5
[Extract from Queensland Government Industrial Gazette,
dated 15 May, 2009, Vol. 191, No. 2, pages 13-17]
INDUSTRIAL COURT OF QUEENSLAND
Workers' Compensation and Rehabilitation Act 2003 - s. 561(1) - appeal against decision of industrial magistrate
Leigh Sheridan AND Q-COMP (C/2008/48)
PRESIDENT HALL / 6 May 2009DECISION
Ms Leigh Sheridan was employed as a library officer in a library conducted by the Nanango Shire Council until 24 March 2006. She had commenced employment in June 1990. By an Application for Compensation dated 28 April 2006, Ms Sheridan sought benefits under the Workers' Compensation and Rehabilitation Act 2003 (the Act) for an injury identified as an "adjustment disorder". In answer to the question "When did the injury happen?", Ms Sheridan responded "Ongoing over a period of time". By a letter dated 4 July 2006, the insurer, viz., Local Government Workcare, rejected the application. By a letter dated 5 October 2006, Ms Sheridan's solicitor sought a Statutory Review of the rejection. By a letter dated 9 October 2006, Q-COMP confirmed the insurer's decision. Q-COMP accepted that Ms Sheridan had suffered a personal psychological injury by way of an adjustment disorder in the course of her employment and accepted that her employment had been a significant contributing factor to her injury. However, Q-COMP confirmed the decision of the insurer that the psychological injury had been withdrawn from the statutory definition of "injury" by s. 32(5) of the Act.
By a Notice of Appeal dated 4 December 2006, Ms Sheridan appealed against Q-COMP's decision to the Industrial Magistrate at Brisbane. The appeal, which commenced in earnest in September of 2007 and ran over numerous non-consecutive days, concluded on 12 December 2007. By a decision delivered on 7 November 2008, the Industrial Magistrate dismissed the appeal. Ms Sheridan now Appeals to this Court against the decision of the Industrial Magistrate.
This Court has consistently accepted that an Industrial Magistrate or an Industrial Commissioner dealing with an appeal under the Act is required sufficiently to explain the reasons for the tribunal's decision as to limit the opportunity for the aggrieved party to develop a sense of grievance and to enable the aggrieved party to properly evaluate the prospects of success on an appeal. The obligation extends to providing reasons for rejecting the evidence of a witness, compare Martin v Rolling and Anor (2005) QCA 128 at paragraph [80] per Mullins J. In particular, where there is a significant delay between the taking of evidence and the delivery of a decision, it is incumbent upon a judicial officer to inform the parties of the reasons why the evidence of a particular witness has been rejected: compare the reasoning developed by the Full Court of the Federal Court of Australia in Expectation Pty Ltd v PRD Realty Pty Ltd and Anor (2004) 140 FCR 17 at paragraphs [66] to [83]. Here, the Industrial Magistrate observed immediately before dismissing the appeal:
"I prefer the evidence of the respondent's witnesses over that of the appellant and her witnesses to the extent that there is any conflict.".
What appears elsewhere in the Industrial Magistrate's decision upon the matter of Ms Sheridan's evidence instils no confidence that His Honour's finding about her credit was considered and warranted.
First, about halfway into the written decision, the Industrial Magistrate records:
"I accept the evidence of Mr Hilderbrandt, the Deputy Chief Executive Officer and Mr Michael Hunter the then Rates Manager, that the library was untidy and needed cleaning up.".
Certainly, Mr Hilderbrandt featured in the evidence which unfolded at the trial. Early on in the saga he was Ms Sheridan's immediate supervisor. What he said and what he did were matters of significance and evidence was given about those matters. However, Mr Hilderbrandt did not give evidence. The Industrial Magistrate could not have accepted his evidence.
Second, on the second last page of the decision the Industrial Magistrate reproduced a paragraph from the written submission which had been made by Counsel for Q-COMP. One sentence went to Ms Sheridan's credibility. The sentence was:
"The purported stressors relied upon by the appellant in the grievance are at odds with the evidence the appellant gave during the course of the hearing.".
