QR Limited AND Q-COMP (WC/2009/25)

A significant issue was the application of the decision of WorkCover Queensland v Margaret Kehl (2002) 170 QGIG 93 and the relevance of the special state of knowledge of the worker’s disability when applying the ‘reasonable management action’ formulation.

Deputy President Bloomfield

Was the management action reasonable and carried out in a reasonable way?

[193] Any consideration of this question requires determination of the conflict between Q-COMP and QR about the relevance of the principle established by President Hall in Kehl and its application to the facts and circumstances of this case. In that case the President said:

 

“For the purpose of dealing with the appeal it is not necessary to say [much] about the facts. It is sufficient to say that the respondent was (and is) a school teacher and that the stressors identified by the Industrial Magistrate were the way in which Education Queensland dealt with two complaints against the respondent by the mother of a student in one of her classes and the way in which Education Queensland dealt with a grievance which the respondent had filed against the principal of the school at which she worked. The Industrial Magistrate found that the decisions and actions taken by Education Queensland in or about each of the three transactions were management action and that it was reasonable for Education Queensland to have become involved in the transactions. However, the Industrial Magistrate went on to find that Education Queensland did not manage the three actions in a reasonable way. His worship came to that conclusion because:

 

In light of the management’s special knowledge of Kehl’s personal disability, the taking of reasonable management action involving Kehl will only be taken reasonably if it takes Kehl’s particular propensities into account.’. His Worship was plainly of the view that the respondent’s vulnerability to stressors was not taken into account. The appellant’s first contention is that the Industrial Magistrate erred in law in having regard to the respondent’s susceptibility to stress induced by her employer. I am unable to accept that submission. This case is not analogist (sic) to Ivy v WorkCover Queensland (1999) 162 QGIG 392. At that time s. 34(5)(b) expressly provided that in deciding in a particular case whether the management action was reasonable or whether the management action was taken in a reasonable way, regard might not be had to a particular worker’s susceptibility to a psychiatric or psychological disorder. That provision was omitted by Act No. 17 of 1999. The current sub s. (5) is the previous sub s. (4) renumbered. The earlier sub s. (5) was not in force at any time material to this matter. With the repeal of the previous sub s. (5) there seems to be no reason why ‘reasonable’ in s. 34(5)(a) should not be treated as meaning ‘reasonable in all the circumstances of the case’ … There seems to be no reason for concluding that the circumstances of the case do not include circumstances relating to the psychological makeup of the worker where those circumstances are known to the employer. It is not a matter of suggesting that management should speculate about the psychology of each of its workers if they are engaging in management action which may impact upon particular workers, or should require psychological evaluation of its workers. It is simply a matter of recognising that fixed with knowledge of a worker’s makeup a reasonable person would take that knowledge into account in assessing what is a reasonable way in which to implement an otherwise reasonable decision.” (my emphasis).

 

[194] In my considered view, the principle established by President Hall in Kehl, ibid has no relevance to the determination of this matter.

[195] Firstly, Q-COMP seeks to take the President’s decision well beyond the parameters established by the clear words used in the decision to, instead, impose upon an employer (in this case QR) the obligation of having systems in place to ensure that all managers who might have to deal with persons like Ms Woods in the future are not just apprised of those persons’ particular psychological vulnerabilities (as they might have been identified at a particular point in time) but also trained how to deal with, or accommodate, such vulnerabilities (notwithstanding that they might change over time or cease to be relevant). Not only is such proposition unrealistic, it goes well beyond what the President had to say in Kehl, ibid where the relevant managers had particular knowledge about Ms Kehl’s makeup.

[196] Secondly, management had no direct knowledge that Ms Woods had either a previous psychological injury or a vulnerability to further psychological injury. To expect Mr Phillipos, Mr Schier, Ms Lazarro and others to link her behaviour back to a psychological issue (or vulnerability) would have required them to speculate about her psychology – the very point the President cautioned was not required in his decision in Kehl, ibid.

[197] Thirdly, despite Dr Hoey’s inclusion of the words “as to future work placement …” in her 11 October 2004 Report, that comment has to be considered in context. It was clearly intended to be a reference to Ms Woods’ rehabilitation and the need for her (at that time) to be placed in a position where she perceives (this expression creates its own difficulties) there to be a substantial amount of support. Similarly, Dr Varghese’s comments must

be read and considered in the context in which they were written – namely, at a particular point in time during Ms Woods’ rehabilitation and as an expression of his belief that (at that time) it was desirable to allow her to continue to work in an office environment compared to returning her to a station environment.

[200] The President’s decision in Kehl was made in light of the particular facts of that case, a key feature of which was management’s special knowledge of Ms Kehl’s personal disability. Here, QR’s management had no special knowledge about Ms Woods’ background or her psychological vulnerabilities. As such, neither Mr Phillipos, Mr Schier nor others who came into contact with Ms Woods were required to speculate about her psychological makeup in the course of their interactions with her, nor to make any special accommodation in the way they went about such interactions. (*The existence of a psychological vulnerability only really came to light during the evidence of Doctors Hoey and Varghese. Their 2004 and 2005 reports were nowhere as specific about this issue as they were in their evidence. For example, while suggesting that the vulnerability was always there, Dr Hoey did not mention anything along that line in her assessment on 26 September 2005 (see Exhibit 1, Tab D, page 60) when she cleared Ms Woods to return to work from 10 October 2005.)

[255] Consequently, in the circumstances of this case I have reached the ultimate conclusion that irrespective of whether the relevant management action is considered on a global basis, an event by event basis or through the eyes of a reasonable person, State of Queensland v Q-COMP, the outcome is the same: Ms Woods’ psychiatric condition arose out, or in the course of, reasonable management action taken in a reasonable way. Accordingly, her psychiatric condition is excluded from the definition of “injury” at s. 32(1) of the Act by the operation of s. 32(5) of the Act.

 

Brisbane Barrister – David Cormack

 

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