Australian Language Schools Pty Ltd v Q-COMP [2009] QIRC 20

CITATION: Australian Language Schools Pty Ltd AND Q-COMP (WC/2009/69) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 appeal to commission Australian Language Schools Pty Ltd AND Q-COMP (WC/2009/69) COMMISSIONER THOMPSON 21 December 2009 Workers' Compensation and Rehabilitation Act 2003 - Alleged bullying and harassment - Termination of employment - Reasonable management action taken in a reasonable way - Q-COMP review set aside - Claim for compensation not one for acceptance. DECISION [1] A notice of appeal was filed with the Industrial Registrar on 17 August 2009 by Australian Language Schools Pty Ltd (appellant) pursuant to s. 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Review Unit, Q-COMP, dated 16 July 2009. [2] In terms of background, Ms Carolyn Page (the claimant) was employed by the appellant for the period of May 2007 until November 2008. On 21 November 2008, the claimant lodged a claim with WorkCover Queensland for a psychological injury said to have occurred over time, but most recently on 20 and 21 October 2008. In correspondence dated 13 January 2009, WorkCover Queensland advised the claimant that her application had not been accepted as it was found that an injury as outlined in the Act at s. 32 had, in this case, not been sustained in the course of her employment. WorkCover Queensland informed the claimant that payment would not be made for services utilised by her in respect of the application for compensation. [3] The claimant, on 6 April 2009, lodged with Q-COMP an application to have the decision of WorkCover Queensland reviewed. On 16 July 2009, a decision was made by Q-COMP to set aside the decision of WorkCover Queensland and to substitute another decision to accept the claimant's application. Relevant Legislation [4] The Commission, in the determination of this appeal, considered the relevant section of the Act, which was s. 32, and in particular, s. 32(1) and (5): "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 subsection (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances - (a) reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment; (b) the worker’s expectation or perception of reasonable management action being taken against the worker; (c) action by the Authority or an insurer in connection with the worker’s application for compensation. 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". -- 1 of 12 -- 2 Onus of Proof [5] Where an employer is the appellant, the burden of proof falls upon the employer. In the matter of Qantas Airways Limited v Q-COMP1, Blades C summed up the situation in the following terms: "… [an employer is required to] raise by way of admissible evidence, those matters upon which it relies to escape liability. The worker is not a party to these proceedings so it is probably not right to say that the worker has any onus of proof but the factual situation must be found to exist as it will bring the worker within the provisions of the Act. That factual situation must be on the balance of probabilities.". [6] Deputy President Bloomfield, in the matter of Hastings Deering (Australia) Limited v Q-COMP2 found that, in circumstances not dissimilar to this appeal: "Because the matter is a hearing de novo, not a review of Q-COMP's decision, it is also necessary for Q-COMP to establish on the balance of probabilities that the worker did suffer a personal injury that arose out of, or in the course of, his employment and that the employment was a significant contributing factor. It is also necessary to establish that the exceptions at s. 32(5) do not apply such as to withdraw the injury from the operation of the Act.". Witness Lists Appellant Ms Stacy Han Mr Tae Kyu You Ms Vicki Hallettt Ms Caroline Thlang Mr Daryl Blumel Q-COMP Ms Jane Woodland Ms Carolyn Page Dr Bradley Ng Ms Julie Cork Appellant Han [7] Stacy Han, a Director of the appellant business from January 2008 until July 2009, gave evidence relating to the establishment of the business in 2006, and of the highly competitive nature of the industry. The claimant was appointed to the position of College Director on 21 January 2008, with the first duty of the role being described by Stacy Han as "to oversee the college on a day to day basis, provide clear direction for senior staff". At the time of appointment, Carolyn Page was said to have informed the appellant that her relationship with Daryl Blumel (who would report to her in the new role) was quite strong and healthy and would not be a problem. [8] A focus on the business at that time was to increase student numbers and market share which saw Carolyn Page embark on an overseas trip aimed at increasing those numbers. According to the witness, whilst the marketing trip was unsuccessful, no blame was apportioned to Carolyn Page. When Carolyn Page devoted time to marking matters, Daryl Blumel would handle the daily issues in terms of the running of the school as well as managing the academic staff. [9] Daryl Blumel was respected by staff, but the witness was of a view that he never received proper support or assistance from Carolyn Page. The emergence of conflict between Carolyn Page and Daryl Blumel came to the attention of the Board in or around May 2008 when Carolyn Page suggested that an outside consultant be engaged to investigate issues said to be negatively influencing the organisation and culture. At the time of engagement, Stacy Han acknowledged that she had raised with the consultants the relationship between Carolyn Page and Daryl Blumel (Transcript page 2-21, line 10). Having engaged a consultant, a report was furnished to the Board on 20 June 2008. The report went to the issue of the business growth and the difficulties being experienced as a result of increased student numbers. 