To assist understanding, I should interpolate that the "grievance" submitted by Ms Sheridan was a document of some moment. It was submitted to the appropriate Council Officer (Ms Wallace) on or about 12 August 2005. Three or four days thereafter Ms Sheridan attended a scheduled performance review with her then immediate superior Mr Hunter. When told that the grievance had been lodged, Mr Hunter suspended the performance review. That very evening (at or about 5.30 p.m.) Ms Sheridan attended upon her general practitioner and subsequently took a week of leave by way of stress leave. There was a temporal connection between the formulation and lodging of the "grievance" and other objective indications that Ms Sheridan had decompensated. Importantly, the "grievance" attributed the stress of which Ms Sheridan complained to the conduct of a fellow employee, viz., Ms Crumpton. That sourcing of the stress was significant because Ms Crumpton was a co-worker originally subordinate to Ms Sheridan and later her peer. It was (and is) a critical pillar of Ms Sheridan's case that Ms Crumpton's conduct cannot be characterised as management action for the purposes of s. 32(5) of the Act. The Industrial Magistrate's adoption of the proposition that the substantive assertions in the "grievance" were contrary to her evidence struck Ms Sheridan's case a serious blow.
In Camden v McKenzie [2003] 1 Qd R 39 at paragraph [36] Keane JA, with the concurrence of the other Members of the Court of Appeal, warned against the practice of resolving issues of credit by the adoption of submissions. His Honour said:
"The course taken by the learned trial judge of explaining his reservations as to the credibility of the appellants by adopting submissions made by the respondents is to be deprecated. It is a course distinctly apt to give an impression to the losing party that the case has been decided without proper consideration. That impression will not be allayed by an assurance from the judge that the submissions of the parties have been read, even several times.".
Here, if taken literally, the sentence extracted cannot be reconciled with the transcript and exhibits. [Before moving to the transcripts and exhibits, I should recognise that in its original context the sentence may have meant no more that that the stressors identified in the "grievance" were not true stressors because Ms Sheridan complied with the requests and/or demands of Ms Crumpton. It is clear that the Industrial Magistrate did not act on that view of the sentence. The same notion, i.e. that requests and/or demands were not stressors if complied with, was advanced in the written submission as a basis for rejecting the evidence of the psychiatrist (Dr Wilkie) and the general practitioner (Dr Morgan). Notwithstanding that the Industrial Magistrate reproduced that submission, His Honour also said:
"Dr William Wilkie, psychiatrist, diagnosed the appellant as suffering from an adjustment disorder which resulted from workplace stress which began in May 2005 and continued until 24 March 2006. In cross-examination, the doctor said that he believed that she had been a victim of victimization in the workplace (T192, lines 21-25). Dr Wilkie based his opinion of the history the appellant had given him and also had regard to the information given to him by Dr Morgan who was the appellant's general practitioner and the appellant's solicitor Ms Moriarty …".
and found:
"I accept Dr Wilkie's opinion that the appellant's injury arose out of, or in the course of her employment and that her employment was a significant contributing factor to her injury. Having accepted that opinion it is then necessary to determine whether or not the injury is excluded from the definition of injury in s32(5) by reason of reasonable management action taken by her employer in a reasonable way.".]
It is convenient to take the issues in the "grievance" seriatim. The first issue raised was:
"1. Ongoing and continuing bullying/harassment by older female part-time co-worker who uses her perceived advantage of previous friendship/work relationship with the CEO and misrepresented petty complaints.".
