Fairley v Q-COMP [2008] QIRC 24 (2008) 187 QGIG 150

[Extract from Queensland Government Industrial Gazette, Dated 4 April 2008, Vol. 187, No. 12, pages 150-165] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - procedure for appeal Janelle Ann Fairley AND Q-COMP (WC/2007/72) DEPUTY PRESIDENT SWAN 28 March 2008 DECISION This is an application lodged by Ms Janelle Ann Fairley (the appellant) against a decision of the Review Unit, Q-COMP dated 19 July 2007 issued pursuant to s. 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act). Appellant's background The appellant, who commenced work with Education Queensland in 1995, was a teacher who had experience in high school teaching together with specific experience in teaching Japanese. The appellant had in fact taught in Japan during 1993/1994 and 1998-2000 and had also taught Japanese at Kedron State High School for 4½ years. In December 2005, the appellant gained a position at Albany Creek State High School (Albany Creek) teaching Japanese. Work at Albany Creek commenced in 2006. Some 6 months after commencing work at Albany Creek the appellant claimed that she had psychiatrically decompensated. The appellant's claim The appellant contends that the primary cause of the decompensation related to the "overall aggressive and dominating nature of the relationship that existed between Ms Foley and the Appellant". [Appellant's submissions, point 34.] The sub-issues listed below elaborate upon that point: 1. "Dog's breath" comment. 2. Controlling resources. 3. Accessing the exam paper. 4. Intruding on the appellant's lessons. 5. Being unapproachable regarding teaching materials. 6. Year 8 exam issue. 7. The LOTE professional development course. 8. Interfering with the appellant's personal desk space. 9. The report card issue. 10. Skirt comment. 11. Visiting Japanese students. 12. Student difficulties. In considering these issues, the appellant states that the following legal principle should apply: "In Delaney v Q-Comp Review Unit [2005] QIC 11, President Hall concluded that where there is a course of conduct or repetitive blemishes joined by subject matter, time and personality in a discordant workplace, a worker may be entitled to a much more 'global' evaluation of the relevant management action.". [Appellant's submissions, point 55.] Relevant legislation Workers' Compensation and Rehabilitation Act 2003 "11 Who is a worker (1) A worker is a person who works under a contract of service. (2) Also, schedule 2, part 1 sets out who is a worker in particular circumstances. (3) However, schedule 2, part 2 sets out who is not a worker in particular circumstances. (4) Only an individual can be a worker for this Act. ... 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. -- 1 of 14 -- 2 ... (3) Injury includes the following - (a) a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease; (b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation - (i) a personal injury; (ii) a disease; (iii) a medical condition if the condition becomes a personal injury or disease because of the aggravation; (c) loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing; (d) death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury; (e) death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease; (f) death from an aggravation mentioned in paragraph (b), if the employment is a significant contributing factor to the aggravation. ... (5) Despite subsection (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances - (a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment; (b) the worker's expectation or perception of reasonable management action being taken against the worker; (c) action by the Authority or an insurer in connection with the worker's application for compensation.". In Lackey v WorkCover Queensland (2000) 165 QGIG 22, Hall P stated: "... the test posited by the words 'arising out of' is wider than that posited by the words 'caused by' ... and the phrase 'arising out of' whilst involving some causal or consequential relationship between the employment and the injury, does not require that direct or proximate relationship that would be necessary if the phrase used were 'caused by' (see also Commonwealth v Oliver (1962) 107 CLR 353).". The employment factors do not need to be "the" significant causal factor for the injury or psychological condition. It is sufficient that employment was "a significant" causal factor for the purposes of s. 32 of the Act and within this context, "significant" must be given its natural meaning. Additional factors The appeal to the Commission is by way of a hearing de novo. The onus is on the appellant to show, on the balance of probabilities, that the facts relating to her appeal are sufficient to bring her application for compensation within the purview of the entitling provisions of the Act. The appellant must also show that the disentitling provisions contained within s. 32(5) of the Act have no application. Agreed position of the parties Q-COMP agrees that the appellant qualifies as a "worker" and there is no challenge to the medical diagnosis made by the appellant's psychiatrist, Dr Klug. That diagnosis is of an "adjustment disorder with depressed mood" and this could qualify as an injury for the purposes of s. 32(1) of the Act. [Exhibit 12.] Dr Klug was satisfied that the appellant's employment was at least "a significant factor" in the development of the appellant's condition and that there were a number of stressors. This assessment is not challenged by Q-COMP. Q-COMP's response to the claim Q-COMP challenges the appellant's claim on the basis that it has been at least partly caused by "reasonable management action, taken in a reasonable way". Q-COMP states that here, it is apposite to note that considerations of causal significance form no part of s. 32(5) of the Act. In Parker v Q-COMP (2007) 185 QGIG 269, Hall P observed: "It is sufficient to acknowledge that a psychiatric or psychological disorder which is causally traceable to the 'reasonable management action reasonably taken' is excluded by s. 32(5).". Particulars of appellant's case The appellant states that the "common and recurring theme connecting the evidence" was the relationship between the appellant and Ms Sue Foley. -- 2 of 14 -- 3 At Albany Creek there was no position as "Head of Department - Japanese". However, Ms Foley was the LOTE (Languages Other Than English) co-ordinator for the teachers who taught Japanese. Exhibit 11 describes the position as follows: "LOTE CO-ORDINATOR Responsibilities:  Manage Key Learning Areas of LOTE through management of programs, budget submissions, policies and procedure, facilities and equipment.  Develop, organise and implement quality programs in the LOTE.  