Catholic Education Services v Q-COMP [2007] QIRC 59 (2007) QIRC 059

[Extract from Queensland Government Industrial Gazette, dated 13 July, 2007, Vol. 185, No. 11, pages 248-259] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal against a decision of the review unit Catholic Education Services AND Q-COMP (WC/2006/47) DEPUTY PRESIDENT BLOOMFIELD 3 July 2007 Appeal against a decision of the Review Unit, Q-COMP - whether injury excluded by effect of s. 32(5) - witness evidence - number of stressors contributing to injury - whether various management actions reasonable or reasonably taken - decided that certain management action reasonable and reasonably taken - injury therefore excluded by the effect of s. 32(5) - appeal upheld. DECISION This decision relates to an appeal by the Roman Catholic Trust Corporation for the Diocese of Cairns (the Appellant) pursuant s. 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act), against a decision of the Review Unit, Q-COMP (Q-COMP) dated 19 June 2006 in which Q-COMP set aside an earlier decision of WorkCover to reject a claim for Workers' Compensation by a Mr Adam Lee. In doing so, Q-COMP accepted that Mr Lee had suffered an "injury" within the meaning of s. 32 of the Act and that the exceptions under s. 32(5) of the Act were not applicable. Relevantly, s. 32 of the Act provides: "32 Meaning of Injury (1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury. ... (5) Despite 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 determining whether a worker has suffered an injury for the purposes of the Act it is necessary to consider four questions: (a) has the worker suffered a "personal injury"? (b) did that personal injury arise out of, or in the course of, employment? (c) was employment a significant contributing factor to the injury? (d) is the injury a psychiatric or psychological disorder that arose out of, or in the course of, reasonable management action for the purposes of s. 32(5)? In this case there is no dispute as to points (a), (b) and (c) set out immediately above. The Respondent accepts that Mr Lee did suffer a personal injury (adjustment disorder) that arose out of, or in the course of, his employment and that employment was a significant (but not the sole) contributing factor. The crucial issue in the appeal is whether or not Mr Lee's injury is withdrawn from the operation of s. 32 as a result of the application of s. 32(5). Nature of the Appeal The appeal to the Commission is by way of a hearing de novo. It is the Appellant that bears the onus of proof on the balance of probabilities (see State of Queensland (Queensland Health) v Q-Comp and Beverley Coyne 172 QGIG 1447; Qantas Airways Limited v Q-Comp 181 QGIG 301) to establish that Mr Lee's disorder was precipitated (at least in significant part) by reasonable management action and, therefore, that his injury was removed from the purview of the Act by s. 32(5). Because the matter is a hearing de novo, not a review of Q-COMP's decision per se, it is also necessary for Q-COMP to establish on the balance of probabilities that the worker did suffer a personal injury (adjustment disorder with anxiety) that arose out of, or in the course of, his employment and that employment was a significant contributing factor. I am satisfied that that onus has been met and that Q-COMP has established those elements. As a consequence, I turn to consider the only issue in dispute, being whether Mr Lee's injury is withdrawn from the operation of s. 32 of the Act as a result of the application of s. 32(5). -- 1 of 12 -- 2 The Employment History - Overview Mr Lee's employment history is conveniently recorded in a report to WorkCover prepared by Ms Gayle Sticher, Clinical Psychologist, who assessed Mr Lee on 24 October 2005, and I am content to adopt it as a reasonably accurate overview of Mr Lee's perception of his employment history, subject to several corrections to dates and the inclusion of some additional facts which appear in bold in the penultimate paragraph: "Mr Lee was originally employed as an Education Officer: Information Technology (Technician) by the Catholic Diocesan Education Services (then Diocesan and Education Office) in January 2001. This position was located within a central management office, Catholic Education Services, which provided administrative, professional and management services to the Cairns Diocese Catholic Schools. His duties were primarily to maintain and improve the computer and other information technology systems within the schools and administrative areas of the Cairns Diocese. Mr Lee reported that he was unable to complete all of his required tasks as an IT Technician, due to the level of demand, number of schools, distance to be travelled, increasing use and complexity of technology in schools, and limited budget. He reported feeling overwhelmed by his work responsibilities, and stated that he often worked long hours to meet some level of the demand. He made a number of requests to management for extra staff and resources, but was apparently informed that there was not enough money in the budget to cover this. After a restructure by the Director, Ms Carmel Ross, Mr Lee was appointed as an IT Systems Administrator/Planner from January 2004. Mr Lee perceived that his duties were significantly expanded when he was appointed to this role. In addition to his existing responsibilities, he was apparently required to manage staff and services within a budget, and provide services to other areas of the organisation, including the 'Bishop's house' (i.e. dioceses administration office), Centrecare, Pastoral Support Services and the Catholic bank. Mr Lee continued to raise his concerns with management about his inability to fulfil his role, given the level of staffing and resources. Ms Ross sent a letter to Mr Lee in August 2004, which he believed construed (sic) the issues he had raised with her as performance issues. He received a further letter from Ms Ross about these 'performance issues' in November 2004. Mr Lee continued trying to meet his work requirements throughout late 2004 and into 2005. In March 2005, an external consultant was employed to review Information and Communication Technology. Mr Lee felt that the review was undermining of him, and was unhappy that he was given only one hour with the consultant and not permitted to see a copy of the report. Ms Ross went on leave until early September 2005. On about 23 September 2005, Ms Ross informed Mr Lee that his position was to be made redundant from 9 January 2005. He was offered a (redundancy or a ) position as a technician after that time (with a 3 year 'salary parachute' to a technician's salary). Mr Lee had already been off work with flu-like symptoms from 19 September 2005, and had arranged to visit the doctor after their meeting regarding this illness. He was apparently diagnosed with high blood pressure and work-related stress, and was given time off work. (Note: Mr Lee actually visited his Doctor on Monday 26 September 2005 after experiencing certain medical symptoms over the weekend). Mr Lee responded to Ms Ross on 10 October 2005, accepting the redundancy, but declining the offer of a technician's position. At the time of the interview, he had not returned to work...". Evidence The Appellant called evidence from the following persons:  Ms Carmel Ross - Director Catholic Education, Catholic Education Services, The Roman Catholic Trust Corporation for the Dioceses of Cairns;  Mr Michael Quinn - School Development Officer, Catholic Education Services, Cairns; and  Mr Paul Daglish - Administrative Services Manager, Catholic Education Services, Cairns. Evidence on behalf of Q-COMP was given by the following persons:  Mr Adam Lee - the Injured Worker;  Ms Francis Hughes - Resource Centre Manager, Catholic Education Services, Cairns;  Mr Steven Roberts - previously employed as a Quality Manager by Catholic Education Services in Cairns;  Mr Jason Bursztynowicz - Information Technology and Technical Support Officer, Catholic Education Services, Cairns;  Ms Gayle Sticher - Clinical Psychologist; and  Dr Trevor Lotz - Psychotherapist/ Psychiatrist. -- 2 of 12 -- 3 With the exception of Ms Sticher and Dr Lotz, who gave their evidence by telephone, all of the other witnesses gave their evidence in person. This provided me with an opportunity to observe those witnesses closely and has allowed me to determine several issues in dispute, on the balance of probabilities, based upon assessment of the credibility of each witness in the context of their evidence overall. Whilst I have only referred to certain aspects of the evidence, below, I have, nonetheless, considered the whole of the evidence in arriving at my ultimate decision in this matter and not just those parts that have been referred to. The Stressors In the written reports and oral evidence of Ms Sticher and Dr Lotz respectively, various stressors were put forward as contributing to the development of Mr Lee's disorder. Those stressors which I accept as being borne out by the evidence to be significantly causally connected to the injury are: (1) The demands placed on Mr Lee in his role as IT Systems Administrator/Planner, including the way he was allowed to perform that role; (2) The overall performance review process, commencing with the August 2004 letter; (3) The engagement of an external consultant to review information and communication technology and the way that consultancy was conducted; and (4) Mr Lee's redundancy, including the way that the Appellant reached that decision and the way it was, ultimately, communicated to Mr Lee. I do not accept the evidence bears out that certain other stressors identified by Mr Lee as contributing to his distress and cessation of work, which are mentioned in paragraphs 2.7.1 to 2.7.3 of Ms Sticher's report to WorkCover (Exhibit 29), contributed to his disorder. Briefly stated, these stressors relate to Mr Lee's concern about his excessive workload in his role as a technician (January 2001 to January 2004), the lack of other staff to assist him, the large number of schools he was required to service, inadequate budgetary resources, being required to work long hours, having a two month waiting list of jobs to be done, having no time to deal with emergencies or unplanned work and believing that Ms Ross did not respond appropriately to his requests for assistance in these areas. Ms Sticher indicated in her evidence that whilst Mr Lee reported that he felt quite stressed about such matters he did not develop what would be recognised as symptoms that would reach a criterion for a disorder until during the period when he was employed as a manager, i.e. after January 2004. Further, Mr Lee confirmed under cross-examination that the date he identified on his Application for Compensation to WorkCover as first experiencing symptoms, namely May 2004, was essentially correct although, in hindsight, he should have indicated "mid 2004". Consequently, I have excluded all alleged stressors prior to this time from consideration. 1. The demands placed on Mr Lee in his role as IT Systems Administrator/Planner Upon assuming his new position in January 2004 Mr Lee perceived that the scope of his responsibilities, as documented in his position description, had increased and that he was required to be more responsible for system level implementation. While he understood that less of his time was to be spent performing technical duties in the schools and in the Diocesan Education Office, and was to spend more time in a management role, he felt that he had to find ways to take on the extra responsibilities because he had no one to delegate the calls for technical assistance to. As a consequence he was staying at work until 7pm in the evening and taking a lot of work home to try to keep on top of his workload. In addition to trying to meet the needs of the schools and Diocesan Education Office, Mr Lee, by now, had assumed responsibility for the technology requirements of Centrecare, Pastoral Support Services, the Diocesan Development Fund, the Diocese payroll system, certain Parish offices and the Bishop's house (which was the administrative centre for the entire Diocese). Whilst Mr Lee, again, knew that assuming such responsibility was outside his position description he nonetheless felt it necessary to take on those additional tasks because he was "expected" to perform such duties or Ms Ross had "implied" that he perform such roles. By the middle of 2004, or thereabouts, Mr Lee was becoming frustrated to the point of tears on occasions. He was continually feeling disgruntled because of the pressures of the role. Principals and other staff were constantly asking him "Why aren't things working?" and "When are you going to do this?" and he was finding it impossible to manage the competing demands of his role. One of the factors contributing to Mr Lee's stress was his perception of a lack of financial resources in the schools and their inability to cost-effectively fund their own technical support requirements unless it was provided by Mr Lee himself or another young technician, Mr Jason Bursztynowicz, who had been hired in 2003. Part of the reason for Mr Lee's stress in his new role was occasioned by his apparent lack of necessary experience or formal education (see section six of Ms Sticher's report). Ms Sticher also reported that Mr Lee stated that "he had difficulty making the transition from what he saw as a 'poverty' mentality of achieving results within the organisation to a -- 3 of 12 -- 4 model of purchasing and directing services.". In addition, Ms Sticher indicated that Mr Lee understood that Ms Ross expected him to delegate his technical duties but "he seemed not to have a way that he could do that or know of a way that he could easily stop performing those tasks." (p. 335 of transcript). 