1 Qantas Airways Limited v Q-COMP (2005) 181 QGIG 301 2 Hastings Deering (Australia) Limited v Q-COMP (2005) 185 QGIG 310 -- 2 of 12 -- 3 [10] Stacy Han gave evidence of being advised (verbally) by the author of the report that the relationship between Carolyn Page and Daryl Blumel was negatively impacting on the business and that a strong message be given to both employees to resolve their problems. The Board directed both employees to improve their behavioural conduct and assurances were received that the working relationship would be improved through better lines of communication. [11] On 21 October 2008, Carolyn Page contacted the witness over a serious heated argument between Daryl Blumel and herself. Whilst the witness did not respond in writing to the email from Carolyn Page, she gave evidence that verbal communication occurred around the incident (Transcript page 2-26, line 55). The Board acted quickly, directing Daryl Blumel to take leave although he returned for a couple of days to assist with the National English Language Teaching Accreditation System (NEAS). [12] Stacy Han, in evidence, said that Carolyn Page initially was fine with Daryl Blumel coming in for the audit whilst on his (enforced) leave (Transcript page 2-14, line 28). Carolyn Page later indicated she was not happy to see Daryl Blumel back in the workplace. Whilst Daryl Blumel was on leave, Carolyn Page was alleged to have informed two of the teaching staff that he would not be returning. The actions of Carolyn Page, in this case, were seen by the appellant as serious misconduct. [13] On 6 November 2008, letters of termination were prepared for both Carolyn Page and Daryl Blumel, with Tae Kyu You verbally informing Carolyn Page on 5 November 2008 that her employment was to cease. Stacy Han gave evidence of considerations by the Board leading up to the termination of the claimant. In re-examination, Stacy Han, whilst not being present at the termination meeting between Tae Kyu You and the claimant, gave evidence in respect of Korean culture and how that would effect such a meeting (Transcript page 2-39, line 50). [14] The following day, Carolyn Page submitted to the appellant sick leave documentation. At that time, the Board was not aware of any prior psychiatric or psychological condition affecting the claimant. Tae Kyu You [15] The witness was said to have limited English language skills to the extent that an interpreter was required to facilitate the evidence of the witness in the proceeding. [16] Tae Kyu You had been a Director of the appellant business since it was established in 2007. He gave evidence of becoming aware of difficulties between Carolyn Page and Daryl Blumel in April or May 2008 and the Board's directive for the two to resolve the issues between them. Following the report from outside consultants provided in June 2008 a meeting was held between the Board, Carolyn Page and Daryl Blumel where they were informed that if their work relationship did not improve then both may be sacked. [17] Tae Kyu You gave evidence of being informed of a dispute between Carolyn Page and Daryl Blumel on 20 October 2008 at which time the Board decided to separate the two by sending Daryl Blumel on holidays. At that time, there was no decision made in respect of Carolyn Page, although the Board was unhappy with her performance in managing and controlling the situation. The Board had, according to the witness, previously lost confidence in Carolyn Page regarding her marketing activities, however hoped her administration skills would benefit the business. [18] The witness acknowledged that he had been a significant investor in the business for reasons relating to gaining permanent residence in Australia and had considered selling out in November 2008 (Transcript page 2-57, line 5). [19] Tae Kyu You gave evidence, in cross-examination, of receiving emails from Carolyn Page on 21 October 2008 and of conducting an investigation into the matters raised by her. He did not accept that Carolyn Page, at the time, was frightened of Daryl Blumel, but agreed that she did not want to have contact with him (Transcript page 2-60, line 25). [20] A decision had been made to terminate Daryl Blumel's employment, however due to the issue of accreditation, the decision had not been implemented whilst a replacement person was being sought. On 5 November 2008, he had a meeting with Carolyn Page over coffee where he informed her that the school could not continue to work with her. Due to the English language barrier between the pair, he could not remember the details of the 5 November 2008 conversation, although he did have some recall in respect of raising with Ms Page the previous warning given to her (Transcript page 2-65, line 35). Carolyn Page, the witness acknowledged, had raised a three month notice period being an entitlement when the employment was terminated. -- 3 of 12 -- 4 Hallett [21] Vickie Hallett had been employed as a Senior Teacher with the appellant business since July 2007 and, at times, had acted in the role of Director of Studies. Her teaching background was that of 30 years as a high school teacher which included employment at two schools at the same time as Daryl Blumel. From the commencement of employment with her current employer, she noticed that the expectations placed on Daryl Blumel were "beyond acceptable" and she did, over time, make an effort to "lighten the load". [22] The witness gave evidence relating to the appointment of Carolyn Page as College Director and offered an opinion of her work performance in that role which was less than complimentary. The witness, on one occasion, had overheard an argument between Carolyn Page and Daryl Blumel where, in front of staff, Daryl Blumel was told to "shut up". Whilst the witness was not privy to the incident on 21 October 2008 between Carolyn Page and Daryl Blumel, she later, through Carolyn Page, became aware that Daryl Blumel was to be terminated. Teachers at the school were said to be upset at the decision to terminate Daryl Blumel's employment which led to her raising the matter with Tae Kyu You. Thlang [23] Caroline Thlang is currently employed as an enrolment officer, having commenced employment with the appellant business in January 2008. Her evidence went to witnessing, on occasion, arguments between Carolyn Page and Daryl Blumel, including the incidents on 20-21 October 2008. On 20-21 October 2008, the arguments were directly in her area of work and she informed the proceedings that Daryl Blumel was loud and "a little bit angry" (Transcript page 2-78, line 40). Comments were said to have been made by Daryl Blumel that were unprofessional and, to a lesser extent, Carolyn Page, in telling Daryl Blumel to "shut up", was also unprofessional. The witness did not believe that Carolyn Page held her ground in the arguments (Transcript page 2-79, line 20). In relation to the previous incidents between the two, she acknowledged that Daryl Blumel had escalated matters by becoming agitated. Caroline Thlang recalled a meeting with the outside consultant in 2008 where she was questioned about the relationship between Carolyn Page and Daryl Blumel. Blumel [24] Daryl Blumel is currently the Director of Studies at the Southbank Institute of Technology in the English language section. He had