Delaney v Q-COMP Review Unit [2005] ICQ 7 (2005) 178 QGIG 197

[Extract from Queensland Government Industrial Gazette, dated 11 March, 2005, Vol. 178, No.10, pages 197-199] INDUSTRIAL COURT OF QUEENSLAND Worker’s Compensation and Rehabilitation Act 2003 – s. 561 – appeal against decision of industrial magistrate Paul Andrew Delaney AND Q-COMP Review Unit (Case No. C90 of 2004) PRESIDENT HALL 2 March 2005 DECISION Mr Delaney was employed by Queensland Health within the Mental Health Services Unit of the Bundaberg Base Hospital as a Registered Psychiatric Nurse from 1995 until June 2002 when he suffered a myocardial infarction. Since then, he has been in receipt of sickness benefits and a disability pension. On 21 June 2002, he made an application for compensation to WorkCover in relation to injuries which he claimed to have suffered during the course of his employment since 12 February 2000, namely work related stress (an adjustment disorder). Mr Delaney did not seek to rely upon the myocardial infarction as an injury for the purposes of his application and has not relied upon it in the subsequent appeals. That application was rejected on 1 October 2002. On 25 October 2002, the Appellant made an application for review of that decision. On 28 January 2003, the Review Unit of Q-COMP confirmed the decision to reject the application for compensation on the basis that the Appellant had not suffered an “injury” within the meaning of s. 34 of the WorkCover Queensland Act 1996. The reason given was that under s. 34(5) an “injury” did not include a psychiatric or psychological disorder arising out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with a worker’s employment, and that on the facts, Mr Delaney’s disorder was properly so described. Mr Delaney appealed against the decision of the Review Unit pursuant to s. 498 of the WorkCover Queensland Act 1996. By a decision of 16 September 2004, the Acting Industrial Magistrate who had heard the appeal determined it adversely to Mr Delaney. Mr Delaney now appeals to this Court. It is common ground that it is the effect of s. 603 of the Worker’s Compensation and Rehabilitation Act 2003 that the matter is to be dealt with under the WorkCover Queensland Act 1996. By s. 509 the appeal is by way of rehearing. Counsel for the Appellant accepts the burden of demonstrating that the Acting Industrial Magistrate was wrong, compare Garrett v WorkCover Queensland (2000) 105 QGIG 217 but takes issue with the reliance in the response upon a passage in Priddle v WorkCover Queensland (1999) 162 QGIG 170 at 171, viz.: “The traditional approach has been for the Industrial Court to pay due deference to the view reached by an Industrial Magistrate where that view is reasonably open, even though the Court still retains a right to substitute its own view, ultimately, because of the approach indicated by the High Court in such cases as Warren v Coombes (1979) 142 CLR 531, compare WorkCover Queensland v Ross Henry Alcorn 156 QGIG 568 at 568 per de Jersey, President.”. Whilst I adhere to the view repressed in Priddle v WorkCover Queensland, ibid, I quite accept that where an Appellant succeeds on a submission that an Industrial Magistrate has misapprehended the facts (and such a submission is made on this appeal) the advantages of evaluating credibility and gauging the feel of a case (compare Fox v Perey (2003) 214 CLR 118 at 126 per Gleeson CJ, Gummow and Kirby JJ) are lost. And the same approach must be taken where the only issue is about the evaluation of undisputed facts or facts (originally disputed) treated as established by the findings of the Industrial Magistrate, compare Warren v Coombes (1979) 142 CLR 531 at 551 per Gibbs A-CJ, Jacobs and Murphy JJ. Some issue is also raised about the content of the notion of reasonableness at s. 34(5) WorkCover Queensland v Kehl (2002) 170 QGIG 93 at 94 adopts the view that “reasonable” should be treated as meaning “reasonable in all the circumstances of the case”. In reliance upon the decision of the trial judge (Walker J) in Doyle v Manly Pacific International Hotel [1998] NSWCA 44 at [106], counsel for the Appellant seeks if not to subsume “reasonableness” in “industrial fairness” to elevate “industrial fairness” a dominant consideration. The relevant passage in Doyle v Manly International Hotel, ibid, is: “In Jackson’s case I endeavoured to come to terms with the difficult concept of reasonable in s11A (11). My conclusion was ‘reasonable’ means reasonable in all the circumstances of the case. Because the employer’s actions are in an industrial law setting, the test I applied was whether a reasonable observer of all the circumstances of the case would find the employer’s actions fair.”