2. The overall performance review process Despite Mr Lee's belief that he was positively contributing to the schools and the Diocesan Education Office, and doing so in a cost-effective manner, he was surprised and upset to find a letter from Ms Ross dated 30 August 2004 simply left on his desk. In it Ms Ross expressed her concern about work she believed he was not performing and asked him to address those matters as a matter of urgency. The letter also asked Mr Lee to keep a professional log of his work which Ms Ross regarded as a standard industry practice. On the other hand Mr Lee viewed this particular request as unrealistic and a further imposition on his already busy schedule. Ms Sticher indicated, in section six of her report, that Mr Lee perceived the feedback given to him by Ms Ross through the letter as an adversarial response to his requests for assistance to perform his duties. Mr Lee said the letter "showed to me that Ms Ross really didn't understand what I was really doing and it upset me because if she didn't understand what I was doing then she couldn't value it..." (p. 201 of transcript). In any event, Mr Lee was of the view he was addressing the issues raised in Ms Ross's letter within the time limits available to him given the various demands being placed on him. The August letter also informed Mr Lee that his line manager would be changing to become a person who Mr Lee regarded as having very little IT knowledge, a Mr Quinn. A further letter dated 25 November 2004, was left on Mr Lee's desk shortly after Ms Ross went on leave. This letter listed a range of work issues which Ms Ross said had not been addressed despite her urgings, as well as several other matters - including personal mobile phone usage. Mr Lee was also upset to receive this letter because he thought he was going to be sacked (see below). Mr Lee said the letter didn't make any sense to him and he didn't believe he deserved this type of treatment. He was addressing the various issues which had been raised with him but he didn't have enough time and resources to meet the needs and had been "telling them" that. He had met with Ms Ross at several meetings - others had been cancelled - but the tone of those meetings was very different to this letter. The letter also informed Mr Lee that Ms Ross had decided to instigate a formal process of performance monitoring, to commence immediately, which involved the following elements:  meeting at least once each fortnight with Mr Quinn, with topics discussed at these meetings to be documented;  preparing a weekly work program and submitting that by email to Mr Quinn. This would provide the means by which Mr Lee could constantly revise priorities;  Mr Lee was to continue to maintain a daily log of his work which was to be emailed daily to Mr Quinn;  together with Mr Quinn, Mr Lee was to develop agreed strategies for responding to the various work concerns identified in the letter. In February 2005 Mr Quinn was to advise Ms Ross whether progress was being made in bringing Mr Lee's performance up to the standard required in the position; and  all purchases over $1000 in value were to be countersigned by one of 2 members of the management team. The letter closed with the threat that "should there not be clear improvement in your work during the next 3 months your employment will be terminated at the end of February". No other information, other than that recounted, was provided as to what the "formal process" would entail. Nor was Mr Lee informed how long the process might last, save and except the possibility of dismissal in February. Mr Lee thought it might last indefinitely (p. 206 of transcript). February 2005 came and no one spoke to Mr Lee about his performance. He remembered being quite stressed about it during that month because he had a family and a mortgage. When February passed by he thought he must have "improved enough" and that he must be "doing all right" (p. 206 of transcript). Eventually, despite Ms Ross's letter not inviting a response, Mr Quinn asked him to prepare a reply. This was done over the next several months and a draft was ultimately provided to Mr Quinn in July 2005 for comment on the basis that Mr Lee thought he was "being a bit over the top" and wanted some feedback from Mr Quinn before he sent it to Ms Ross. However, he said, no feedback was forthcoming. I gathered the impression that the requirement to write the letter, its actual writing, and Mr Quinn's enquiries about its progress were all stressful events for Mr Lee. Mr Lee indicated that the scheduled meetings with Mr Quinn continued until about May or June then ceased. He received no formal feedback from Mr Quinn about his performance and whether he was meeting the Appellant's expectations. -- 4 of 12 -- 5 On 20 May 2005 Mr Lee received, without any comment from Ms Ross or anyone else, a copy of his proposed contract of employment for his position of IT Systems Administrator/Planner which was dated 12 January 2004. Again, this document was left on Mr Lee's desk shortly after Ms Ross had left on leave, this time for 13 weeks. Mr Lee perceived that the receipt of this letter of offer meant that the previous threat of discipline had abated and his job was secure (p. 213 of transcript). He also believed the contract offered him a job until 2009 and he had "obviously passed the previous nastiness" (p. 213). 3. The engagement of an external consultant Mr Lee was on leave in September or October 2004 when he received a phone call from Mr Bursztynowicz advising him that Ms Ross had issued a memo to staff informing them that an IT consultant was being engaged by the Appellant to evaluate its IT needs. Mr Lee was concerned that he had only found out about the consultant's engagement after the other staff were informed, and equally concerned that he hadn't been informed or consulted about the engagement before it was announced. He felt undermined. In this regard Ms Sticher indicated: "Mr Lee felt that he was working very hard and doing a very good job and being quite innovative and dedicated to his position. He appeared to perceive the appointment of a consultant to review the whole of the IT area, which he was the senior person for, as an indication that the organisation didn't see his role in a positive light. He also felt that it was communicated as a fait accompli to the whole organisation when that person was appointed rather than an initially being discussed with him. So, he felt undermined. He was receiving the news that a review of what was essentially his area at the same time as the rest of the organisation received that information.". Mr Lee also raised the issue of the IT consultancy with Ms Ross in early November 2004 because he wanted to find out more about it's purpose. As he put it "it was about my area completely and I have responsibility - it was - it was everything that I was doing for the last 5 years. I really wanted to know about this person and how it was going to effect my role." (p. 203 of transcript). However, he said, Ms Ross didn't provide a clear answer. Ms Sticher agreed with the proposition that Mr Lee felt "a bit left out" or "a bit peeved" that the matter of the outside consultancy wasn't discussed with him before it happened and agreed that Mr Lee wasn't happy that the consultant only spoke with him for 1 hour. She also indicated that it appeared to her as if Mr Lee was wanting to play a more integral part in deciding the terms of reference of the review, the nature of the review itself and participate more fully in the process of finding answers for the IT problems of the Appellant. Further, Mr Lee was unhappy that he was not given a copy of the consultant's report despite asking for one on a number of occasions. 