previously been employed by the Australian Language Schools between May 2007 and October 2008. On commencement, both he and Carolyn Page held equivalent positions, albeit in different streams. The working relationship was initially good and without incident. [25] In the early stages, he attended a number of marketing meetings along with Carolyn Page, but later dropped off after disagreeing with some strategies put forward by Carolyn Page. [26] On hours of work, he gave evidence that his original hours of 8.30 a.m. to 5.00 p.m. were varied, by agreement, to allow him to start and finish earlier. Whilst commencing early, he became involved in a range of administrative tasks that were not within his list of duties. The failure of Carolyn Page to commence work before 9.00 a.m. had not assisted with the early morning activities at the school. [27] The relationship between himself and Carolyn Page started to deteriorate around July 2007 when he became concerned with her conduct in respect of talking about staff and directors in a less than positive way. Upon the engagement of outside management consultants in April 2008, he was interviewed in the course of the review where he informed the interviewer that whilst he liked his job, he was not happy and had no respect for Carolyn Page. On completion of the review, he was required to attend a meeting at the Sofitel Hotel with Stacy Han, Tae Kyu You, Carolyn Page and others. According to his evidence, both he and Carolyn Page were told to resolve their issues and work together otherwise their jobs may be under threat. Assurances were given to the directors that the situation would improve and whilst they met regularly for the next month, the situation returned to normal. [28] In October 2008 he stated that due to an accreditation process at the school, both he and Carolyn Page were under a deal of stress. The witness offered an opinion that Carolyn Page was stressed during the whole time she was at the school and that there were out of work factors impacting on her. On 20-21 October 2008, there were incidents involving himself and Carolyn Page which resulted in voices being raised in the presence of others. The incidents were said to have been sparked by a spillage in the kitchen area and of it not being immediately cleaned up. The situation was regarded by the witness as a workplace health and safety issue. A confrontation had occurred that involved finger pointing by Carolyn Page and of her telling him to "shut up". [29] He denied he was abusive towards Carolyn Page, however acknowledged that he had spoken loudly. He had a view that Carolyn Page had tried to provoke him and at some stage a male employee had grabbed him and threw him into a wall (Transcript page 3-40, line 50). Carolyn Page had threatened to call the Police if he did not leave -- 4 of 12 -- 5 the area. He accepted that Carolyn Page had been upset by what had occurred (Transcript page 3-41, line 55). The employee who had restrained him accompanied him to his office where he packed his bag and left the building. [30] The witness indicated that at the time there were a number of factors (work related) that had led to his frustrations (Transcript page 3-42, line 1). All of the issues that had caused his problems should have been addressed by Carolyn Page in the previous 10 months (Transcript page 3-45, line 30). The witness did not attend work the next day and gave evidence of being contacted by the employer and told to stay home on full pay through holiday leave provisions. A meeting was later held with Tae Kyu You where he was told that as a result of his inappropriate behaviour towards Carolyn Page, he was being terminated. A letter of termination was provided by the employer. Q-COMP Woodland [31] Jane Woodland a self-employed Human Resources consultant was engaged by Julie Cork and Associates to assist with a review of Australian Language Schools. The brief related to concerns held by the College Director and the Board that there were tensions emerging between staff. The school had grown quickly and continued to grow at a similar rate. The brief was seeking independent advice to make the organisation perform better. [32] On 23 May 2008 Julie Cork and the witness met with Stacy Han to discuss the approach they intended to take and to request that all staff be emailed advising of the review. The witness identified the specific issue to be addressed was to identify any issues causing tension between staff given the rapid growth of the organisation. The brief contained no information about tensions between Carolyn Page and Daryl Blumel. [33] The first person interviewed was Daryl Blumel who was the most senior person present at the commencement of the review. Daryl Blumel spoke of how Carolyn Page had exercised the duties of her role and indicated that he disagreed with the way she performed some facets of the role and that he may have done things differently. In the course of the interview, the witness, as a result of Daryl Blumel's comments, acknowledged that there were tensions in the working relationship between the pair. The witness had found Daryl Blumel to be quite passionate, demonstrative and sometimes emotive when he spoke of his work (Transcript page 3-50, line 40). [34] On the two instances she spoke to Carolyn Page she found her to be a reserved and conservative person. [35] In total, 11 other staff were interviewed in the process. Whilst there was an absence of specific criticisms there was recognition of tension with both parties believing that the working relationship could be rebuilt and of being prepared to make the effort. The witness did not detect any problem with Daryl Blumel and other staff. The report was required to be sensitive in its working so that on the handover of the report, a verbal suggestion was made to Stacy Han that there be regular formal meetings between Carolyn Page and Daryl Blumel. [36] Further verbal advice was given to Stacy Han that the Board meet separately with the pair and make expectations clear in respect of roles and responsibilities. Advice was received at the meeting from Stacy Han that the Board would meet the pair together and not separately. [37] Jane Woodland disagreed with the evidence of Stacy Han that the real issue at the time was said to be the relationship between Carolyn Page and Daryl Blumel and indeed recalled advising Stacy Han that the tension in that relationship was just one of several issues that needed to be addressed. In cross-examination, the witness acknowledged that in her dealings with Stacy