Implementation relevant strategies within LOTE Key Learning Areas to achiever [sic] goals of the Annual Operation Plan.". [Exhibit 11.] Ms Foley commenced work as a teacher in 1984 and had been at Albany Creek for some 17 years. For practical purposes, Ms Foley was in charge of the Japanese department. Ms Foley taught Japanese, together with other subjects. Japanese is the only foreign language taught at Albany Creek and it is one of the core subjects which all Year 8 students study. In Year 8, there are approximately 225 students studying Japanese and after Year 8, there are 2 Year 9 and Year 10 classes and one class for Year 11 and one for Year 12. In 2006, there were 4 Japanese teachers at Albany Creek. The teachers were Ms Foley as co-ordinator; Ms K. Stewart who taught part-time; Ms K. Louis who taught both drama and Japanese and the appellant who had a full-time Japanese timetable. Discrepancies between earlier WorkCover statements by Ms Foley and evidence in this hearing The appellant points out that in Ms Foley's version of events, as given to the WorkCover investigators on 25 October 2006, discrepancies exist between what was then relied upon by Ms Foley and the evidence adduced in this hearing. These discrepancies will be identified at this point in the decision because the appellant asks that the Commission view Ms Foley's evidence against this backdrop. In the WorkCover statement, Ms Foley refers to her relationship with the appellant as follows: "My working relationship with the Claimant became very explosive and antagonistic very early on.". [Exhibit 14, point 14.] This description of Ms Foley's relationship with the appellant more than fits with the appellant's claim regarding the relationship. However, under cross-examination from Counsel for the appellant, Ms Foley retracted that statement to the following extent "... the statement I made there would have been to the best of my belief and intent at the time. But in hindsight, in the big picture, no, it was not always explosive and antagonistic all of the time, which was on occasion.". [Transcript, p. 139.] Ms Foley also stated in cross-examination that the relationship "... was vexatious and difficult from very early on. It was explosive and antagonistic on occasion.". [Transcript, p. 138.] Ms Foley says her statement to WorkCover should be viewed in light of the extensive and lengthy interview undertaken by WorkCover and also the fact that she was unaware of the breadth of the allegations which had been made by the appellant against her until the day of the interview. Also in the WorkCover interview, Ms Foley said that she did not recall referring to the appellant as "dog's breath" (an issue which will be dealt with later in this decision) whereas in this hearing, Ms Foley had admitted to doing this. [Transcript, p. 139.] In the WorkCover interview, Ms Foley made reference to the appellant's request for copies of exam papers. Ms Foley said on the first occasion (Term 1, 2006) that she would get the papers for her. One and a-half weeks later, Ms Foley said that the appellant had asked again for the exam papers. In response to that claim, Ms Foley said that she relocated the resources to a place where the appellant had easy access. However, during her evidence in this hearing, Ms Foley had denied that the appellant had requested the papers on more than one occasion. She said her comments to WorkCover were in relation to an allegation by the appellant that Ms Foley had "yelled aggressively at the appellant" while the appellant was looking for an exam paper. Consideration of the appellant's evidence which consists of a subset of issues highlighting the primary claim that the appellant decompensated because of the "overall aggressive and dominating nature of the relationship between Ms Foley and the Appellant" and also the evidence of Ms Foley in relation to these claims Before descending into detail around these issues, it is significant to note some elements of the evidence given by Ms Lynette Ruttley who has been the Principal of Albany Creek for the past 7 years. -- 3 of 14 -- 4 Ms Ruttley stated that she had been aware of the high teacher turnover in the area in which Ms Foley was involved. Further, in response to the following question from Counsel for the appellant: "MR LYNCH: And over a period of years different Japanese teachers have indicated to you that they've had difficulty with Sue Foley? MS RUTTLEY: Yes.". [Transcript, p. 216.] 1. "Dog's breath" comment The appellant's evidence was that during the second week of her first term of teaching an incident occurred where it is alleged that Ms Foley called the appellant "dog's breath" in the staff room. The appellant says that there was a group of teachers in the staff room and a general discussion was occurring. The appellant says that she was "vaguely following it" and whilst doing so she heard Ms Foley raise her voice and yell across the room "Isn't that right, dog's breath?". The appellant noticed that no-one had responded and when she looked up, Ms Foley was looking directly at her. The appellant stated that she felt "very uncomfortable" and confused. The appellant also stated that when Ms Foley addressed her she simply commenced speaking without attributing a name to her. This caused the appellant to "feel a sense of loss of identity". In this hearing, Ms Foley stated that she had called the appellant "dog's breath" but said that this did not occur within the first 2 weeks of the appellant's employment but rather some 4 weeks after a mediation had been held between herself, the appellant and Ms Ruttley. Ms Foley believed that the statement was said in the spirit of camaraderie because she had felt that the relationship with the appellant was improving and her comment was in effect a "backhanded compliment". 2. Controlling resources The appellant believed that Ms Foley basically "fobbed her off" whenever she asked for basic resources required for her work (e.g. whiteboard markers). When the appellant had used those allocated to her, she would ask Ms Foley for more, only to be met with "There aren't any"; "I don't have time to deal with this now"; "I'll deal with it later". The appellant then stated that she had to wait for 3 weeks to gain more supplies. The appellant says she understood the need for compliance with department budgets, however, the manner in which Ms Foley dealt with basic issues such as these were "unreasonable and overly controlling". [Appellant's submissions, point 36.] Further complaints were made by the appellant about the accessibility of photocopying materials required for teaching students. Ms Foley recalled one occasion upon which the appellant had asked for more whiteboard markers. Ms Foley stated that she could not respond at the time as she was en route to another class. Ms Foley said teachers "would come and ask me at an appropriate time". [Transcript, p. 104.] Ms Foley stated that there were restrictions placed upon the use of the photocopying machine by the Principal, although she stated that not many teachers had adhered to that rule. Ms Foley was aware that this process had frustrated the appellant and by the end of Term 1 a new system had been put in place whereby "each teacher could copy - could photocopy one worksheet, per student, per class, per week without any referral to myself". [Transcript, p. 105.] The appellant stated that she was never told of Ms Foley's directions in this regard. It is clear that the control of resources were the province of Ms Foley in accordance with standards within Albany Creek and within budget constraints. The appellant stated that she understood the need to comply with budgets and that resources were finite. However, the complaint was about the manner in which Ms Foley responded to any requests the appellant made about accessing resources. The evidence is that Ms Foley in effect "fobbed off" the appellant on most if not all occasions when requests were made for resources. 