4. The redundancy After being absent from the workplace with flu-like symptoms for the whole of the previous week, Mr Lee attended the workplace for a few hours on Friday 23 September 2005 to complete certain tasks which he felt needed to be performed. In the course of his visit he happened upon a Ms Davey, Ms Ross's secretary, who indicated that Ms Ross wished to meet with him. The time for that meeting was set for 1pm. However at about 10am Mr Lee requested that the meeting be brought forward because he was not well and wished to go home. It was moved to 10.30am. Mr Lee thought that the meeting was about negotiating the contract left on his desk on 20 May 2005. Mr Lee said that when he attended the meeting with Ms Ross she started by saying words to the effect "this is going to go badly for you", which was quite a shock to him, so his first question was "So, am I sacked?". Ms Ross indicated he was not being dismissed but stated that on the following day there would be an advertisement in the newspapers for a new position, his position was to be made redundant as he was being moved back into a technical role. During the course of the meeting Mr Lee was given a letter of termination (Exhibit 10) which he "only had a few minutes to read". He said that he didn't really absorb the content and was thinking "this is quite a nasty thing that is occurring here" and "this is going to be re-employment" at a rate of about $45,000 per annum which "was less than I was getting when I started there ...5 years ago..." (p. 221 of transcript). He said that he could see there was a "parachute thing" and thought that maybe if he budgeted hard he could still make his mortgage payments. The letter also asked him to inform Ms Ross of his intention to accept either the offer of re-employment or the offer of redundancy by 8:30am on Monday 26 September 2005. Mr Lee said he requested more time than that so he could discuss the matter with his wife and look at the issues. Ms Ross agreed that extra time would not be a problem and extended the time frame until either the following Friday or perhaps following Monday - he could not remember. Ultimately, Mr Lee decided to accept the offer of the redundancy because he felt the reduction in pay and position was not justified and because he didn't really wish to continue to work "in that sort of environment" (p. 224 of transcript). Over the weekend Mr Lee's flu-like symptoms worsened - he had significant shortness of breath and numbness down his left arm - which prompted his wife to urge him to see his doctor. When he saw Dr Coetzee on Monday 26 September -- 5 of 12 -- 6 2005 he was diagnosed with a stress disorder due to work related stress and given blood pressure medications due to his stress related hypertension. Ms Sticher indicated in her report that "although Mr Lee's symptoms had been developing over time, it would appear that the acute precipitant for him requiring time off work was his learning of his redundancy on (22 September) 2005. He was already off work for 'flu-like' symptoms, which he believed were stress related. However, he had attended work on that morning and is likely to have returned to work after his illness settled if not for the meeting with Ms Ross. It is not uncommon for persons learning of a redundancy to have a significant period of distress, particularly if they believe the situation is unjustified. In most cases, this duration of this distress is mediated by the options available to the person for the future. Mr Lee was offered an alternative position within Catholic Education Services, with a 3 year 'parachute provision' to alleviate the impact of the reduced salary. He had declined this position, after discussing this option with his Union. It would appear that a primary factor in his decision, and his current distress, was his perception that his past level of work had not been valued by his Employer.". Under cross-examination, Ms Sticher confirmed that "being made redundant as a result of the consultant's views was of itself a stressor" and that "the terms of the redundancy that was offered was also a stressor" (p. 340 of transcript). She also agreed that part of the stress occasioned by the redundancy seems to have included a conclusion by Mr Lee that his past service was not valued and further indicated that that view was a significant matter in his decompensation (p. 341). Dr Lotz referred to the redundancy as a stressor. He accepted that the evidence given by Mr Lee about his anxiety getting worse after being told of his redundancy was somewhat contradictory to his written report to WorkCover (p. 334 of transcript). He accepted, however, that the fact Mr Lee was made redundant can certainly cause anxiety but that "it may be something that I didn't actually go into" (p. 344). Was the relevant management action reasonable? It is abundantly clear from the evidence, and is accepted by the Appellant, that the stressors identified above arose out of, or in the course of, Mr Lee's employment with the Appellant and that employment was (at least) a significant contributing factor to the injury. However, it is necessary to consider whether the relevant management action was reasonable management action taken in a reasonable way. 1. The demands placed on Mr Lee in his role as IT Systems Administrator/Planner The role which Mr Lee assumed in January 2004 was originally offered to him in July 2003 following a major review of the operations of the Catholic Education Services arranged by Ms Ross, who had commenced in the position as Director some 18 months previously. Ten senior positions were made redundant and there was a significant reshaping of jobs and positions within the Service. Mr Lee was interviewed for the proposed new position of IT Systems Administrator/Planner by Ms Ross and the consultant who conducted the review. The higher level duties and responsibilities were explained to Mr Lee to confirm that he understood them and could deliver on them. Ms Ross said that Mr Lee expressed no doubt that he could deliver and that he had the competence to do what was being asked (p. 17 of transcript). Indeed, she said, he expressed his delight at the direction