Han, she never got the impression that either Carolyn Page or Daryl Blumel were under the threat of termination (Transcript page 3-52, line 40). On businesses that grow quickly, the witness acknowledged that there was often a lack of clarity around roles and responsibilities (Transcript page 3-55, line 35). Page [38] Carolyn Page's evidence-in-chief consisted, in part, of a WorkCover statement made by her on 21 November 2008. The claimant had, according to the evidence, been subjected to repeated incidents of verbal abuse from a co-worker (Daryl Blumel) since March 2008 but in the claim for WorkCover only relied upon the most recent incidents on 20-21 October 2008. On 20 October 2008 the claimant was said to have been verbally abused by Daryl Blumel at around 8.45 a.m. in front of numerous other staff members. On 21 October 2008 the claimant emailed an incident report at 7.30 a.m. (in respect of the 20 October 2008 incident) suggesting that a formal warning be given to Daryl Blumel. At 10.19 a.m. on the same day, Stacy Han thanked the claimant for the report and advised of an intention to review the incident. Later on 21 October 2008 at around 1.00 p.m. a more serious incident was said to have occurred where the claimant feared she may have been physically struck by Daryl Blumel. According to the WorkCover statement, Daryl Blumel had been physically restrained by another -- 5 of 12 -- 6 male staff member whilst continuing to scream abuse at her. The claimant had threatened to call the Police to remove Daryl Blumel from the area. [39] At around 1.30 p.m., the claimant forwarded a text message to Stacy Han advising of what had occurred some 30 minutes earlier. An incident report was emailed by the claimant to Stacy Han and Tae Kyu You at around 3.08 p.m. which contained advice that the claimant had taken immediate action to cover the period of Daryl Blumel's absence following what was said to be a verbal resignation given by him at the time of the altercation. [40] On how she felt at the time of the 21 October 2008 incident, the claimant stated that she was turbulent on the inside and very upset (Transcript page 3-71, line 28). The Board at that time did not wish to take immediate action against Daryl Blumel due to the NEAS accreditation process which would require meetings involving both the claimant and Daryl Blumel. Stacy Han was said to have informed the claimant that Daryl Blumel would be taking 2 weeks' leave and only coming in when required for the accreditation. The claimant stated that Daryl Blumel returned for 4 days in that 2 week period. [41] On the first of those days, 23 October 2008, the claimant took a sick leave day and on at least one other day sought to have approved absence to attend a training session. There was no reply to that request. On 29-30 October 2008, the claimant avoided Daryl Blumel whilst he was in the workplace having only brief professional discussions when necessary. On seeing Daryl Blumel on 31 October 2008 the applicant was said to have experienced anxiety forcing her to leave the building. [42] On 5 November 2008, the claimant visited a Doctor (appointment made on 3 November 2008) and was given time off work up to 14 November 2008. The claimant attended work on 6 November 2008 to deliver the medical certificate covering the period of her proposed absence. [43] The remaining evidence-in-chief from the claimant was given orally in the proceedings. On 15 May 2008 the claimant provided confidential correspondence to Stacy Han which led to the engagement of the outside consultants. In the correspondence, 3 issues were identified by the claimant in the following form: "The are 3 obvious signs of the current problems with our structure (1) The outbursts and unacceptable behaviour of the current DOS; (2) Sally's resignation (I believe the concept was right ie. a position with a range of responsibilities but the selection process was obviously wrong); (3) The dilemma about my going overseas without having a leadership team we/I have confidence in.". [44] The claimant had no recollection of being formally counselled on 24 June 2008 about her behaviour and of being informed that her employment would be terminated if her behaviour did not improve (Transcript page 3-74, line 15). [45] From the period 24 June to 20 October 2008 the relationship between the claimant and Daryl Blumel was described as amicable on the surface and fairly professional (Transcript page 3-74, line 45). The claimant refuted a number of claims made by Daryl Blumel in his evidence as it related to her personal circumstances (Transcript page 3-76 and 3-77). At the request of Tae Kyu You, a meeting was held at an offsite coffee shop on 5 November 2008 where the claimant was informed that Tae Kyu You believed that he had been misled by a Business Migration Agent as the business was not making money and that he had tried to sell the school. The claimant was informed that Daryl Blumel had been fired earlier that day and she was being let go as well. The claimant understood the decision to let her go was for business reasons and accepted that if the business was in financial difficulties, it was reasonable that the cost of higher salaries be cut. [46] Tae Kyu You was informed that notice was required, in writing, and that 3 months notice and "some sort of payment" would have to be made (Transcript page 3-80, line 40). The claimant said that she had jokingly stated that the business may get a letter from her solicitor about the notice issue. The claimant offered to participate in the handover process. [47] Later that day, the claimant visited her General Practitioner (GP) and was given time off work. The next day she brought a medical certificate to the school and handed it to the finance officer. The claimant was shocked to find out that the staff had been called together the previous day and informed that Daryl Blumel and herself had been fired. [48] On 10 November 2008, a letter (dated 6 November 2008) of termination was received by the claimant advising that her employment had been summarily terminated for serious misconduct. -- 6 of 12 -- 7 [49] In cross-examination, the claimant was questioned extensively about the detail provided to WorkCover in support of the claim for compensation. In relation to the meeting held on 24 June 2008, the claimant accepted that the directors had told her that she had to work together with Daryl Blumel. The claimant rejected the evidence of Daryl Blumel that she generally arrived at work around 9.20 a.m. The claimant did not believe that she