The transcript shows that in evidence-in-chief, on the very first day of the hearing, Ms Sheridan gave evidence that when Ms Crumpton commenced employment at Murgon Shire Council, her supervisor (and the person who conducted her employment interview) was a Mr Gray. Mr Gray subsequently became the Chief Executive Officer at the Nanango Shire Council. Ms Sheridan gave evidence that Ms Crumpton was delighted by the appointment. On the same day in cross-examination Ms Sheridan gave evidence that Ms Crumpton "… wrapped him up like … he was the cat's whiskers.". The accuracy of Ms Sheridan's evidence about the frequency of meetings between Ms Crumpton and Mr Gray may well be a matter of debate. However, there was explicit evidence from Ms Sheridan in cross-examination that by February of 2005 Ms Crumpton, then a one day a week casual, saw Mr Gray on every day on which she came to work. It is, I should add, tolerably clear that Ms Sheridan's belief was anchored in observation and comments said to have fallen from Ms Crumpton. The transcript also shows that on at least one occasion Ms Crumpton had visited Mr Gray and discussed an issue relating to a chair near the library counter. Each of Ms Crumpton and Mr Gray confirmed Ms Sheridan's evidence on that point.
The second issue raised by the grievance was:
"2. Constant reminders that 'we are members of a team' from said co-worker linked to intimidating lectures and a refusal by that person to actually work as part of a team. In addition this person continuously points out that I act in an unprofessional manner.".
The transcript shows that in cross-examination on the second day Ms Sheridan did accuse Ms Crumpton of giving her a lecture about "… how unprofessional it was to have people sitting in front of the counter reading a paper …". It is noteworthy that in the course of an internal inquiry sparked by the "grievance", Ms Crumpton admitted to using the term "unprofessional", though explaining the term away as being directed at the conduct of reading the paper whilst in the chair rather than being directed at Ms Sheridan.
The fourth issue raised by the "grievance" was:
"4. A simple polite request for information from said co-worker resulted in an abusive verbal response.".
Evidence to that effect was given by Ms Sheridan on day three of the hearing in the course of cross-examination about her discussions with Mr Hunter (then her superior) about the grievance. Interestingly, the Council Officer formally responsible for the "grievance" process accepted that some people might find Ms Crumpton's manner of speech to be threatening.
The fifth issue raised by the "grievance" was:
"5. Simple polite request that a job be performed by co-worker was responded to with patronizing memo.".
The memorandum referred to was put in evidence as Exhibit 12. In evidence-in-chief on the first day Mrs Sheridan gave evidence of the circumstances in which Ms Crumpton had delivered it to her in response to a request. Given that Ms Sheridan had conducted the library for 15 years and that Ms Crumpton had previously been her subordinate, it was entirely arguable that (in context) the memorandum was patronising.
The sixth issue raised by the "grievance" was:
"6. Time wasting by said co-worker resulting in being left with an unfair share of the work load.".
It is apparent from Ms Sheridan's evidence in cross-examination on day two of the hearing that the complaint related to Ms Crumpton and that, while Ms Sheridan considered the complaint to have been justified over the whole period of Ms Crumpton's employment, Ms Sheridan also had that view that Ms Crumpton's performance deteriorated after she had commenced working three days per week in 2005. The matter of "time wasting and unfair work load" was also raised in the documentation relating to Ms Sheridan's performance review which became Exhibit 15.
The seventh issue raised by the "grievance" was:
"7. Conspiracy, in association with part-time casual worker, to undermine my position, evidenced by email.".
The email referred to became Exhibit 11. In evidence-in-chief on the first day Ms Sheridan explained that she had interpreted a reference to "our girl" as a reference to herself and had taken offence.
The eighth issue raised by the grievance was:
"8. During my absence from work on leave, large jobs were left undone awaiting my return. Tasks that were not assigned were done instead. When I returned the shelves were extremely untidy and I received several complaints and comments from clients as to the state of the Library during my absence.".
Ms Sheridan's evidence in examination-in-chief on the matter on the first day ran over two transcript papers.
The ninth issue raised by the "grievance" was:
"9. It is always when I am absent from the Library on annual leave that major changes to the Library take place. It makes my return to work quite stressful.".
It was the evidence of Ms Sheridan that when she returned from annual leave in 2005 she noticed that notices had been taken down, that her chair had been removed, that jiffy bags which she used to return books to the State Library had been removed, and that her name had been removed from certain standard form library documents. Ms Sheridan asserted also that Ms Crumpton's employment had changed from 3 days per week (without consultation) and that formal notice had been given that Mr Hunter was henceforth to be Ms Sheridan's supervisor.