management was heading. Ms Ross indicated that whilst Mr Lee was frequently complaining about lack of resources and the difficulties he was having in servicing the requests for technical support and completing other aspects of his role, she only became aware over a period of time that he was performing much of the technical work himself. Some of this work was being done because Mr Lee said that Mr Bursztynowicz didn't have the requisite skills, with the rest of it being done by Mr Lee of his own volition and in direct contradiction of Ms Ross's expectations that such services only be delivered on a "user pays system". She indicated that she frequently told Mr Lee she could not consider his requests for additional resources until he built a business case to support the engagement of additional staff. She told him this would require him to keep logs of the work undertaken by himself, Jason or external providers so that management could look at the amount of work that existed and decide whether they needed to engage someone extra to undertake that work. Ms Ross told Mr Lee, as she told everyone in the Central Office, that putting someone else on the payroll in the Office meant taking a position away from the schools. Ms Ross also indicated that whilst she was aware that Mr Lee was performing some other tasks for organisations like Centrecare, Aged Care and the Diocesan Administration Office, she did not know the extent of his involvement in such work because no logs were being kept. She also indicated it was her expectation that Mr Lee would have only done such work on a user pays basis and that she made this clear to him. It was his responsibility to advise her what was needed by way of staff upgrading to meet those needs (p. 62 of transcript). Ms Ross indicated that in the absence of any such records of the work Mr Lee was doing "neither I, nor probably anyone else, would have had any understanding of the level of - of contact that there was." (p. 63). -- 6 of 12 -- 7 She also indicated under cross-examination that she did not instruct Mr Lee not to perform work for those other agencies until there was a user pays system up and running. In her view it was always intended to be user pays, and, in the absence of records from Mr Lee about what he, Jason, or anyone else was doing "there was no way of knowing whether that was 1 hour a month, 1 hour a year or 1 hour a day" (p. 64). By the middle of 2004 Ms Ross was becoming quite concerned about Mr Lee's overall performance, particularly his failure to deliver some key outcomes, his decision to attempt to try to continue to provide personal level technical support to the schools and his inability to prioritise and manage his time. As a consequence, she held a number of meetings with him during which she raised these issues and stressed to him that he should not be trying to do all of the work himself and that the schools, and others, should engage their own technical support. In addition, she stressed the need for him to keep logs so that the work being performed could be recorded and used for budgeting purposes, as well as to justify the engagement of additional staff, if that was required. By the end of August 2004 Ms Ross's attempts to gently persuade Mr Lee to alter his ways had failed. As a consequence, she elected to put all of her concerns in writing so that her position - and her expectations - would be made clear to Mr Lee. Such issues were recorded in the letter of 30 August 2004. One important element of the letter was Ms Ross's reference to a Help Desk which was designed to overcome the problem of schools contacting Mr Lee directly with technical queries. The letter made it plain that the Help Desk could only work if Mr Lee gave his personal commitment to it. Ms Ross's letter also informed Mr Lee that if he believed there were any impediments to the Help Desk working effectively it was important that he let her know so that alternatives could be considered. At the end of the letter a clear request was made of Mr Lee to develop a set of procedures and guidelines for the Help Desk to be fully developed by the beginning of Term 4 in 2004. This would include advice going to the schools that they were not to contact Mr Lee directly for service and support but must work through their own technical support person or the Help Desk itself. To assist Mr Lee implement the Help Desk Ms Ross also communicated with the Principals and schools in respect of the Help Desk by memorandum and by mentioning it at a Principal's meeting. Coinciding with the decision to commit her concerns to writing Ms Ross made the decision to change Mr Lee's line manager from Mr Roberts to Mr Quinn, apparently in the hope that Mr Quinn would have more success in assisting Mr Lee to address his problems than Mr Roberts. Ultimately, when the issues raised in the letter had not been addressed, or addressed satisfactorily, Ms Ross decided to place Mr Lee under a performance management process (see below) under the close control and direction of Mr Quinn. This happened at the end of November 2004. I am satisfied that the close direction and support provided by Mr Quinn from late November 2004 - together with engagement of additional technical assistance from early 2005 - helped to overcome any workload pressures on Mr Lee which were acting as stressors. It is evident from Mr Lee's work-logs (which cover the period from the beginning of December 2004 until the end February 2005) that his involvement in providing direct technical support to schools and others had been drastically reduced, as had the number of telephone calls seeking assistance. There is no real support in the evidence that Mr Lee was in any way concerned about his workload after about December 2004. Any claims by him that he was concerned, and that his workload after that point was still oppressive, are rejected. As a consequence, I shall limit my consideration of the management action taken in respect of this particular stressor to the period between January 2004 and December 2004 but, most particularly, from mid 2004 until the end of that year. In the course of his cross-examination Mr Lee claimed he only ever accepted a job in technical support and he had "not officially" accepted the Systems Administration role because he had never signed a contract. He also claimed he never went through the position description and only accepted the position because it was implied that if he didn't accept it "he would have to find another job in another place" (p. 275 and 276 of transcript). He claimed he "accepted the offer of the job externally possibly with pleasure but internally with trepidation.". I do not accept Mr Lee's evidence on this point. I am satisfied that he willingly took on the new role knowing what the expectations were. His claim that he did not "officially" accept the role seemed to be some attempt to justify his ultimate decision to continue to provide technical