breached confidentiality by informing Vickie Hallett that Daryl Blumel would not be returning, having been told that by Stacy Han. [50] The claimant had limited recall in respect of information relating to her consultation with Dr Bradley Ng on 11 September 2008. [51] Note: There was significant legal argument around the consultation with Dr Ng and the claimant's recall in the re-examination stage of her evidence. Ng [52] Dr Bradley Kok Weng Ng, a consultant psychiatrist, conducted an examination of Carolyn Page at the behest of WorkCover Queensland on 11 September 2009. A medical report (Exhibit 18) was provided by Dr Ng on 16 September 2009. Under the heading of "Summary Assessment" at page 5 of the report, Dr Ng stated: "It would appear that after the employment issues in November 2008, Ms Page developed significant anxiety symptoms consisting of generalised anxiety and avoidant behaviour following her dismissal from her employer, Australian Language Schools Pty Ltd. There appeared to be no depressive symptoms or history suggestive of a major depressive disorder or adjustment disorder with depressed mood. However the anxiety symptoms, although quite circumscribed, and her avoidant were significant enough to stop her looking for work. In my opinion she would fulfil the criteria for an Adjustment Disorder with Anxiety, moderate severity. Whilst the severity has only been moderate, it seems to have had a disproportionate effect on her work functioning. Her account would suggest an unfair dismissal but I only have her account alone. I also note that she works in a reasonably specialised field so finding employment may have been challenging anyway without her anxiety problems.". [53] The diagnosis was said to be based on a clinical assessment only with no further tests or investigations required. On the relationship of the current diagnosis to the stated mechanism of injury, Dr Ng, at page 6 of the report, made the following observation: "Ms Page gives a history suggestive of wrongful dismissal. There may have also been issues of workplace bullying and harassment. In my opinion her Adjustment Disorder arose out of these two employment stressors and there is a direct relationship between them.". [54] Dr Ng accepted the proposition (in cross-examination) that besides documentation provided by WorkCover that he relied heavily on the history as relayed by the presenting patient and that he did not make any independent investigations beyond that history (Transcript page 4-33, line 35). In relation to workplace bullying and harassment, Dr Ng gave evidence that he had accepted at face value the account given to him by Carolyn Page (Transcript page 4-36, line 54). [55] In respect of the issue of patient history, it was, according to the witness, "standard to use the persons account" (Transcript page 4-37, line 25). Further to the history provided to the witness by Carolyn Page, it was suggested in cross-examination that in the report Dr Ng, in respect of the wrongful dismissal claim, had been cautious or tentative of that history. Dr Ng stated: "There was a degree of caution given to this probably because of the information I have received and the - and only having the patient's account of the situation. There's always the possibility of having more information present which would change that view" (Transcript page 4-42, line 40). [56] The same consideration was given to the issues of workplace bullying and harassment (Transcript page 4-43, line 1). In a question that was of some controversy in the cross-examination stage of the witness' evidence, it was asked if the Commission was to find that there had not been any workplace harassment and bullying, would the one employment stressor be that of wrongful dismissal. Dr Ng's response to the question was that if the Commission was to find that there was no evidence of bullying and harassment, that did not mean that there were not any workplace stressors that could have contributed to the symptoms of depression and anxiety (Transcript page 4-47, line 35). Cork [57] Julie Cork, the final witness for Q-COMP, was the sole trader and manager of the business engaged by the appellant business to review their operation in May 2008. Julie Cork's personal involvement in the review -- 7 of 12 -- 8 process was to oversee the process and to meet with the employer representative at the commencement and finalisation of the review. Evidence was given that Jane Woodland had been engaged as a subcontract human resource consultant with a role that required her to meet with the staff. The claimant was "vaguely" known to the witness on the basis that the claimant's husband had previously worked with Julie Cork. [58] In the setting up of the engagement several emails were said to have been exchanged between Carolyn Page and the witness that according to the witness left an impression that there was some tension between Carolyn Page and another staff member who had been described as male and in some form of leadership role. In discussions with Stacy Han around the issues to be considered in the review, there was mention of Carolyn Page and Daryl Blumel's circumstances but this was not to be a main issue of the brief. Whilst Jane Woodland physically conducted staff interviews, there were regular meetings between the two as the review progressed. At the conclusion of the review, Julie Cork and Jane Woodland met with Stacy Han where they discussed, at length, the findings of the review and in the course of those discussions made the suggestion that the Board meet separately with the claimant and Daryl Blumel to clarify their respective roles. The witness could not recall identifying any other problems with respect of Daryl Blumel and interpersonal problems. Submissions Appellant [59] Mr Fisher provided to the Commission written submissions and exercised the option of making oral comment, in addition to the written material. [60] The written submission dealt with a number of jurisdictional matters, including: • Claimant a worker within s. 11 of the Act; • Claimant must sustain an injury within the meaning of s. 32 (and s. 108(1)) of the Act; • Injury must be a personal injury - s. 108(1) (and s. 32(1)) of the Act; • Employment must be a significant contributing factor - s. 108(1) (and s. 32(1)) of the Act; • Injury to the claimant must arise out of or in the course of the claimant's employment - s. 108(1) (and s. 32(1)) of the Act. [61] The matters of factual dispute were said to centre around four critical events: • Meeting of 24 June 2008; • Role of