3. Accessing the exam paper Five weeks into Term 1, the appellant sought to access the end of Term 1 exam papers "to see whether I was teaching on- track towards the assessment piece. As there was no work program to follow, I needed some measure to ensure that I was delivering to my students the best opportunity for success in the exams.". [Transcript, p. 14.] The appellant said that -- 4 of 14 -- 5 Ms Foley again "brushed me off, and dismissed my question". [Transcript, p. 14.] The appellant then sought to find the papers herself in the belief that she could do this without being seen by Ms Foley to be bothering her. There was a desk of drawers close to Ms Foley's desk which contained the exam papers. Ms Foley said that the desk was common property in the Japanese department. While looking for the files, the appellant says that Ms Foley approached her and yelled at her "What are you doing in there? Get out of there. I'll find them.". [Transcript, p. 14.] Ms Foley advised that she would get the exam papers later on. This exchange occurred in the staff room with other people present and the appellant described how she felt at that time: "MS FAIRLEY: ... I felt embarrassed, I felt belittled, I felt - at my second attempt at accessing what I needed to teach my classes, my legs had been taken out from underneath me again. So I felt pretty helpless to do what I needed to do to teach my classes effectively.". [Transcript, p. 15.] Ms Foley's evidence is that it was reasonable for the appellant to want to look at the past exam papers and she was aware that the appellant had previously asked her for access, but that she had forgotten to do so. Ms Foley says that when she found the appellant looking for the papers, she knew "it would be mayhem" [Transcript, p. 112.] and that nobody but herself would be able to locate what they wanted. Ms Foley said she did not yell at the appellant and explained the words she used as follows: "MS FOLEY: And, the 'Get out of there', would not have been in anger, it would have been - it was me saying - indicating it's going to be pointless you trying to find them, because I know it's not sorted well enough. Yes.". [Transcript, p. 152.] Counsel for the appellant said that Ms Foley's reaction to finding the appellant looking for exam papers should not have alarmed her. Ms Foley was conscious that the appellant had asked for these papers some time before. 4. Intruding on the appellant's lessons The appellant gave evidence that Ms Foley would often come unannounced into her classroom while she was teaching. The frequency alleged was "Sometimes, it would be three times a day, sometimes three times a week.". [Transcript, p. 15.] The extract of the evidence below details the appellant's concerns: "MR LYNCH: And can I ask you in terms of your experience, when you were previously teaching, was that something that was usual for a subject coordinator to do? MS FAIRLEY: It's highly peculiar for any teacher to do to another teacher. It just doesn't happen. An unspoken rule amongst teachers is that you don't impose on another teacher's lesson. There's sometimes a very fine balance between managing your class and tipping them over the edge, if there's a distraction - especially an unannounced one. So it's just - it's not general practice, and I've never experienced it before or since.". [Transcript, p. 15.] The appellant stated if a teacher needed to come into another teacher's classroom, then they would have arranged it beforehand or they would ask the teacher to get something out of the room for them. The appellant believed that when Ms Foley entered the room she would be doing a range of activities - i.e. busying herself with resources, rearranging the room, accessing the computers, however, later, the appellant believed that Ms Foley had come into the room to observe her teaching. The appellant says this became evident when she later attended a meeting with other teachers in the Japanese department and Ms Foley criticised a particular lesson taught by the appellant. Ms Foley had described the lesson as a "complete waste of time". [Transcript, p. 17.] Ms Foley had not spoken to the appellant privately about her concern, preferring to raise it in front of other teachers. The appellant said this left her feeling very embarrassed. Ms Foley said that any comments made about the appellant's teaching methods would more rightly be described as "constructive criticism". [Transcript p. 114.] The appellant identified another occasion when Ms Foley allegedly walked into her class and criticised her in front of her students. The following exchange describes the appellant's version of events: "MS FAIRLEY: ... And that's even more of a difficult job to keep a handle on. You often have 30 kids. We've got them on task, or you're delivering content. So any disruption outside the window or something - somebody does something silly in the room and the whole class breaks up and you lose control. She walked [in] as I was teaching, -- 5 of 14 -- 6 speaking to the students and interrupted me, yellow [yelling], 'We don't teach that this week, we teach it next week'. And I stopped and turned and looked at her and I didn't know how to react. I felt embarrassed not just for me, but for her that this is our coordinator in front of the students. The students all stopped and stared and waited for my reaction. It was an incredibly uncomfortable moment being undermined in front of my class. So I've just turned back to them and kept teaching. Just picked up from where I'd left off and kept teaching and tried to ignore her.". [Transcript, p. 17.] Ms Foley's evidence was that she had certain responsibilities as the Japanese co-ordinator which necessitated her entering the classroom of the appellant. Ms Foley said she did not announce her presence by knocking on the door so as not to stop the flow of the lesson. Ms Foley was not directly cross-examined about the incident of telling the appellant that "We don't teach that this week ..." in front of the appellant's class. [Transcript, p. 17.] However, in response to a question as to whether Ms Foley had ever intervened and critiqued the appellant's teaching in front of her class, Ms Foley denied the allegation. Ms Foley said her purpose for entering the classroom was not to monitor the appellant's teaching, but that she was able to see and hear what was occurring. 5. Being unapproachable regarding teaching materials The appellant's evidence was that Ms Foley answered any request from the appellant with words such as "you'll get them closer to the exam date". [Transcript, p. 18.] A specific incident related to the issue raised by the appellant regarding the adequacy of the listening exercises. The appellant states that "There were a number of listening exercises that were prepared as work sheets with tapes to go with them that weren't matched up and weren't adequately prepared at the start of the year.". [Transcript, p. 18.] The appellant says that when she spoke to Ms Foley about this, the response was "These should have fucking well been done last year.". [Transcript, p. 18] The only rationale for this outburst, in the appellant's view was that "I guess she'd assumed that they'd been done the year before and she lost it with me because I'd identified it.". [Transcript, p. 18.] Ms Foley denied that this had occurred. 