Jill Ruth Fussell v Q-COMP

Date of decision: 24 June 2009, I.M. Payne

Mr R Reed of Counsel, instructed by McMillan Boylson Lawyers for the appellant

Mr F Lippett of Counsel, directly instructed by Q-COMP

Key words – Teacher - 63 – Injury Type: psychological – Appeal Outcome: appeal allowed - Significant sections considered: –

s32(1) an injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury

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

Head Note

Fussell was employed as a teacher with Education Queensland. She spent nearly 20 years employed in various schools and spent 13 years employed as a teacher at the Brisbane School of Distance Education. In October 2005 she was informed that she was being transferred to Marsden State High School to commence in the 2006 school year.

She received a one day induction, including a session of behaviour management and a folder of resources she needed to teach Art. There was no other induction provided considering she had not been a classroom teacher for 13 years.

The Appellant informed both Deputy Principals and her Head of Department (HOD) that she was experiencing behavioural problems with students in some of her classes. She was given a copy of a Behavioural Management book and received some assistance from an Advisory Visiting Teacher (AVT). However although informal advice was offered, no formal or written feedback or reports were provided to assist her.

The Appellant was advised by the HOD that she was required to teach Adobe Photoshop as part of the digital arts program. She had limited computer skills and had never used or been trained in the use of Adobe. A version of the program was installed on several school computers. She received some in-service training and received a number of user manuals for the program.

In May 2006 the Principal called a meeting with the Appellant. She was told that –

· He had been informed that she was having classroom management issues

· There were concerns with her computing knowledge

· She was being placed on a Managing Unsatisfactory Performance (MUP) plan

· Her classroom performance would be supervised for 4 weeks by the Deputy Principals, the HOD and the AVT.

She was dissatisfied with this process and asked would happened if she failed. She was informed that there would then be an assessment to determine if she was of a diminished performance level and may be dismissed.

She left the meeting feeling unwell and attended her GP. She has been unable to work since that time and was certified unfit due to ‘stress anxiety’.

She lodged an application for compensation with WorkCover Queensland for a psychological injury. The Insurer rejected her application on the basis that her injury was excluded by operation of section 32(5). She sought a review of this decision by Q-COMP. The Review Unit confirmed the rejection of her claim on the same basis. Ms Fussell lodged a notice of appeal in the Brisbane Magistrates Court.

Her Honour considered each of the management actions, but in a global context.

1. Transfer and Transition

The Department’s Transfer Guidelines state that the Human Resources Consultants should ensure that the transfer is reasonable and recognise the employment history of the teacher. Ms Egar, HR Consultant gave evidence that the Appellant was placed in an environment that was a mismatch for her skills and cultural background, she was not adequately trained and received inadequate support.

Her Honour found that the Department should have had an induction which was more appropriate for the Appellant’s specific needs, monitored her transition, reduced her workload and had appropriate mentoring.

2. Behavioural Management

The Appellant received in-service training as part of her induction, behaviour management resources and the assistance of an AVT. However, Her Honour found that the ongoing support of the Appellant and the initial training and AVT sessions were both inadequate.

3. Adobe Photoshop

The Department knew the Appellant was having difficulty with the program and did not have the skills to teach such a program. Her Honour found that the attitude and approach by management was not reasonable as it failed to take into consideration her lack of recent classroom teaching experience and lack of training in the software.

4. Managing Unsatisfactory Performance

The Appellant was placed on a MUP plan. Although an MUP plan may be implemented by a school, it was unreasonable in this case as the school failed to carry out an appropriate induction and did not allow time for intervention by the AVT.

In summary Her Honour found that the Department:

· Unreasonably failed to forsee and take adequate account of the difficulties the Appellant faced in adjusting from her previous teaching position

· Failed to provide her with the necessary support

· Failed to provide her with the training and support in other adjustments to the school environment

· Failed to take adequate account of the difficulties in teaching a program without necessary training

On this basis the appeal was allowed.