mr Gentle failed to support Ms Crummer. 4.3 Management actions concerning Mr Toop's conduct and alleged failure to comply with company policy [140] This part of the Decision considers the issues raised under Factor 3, specifically, management actions taken in respect of Ms Crummer's attempts to have her concerns about Mr Toop's conduct addressed. Ms Crummer is critical of Mr Gentle, Ms Hartnett, Ms Wong and Mr Muttoni for failing to take appropriate action. This part of the Decision considers the actions taken or not taken, as the case may be, by these various managers. It also considers whether there has been any failure by those managers to comply with the Global Ethics Policy either individually or systemically. -- 14 of 18 -- 15 4.3.1 Actions of Ms Hartnett [141] Ms Crummer said that by 11 November 2008 she had raised her concerns about Mr Toop to Ms Hartnett on many occasions. Ms Hartnett did not support this view. Ms Hartnett maintained her belief that the issue between Mr Toop and Ms Crummer was not personal. For example, in respect of the telephone call of 11 July 2008 she understood there to be issues between departments but not personal issues and a frank exchange of views between senior managers occurred at the meeting of 27 August 2008. Ms Hartnett did not perceive that at any time Ms Crummer was making a complaint or reporting harassment and accordingly did not consider it relevant to raise the workplace policies concerning harassment or ethics. Put simply, she did not believe any harassment had taken place. [142] The evidence of Ms Hartnett shows that she did not ignore Ms Crummer's concerns or Mr Toop's conduct, particularly that of 27 August 2008. The evidence is that Ms Hartnett spoke to Mr Toop on 28 August 2008 to reiterate the need for both he and Ms Crummer to work together. [143] The actions of Ms Hartnett in relation to the Global Ethics Policy are considered under 4.3.4 Compliance with Company Policy as she was the responsible officer under this Policy. 4.3.2 Actions of Mr Gentle [144] It is clear from this Decision that Mr Gentle took a number of actions in response to Ms Crummer identifying concerns with Mr Toop. These included: • organising the offsite meeting; • directing Mr Toop to take two weeks' annual leave; • speaking to Mr Muttoni and Ms Wong about the situation between Mr Toop and Ms Crummer; • moving Mr Toop to New Zealand for a period; and • responding to requests for assistance (see matters raised under Factor 2). [145] These are concrete steps. Moreover, these actions by Mr Gentle were reasonable and taken reasonably. [146] It is true that at no stage did Mr Gentle reprimand Mr Toop about his conduct especially in relation to his outburst at the meeting on 27 August 2008. A prudent manager would have reprimanded an employee who behaved as Mr Toop did either immediately or shortly after the behaviour had occurred and required an apology to be issued to the affected employee. That Mr Gentle took neither path is a significant oversight and was unreasonable. [147] However, in my view the deteriorating relationship between Mr Toop and Ms Crummer was apparent to Mr Gentle who as a consequence transferred Mr Toop albeit temporarily to New Zealand. I reject his evidence that this was done only for the purpose of giving Mr Toop a perspective on sales and bringing he and Ms Crummer closer together. Mr Gentle had discussed the problem with Mr Muttoni and Ms Wong shortly after the toxic meeting of 27 August 2008. Mr Gentle could not transfer Mr Toop immediately given the incumbent of the position had not yet resigned but it took effect on 1 October 2008. His intentions about the relocation were flagged to Ms Crummer who was receptive. She was however annoyed by the email sent to staff announcing the move because she believed it presented the transfer as a positive outcome for Mr Toop and a negative outcome for her as she had lost responsibility for her sales staff in New Zealand. The reality was however, that although the organisational chart showed New Zealand reporting to Ms Crummer, Mr Gentle had, for the duration of Ms Crummer's tenure as Sales Director, been responsible for overseeing the New Zealand operations. No diminution to Ms Crummer's actual responsibilities occurred on Mr Toop’s transfer. Further, the email announced other organisational changes which meant that Mr Toop lost certain reports to Ms Nip, the Director of Finance. [148] By transferring Mr Toop, Mr Gentle was not only attempting to