6. Year 8 exam issue The appellant's evidence was that a document had been issued which identified, amongst other things, the weeks during which exams would be held. Previous mention had been made of the difficulty the appellant had in accessing past exam papers. Ms Foley had copied the exams and was distributing them to various teachers. The appellant was asked by Ms Foley when she had set her exams. The appellant stated that they were set for the following day, which was within the appropriate time frame. The appellant stated that Ms Foley "exploded" and said, "Well, why didn't you tell me that earlier?". [Transcript, p. 19.] It appeared that Ms Foley did not have the material ready and she asked the appellant to alter the day for the exams. The appellant says she would have been able to photocopy the materials and have them ready for the day of the exam. The appellant stated to Ms Foley that she was not going to change the exam date. Ms Foley believed that there was nothing unreasonable about changing the exam date and that this was a reasonable issue to raise and explore at the staff meeting. 7. The LOTE professional development course The appellant says that professional development is voluntary in any school. Upon arriving at school one Monday morning, the appellant says that she overheard Ms Foley talking on the telephone to the "head of LOTE" at West End, advising her that the appellant would be attending a course. When the appellant asked Ms Foley what the conversation was about, she says that Ms Foley "... walked up to my desk where I was just putting my bags down and getting settled for the day. She stood over me. She stood about this far from me - she's very tall, and she waved at my face and said, 'You're going to this and you're coming back to the school and you're reporting to the rest of the staff on this'.". [Transcript, p. 21.] -- 6 of 14 -- 7 The appellant advised Ms Foley that the course in question was for beginning teachers. The appellant said that Ms Foley stated that because the application had been sent to Albany Creek, and because the appellant was a full-time Japanese teacher she should attend. The appellant made her own enquiries about the course and she came to the view that the course would not benefit her or Albany Creek. It is alleged that Ms Foley aggressively "huffed and puffed" and said she had arrangements with the Principal of the school to cover for the appellant when at the course, and by cancelling the course Ms Foley believed she would look like a fool with the Principal. [Transcript, p. 21.] The appellant said she would speak to the Principal, to which Ms Foley "boomed" - "No, don't do that, I'll do - I'll take care of it.". [Transcript, p. 21.] At this point, the appellant thought it timely to pose broader questions to Ms Foley about what she, the appellant, had to offer the school and what control she might be able to have over her own classes. The appellant says she also told Ms Foley that she could be really intimidating. To this, Ms Foley stated "Well, you've only - for God's sake, you've only been here six weeks.". [Transcript, p. 22.] There was no further conversation beyond that. Ms Foley denies that version of events. She stated that her contact with the "head of LOTE" at West End was to enquire why the appellant's name had been mistakenly included in a list of prospective attendees for a seminar for "new" teachers. Ms Foley believed that the appellant had only heard half of the conversation and had attributed, inappropriately, sinister motives at play. 8. Interfering with the appellant's personal desk space Within the staff room, which was shared by about 14 teachers, each person had their own particular space which usually consisted of a desk, a couple of drawers, a filing drawer and some shelves. The appellant believed that Ms Foley had inappropriately been at her desk on a number of occasions. At a particular time, Ms Foley had challenged the appellant about a class roll. The appellant was asked to double-check her class role because a student had either been marked present when not, or vice versa. The appellant states that the only way Ms Foley could have known about this situation was by looking at the class roll which was kept on the appellant's desk. On another occasion, the appellant was working on material at her desk which occasioned the correction of an error in one of the worksheets. Ms Foley, when walking past her in the staff room stated "That error that you corrected in the Year Nine work, that's actually not an error. That was correct to begin with.". [Transcript, p. 23.] The appellant did not challenge Ms Foley at the time because she believed that her comments were said in "such a way that it normalised it, and I didn't feel strong enough to challenge her on it". [Transcript, p. 23.] Ms Foley denied these allegations and stated in response to the following question from Counsel for the appellant: "MR LYNCH: You'd agree that would be quite impermissible for another teacher to go through a teacher's personal teaching material on her desk? MS FOLEY: Yes. Be a different matter if there - and one thing that we share are actually the folders from Year 8, those work folders, there's only one of each folder and - sometimes they're on teacher's desks and you might retrieve a folder because it's one you need for the next lesson. Beyond that, no.". [Transcript, p. 166.] 9. The report card issue An issue arose at the end of Semester 1 whereby the appellant was required to put relevant reports onto student report cards. The appellant stated that teachers were given a "comment bank" from which a code is entered and a comment appears from a software program for teachers. The administrative assistant at Albany Creek had sent a memo to all teachers advising that the report deadline was 9.00 a.m. on 20 September 2006. Ms Foley stated that the administrative assistant made contact with her saying that there were gaps on the appellant's report cards. Ms Foley then says she looked at the cards and then spoke to the Deputy Principal, Mr Geoff Grant. Ms Foley says that she would have told the appellant about fixing up the gaps. A further issue arose for Ms Foley with regard to comments made on the report cards by the appellant. Because of the urgency related to distributing the report cards, Ms Foley said she had no difficulty with the comments made by the appellant on the cards, however, she also spoke to Mr Grant about those comments. -- 7 of 14 -- 8 After this discussion with Mr Grant, Ms Foley then wrote a note to the appellant stating: "So that your reporting aligns with the nature of the whole school semester reporting used here, please delete the 'course summary' that you've added in. If you have any further queries, please speak to Geoff Grant before resubmitting your comments.". [Exhibit 8.] Ms Foley said that in her discussion with Mr Grant about the comments on the reporting cards, she expressed a concern and advised Mr Grant that she would ask the appellant to remove those comments. The appellant alleges that the import of Ms Foley's note was that she would have been required to re-do reports for some 160 students. The appellant also states that she received Ms Foley's note in the afternoon of 19 September 2006. Ms Foley disputes this and said the note was delivered in the morning of 19 September 2006. Mr Grant's evidence is that when Ms Foley spoke to him about the comments he had approved them and his evidence is: "MR GRANT: ... Sue Foley, I think, brought it to my attention something like, that Janelle had basically gone outside of the comment bank that we have. The structure we have in the school is that there are subject areas put forward comments that teachers would use