. [I accept that His Honour’s view was not adversely commented on when the matter went on (an unsuccessful) appeal, see Manly Pacific International Hotel v Doyle [1999] NSWCA 465.] -- 1 of 4 -- 2 Whilst I accept that because s. 34(5) operates upon occurrences in the course of an employment relationship and work related disorders of the mind, considerations of “fairness” will always be relevant, I can see no advantage in seeking to improve on the statutory test. Indeed, in cases in which an employer bears the burden of displaying fairness to multiple employees with divergent interests the improvement may well prove a distraction. None of those remarks I should add, are intended to detract in any way from the cardinal role to be played by “fairness” when (as here) management are dealing with a staff member known to management to have decompensated in the face of workplace pressure on an earlier occasion. The Acting Industrial Magistrate found that the Appellant suffered from an adjustment disorder with mixed anxiety and depressed mood, which was a psychiatric or psychological disorder was an “injury” within the meaning of s. 34. No attack is made on that finding on the appeal. The Acting Industrial Magistrate also found that the Appellant’s employment had been a significant contributing factor to that “injury”. Once again, there is no challenge to that finding upon the appeal. His Honour went on to consider whether the “injury” was withdrawn from the definition of industry by s. 34(5). In my view His Honour was right to take that course. Given the history of the legislation, it would, be wrong to start at the other end, eliminate all work related causes which might be characterised as reasonable management action reasonably taken and inquire whether any remaining causes might be characterised as significant causes of the injury. This not being a case in which the “injury” was said to have been withdrawn from the definition by one event or one course of conduct the necessities of exposition forced the Acting Industrial Magistrate to tease out the transactions and series of events said to have brought about the injury and said to have been reasonable management action reasonably taken. I am content to adopt the Acting Industrial Magistrates description of the issues, viz.: 1. “The failure of the District Manager, Mr Leck to deal with the Appellant’s application for worker’s compensation in early 2000 in a timely manner. 2. The failure to notify the Appellant of what was happening or had happened with the grievance instituted by Ms Reedy against the Appellant in June 2000. 3. The lack of any consultation by management with the Appellant concerning the closure of the intensive care unit in early 2001. 4. Circumstances surrounding creditation process and the “declaration of an authorised mental health service” form, namely that he was bullied or harassed to complete the declaration form. 5. The letter of no confidence in the union delegates for Bundaberg Integrated Mental Health Services Sub-Branch the Queensland Nurses’ Union of which the Appellant was a member, by member’s of the Queensland Nurses’ Union including Ms McDonnell. 6. The failure in Ms Judith McDonnell to deal with the issue raised by the Sub-Branch of the Queensland Nurses’ Union and its letter dated 8 December 2001 concerning the non-election of the Workplace Health and Safety representative in accordance with the relevant legislation. 7. Delay in dealing with, failing to take the statement from Mr Delaney, and a lack of notification with respect to, the grievances lodged against Dr Jenkins and Ms McDonnell in November/December 2001.”. The Acting Industrial Magistrate had an obligation to disclose the reasons for the decision on the appeal. It is difficult to imagine how that might have been done without segmenting the events which occurred over a lengthy period of time. However, the events and courses of conduct marshalled up by the Acting Industrial Magistrate under the headings set forth above were not truly discreet. The closure of the intensive care unit in early 2001 referred to at heading (3) was the cause of on-going discord within the workplace. The Appellant, who was strongly opposed to the closure, was a vigorous participant in the dissention. Each of the matters at headings (3) to (7) were either aspects of the wrangling between the management and some of the staff about the closure, or products of that wrangling. The strongest example of the nexus between the events and courses of conduct is provided by the matters at headings (5) and (6) which became (part of) the subject matter of the grievances at (7). There are the additional considerations that there was a temporal link between