put geographical distance between Mr Toop and Ms Crummer but distance between them organisationally. Mr Toop would report to Mr Gentle who also took over the responsibility for the Operations Division. Whilst it could only be a short-term fix it was designed in part to give Mr Toop a clearer perspective and understanding of the sales division. Mr Gentle also believed that with him overseeing the Operations Division it would give Ms Crummer time to understand the functioning of that Division. He thought that the move would bring Ms Crummer and Mr Toop closer together. The need for each Division to better understand the other had been discussed in the offsite meeting and, Mr Gentle believed, by Ms Wong with Ms Crummer in July 2008. [149] Ms Crummer believed that Mr Gentle did not require her to interact with Mr Toop after 27 August 2008. It is not clear from the evidence why she held this belief. It came as a surprise to her when Mr Gentle indicated to -- 15 of 18 -- 16 her on 6 November 2008 that continued interaction was expected for the good of the business. Ms Crummer was seeking a permanent solution where she was not required to deal with Mr Toop again. [150] The evidence is that only limited interaction occurred between them after Mr Toop moved to New Zealand. However, the interactions which occurred after this time included Ms Crummer being told by a supplier that Mr Toop had said not to communicate with Ms Crummer or her team, the information required for the Shanghai conference not being supplied on time because of advice given by Mr Toop and a conference call in which Ms Crummer believed Mr Toop had injected himself unnecessarily. [151] Mr Gentle's responses to the first two mentioned matters were addressed earlier. The Commission found that in respect to both Mr Gentle took reasonable management action. [152] Mr Gentle did not share Ms Crummer's view about the third incident where Ms Crummer had alleged that Mr Toop had injected himself unnecessarily into a conference call, saying it was a matter relevant to the Operations Division about which Mr Toop had knowledge. Given the evidence about the nature of the issue Mr Gentle's response seems to have been reasonable. [153] Although it would have been wise for Mr Gentle to call Mr Toop to account after his outburst on 27 August 2008 to ensure a reasonable relationship with Ms Crummer could ensue, in my view it was not unreasonable for Mr Gentle to have expected and required continued interaction between Ms Crummer and Mr Toop. They were in charge of their respective Divisions and Mr Gentle had taken steps by organising the offsite meeting to clarify their roles to minimise tension between them. When that did not resolve the issues Mr Toop was subsequently relocated to New Zealand temporarily thereby reducing the opportunities for him to interact with Ms Crummer. As noted above, these were reasonable, concrete steps taken by Mr Gentle which were designed to foster appropriate interaction between Ms Crummer and Mr Toop. 4.3.3 Actions of Regional Managers [154] Ms Crummer also complains about the lack of action taken by Ms Wong and Mr Muttoni. I only have the evidence of Ms Crummer as to the discussions she held with them. It was her view that she was escalating her concerns by raising them, or having the opportunity to raise them, with these very senior managers. [155] With respect to her raising the issue with Ms Wong, this was done in a social setting. Although it was a meal between two professional colleagues it was not a forum where it could reasonably be expected that a formal complaint was being made. The return email from Ms Wong shows that she had not realised a complaint was being made or that she was necessarily being asked to intervene. In my view Ms Crummer was alerting Ms Wong to an issue and seeking her guidance. Ms Crummer was dissatisfied with Ms Wong's advice. The onus then returned to Ms Crummer if she had wanted to make a formal complaint to Ms Wong. Ms Crummer could have included that in her email to Ms Wong later that evening. As she did not, the Commission cannot accept that Ms Crummer made a complaint to Ms Wong which required her intervention. [156] Ms Crummer said that by being given the opportunity to discuss her concerns with Mr Muttoni she felt that the matter had finally been escalated and was a recognition that her problems had not been solved as at 3 November 2008. [157] Although he had difficulty believing it Mr Muttoni was obviously aware that