Jennifer Barber v Q-COMP

Date of decision: 4 December 2009, I.M. Lee

Ms Jessica McClymont of Counsel, instructed by Macrossans Lawyers for the appellant

Mr Peter Rashleigh of Counsel, directly instructed by Q-COMP

Key words – School Teacher- – Injury Type: psychological, depression – Appeal Outcome: appeal dismissed - Significant sections considered: –

Include one of the following sections – examples only, not an exhaustive list

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

Head Note

On 13 June 2007, Mrs Barber lodged a claim with WorkCover Queensland (Insurer) for depression that she sustained over a period, having first experienced symptoms in March 2007. Mrs Barber was employed as a full time school teacher for the Department of Education, Training and the Arts.

Five stressors for the injury were identified:

1. The veracity of two behavioural incidents involving Mrs Barber

2. The exclusionary behaviour of staff towards Mrs Barber

3. Management’s failure to resolve issues in a timely manner

4. Management’s failure to follow proper procedures

5. Management temporarily transferring Mrs Barber to another school

On 8 August 2007, the Insurer rejected the claim on the basis that Mrs Barber’s injury arose out of “reasonable management action taken in a reasonable way”.

On 7 December 2007, Q-COMP reviewed the Insurer’s decision and confirmed that decision. Q-COMP considered that the Employer’s actions, although not perfect, constituted reasonable management action taken in a reasonable way.

Mrs Barber appealed Q-COMP’s decision.

Industrial Magistrate Lee considered that the issue to be decided was whether section 32(5) of the Act applied, that is, whether the employer’s actions were reasonable management action taken in a reasonable way.

His Honour dismissed the appeal and upheld Q-COMP’s decision.

His Honour made the following relevant findings of fact:

- The cause of any change in attitude by other staff towards Mrs Barber was most likely due to her own actions rather than any work related issues and that employment was “merely a setting in which this occurred”

- Relations between staff and Mrs Barber were not as extreme as alleged by Mrs Barber

- Issues raised by staff with management about Mrs Barber were only concerns and not complaints. Staff were simply drawing to management’s attention certain matters so that management could fully understand and be better equipped to manage the situation

- The purpose of meetings between Mrs Barber and management were to discuss options to move forward, rather than investigate – it was one method to try to resolve work place conflict on an informal basis

Based on these findings of fact, His Honour held that:

1. Mrs Barber’s employment was not a significant contributing factor to stressors 1 and 2. The only significant contributing factor was her own behaviour in the employment setting

2. While management meetings ultimately did not produce a positive outcome, this does not necessarily mean that management’s actions were unreasonable. Management acted reasonably by seeking assistance, although in hindsight that assistance possibly should have been obtained earlier. Management’s monitoring of the situation and subsequent attempt at mediation was reasonable. Stressor 3 is therefore not established

3. Because management meetings were not investigative or determining disciplinary matters against Mrs Barber, there could be no breach of natural justice by not allowing Mrs Barber to give her detailed version of events. If procedures are properly followed in any subsequent investigation, Mrs Barber would be given that full opportunity. Stressor 4 is therefore not established

4. Management’s transfer of Mrs Barber to another school was part of bringing matters “to a head” to help prevent problems continuing at the workplace. This is reasonable in the whole circumstances of the case. Stressor 5 is therefore not established

5. All the events and reasons are so intertwined as to time and place, it was appropriate to consider the matter on a global basis