the matter headings (3) to (7) and that the personalities involved were relatively constant. The importance of all of that is that in reliance upon the decision in Bowers v WorkCover Queensland (2002) 170 QGIG 1 the Acting Industrial Magistrate dismissed the issues at headings (4), (6) and (7) as but blemishes. The critical point is that there were repetitive blemishes joined by subject matter, time and personality in a discordant workplace housing, to the knowledge of management, a worker who had decompensated once before in the face of workplace stress. In my view, the Appellant was entitled to a much more “global” evaluation of the actions in which the management team had engaged. The matter does not end there. In dealing with the matter at heading (2), viz. management’s failure to notify the Appellant of what was happening or had happened with a grievance instituted by Ms Reedy against the Appellant in June 2000, the Acting Industrial Magistrate found that the failure of the District Manager to write to the Appellant advising him that the matter was closed was not reasonable management. However, His Honour found against the Appellant on the point because he concluded that the failure had no relationship or connection with the Appellant’s injury i.e. the Acting Industrial Magistrate found that on the evidence the Appellant’s injury was not attributable in any way to the incident. I accept the submission of counsel for the Appellant that the Acting Industrial Magistrate was quite mistaken as to the facts. -- 2 of 4 -- 3 There was but one specialist called, viz. Dr Robert Athey, a consultant psychiatrist. It is apparent from the Acting Industrial Magistrate’s decision, that the conclusion that the way in which management dealt with Ms Reedy’s grievance had no nexus with the Appellant’s injury based upon the evidence of Dr Athey. It is quite plain that Dr Athey’s evidence went entirely the other way. At one point in his report Dr Athey observes: “I was unable to obtain a history of pre-existing injury other than the similar episode in 2000 arising under similar circumstances and in my opinion it is basically the same illness.”. Dr Athey also observed: “He had a similar episode of a mixture of depression and anxiety under similar circumstances in 2000. The symptoms have never really resolved.”. And finally says: “I noted the experience to previous episode in 2000. To me this has been an ongoing episode of illness, commencing in 2000 and continuing on to the current situation.”. Understandably, counsel for the Respondent seeks to distinguish Dr Athey’s remarks. It must be noticed that contemporaneously with the grievance of Ms Reedy, which ultimately did not proceed, the Appellant was suspended in relation to an incident concerning a patient. (I hasten to add that the Appellant was entirely exonerated.) The contention is that the decompensation in 2000 was caused not by Ms Reedy’s grievance but by serious issues connected with the suspension. The difficulty is that the suspension and the receipt of the grievance were made known to the Appellant by the management team at or about the same time. The disorder of the mind, which was accepted by WorkCover as an “injury”, existed after the exoneration. Importantly, Dr Athey in evidence seems to have nominated management’s omission to keep the Appellant informed about the progress of the grievance as at least a part cause of the decompensation at that time. Granted that Dr Athey was relying upon his memory and (as psychiatrists almost inevitably do) was relying upon what he had been told by the Appellant, there seems to be no justification for going behind the medical evidence, compare Mason v WorkCover Queensland (2002) 170 QGIG 376 at 376. In any event the Acting Industrial Magistrate was not seeking to do so. The error was quite benign. At one point in his opinion Dr Athey observes, “The main precipitating factors appear to have been a dispute with the Acting Manager…”. The Acting Industrial Magistrate took that to be an opinion that the “main factors” were the dispute between the Appellant and the Acting Manager (viz. Ms McDonnell). With the benefit of the full argument, it seems to be tolerably clear that Dr Athey was making the point that there was a dormant unresolved condition going back to 2000, and that the transactions involving the Acting Manager prodded the condition back into life. Whilst entirely understandable, the error was an important one. On Dr Athey’s evidence, the Appellant’s complaint about Ms Reedy’s grievance was that he had been ignored and treated as without value. That, in large part, was the Appellant’s complaint about the matters at headings (3), (6) and (7). The Acting Industrial