support to the schools, and elsewhere, when he knew that that was not a requirement of the job. I am also satisfied Mr Lee clearly understood, when he assumed the new position, that he was expected to significantly reduce the amount of time he provided to schools and the Diocesan Education Office by way of direct technical support and that he was supposed to move to a user pays system with the schools engaging external providers if he or Jason could not meet their direct needs. I am also satisfied that despite knowing this was Ms Ross's clear expectation Mr Lee chose to act in a contrary manner by electing to continue to provide direct technical support himself. It is obvious that Mr Lee, himself, was the primary reason why the Help Desk never got off the ground. Rather than politely declining to assist schools, and the like, when they contacted him directly and, instead, referring them to the Help -- 7 of 12 -- 8 Desk, Mr Lee continued to take whatever calls came his way. As a consequence, steps which Ms Ross and others were trying to put in place to assist him were being totally negated by Mr Lee's own actions. Further, I am satisfied that Mr Lee was clearly aware that additional staff to meet the technical support needs of the schools and the Diocesan Education Office would only be made available to him if he developed a business case to justify their direct engagement by the Office itself. I am satisfied that his decision not to keep records to, amongst other things, mount such business case was a conscious and deliberate decision taken for his own reasons. Mr Lee's claim that he did not do this because he was "basically too busy" (p. 292 of transcript) is not accepted. I am also satisfied that Mr Lee overstated the position when he claimed that it was "implied" or "expected" that he provide technical and other support to the other agencies such as Centrecare, the Bishop's Office etc. Indeed, he conceded (p. 287- 289 of the transcript) that it was made clear to him by Ms Ross, and others, that any work for such agencies was only to be performed after he looked after his core responsibilities with the schools and the Diocesan Education Office. I am satisfied he understood that such work was only to be performed on a user pays basis but decided not to implement such system for his own reasons - probably because he objected to Ms Ross's request to him to keep a work log and because he did not see the need to develop a business case to verify something which he thought was clearly apparent. I am further satisfied that Mr Lee elected to work the hours he did because he had decided that that was the amount of dedication required to do the job effectively (p. 208 of transcript), because he wanted to be personally involved in some of the decisions being made in the schools (p. 177), and because he enjoyed being in the direct spotlight (see the "you're the man" (to meet our needs) comment at p. 177). These decisions - all conscious - are a direct reflection of his obsessive personality (see the evidence of Ms Sticher and also Dr Lotz). They also reflect Ms Sticher's evidence that "he did have firm ideas as to how his role should be undertaken and how IT services should be undertaken within Catholic Education" (p. 341) and her evidence of "his firm perception of having the best approach to meeting the needs of schools" (page 10 of her written report). In the end result I have reached the conclusion that the demands placed on Mr Lee in his role as IT Systems Administrator/Planner involved reasonable management action taken in a reasonable way. The duties entailed in the role of IT Systems Administrator/Planner were not overly onerous. The position was a salaried one which attracted a reasonably high rate of pay. The requirements of the position were made known to Mr Lee before he accepted it and he professed to have the ability, and experience, to undertake the role. It was reasonable for the Appellant to give Mr Lee some time to settle into the role and, from time to time, draw to his attention areas where it was believed he was getting off track. Ms Ross, and others, did this during the course of a number of meetings with Mr Lee after the Appellant first became aware that Mr Lee was experiencing certain difficulties in or around the middle of 2004. It was also reasonable, in my view, for the Appellant to try to let Mr Lee, as the occupier of a reasonably senior management position, find his own way forward without its undue intervention. It was also reasonable for the Appellant to progressively intervene as Mr Lee continued to demonstrate that he was having difficulties managing the role. However, all of the Appellant's reasonable efforts to assist Mr Lee to cope with his workload were either rebuffed or deliberately ignored. Ultimately, the Appellant was forced to intervene by placing Mr Lee under a performance review process in late November 2005. All of the Appellant's actions which proceeded that intervention, in the area of Mr Lee's workload and the requirements of his position as Systems Administrator/Planner, involved reasonable management action taken in a reasonable way. 2. The overall performance review process Most of the evidence in respect of the performance review process is recorded above and it is not my intention to repeat it here. Rather, I shall focus on the actions of the Appellant at the relevant times to consider whether such actions were reasonable management actions taken in a reasonable way. What is "reasonable" will vary from case to case. "Reasonable" means reasonable in all of the circumstances of the case (WorkCover Queensland v Kehl 170 QGIG 93; Qantas Airways, supra). What management does must be reasonable, not perfect (Qantas Airways, supra). "Blemishes" do not necessarily render the management action unreasonable or unreasonably taken (Qantas Airways, supra). However, the position is different if there are repetitive blemishes joined by subject matter, time and personality (Delaney v Q-Comp 178 QGIG 197). -- 8 of 12 -- 9 In this case there were a number of blemishes, as follows:  leaving the letter of 30 August 2004 on Mr Lee's desk without further comment or explanation;  informing Mr Lee in the same letter, without further comment or explanation, that his line manager would be changing;  leaving the letter of 25 November 2004 on Mr Lee's desk without further comment or explanation;  informing Mr Lee in the same letter, without further comment or explanation, that a formal process of performance monitoring was to commence immediately;  informing Mr Lee in the same letter, without further comment or explanation, that should there not be clear improvement in his work performance during the next three months his employment might be terminated at the end of February;  failing to inform Mr Lee at the end of February, or any other time, that the threat of dismissal had been removed or alleviated, and failing to inform him whether he was meeting the Appellant's expectations;  failing to inform Mr Lee that the performance review process had been concluded; and  leaving a copy of his employment contract, dated 12 January 2004, on his desk on or around 20 May 2005, thereby leading Mr Lee to believe (rightly or wrongly) that his position was safe and he had a contract until January 2009. The sheer number of "blemishes" in the whole of the circumstances of this case, lead me to conclude that the performance review process, commencing with the first letter on 30 August 2004 and continuing until the middle of 2005, rendered what would otherwise have been reasonable management action as management action unreasonably taken. 