Australian Language Schools Pty Ltd v Q-COMP

Date of decision: 21 December 2009, Commissioner Thompson

Mr S Fisher of Counsel, instructed by Neumann & Turnour Lawyers for the appellant

Mr C Clark of Counsel, directly instructed by Q-COMP

Key words – College Director – 58 – Injury Type: psychological – Appeal Outcome: appeal allowed – Significant sections considered:

s32(5) reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment

Head Note

The claimant worked as College Director for the appellant employer. On 21 November 2008, the claimant lodged an application for compensation with WorkCover Queensland for a psychological injury allegedly sustained as a result of her employment. By written notice dated 13 January 2009, WorkCover advised of the decision to reject the application. On 6 April 2009, the claimant lodged an application for review of WorkCover’s decision with Q-COMP. By written notice dated 16 July 2009, Q-COMP advised of the decision to set aside WorkCover’s decision and to substitute another decision to accept the application. The claimant’s employer subsequently filed a notice of appeal of Q-COMP’s decision with the Queensland Industrial Relations Commission.

In the evidence placed before the Commissioner, there was a history of conflict between the claimant and a co-worker. An external consultant was engaged in May 2008 and a report about the appellant’s business operations was provided to the board in June 2008. The appellant gave evidence that the board subsequently spoke to the claimant and the co-worker and directed them to improve their working relationship or their employment may be terminated. On 20 and 21 October 2008, two verbal altercations occurred between the claimant and the co-worker. The co-worker was immediately directed to take leave, but was required to return to the workplace briefly to complete some urgent work. On 5 November 2008, the claimant met with a director of the appellant employer, who informed her that her employment would be terminated.

The Commissioner accepted that the claimant sustained a personal injury in the course of her employment. The Commissioner found that the engagement of an external consultant was reasonable management action taken in a reasonable way in that the appellant genuinely attempted to resolve the differences between the claimant and the co-worker. In relation to the altercations on 20 and 21 October 2008, the Commissioner found that the appellant took all reasonable steps to remove the claimant from potential risk in relation to the co-worker returning to the workplace during the period of his enforced leave, including advising the claimant of the dates he would be on the premises, and agreeing to her taking sick leave.

The Commissioner therefore concluded that in respect of the stressors said to have been a significant contributing factor to the claimant’s personal injury prior to and including 20-21 October 2008, the personal injury was excluded from section 32(1) of the Act on the basis that the appellant took reasonable management action in a reasonable way within the meaning of section 32(5).

In relation to the termination of the claimant’s employment, the Commissioner found that the relevant witnesses for the meeting on 5 November 2008 had different recollections, and was reluctant to place significant reliance on either account. The Commissioner found that there was insufficient evidence to support a claim for compensation or to establish that there was unreasonable management action taken in an unreasonable way.

The Commissioner therefore set aside Q-COMP’s decision and upheld the appeal.

This decision has been appealed to the Queensland Industrial Court