in reporting at the end of every semester - and Japanese was no different from that. And I think Sue reported to me towards the end of that semester and during that reporting, I think it was, that Janelle had gone outside of the reporting comments that had been agreed upon, and it was at that time when it was raised with me, as I recall, that we were already into the reporting phase and it's a very strict time regime. Like everything has to be - has to move slow - quickly and it was. I think, at that stage that Sue had mentioned it to me and I said to her, 'Well, look, because we're at the stage where we are now, I'm certainly not going to stop reports if they seem okay, because it would mean that we would have to go back and reprint all of the reports again' - and we certainly have a strict time structure to adhere to. So I said - I think my response to Sue was something like, 'Look, they will be on my desk shortly for me to sign them' - this is the finished product - 'I will check them and as long [as] they're not too lengthy and therefore go over a page or something like that and therefore looks a little ridiculous'. You end up with one sentence on a third page and then the principal's signature underneath that. So I said 'As long as it reads okay at this stage, I'll let them go through' - which I think I did.". [Transcript, pp. 186-187.] After receiving the note from Ms Foley, the appellant made contact with the administrative assistant who was responsible for the in-put of data for the reports, whom she says advised her that there was no problem with the comments she had made. Mr Grant's evidence was that under normal circumstances, the administrative assistant would raise issues directly with the teacher if there were concerns about the reporting on the cards. 10. The skirt comment The appellant referred to an occasion in Term 3 when Ms Foley allegedly made disparaging comments about how the appellant was dressed. The appellant had been wearing a long skirt, with a handkerchief hem and there was a lot of fabric around the hem. The colours of the skirt were "warm colours - oranges, browns, yellows". [Transcript, p. 27.] Ms Foley and the appellant were working in adjoining classrooms and the appellant had entered Ms Foley's classroom to replace folders. As she was in the room, Ms Foley, who had been doing calligraphy with her students, said: "Oh, I could wipe my dirty, ink-stained hands on your skirt and it wouldn't even be noticed.". [Transcript, p. 27.] The appellant said: "I spent a couple of minutes trying to work out what she - why she'd said that. It was completely out of context, completely inappropriate and the next day when I went to work she made - she'd announced the comment again in front of the staff room. There were about maybe five or six people there and she was sitting at the computer as I walked into my desk and she yelled across the staff room, 'Oh, yesterday I told Janelle that I would wipe my ink-stained hands on her skirt, that skirt she wore yesterday, and it wouldn't have even been noticed'.". [Transcript, p. 27.] The appellant stated that the comment was not funny and everyone in the room "went silent". [Transcript, p. 27.] Ms Foley admits that she made the comment to the appellant but says it was an attempt on her part to be collegiate and engage in friendly banter with the appellant. The accusation from Ms Foley is that the appellant was abnormally sensitive. -- 8 of 14 -- 9 11. Visiting Japanese students In Term 3, a group of Japanese teachers and students visited Albany Creek. The appellant asked Ms Foley what work she would be required to do for this visit. Specifically, the appellant asked Ms Foley if the visitors would be coming into individual classes and was told that they would not be doing this. At the time, the appellant was hosting a Japanese teacher at her home. At the start of the week, Ms Foley handed out a weekly schedule with the classes into which she would be bringing the Japanese students. The bulk of the students were coming into the appellant's class. The appellant made enquiries of another teacher to see whether she knew that the students would be coming into the classes. This teacher said she was aware of this because that had happened on a previous visit. The appellant contacted Ms Foley and asked why she had not been told this and she states that Ms Foley said she had misunderstood the appellant's original question. The appellant explained that she was preparing her class for exams and now had to refocus, without any prior warning, on hosting these students. On the following day, the appellant was handed some prepared lesson plans from Ms Foley. The appellant's main complaint was that she was never asked about hosting the students in her classroom; she was already undertaking a plan for her students regarding their exams and she believed that this was but another example of how little control she had over her teaching program. Q-COMP states that it would have been no surprise to the appellant that Japanese teachers and students were coming to the school and that they would have naturally been involved in the Japanese classes at Albany Creek. 12. Student difficulties The appellant gave evidence of some behavioural issues she was having with some students. The appellant sought help from the Head of Department of English (because the Japanese department at Albany Creek did not have a Head of Department position), however, that Head of Department could not offer assistance. The appellant sought help from other senior teachers at Albany Creek, but to no avail as the behavioural issues within the Japanese department were outside of their province. The appellant says that while some teachers tried to console her, it became evident to her that there was no structure in place in the Japanese department at Albany Creek for teachers to deal with these behavioural issues. In his evidence, Mr Grant said the situation with regard to the behavioural issue management in the Japanese department at Albany Creek was unknown to him before being advised by the appellant. Mr Grant's responses to the following questions warrant mention: "MR LYNCH: So you had a situation where you've got a new female teacher at the school who's having behaviour management issues and once she gets to a third stage event, that is a student engaging for a third time in similar misbehaviours, that she had nowhere to send these students; do you agree? MR GRANT: Yes. MR LYNCH: And would you agree - and look, I'm not being critical of you, there was a lacuna in the system; would you agree that that was an unsatisfactory situation to have arisen? MR GRANT: Yes. MR LYNCH: And for it to have continued until May of 2006 you could understand it would have been incredibly frustrating for the teacher involved? MR GRANT: Yes.". [Transcript, p. 191.] In May 2006, the appellant contacted Mr Grant to raise issues concerning the behavioural management problems she had experienced. Eventually in May/June 2006, a program was introduced which addressed the needs of teachers of Japanese at Albany Creek. Additional evidence for consideration Ms Ruttley, Principal of Albany Creek, stated that the appellant had requested a meeting with her some time in mid-March 2006 to discuss concerns she had with Ms Foley. The issues discussed included access to resources, the quality of the resources and the tone of voice used by Ms Foley towards her. [Transcript, p. 