Body Corporate Services v Q-COMP

Date of decision: 13 October 2009, I.M. Herlihy

Mr Mark O’Sullivan of Counsel, instructed by HWL Ebsworth Solicitors for the appellant

Mr John Merrell of Counsel, directly instructed by Q-COMP

Key words – Body Corporate Manager - Injury Type: psychological, post traumatic stress disorder – Appeal Outcome: appeal dismissed - 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

On 21 January 2008, Miss Farrell lodged a claim with WorkCover Queensland (Insurer) for a psychological injury sustained in an incident on 15 January 2008. At the time of the alleged incident, Miss Farrell was employed as a manager for Body Corporate Services Pty Ltd (Employer).

Miss Farrell further alleged that she was admitted to hospital as a result of coronary symptoms after the incident on 15 January 2008.

The Insurer subsequently decided to reject Miss Farrell’s psychological injury on the basis that it arose out of reasonable management action.

Miss Farrell applied to Q-COMP to review the Insurer’s decision.

Q-COMP decided to return the matter to the Insurer to procure further information on the coronary injury.

In a separate decision on the psychological injury, Q-COMP set aside the Insurer’s decision and accepted the claim. This was on the basis that the psychological injury was caused by the meeting of 15 January 2008 and that management action had not been taken in a reasonable way.

The Employer appealed Q-COMP’s decision and Q-COMP argued that the appeal was outside the 40 day time limit. The appeal was heard before Magistrate Cull who extended the time to file the appeal.

The full appeal was subsequently heard by Magistrate Herlihy. His Honour considered that the issue to be decided was whether section 32(5) of the Act applied, that is, whether the employer’s action was reasonable management action taken in a reasonable way.

His Honour dismissed the appeal and upheld Q-COMP’s decision on the basis that:

1. Although there were blemishes, the management action was on balance reasonable.

2. The management action was however not taken in a reasonable way and was “hamfisted” because:

(a) Miss Farrell was entitled to natural justice. Specifically, the “fair thing” would have been for the branch manager to advise Miss Farrell by email or verbally that he wished to speak with her about the events and that she was entitled to have someone with her because it was a serious matter and that she might be disciplined.

(b) The employer did not provide Miss Farrell with natural justice at the meeting as:

(i) Miss Farrell was told to just come into a room where the branch manager was accompanied by a witness;

(ii) Miss Farrell was unaccompanied by a support person and was “fired at with comments” such as “I’ve got instructions that you’re to do this…”; and

(iii) after these comments, the branch manager did not take Miss Farrell to her support person outside the room.

Therefore the way that management action was carried out was unreasonable, the decision of Q-COMP was confirmed and the appeal was dismissed.