Bowers v WorkCover Queensland [2002] ICQ 16 (2002) 170 QGIG 1

Vol. 170 FRIDAY, 3 MAY, 2002 No. 1 INDUSTRIAL COURT OF QUEENSLAND WorkCover Queensland Act 1996 – s. 509 – appeal against decision of industrial magistrate Karen Patricia Bowers AND WorkCover Queensland (No. C10 of 2002) PRESIDENT HALL 23 April 2002 DECISION This is an appeal against a decision of the Industrial Magistrates Court at Townsville dated 31 January 2002 dismissing an appeal by the now appellant against a decision of WorkCover Queensland, confirmed by the statutory review unit, rejecting her claim for compensation. The Industrial Magistrate rejected the appeal on the ground that the appellant had not suffered an “injury” within the meaning of s. 34 of the WorkCover Queensland Act 1996. His Worship came to that conclusion notwithstanding that His Worship found that in the course of her employment the appellant developed a depressive condition to which the employment was “a significant contributing factor”. His Worship found that the depressive condition was not an “injury” because he accepted a submission by Q-COMP that the condition was withdrawn from the definition of injury by s. 34(5). It is not necessary to reproduce the whole of the submission developed by Q-COMP. It is sufficient to indicate the general nature of the argument before the Industrial Magistrate and on the appeal to this Court. The appellant attributed the development of the depressive condition to a difficult working relationship with her immediate superior and to her immediate superiors’ treatment of her. The respondent’s contention was that it was necessary for the appellant, who bore the onus of proof, to establish that the superior was not taking reasonable management decisions and implementing those decisions in a reasonable way and\or that the employer had not (or did not implement) a scheme to monitor relationships between supervisors and their subordinates. It was a further argument by the appellant that she had been entrusted with an unduly burdensome volume of work without adequate training. The respondent’s contention was that it was necessary for the appellant to establish that the decisions made by the employer about the training which the appellant required and the volume of work which she might reasonably be required to process were not reasonable management decisions reasonably implemented. In my view the contentions developed by Q- COMP were open to it under s. 34(5). The subsection provides:– “34(5) [Some psychological injuries excluded] 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 WorkCover or a self-insurer in connection with the worker’s application for compensation; Examples of actions that may be reasonable Management actions taken in a reasonable way– • action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker; • a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker’s employment.”. -- 1 of 2 -- 2 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 May, 2002 There is nothing in s. 34(5)(a) and there is nothing in the extrinsic materials (reviewed in Priddle v WorkCover Queensland (1999) 162 QGIG 170), to indicate that paragraph (a) is confined to the impact of disciplinary action. Neither, given the use of the word “against” at paragraph (b), can there be any reason for limiting paragraph (a) to action taken against the worker, e.g. a transfer for other than disciplinary reasons. Neither am I able to accept the submission for the appellant that where the work environment is found to be a significant cause of a depressive illness, the employer’s system of work and its implementation cannot be found to be reasonable. The circumstance that a system of work or 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. Further, on the appellant’s approach to the adjective “reasonable” it is difficult to think of an example of a psychiatric or psychological injury otherwise within s. 34(1) being withdrawn from s. 34(1) by s. 34(5)(a). The Industrial Magistrates application of the contentions to the facts has been a matter for comment. Q-COMP freely acknowledges that this is not a case in which the conduct of the appellant’s immediate supervisor and the employer’s systems of work were without blemish. The Industrial Magistrate was plainly aware of the blemishes. Indeed, in my view it is His Worship’s infelicitous description of the blemishes which lies at the root of the submission on the appeal that His Worship’s ultimate conclusion was inconsistent with the findings which His Worship had made. For example, His Worship (in my view) did not find that:– “1. The appellant’s computer ability and skills were not as extensive as they might have been which some preliminary assessment may have detected (sic). If so, some additional training and instruction could have been given. 2. The supervision and support of the appellant could have greater (sic). 3. Some counselling or guidance for the staff of the Bank at the time of the re-structuring would have probably have (sic) resulted in some comfort and relief to them, (including the appellant) in relation to their handling the pressure of dealing with difficult angry members of the public, and increased work load and resultant stress. 4. The Bank was not aware of the uneasy relationship, that the appellant felt existed between her and her supervisor, White, until a very late point in time, when mediation failed to provide any long-term benefit to the appellant.”. The Industrial Magistrate simply identified the above-mentioned areas of criticism of the immediate supervisor and the workers’ employer as matters “that appear to be the subject of some scrutiny”. There is not in my view a problem with internal consistency. With respect to the Industrial Magistrate, His Worship was a little economical in his use of language. Save in the case of the blemish about training, the Industrial Magistrate at no point indicates the evidentiary materials or the reasoning which lead him to reject the appellant’s criticisms of the system of work and her immediate supervisor, and to conclude that the appellant had not demonstrated that what had occurred at the work place was not reasonable management action reasonably taken. That said, a perusal of the transcript reveals evidence on which the Industrial Magistrate’s ultimate decision was plainly open to His Worship. No attach on the adequacy of His Worship’s decision has been pleaded. The proper course is to defer to His Worship’s decision. I dismiss the appeal. I reserve the question of costs. Dated 23 April 2002. D.R. HALL, President. Released: 23 April 2002 Appearances:– Mr M. Drew instructed by Connolly Suthers Solicitors, for the appellant. Mr P. Rashleigh instructed by Q-COMP for the respondent. -- 2 of 2 --