199.] -- 9 of 14 -- 10 Ms Ruttley then spoke to Ms Foley about these issues and arranged for a meeting with Ms Foley and the appellant. Ms Ruttley called this meeting a "mediation". At this mediation, Ms Ruttley did not discern any unwillingness on Ms Foley's part to listen to the problems raised and to offer suggestions as to ways of addressing these problem areas. Ms Ruttley also did not discern any tentativeness on the appellant's part to express her concerns clearly. Ms Ruttley's evidence is that Ms Foley also discussed concerns she had with the appellant. These concerns traversed areas such as the queries the appellant put to her at different times and Ms Foley's inability to respond adequately at the time. Ms Ruttley said she only became aware of the appellant's allegations of bullying by Ms Foley when the appellant attended the school to submit her workers' compensation paperwork to the Registrar. At this time, Ms Ruttley said she was concerned about the appellant's health. Ms Ruttley said that it was at this time that the appellant advised her, amongst other things, that Ms Foley had sworn at her; that she had attended a meeting with the employee advisor; that she discussed Ms Foley's issue of inappropriate management of timelines; that she was bullied and harassed by Ms Foley; that Ms Foley had interfered with papers on her desk; that behavioural management had been an issue and that she was seeing a psychologist. Ms Ruttley stated that, during her meeting with Ms Foley and the appellant, she had not viewed the appellant's concerns as "wholesale damming criticisms" as had been described by Ms Foley in her evidence. [Transcript, pp. 126, 210.] Ms Ruttley also confirmed that she advised Ms Foley that the appellant was an experienced teacher, who would be able to take a senior class. Ms Ruttley further conceded that during that meeting, the appellant had complained that Ms Foley, rather than not immediately responding to her requests, often simply did not respond to her requests. Ms Ruttley said that she found Ms Foley to be "... assertive. She can be seen - perceived as authoritarian ... emphatic". [Transcript, p. 215.] Previously, Ms Ruttley had described Ms Foley also as "aggressive". [Transcript, p. 215.] As earlier mentioned, Ms Ruttley said there had been a high turnover of teachers in the Japanese department and that she knew that, over a period of years, different Japanese teachers had indicated that they had difficulties with Ms Foley. [Transcript, p. 215.] Ms Nadia Patch, a teacher currently at another school, gave evidence that she began teaching at Albany Creek in Semester 2, 2004. Ms Patch taught English and junior SOSE (Studies of Society and Environment). She met the appellant in 2006. Ms Patch and the appellant shared the same staff room. Ms Patch described the appellant at the time of first meeting her, as follows: "MS PATCH: ... When she first arrived at the school she was extremely confident. She seemed to have a lot of enthusiasm for her job. To come for those two days at the end of 2005, unpaid, showed commitment, to me. When she arrived she brought a lot of resources with her which is very good, she had a lot to introduce. She talked of different things to bring into the Department, just different ideas that she'd had at previous jobs.". [Transcript, p. 83.] Further, Ms Patch observed: "MS PATCH: ... She was very good. She liked having a joke and she seemed very professional with her kids. She got on well with everyone in the staff room, had good friendships with people.". [Transcript, p. 83.] Ms Patch added that Ms Foley was very confronting and controlling in the manner in which she spoke to people. She said that Ms Foley would often call people "shithead" and "dickhead" and that she would call these names across the staff room. Ms Patch suspected that Ms Foley thought she was being funny, but the comments were not funny at all in Ms Patch's view. Further, in her view, Ms Foley was very opinionated and it was usually her opinion which was forced upon others. Ms Patch believed that Ms Foley was "quite restricting" with the appellant. When the appellant had asked for various resources, she would be abruptly met with "it's over there" or "why do you need it anyway" from Ms Foley. In response to a question from Counsel for the appellant as to whether Ms Patch had noticed any "clash of personalities" or any "interpersonal difficulty" between Ms Foley and the appellant, Ms Patch responded as follows: "I don't know whether it would be clash of personalities as such, but I know that in a lot of the work that Janelle was trying to do Sue didn't seem happy and I had a feeling that she almost felt threatened by the new resources.". [Transcript, p. 83] -- 10 of 14 -- 11 Ms Patch also confirmed that teachers in the department of the school at which she was currently teaching had freedom of teaching content as long as the unit guidelines were followed. She also stated that it was not common for other teachers to walk into her classroom while she was teaching. In her situation, the Head of Department had come into her room on about 2 occasions over a 3 year period. Further, Ms Patch said no-one had ever touched her materials at her own desk in the staff room. Ms Patch detailed an event relating to exams when she observed Ms Foley speaking aggressively to the appellant. Ms Kathryn Stewart, currently employed as a part-time teacher at Albany Creek but currently on maternity leave, teaches Japanese amongst other subjects. Ms Stewart's evidence was that dealing with Ms Foley can be "tricky" and "abrasive" at times because of her direct manner. She felt that Ms Foley's decisions were ultimately in the best interests of the department and the students. [Transcript, p. 220.] Ms Stewart felt that the meetings held with Ms Foley and Japanese teachers were useful, but that Ms Foley spent most of the time talking and others had to interject to be heard. Ms Stewart believed that the opportunity for teachers to have their individual input in their classes was limited. This was qualified by saying that Ms Foley did not want to overload the students with extra work which she did not think was necessary. [Transcript, p. 221.] Ms Stewart felt constrained with regard to the use of the photocopier saying that Ms Foley was "very stringent" with what was photocopied and how many copies could be made. [Transcript, p. 222.] Counsel for Q-COMP posed the following question to Ms Stewart: "MR McLEAN WILLIAMS: What were the concerns about Sue's manner that were drawn to your attention? MS STEWART: I think the manner in which Sue speaks to people can be, as I said, abrupt and not as professional as I would expect sometimes, not as tactful as you would hope for and I think that caught Janelle off guard because, unfortunately, it's not what you strike in other schools sometimes but I've been there so long that I'm - probably become quite accustomed to it.". [Transcript, p. 225.] Ms Stewart did not think that Ms Foley set out to be malicious towards others, but she did press the point that Ms Foley could be controlling. That comment was qualified by saying that she thought Ms Foley did not want to over-stretch the teachers and the students. The above responses were given during the course of examination-in-chief by Counsel for Q-COMP. Under cross-examination from Counsel for the appellant, Ms Stewart agreed that Ms Foley could be "aggressive and dominating [in] the