consultants; • Incidents of 20-21 October 2008; and • The claimant's termination on 5 November 2008. [62] The meeting of 24 June 2008, according to the evidence of 3 witnesses (Tae Kyu You, Han and Blumel), dealt with the problems that existed between the claimant and Daryl Blumel and acknowledged that there was a threat of job losses if the relationship did not improve. The claimant's evidence was in dispute with that offered by the other witnesses. The evidence differed markedly in terms of what was said to have occurred on 20-21 October 2008, however what did clearly happen as an aftermath was that Daryl Blumel was sent away for two weeks' enforced leave (holiday leave) but was required to come in on occasions to assist with the accreditation audit. [63] Stacy Han, whilst not responding to the claimant's emails on 20-21 October 2008 in writing, addressed the issues in a "face to face" meeting. [64] The submission dealt with the evidence of Tae Kyu You, Vickie Hallett, Caroline Thlang and Daryl Blumel, highlighting various aspects of their evidence. The account of the 5 November 2008 meeting between Tae Kyu You and the claimant was said to be reinforced in the letter of termination forwarded to the claimant on 6 November 2008. Vickie Hallett had, in her evidence, stated that the claimant had informed her that Daryl Blumel would not be returning to work, some 1 or 2 weeks prior to his termination and her evidence was not shaken in cross-examination. Daryl Blumel was described as a witness with "no self intent" in the matter and was clear in his recall of the meeting where both he and the claimant where put on notice that unless they worked together, their jobs were under threat. -- 8 of 12 -- 9 [65] The evidence of the claimant was said to be overstated in respect of the events of 20-21 October 2008. The statement of the claimant to WorkCover and the evidence of the claimant were not of a nature where the Commission could be satisfied to the content of verbal abuse on 20-21 October 2008. [66] On the engagement of the outside consultants, it was said that the genesis for that engagement was the "confidential" correspondence of the claimant forwarded to the directors on 15 May 2008. The correspondence contained no real reference to the extent of the complaints relating to the relationship with Daryl Blumel. [67] The witness evidence did not present a situation where the Commission could find that the claimant had developed a symptomatology associated with anxiety disorder prior to her dismissal. The claimant herself was described as an unsatisfactory witness. [68] There were questions raised in respect of Dr Ng's evidence where he had made reference to the employment issues said to be related to the claimant's medical condition. [69] The concluding comments went to the history of the management action that was said to have spanned the period May to November 2008 when both the claimant and Daryl Blumel had their employment terminated. The heart of the case was said to be around the unfair dismissal by dressing it up as a psychological injury case which respectfully the evidence did not support. The written submission addressed the matter of costs should the appeal be successful. [70] Attached to the written submissions were a number of authorities for the consideration of the Commission which included: • Yan Qin Zhen v Minister for Immigration & Multicultural & Indigenous Affairs 3 • Parker v Q-COMP4 • Q-COMP v Hohn5 • Q-COMP v Parsons6 • Q-COMP v Education Queensland7 • Prizeman v Q-COMP8 • Ivers v McCubbin & Ors9 • Ivers v McCubbin & Ors10 • Coombes v Q-COMP11 Q-COMP [71] The first part of the Q-COMP submissions went to matters raised by the appellant in the course of their submissions. The Commission was not, in this matter, being asked to find whether or not there was bullying and harassment, but in effect to find if "certain things" occurred on 20-21 October 2008 and do they have a role in the claimant's compensation. [72] The credibility of the claimant was questioned in respect of her power of recall being both incomplete and selective when relating the consultation with Dr Ng. Dr Ng, at the time, had recorded what had been told to him and the cross-examination of the claimant did not expose any meaningful inconsistencies in the conflicts evidenced by the claimant. There were criticisms made of Dr Ng's evidence because he had not set out the DSM criteria for the condition he had diagnosed. That argument is rejected by Q-COMP on the basis that Dr Ng was an expert witness with his particular field of expertise being the diagnosis of psychiatric conditions. It was accepted that the opinion of Dr Ng was only as good as the history given to him by the claimant, however unless it can be shown (and it was not) that history was deficient, then the Commission should not put aside his diagnosis. [73] 5 November 2008 was an important day in that the claimant consulted her doctor to related to the doctor as to how she was feeling on the day. 3 Yan Qin Zhen v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 874 4 Parker v Q-COMP [2007] 185 QGIG 269 5 Q-COMP v Hohn [2008] 187 QGIG 139 6 Q-COMP v Parsons [2007] 185 QGIG 1 7 Q-COMP v Education Queensland [2005] 179 QGIG 491 8 Prizeman v Q-COMP [2005] 180 QGIG 481 9 Ivers v McCubbin & Ors [2005] QCA 200 10 Ivers v McCubbin & Ors [2004] QSC 342 11 Coombes v Q-COMP [2007] 186 QGIG 680 -- 9 of 12 -- 10 [74] Putting aside what was described as the "usual explicable inconsistencies", the evidence of Daryl Blumel agreed with the substance of what had occurred between himself and the claimant. [75] The argument that the Commission should make a finding premised on the claimant not reporting any of the symptoms prior to 20 October 2008 should be disregarded for the simple reason that the claimant was dealing with the situation. The suggestion that the Commission should make a finding that there were personal issues, outside of the workplace, that were causative of her illness is not supported by any evidence. [76] The Q-COMP case is that the claimant suffered an injury which according to Dr Ng was emphatically linked to the events of 20-21 October 2009 and the then termination of employment. The causal link to the onset of her condition is predicated upon the acceptance of the claimant's history by the commission. [77] The submission went to cases (generally) on management action and psychiatric conditions where it was said that whilst they all turn on their own facts there have been some general statements of principle that have emerged. The