3. The engagement of an external consultant Again, most of the evidence in respect of this point has been recorded above. Having considered all of that evidence I have reached the conclusion that the actions of the Appellant, despite an initial blemish, was reasonable management action taken in a reasonable way. The only blemish, insufficient in context to render the whole of the Appellants' actions as unreasonable, or unreasonably taken, was it's failure to inform Mr Lee of its decision to engage an outside consultant to review it's information technology and communication needs before such announcement was made generally to staff. That issue aside, all of the other action taken by the Appellant was both reasonable and reasonably taken. Not only had Mr Lee failed to demonstrate he had made the transition from technician to manager, his failure to satisfactorily resolve various technical issues within the Appellant's operations (eg. the shared diaries issue) was legitimate cause for the Appellant to question his overall technical expertise and knowledge. As such, the Appellant was entitled to exclude him from the development of the terms of reference for the review based upon its perceptions of his competence. Further, it also made good sense to bring in a person who was completely impartial to conduct the review, untainted by any prior contact with anyone in any of the key roles in the organisation within the scope of the review. Equally, it was open to the consultant to conduct the review as he saw fit, given the broad brief made available to him. Importantly, the review was not a review of the information technology area itself. It was much wider than that. Indeed, the consultant made it plain that he was not going to come to look just at information technology, he was going to look at the whole process (see the evidence of Mr Quinn at p. 128 of transcript). As Mr Quinn informed Mr Lee "the purpose of the consultancy was that we had invested in IT and we needed to identify whether we were investing just for the sake of investing or we were insuring that we were using - the technology was helping improve our processes, not that we - we were being directed by the - the technology". Given that the review was multi-faceted, in that it looked at the whole process - not just the information technology side of things - there was no particular reason why Mr Lee should have been included in the process of developing the consultant's terms of reference. In any event, even if the consultancy had been to review the area under the control of Mr Lee, there was nothing wrong with the management group determining the terms of reference and excluding Mr Lee from the whole process. After all, the purpose of most such consultancies is to give management a fresh set of eyes and ears to advise it so that unbiased decisions about resources and direction can be taken. There was also nothing wrong in the fact that the consultant only chose to spend approximately 1 hour with Mr Lee. While Mr Lee might complain that he wanted greater access to the consultant he had no particular right to expect it, nor demand it. Time spent with any particular individual was a matter for the consultant. As it turned out Mr Lee's meeting with the consultant was basically one on one (although Mr Quinn did sit in) whereas other staff, such as the secretaries, met the consultant in groups. -- 9 of 12 -- 10 Finally, there was no obligation placed on the management team to provide Mr Lee with a copy of the consultant's report, or to inform him as to its contents. The review, as noted above, was wide ranging and covered many areas other than Mr Lee's direct area of responsibility. Whilst the recommendation might have indirectly impacted on Mr Lee, in the sense that the consultant recommended the engagement of a Information Service Manager, there was no obligation on the Appellant to draw that matter to his attention until a decision was ultimately taken to accept the consultant's recommendations. Whilst the management team might have decided to accept them, the ultimate decision lay with the Board of Governance, which only considered, and accepted, the consultant's recommendations in late August or early September 2005. It was shortly after that that Mr Lee was informed of the broad outcome of the consultancy, but communication of such outcome relates to the following stressor, not this one. All things considered, I am satisfied that the management action in respect of this particular stressor was reasonable management action taken in a reasonable way. 4. The redundancy The facts surrounding the communication of Mr Lee's redundancy are recorded above. However, what is not recorded is how that decision was reached. The consultant who was engaged to review the information and technology needs of the Diocesan Education Office released his report, or so it appears, in the latter part of April 2005. In it, he recommended the engagement of an Information Services Manager "with suitable expertise and experience to supervise the analysis of current and future ICT requirements for CES and the possible subsequent implementation of appropriate technology." (p. 3 of Exhibit 9). At page 9, the consultant indicated: "An IS Manager understands the administrative processes and also understands the technology needed to facilitate those processes. The functions of an IS Manager include:  Getting data into shape  Creating and building an infrastructure for managing the full range of information types  Helping CES leverage the tacit knowledge of it's employees  Supervising ICT  Realising that getting value out of information requires more than technology" Although it is not recorded in the written report, Ms Ross indicated (and I accept) that the consultant recommended that the person engaged to be the IS Manager be university educated and have appropriate qualifications and experience. Shortly after receiving the consultant's report the management team, led by Ms Ross, considered it and decided to recommend it's acceptance to the Board of Governance, the overall governing body. The management team also decided Mr Lee would not be a suitable person to perform the IS Manager role, because of the way he was performing his current