way she dealt with people". [Transcript, p. 229.] Consideration of the evidence It is not contested that the appellant is a "worker" (s. 11 of the Act) and that she has sustained an "injury" (s. 32 of the Act) and that the injury has arisen "out of, or in the course of, employment" (s. 32(1) of the Act) in circumstances where employment was at least "a significant contributing factor" to that injury (s. 32(1) of the Act). I have accepted that these legislative requirements have been satisfied. The crucial component of the case from Q-COMP's position is that the appellant's injury is precluded from consideration under s. 32 of the Act because the injury has partly been caused by "reasonable management action taken in a reasonable way". "Reasonable" for the purposes of s. 32(5) of the Act means what is "reasonable in all the circumstances of the case" (WorkCover Queensland v Kehl (2002) 170 QGIG 93). Further, in Bowers v WorkCover Queensland [2002] QIC 18 Hall P stated: "The circumstance that a system of work where its implementation has miscarried does not necessarily lead to the conclusion that either the system of work or its implementation was unreasonable. Reasonable schemes reasonably implemented can miscarry.". The appellant's claim is that the primary cause of her decompensation related to the "overall aggressive and dominating nature of the relationship between Ms Foley and the Appellant". -- 11 of 14 -- 12 From all evidence considered, there is a persistent theme of Ms Foley being a person who is described variously as "controlling", "aggressive", "domineering" and "confronting". There is ample evidence to reach the conclusion that those descriptors are accurate. The evidence which I have accepted is that the appellant presented to work at Albany Creek with an enthusiasm and eagerness to perform her duties in the Japanese department to the best of her ability. The appellant had a significant background in the teaching of Japanese and had considerable experience as a teacher generally. I have accepted the evidence of Ms Patch that the appellant had good interpersonal skills, interacting with other teachers and forming good friendships. The appellant presented as an intelligent and level-headed young woman who showed real passion for teaching students Japanese. She impressed me with her straightforward evidence and I believed that evidence to be truthful. In my view, the appellant was not overly sensitive or unduly reactive to Ms Foley's actions and comments. Her reaction to Ms Foley's behaviour was not surprising in the circumstances. Ms Foley was not an impressive witness. She often provided evidence which was clearly untruthful and, in certain instances, illogical (e.g. the evidence concerning the "dog's breath" comment). Very early in her job at Albany Creek, events occurred which, unfortunately for the appellant, established a repetitive pattern of behaviour on the part of Ms Foley towards her. I have accepted the appellant's evidence that it was only in the first 2 weeks of her teaching at Albany Creek that Ms Foley addressed her as "dog's breath" in front of other staff members. That was a dehumanising, belittling and nasty comment to make. I have not accepted Ms Foley's version of events that (1) this event occurred after the mediation which had taken place between herself, the appellant and the Principal; and (2) that the comment was made in some sort of collegiate manner. In fact Ms Foley's evidence around this point was: "MS FOLEY: ... And for as - as tasteless as the term 'dog's breath' can be seen to be and it's - and it is truly regrettable I used it with Janelle in that context when we didn't have much - a much better relationship for it to be - to be used within - I chose that and it was - and if I was to liken it to anything else - I said in the thing it would be the same as a secret Masonic handshake, it was acknowledgment of actually being within a special inner group - inner circle that was actually part of the group I worked within.". [Transcript, p. 142.] Ms Foley's rationale for using such a term is quite unusual. To suggest that a comment like this would be somehow acceptable if she and the appellant had a better relationship defies logic. Ms Foley had previously told the WorkCover investigators that she could not recall calling the appellant "dog's breath", whereas in this hearing she admitted to doing this. Ms Foley had previously told the WorkCover investigators that she had experienced a "very explosive and antagonistic" working relationship with the appellant from very early on. Ms Foley altered that statement during this hearing to say that her relationship with the appellant "was not always explosive and antagonistic all of the time, which was on occasion". There has been some significant altering of Ms Foley's statement given to WorkCover on certain issues and to this Commission on the same issues. During the course of giving evidence in this hearing around those issues, Ms Foley's explanation for the alterations is not persuasive. There is no question that the first issue, the calling of the appellant "dog's breath", could ever be viewed as anything other than completely inappropriate. The manner in which Ms Foley undertook the process of issuing resources to the appellant was, from the evidence, conducted in a completely unreasonable manner. There is no question that within the school system there needs to be appropriate controls over the disbursement of resources, but the manner in which Ms Foley chose to exercise this responsibility was patently unreasonable. The evidence I have accepted shows the appellant, on a particular occasion, asking for resources, only to be provided with them some 3 weeks later. Were that simply a one-off situation, it might be considered within that context. However, I have accepted the appellant's evidence that on many occasions when she asked for resources, she would be disregarded and dismissed by Ms Foley. Ms Patch's evidence, which I have accepted, also confirms this point. Ms Foley's excuse that she was often asked by the appellant to get things when she was busy, does not provide the complete picture. It was not the case of Ms Foley stating that she was busy at the time and would get the resources at some later nominated time. This did not happen. Ms Foley chose to dismiss the request with no indication of when or if she would address the problem. The pettiness of the approach adopted by Ms Foley towards the appellant is what is apparent from the evidence. -- 12 of 14 -- 13 Ms Foley's response to the appellant's attempt to find the exam papers was extreme and Ms Foley's explanation for her behaviour is not credible. After having her requests to see the previous exam papers disregarded by Ms Foley, the appellant sought to access the papers herself from a filing cabinet in the staff room. Ms Foley's reaction to finding the appellant looking for the papers was extreme. I have accepted that Ms Foley yelled at the appellant in terms that could only be described as aggressive and dismissive. The allegation that Ms Foley entered the appellant's classroom unannounced and frequently has also been considered. I have accepted the appellant's version of events in this case. It is clear that Ms Foley's presence in the appellant's classroom, on occasions 2 to 3 times weekly, was excessive. It is apparent that Ms Foley sought to micro-manage, in a very abrasive and rude manner, the appellant