tensions existed in the relationship between Ms Crummer and Mr Toop. It was reasonable for him to propose to meet with Ms Crummer to discuss the situation and regrettable that he did not attend the appointment. Because it is impossible to speculate on any outcome had the meeting occurred, I can only find Mr Muttoni's non-attendance at the appointment was a blemish, albeit a reasonably significant one. 4.3.4 Compliance with Company policy [158] It must be noted that at no stage prior to 11 November 2008 had Ms Crummer made any formal, written complaint about harassment or unfair treatment by Mr Toop to any more senior managers or to Ms Hartnett. Ms Crummer had raised concerns about Mr Toop in writing to Mr Gentle on 9 July 2008, alluded to those again in her email of 4 September 2008 following a telephone conversation between them around that date and told Mr Gentle in an email dated 27 October that she did not want Mr Toop dealing with her. However, she had not provided to Mr Gentle specific written details of her concerns about harassment by Mr Toop or other unfair treatment by him or those associated with him within the timeframe nominated in the Psychological or psychiatric claim information summary form. [159] Mr Gentle considered that Ms Crummer was "a strong lady" and "very assertive". He did not believe that Ms Crummer had been harassed nor did he believe that Ms Crummer had made repeated complaints about being harassed. It is said on behalf of Ms Crummer that Mr Gentle's views about Ms Crummer impaired his judgment -- 16 of 18 -- 17 about the impact that Mr Toop's conduct was having on her and further, the result was that Mr Gentle had no understanding of the behaviour that constitutes harassment or his obligation to address the issues. [160] It is important to note that around June/July 2007 staff of Checkpoint were trained in the Global Ethics Policy. The evidence shows that Mr Gentle, Ms Hartnett and Ms Crummer had passed an Ethics Test based on an understanding of the Policy. In Ms Crummer's email of 11 November 2008 to Mr Gentle she showed her understanding of the Policy by noting that it should have afforded her protection but Checkpoint had failed to follow it. [161] The Global Ethics Policy specifies that it is directed towards maintaining "a strong orientation and high level of care for each employee" and that "you have a right to expect courtesy and consideration from the Company and to be provided with a safe and healthy environment". The Harassment section of the Global Ethics Policy defines "Harassment" in terms of discrimination, harassment or intimidation based on particular attributes. It does not define the term "harassment" more generally such as being unwelcome conduct which would make a reasonable person feel offended, humiliated or intimidated. In addition the Policy does not set out a complaints process other than to state that if a person is being subjected to harassing behaviour then the person should report it to the Compliance Representative, Compliance Officer, Human Resources or the hotline. Ms Hartnett was the Compliance Officer for the purposes of the Policy. [162] Having reviewed the evidence I am not satisfied that Ms Crummer was subjected to ongoing incidents of harassment by Mr Toop. I accept that the remarks made by Mr Toop early in the telephone conversation on 11 July 2008 and his comments in the meeting of 27 August 2008 could be construed as harassment. They were unwelcome, designed to offend and humiliate. Ms Crummer also felt intimidated by them. The second incident also concerned Ms Crummer being denigrated in front of her colleagues. Stronger action needed to be taken by Mr Gentle against Mr Toop at the relevant times and the omissions in this respect were unreasonable. I am however satisfied that Mr Toop did not harass Ms Crummer after 27 August 2008, although I accept that his approach to her on 28 August 2008, while made with the best of intentions, was interpreted as another incident as harassment. I have previously found that the allegations of non-cooperation were not substantiated. [163] While I accept that when Ms Crummer raised concerns about Mr Toop with Mr Gentle in particular, she expected action to be taken, I do not necessarily accept that she was making a formal complaint of harassment. In addition, at no stage did she specifically report to Mr Gentle that she believed she was the subject of harassment on the part of Mr Toop. Ms Crummer had been trained in the Global