Magistrate’s decision is also tainted by misapprehension insofar as it deals with the matter at heading (3), viz. lack of consultation by the management with the Appellant concerning the closure of the intensive care unit. The Acting Industrial Magistrate found that the Appellant had admitted in cross-examination that there had been consultation involving himself and management about the closure of the intensive care unit. Perusal of the evidence shows that the passage identified concerned issues relating to closure of the department of emergency medicine for after hours or extended hours care. Counsel for the Respondent concedes so much. Whilst I accept counsel for the Respondent’s further submission that there was much evidence of consultation with the staff about closure of the intensive care unit, I am unable to locate evidence that the Appellant was included within the consultation. All of that goes back to the Appellant’s concern that he was being ignored and being treated as without value. Whilst I accept counsel’s further submission that the Appellant was (implacably?) opposed to the closure of the intensive care unit, I am quite unable to go the further step of finding consultation with him would not have made a difference. Consultation may well not have made a difference to his opposition to closure of the unit, but may well have made a difference to his mental health. The Industrial Magistrate found that the activity at heading (5) was not management action. That finding is not challenged on the appeal. What is put, and quite rightly, but, is that as the activity was not management action there can be no question of the activity removing the Appellant’s “injury” from the definition at s. 34. The Acting Industrial Magistrate dealt with the matters at heading (6) on the basis that what had occurred was but a blemish. The management team at the Bundaberg Base Hospital is not the first management team to have encountered difficulty about the election of a workplace health and safety representative under the Workplace Health and Safety Act 1995 part 7, division 3 where there is but one nominee. If the matters at heading (6) had stood alone, the Acting Industrial Magistrate’s description of them as a “blemish” would have been entirely open to His Honour. The problem is that the events did not stand alone. This was a case for a global assessment. -- 3 of 4 -- 4 There were two aspects to the matters at (7), viz. delay in dealing with the grievances, accompanied by a failure to seek an extension of time and failure to give the Appellant a hearing. Even on a stand-alone evaluation, the conclusion that the errors were but a “blemish” was not reasonably open. The grievance procedure was neither casual nor consensual. It was established by the Nurses (Queensland Public Hospitals) Award 1991. There is no room for selective observance, compare Re: Sky West Airlines Pty Ltd Pilots Agreement 1986 Print J8753, 1 August 1991, Moore DP, Watson DP and Commissioner MacDonald. To allow the process to drag on for twelve months without seeking an extension of time by consent was “industrially unfair” and (in all the circumstances) unreasonable in relation to the Appellant, notwithstanding that because of his myocardial infarction the Appellant left the workplace prior to completion of the process and endured part only of the agony of the delay. As to the failure to grant the Appellant an interview, the interview was expressly required by the terms of reference and by every consideration of natural justice. The Acting Industrial Magistrate’s conclusion that because there had been “collusion” between the various signatories to the grievances no different outcome would have been reached if the Appellant had been interviewed, is contrary to all authority (see e.g. Queensland Police Credit Union v Criminal Justice Commission [2000] 1 QdR 626 at 634 to 635) in so far as it relates to the ultimate disposition of the grievances, and of doubtful relevance upon the question whether an employee with some (known) medical history who had already endured much imperfect management action was entitled to the courtesy of a hearing. In all the circumstances I allow the appeal. I set aside the decision of the Acting Industrial Magistrate. I find that the Appellant did suffer an injury for the purposes of the WorkCover Queensland Act 1996. I reserve liberty to apply for any necessary formal orders. Dated 2 March 2005. D.R. HALL, President. Appearances: Released: 2 March 2005 Mr K. Watson instructed by Finemore Walters & Story, Solicitors, for the Appellent. Mr P. Rashleigh directly instructed by Q-COMP the Respondent. Government Printer, Queensland The State of Queensland 2005. -- 4 of 4 --