with no insight whatsoever into the fact that the appellant was an experienced and competent teacher. In the course of this micro-management, Ms Foley caused undue stress and concern to the appellant and I have accepted the appellant's evidence when she stated that she felt like she was losing control of her classroom. This behaviour was simply excessive, inappropriate and unreasonable. The appellant has given evidence, which I have accepted, of Ms Foley swearing at her when she questioned Ms Foley about the adequacy of listening exercises. The issue surrounding the Year 8 exam is another example of the continuum of the unfairness and rigidity exercised by Ms Foley towards the appellant. Concerning the LOTE development course, I have not accepted Ms Foley's evidence with regard to this issue at all. I have accepted the appellant's version of events. It would be humiliating for an experienced teacher to have to attend a course for beginning teachers. The appellant has accused Ms Foley of interfering in her personal desk space. Both Ms Foley and the appellant are qualified teachers, each holding a significant position within the school structure - a point apparently missed by Ms Foley as it relates to the appellant on most occasions. It is simply inappropriate to take anything from someone else's private desk, without each either having an understanding that certain materials could be accessed in an ad hoc manner, or, alternatively, without first speaking to the person and asking permission. This is such a basic concept, that to see it overridden by Ms Foley simply highlights her lack of respect for the appellant and her apparent lack of understanding of not only professional ethics but common courtesy. The report card incident, previously mentioned, is another example of Ms Foley's unreasonable treatment towards the appellant. Ms Foley had been told by the Deputy Principal that there was no need for the appellant to alter the report cards, but Ms Foley chose to send a note to the appellant telling her to change all the report cards within a very short time frame. Ms Foley later rescinded this demand, but only after it had caused undue stress to the appellant. The skirt comment is again but a continuum of Ms Foley's derogatory comments to the appellant. In isolation and without the background between Ms Foley and the appellant, this comment, while not funny, may have "gone through to the keeper". But against a background of nastiness, this comment is simply more of the same. With regard to the visiting Japanese students, I do not accept that Ms Foley misunderstood the appellant's question concerning the students visiting her classroom. I believe it to be the case that Ms Foley, yet again, could not be bothered giving the appropriate attention to the question and discarded it without any further thought. The lack of appropriate guidelines for teachers within the Japanese department was acknowledged by the Deputy Principal. This situation left the appellant feeling isolated and confused and I accept that evidence as truthful. The major component of the appellant's complaints is what she viewed as the overall aggressive and dominating nature of the relationship which existed between herself and Ms Foley. For the reasons outlined, the appellant has successfully proved this to be correct. There had been a continuum of like behaviour from Ms Foley towards the appellant and none of the issues raised in this case show any likeness to "reasonable management action taken in a reasonable way". It is of interest to note that the Principal of Albany Creek was well aware that problems had existed with Ms Foley within the Japanese department, that there had been a high turnover of teachers and that teachers had complained about Ms Foley. This should have alerted the Principal to the fact that heightened monitoring of this area of teaching should have been a priority at Albany Creek. -- 13 of 14 -- 14 In the evidence before the Commission, there has been little sign of any real support for Ms Foley's general behaviour at Albany Creek. Any attempt at support for her behaviour has been qualified by an agreement that Ms Foley could be "confronting" and/or "abrasive", "domineering", "controlling", "authoritarian" or "aggressive", amongst other things. I have considered also the evidence of Ms Patch who had previously worked at Albany Creek. Her evidence, which I have accepted as truthful, shows the unease experienced by herself within the staff room when Ms Foley was present. She says that Ms Foley spoke in a manner which Ms Foley thought was funny but which was not perceived by Ms Patch to be humorous at all. The appellant tendered to the Commission a booklet entitled "Workplace Bullying - An Employer's Guide" (described by the appellant as a "collaborative document produced by the Queensland Council of Unions, Commerce Queensland, Queensland Working Women's Service and the Queensland Department of Industrial Relations") [Appellant's submissions, point 52] which details the type of actions which can be described as "bullying behaviour" as follows:  "yelling, screaming, abuse, offensive language, insults, inappropriate comments about a person's appearance, life or lifestyle, slandering a worker or his/her family;  belittling opinions or constant criticism;  isolating workers from normal work interaction, training and development or career opportunities;  overwork, unnecessary pressure, impossible deadlines;  under work, creating a feeling of uselessness;  undermining work performance, deliberately withholding work related information or resources, or supplying incorrect information;  unexplained job changes, meaningless tasks, tasks beyond a person's skills, failure to give credit where due;  tampering with a worker's personal effects or work equipment;  teasing or regularly being made the brunt of pranks/practical jokes;  displaying written or pictorial material which degrades or offends a worker or group of workers;  unreasonable administrative sanctions, e.g. undue delay in processing applications for training, leave or wages.". [Appellant's submissions, point 53.] This booklet highlights factors to be considered when an accusation of bullying and/or harassment is made. There are certain elements of Ms Foley's behaviour which marry up to the various descriptors in this booklet and those elements have been discussed in this decision. There has been a continued course of conduct by Ms Foley towards the appellant which has been completely unreasonable. Section 32(5) of the Act states: "32 (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.". The injury suffered by the appellant did not arise out of, or in the course of, "reasonable management action taken in a reasonable way". It follows that the injury suffered by the appellant is not precluded from the statutory definition of "injury". I uphold the appeal. I set aside the decision of Q-COMP dated 19 July 2007, and determine that Ms Fairley's claim for compensation is one for acceptance. Order accordingly. D.A. SWAN, Deputy President. Hearing Details: 2007 11, 12 and 13 December 2008 1 and 15 February (Written submissions) Released: 28 March 2008 Appearances: Mr R. Lynch, Counsel, instructed by Mr F. Gouldson, of Gouldson Legal, for the appellant. Mr A. McLean Williams, Counsel, instructed by Ms L. Booth of Q- COMP, for the respondent. Government Printer, Queensland The State of Queensland 2008. -- 14 of 14 --