Commission was taken to the matter of Q-COMP v Hohn12 which was said to be an authority in respect of management action not being a significant contributing factor to an injury. In the matter before the Commission, the only management action to which the appellant could point to was the engagement of the consultants in or around May 2008. It would be too remote, according to the submission, to say that there was a causal link between the onset of the claimant's condition in late October, early November, 2008. It was said that from 20 October until 6 November 2008 there was a lot of "ad hoc" decision-making happening at the hands of the employer. [78] The dismissal letter of 6 November 2008 purported to invoke a warning that was probably given on 24 June 2008, although it is fair to say that whether a warning was given is subject to dispute. [79] The evidence of Stacy Han that the claimant's breach of confidentiality over Mr Blumel's eminent departure was the reason for the dismissal was not included in the letter of termination. [80] The submission addressed the evidence of a number of witness called by the appellant and, in particular, Daryl Blumel. The evidence of Jane Woodland and Julie Cork in respect of their report was also canvassed in the submission. [81] There was sufficient evidence before the proceedings that, in the incident of 20 October 2008, Daryl Blumel was the main protagonist in the events of that day. Despite approaches by the claimant on 21 October 2008, the employer never properly investigated the complaint. In fact, the only action of any consequence was to terminate the claimant's employment. In conclusion, it was submitted that the claimant clearly suffered an injury which was confirmed by Dr Ng's evidence. The stressors identified in relation to the incidents of 20-21 October 2008 have nothing to do with management action provisions of s. 32(5) of the Act. [82] On the matter of the termination, it was said to be clearly unreasonable management action in the circumstances. Conclusion [83] The appellant had sought to set aside the decision of the Q-COMP review in respect of the claimant and, as mentioned previously, the nature of the proceedings is a hearing de novo whereby the Commission is required to consider the matter in its fullness. [84] Prior to determining the issues of fact relating to the claimant's injury or otherwise, it is necessary to establish whether the claimant had the status of a "worker" within the meaning of s. 11 of the Act. In the course of the hearing, neither party took issue with the claimant's status and, accordingly for all intents and purposes, the claimant was a "worker" at the time of the injury, if a personal injury is found to have been sustained. [85] The Commission, on consideration of all evidence in the matter, must then determine whether or not the claimant has sustained a personal injury arising out of, or in the course of, her employment and if the employment was a significant contributing factor towards that injury. On the matter of whether the claimant sustained a personal injury, the medical evidence before the Commission was firstly that, on 5 November 2008, Dr Josephine Ching issued a medical certificate (Exhibit 17) which indicated that the claimant was receiving medical treatment for the period 6 November to 14 November 2008 and would be unfit to continue her usual occupation for that period. The visit to Dr Ching on 5 November 2008 had been arranged by the claimant (on 3 November 2008) prior to the meeting with Tae Kyu You on 5 November 2008 where she was advised that both Daryl Blumel and her own employment were being terminated. The only other medical evidence before the proceedings was that of Dr Ng who, at the request of WorkCover Queensland, assessed the claimant on 11 September 2009. Dr Ng indicated that he carried out a clinical assessment only, and no further tests or investigations were required. The 12 Q-COMP v Hohn [2008] 187 QGIG 139 -- 10 of 12 -- 11 diagnosis arrived at by Dr Ng contained, at point 5 of his report (Exhibit 18), was that the claimant had an Adjustment Disorder with Anxiety, moderate severity. On the evidence before the proceedings and in the absence of any medical evidence to the contrary the Commission accepts that the claimant suffered a personal injury. [86] In consideration of whether the claimant sustained the personal injury arising out of the course of employment, there was no evidence offered up in the hearing of any factor outside of the employment that may have contributed to her condition. Dr Ng, in his assessment, made the comment that there was "no past medical history of note". The evidence before the Commission in respect of the claimant's employment was that she "at worst" had very limited sick leave for the entirety of the employment period. The circumstances of this case would point to the claimant having sustained a personal injury in the course of her employment, but whether such injury is compensatable or excluded through the provisions of s. 32(5) of the Act is the major issue for determination. For a personal injury to be accepted as compensatable, it must be found that, on the balance of probabilities, that the employment was a significant contributing factor to the injury and in the case of psychiatric and psychological injuries, such injuries can be excluded if reasonable management action had been taken in a reasonable way the by the employer. [87] The claimant gave evidence to the effect that she had been subjected to repeated incidents of verbal abuse by a co-worker from around March 2008, however, in terms of her claim for WorkCover lodged on 21 November 2008, relied only upon the incidents of 20-21 October 2008. The evidence relating to incidents prior to 20-21 October 2008 was limited in nature, with reference being made to the behaviour of the Director of Studies (Daryl Blumel) in correspondence generated by the claimant on 15 May 2008. The correspondence contained a recommendation by the claimant on the approach required to take certain matters forward, but did not suggest any action relating to the alleged behavioural issues. The correspondence of 15 May 2008 was acknowledged as the genesis of the operational review undertaken by Julie Cork and Associates. The report emanating from the operation review made no specific reference to the claimant's allegations about the behaviour of Daryl Blumel, however there is evidence that a verbal briefing to Stacy Han did offer suggestions on how to address the issue. [88] It was evidenced that