Ethics Policy and was aware that the reports of harassment were to be made to Ms Hartnett. [164] Ms Crummer also did not make a written complaint or otherwise report to Ms Hartnett about being harassed by Mr Toop. At no time did Ms Crummer mention to Ms Hartnett that she was being harassed by Mr Toop. In those circumstances it would have been difficult for Ms Hartnett to specifically raise with Ms Crummer the Harassment section of the Global Ethics Policy. However, Ms Hartnett had been contacted late on 11 July 2008 by Ms Crummer and had witnessed Mr Toop's conduct on 27 August 2008 and the effect it had on Ms Crummer. After these two incidents I consider it unreasonable for Ms Hartnett not to have reminded Ms Crummer that the Global Ethics Policy required certain standards of behaviour from employees and she could make a complaint if she desired. [165] I acknowledge that on occasion Ms Hartnett also spoke to Mr Toop about his conduct, however, it would have been better had Ms Hartnett in that conversation reminded him about his obligations under the Global Ethics Policy. That she did not go so far is unfortunate but not unreasonable. 4.3.5 Contention of systemic failure by senior management about Ms Crummer's issues [166] It is contended that the repeated lack of action by senior management and human resource professionals in response to Ms Crummer's issues was evidence of a systemic failure to act. For the reasons given I cannot find evidence of systemic failure. Certainly, there were a few oversights by particular managers but nothing to suggest that Checkpoint as an organisation, or more specifically, senior management and human resource professionals as part of that organisation, failed to act in response to Ms Crummer's issues. 5. Conclusions [167] I have found the following omissions by managers of Checkpoint to be unreasonable: • the failure by Mr Gentle to properly discipline Mr Toop for his use of foul language and aggressive behaviour on 27 August 2008; • the failure by Mr Gentle to advise Ms Crummer that she could make a complaint under the Global Ethics Policy in respect of Mr Toop's conduct on 27 August 2008; and -- 17 of 18 -- 18 • the failure by Ms Hartnett to advise Ms Crummer that she could make a complaint under the Global Ethics Policy in respect of Mr Toop's conduct on 11 July and 27 August 2008. [168] I have also found that Mr Muttoni's failure to attend the scheduled appointment with Ms Crummer in Shanghai was a significant blemish although not unreasonable. [169] In addition I have found that it was reasonable for Mr Gentle to expect some communication between Mr Toop and Ms Crummer, and he took a number of concrete steps to minimise the interaction between them. The steps taken included those identified in [144] above and were in response to Ms Crummer identifying concerns or personally witnessing Mr Toop's conduct. They were all reasonable management actions taken in a reasonable way and met with the approval of or acceptance by Ms Crummer at the time. [170] Most of the matters complained of by Ms Crummer in this appeal concern omissions on the part of various managers. They have been raised in relation to s. 32(5) of the WCRA which excludes an injury from s. 32(1) where the injury arose out of, or in the course of, reasonable management action taken in a reasonable way. The Appellant has submitted, and the Commission has accepted, that the management action should be assessed globally. In considering the management action on this basis I find that, for the reasons given, while there were some unreasonable management actions by omission, overall and in the main, the management actions were reasonable and where taken, were done in a reasonable way. A global consideration leads to the conclusion that the injury is withdrawn from s. 32(1) because of the operation of s. 32(5) of the WCRA. [171] Accordingly, I make the following Orders: • The appeal is dismissed. • The decision of the Review Unit, Q-COMP dated 31 August 2009 is confirmed. • The Appellant pay the Respondent's costs to be agreed or failing agreement, to be the subject of a further application to the Commission. [172] Order accordingly. G.K. FISHER, Commissioner. Hearing Details: 2009 11 December 2010 9-12 February 16 and 17 March and 9 April Released: 26 May 2010 Appearances: Ms L. Vanderstoep, Counsel instructed by Mr R. King, Milner Lawyers for the Appellant. Mr S. Gray, Counsel instructed by Ms C. Shedden, Q-COMP for the Respondent. -- 18 of 18 --