role as well as the fact that he was not university educated. This decision was made sometime before Ms Ross proceeded on leave, on or about 20 May 2005. The management team also decided that Mr Quinn and Ms Roylan would develop and present a presentation to the Board of Governance during Ms Ross's absence. Coinciding with Ms Ross's departure on leave, a copy of Mr Lee's contract of employment, dated 12 January 2004, was left on his desk. I am satisfied that this contract was left there either by Ms Ross or by someone else acting on her instructions. Whilst the Appellant was entitled to make the decision to engage an Information Services Manager and, by doing so, effectively make Mr Lee's position as IT Systems Administrator/Planner redundant, what would have otherwise been reasonable management action became management action unreasonably taken because of the way the whole redundancy was handled. Firstly, it was grossly unfair to Mr Lee to give him a false sense of security about his future within the organisation by leaving a contract on his desk which, on first reading, appeared to offer him employment until 12 January 2009. This was because the management team had, just a short while before, reached the conclusion that Mr Lee's position needed to be made redundant on the basis it was no longer required if an Informations System Manager was to be employed and on the basis the Diocesan Education Service could not afford to engage two highly paid persons. Secondly, the manner of informing Mr Lee of his redundancy was very, very, poorly handled. It commenced with the decision to prepare and book newspaper advertisements advertising the position of Information Systems Manager on Saturday 23 September 2005, when Mr Lee had not been informed that such decision had been made. It was compounded by the fact that Mr Lee was on his fifth day of sick leave when he happened, by accident, upon Ms Ross's secretary who informed him that Ms Ross wished to speak to him. Waiting until the day before an advertisement was to appear, having a -- 10 of 12 -- 11 "chance opportunity" to tell Mr Lee his position was redundant and telling him of his redundancy whilst he was on sick leave were all grossly unfair actions. Is the injury excluded by the effect of s. 32(5)? The result of my consideration of the relevant management action in relation to the stressors I have accepted were causally linked to the development of Mr Lee's adjustment disorder is that two (2) of the stressors arose from reasonable management action taken in a reasonable way whilst the other two (2) arose from management action unreasonably taken. As such, the issue for my consideration is whether the disorder is excluded from the definition of "injury" in s. 34 of the Act by the effect of s. 34(5). In this regard Mr Murdoch, who represented Q-COMP, argued that whether management action is reasonable must be considered and assessed "in all the circumstances of the case" (WorkCover v Kehl, supra) and that the need to consider all of the circumstances means that management action must be evaluated in a global sense rather than considering each act of management in isolation (Delaney, supra). However, Mr Murdoch also (rightly) acknowledged that the decision of the Industrial Court in Q-Comp v Education Queensland 179 QGIG 491 had to be overcome if his argument was to succeed. Importantly, in that case the Industrial Court held: "The concern of s. 34(5) is to remove certain psychiatric and psychological disorders from the statutory definition of 'injury'. Where a situation arises in which s. 34(1) 'ropes in' a particular psychiatric or psychological disorder and s. 34(5) excludes the same psychiatric or psychological disorder, there is inconsistency which because of the use of 'notwithstanding' must be resolved by allowing s. 34(5) to prevail.". (The above decision refers to the definition at s. 34 of the WorkCover Queensland Act 1996 which is the same terms as s. 32 of the Workers' Compensation and Rehabilitation Act 2003). In Prizeman v Q-Comp 180 QGIG 481 the Industrial Court applied Q-Comp v Education Queensland (supra) to hold that where a significant stressor is not other than "reasonable management action reasonably taken" that was sufficient to remove the psychiatric/psychological disorder from the definition of "injury". In a well developed and presented case, Mr Murdoch sought to argue that the decisions in Q-Comp v Education Queensland and Prizeman v Q-Comp were distinguishable and did not assist in the resolution of this case. In doing so he submitted: "This is because, firstly, the redundancy is the stressor that led to the decompensation (see the report of Ms Sticher at pages 6, 7 and 10). Secondly, it is clear that the other stressors contributed to the development of symptoms prior to the redundancy. Thirdly, in any event, the other stressors did arise out of or in the course of unreasonable management action.". I do not accept Mr Murdoch's argument, notwithstanding the skill with which it was presented. This is because whilst Ms Sticher indicated that "the acute precipitant for (Mr Lee) requiring time off work was his learning of his redundancy" it is also clear from her evidence that the redundancy was not the most significant contributor to the injury. On her evidence (see especially p. 342 of transcript) it is apparent that the redundancy was an equal stressor to the others identified above. In other words, whilst learning about the redundancy might have been the event which led to Mr Lee's breakdown it was not the cause, nor the most significant cause, of his decompensation. Mr Lee's symptoms had been developing over time with a number of (equal) stressors contributing to those symptoms and the ultimate decompensation. On my findings above two (2) of the four (4) stressors relate to reasonable management action taken in a reasonable way. Neither of these stressors was less significant than the other two (2). Accordingly, applying the precedent established in Q-Comp v Education Queensland (supra), that is sufficient to bring s. 32(5) into play, thereby causing Mr Lee's adjustment disorder to be excluded from the definition of "injury" within the meaning of s. 32 of the Act. For the foregoing reasons I uphold the Appeal. I set aside the decision of Q-COMP dated 19 June 2006 and determine that Mr Lee's claim to WorkCover is one for rejection. -- 11 of 12 -- 12 The Commission determines and orders accordingly. A.L. BLOOMFIELD, Deputy President. Hearing Details: 2007 13, 14, 15 December (Hearing - Cairns) 12 March (Resumed Hearing) 29 March (Resumed Hearing - Oral Submissions) 10 April (Transcript available) Released: 3 July 2007 Appearances: Mr F. Lippett with Ms S Brooks, instructed by Catholic Education Services, on behalf of the Appellant. Mr C.J. Murdoch, instructed by Ms J Webb of Q-COMP, for the Respondent. Government Printer, Queensland The State of Queensland 2007. -- 12 of 12 --