both the claimant and Daryl Blumel were spoken to by some of the Directors after the briefing and informed that they would need to work together or face the prospect of both losing their jobs. They were further directed to meet regularly in an effort to establish an improved communication regime. Whilst it appears that, over time, the meetings between the two became less frequent, there is no evidence that the work relationship continued to deteriorate in that period. The engagement of an external consultant was reasonable management action taken in a reasonable way by the employer in that, amongst other matters, it did genuinely attempt to find a resolution of the differences between the claimant and Daryl Blumel. [89] The incident of 20 October 2008 appears to have been a heated verbal exchange between the claimant and Daryl Blumel which could be at best described as unprofessional behaviour. The significance of that incident is subject to question in that the claimant did not provide written advice to the employer until the following morning, in fact almost 24 hours after the event. Stacy Han replied to the claimant's email less than 3 hours later, undertaking to consider the proposal put by the claimant. [90] The incident in the early afternoon of 21 October 2008 appears to have been a more heated exchange where Daryl Blumel had to be physically restrained. The matter was reported to Stacy Han almost immediately and the claimant was informed that Daryl Blumel would be required to take 2 weeks' annual leave. Stacy Han informed the claimant whilst on leave that Daryl Blumel would be required to assist with the final accreditation process and was told the dates he would be on the premises. The claimant indicated that she did not feel safe around Daryl Blumel and advised that she would take sick leave to avoid being around him. Stacy Han agreed to this proposition. [91] On 23 October 2008, the claimant took sick leave and submitted a sick leave application the following day. The claimant stated in her WorkCover Statement (Exhibit 15) "The only conversations I had with Mr Blumel were brief and professional and in the context of the accreditation visit, although I was extremely nervous having him at school". The claimant gave evidence of having panic attacks in the 2 weeks immediately after 21 October 2008, although on the face of the evidence, she does not appear to have decompensated at that time. The Commission accepts the evidence that the accreditation process was at a critical stage on or around 21 October 2008 and of the need for both the claimant and Daryl Blumel to participate in that process. The viability of the business was dependent on a positive outcome. All reasonable steps were taken to allow for that participation and for all intents and purposes the steps were successful as there is no evidence of any incident or further altercation occurring in that period of time. [92] The evidence of Vickie Hallett is accepted in that, in the period of Daryl Blumel's leave, the claimant informed her that his employment would be terminated. It would appear that the employer, in difficult circumstances, had taken reasonable management action in a reasonable way following the incident of 21 October 2008 to remove the claimant from any potential ongoing risk. -- 11 of 12 -- 12 [93] On 5 November 2008, the claimant was informed in a meeting with Tae Kyu You that Daryl Blumel had been terminated and that she was being let go. The evidence of the claimant was she accepted the verbal reasons given for her termination and offered to participate with the handover process. [94] The claimant presented to work on 6 November 2008 and provided the medical certificate from the visit to a general practitioner the previous day, obviously for purposes of being paid sick leave. The claimant was upset to find out on 6 November 2008 that staff had been informed that both Daryl Blumel and herself had been terminated. On the evidence before the Commission, the decompensation of the claimant occurred on or around 5 November 2008 with the termination of her employment and in all probability her circumstances were not helped when she received the letter of termination on 10 November 2008 which, according to the claimant, purported to rely on reasons not advanced at the meeting with Tae Kyu You on 5 November 2008. Finding [95] The Commission, having considered the evidence, material and submissions before the proceedings, finds that in respect of the stressors said to have been a significant contributing factor to the claimant's personal injury and decompensation, prior to and including 20-21 October 2008, are excluded from s. 32(1) of the Act in that the employer had taken reasonable management action in a reasonable way within the meaning of s. 32(5)(a) and (b) of the Act. [96] The Commission, in examining the allegations, notes that for a significant period of time, the claimant held a position of higher authority within the business structure to that of Daryl Blumel. [97] In relation to the termination of the claimant, each of the parties present at the 5 November meeting have different recollections of what was said on the day. Quite frankly, the Commission, at times, found the evidence of Tae Kyu You and the claimant less than impressive and was reluctant to place significant reliance on either account of the 5 November 2008 meeting. The Commission disregards the evidence of Stacy Han in respect of the 5 November 2008 meeting as she was not a participant. The only significant evidence of note on this matter is the letter of termination (Exhibit 11) and this letter is not, in itself, sufficient to ignite a claim for compensation through WorkCover, nor fit comfortably within the definition of unreasonable management action taken in an unreasonable way. Whether the termination of the claimant was an unfair dismissal or otherwise is not a matter to be considered in these proceedings unless it was within the meaning of unreasonable management action taken in an unreasonable way, and the Commission has already ruled that out. [98] I set aside the Review Decision of Q-COMP dated 16 July 2009 and uphold the Appeal. The claim for compensation is not, in the circumstances, one for acceptance. [99] I reserve the question of costs. J.M. Thompson, Commissioner. Hearing Details: 2009 17 September 19, 20 and 21 October Released: 21 December 2009 Appearances: Mr S.C. Fisher, of Counsel, instructed by Neumann & Turnour Lawyers for the Appellant. Mr C.J. Clark, of Counsel, for the Respondent. -- 12 of 12 --