State of Queensland (Education Queensland) v Q-COMP and David Hossack

Date of decision: 31 March 2010, IM Hall

Mr Murdoch of Counsel, instructed by Crown Law for the appellant

Mr Watson of Counsel, directly instructed by Q-COMP

Ms McClymont of Counsel, instructed by Macrossans Lawyers for the second respondent

Key words – Principal – 53 – Injury Type: psychological – 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

Mr Hossack (the second respondent) was employed by the appellant as the Principal of the North Keppel Island Environmental Education Centre (NKIEEC). The NKIEEC is located on North Keppel Island and hosts environmental and outdoor education programs and residential and professional development programs. The second respondent stopped work in November 2007 due to a psychological injury which he stated developed from December 2006 and was caused by an overwhelming workload and the appellant’s failure to respond to requests for extra staff.

The second respondent lodged an application for compensation with WorkCover Queensland on 2 November 2007. On 17 March 2008, WorkCover provided written notice of its decision to reject the second respondent’s application. On 17 June 2008, the second respondent lodged an application for review of WorkCover’s decision with Q-COMP. On 22 July 2008, Q-COMP provided written notice of its decision to set aside WorkCover’s decision and to substitute another decision to accept the application for compensation. The appellant lodged an appeal of Q-COMP’s review decision with the Industrial Magistrates Court.

On appeal, the appellant conceded that the second respondent sustained a personal injury arising out of or in the course of his employment, and that the employment was a significant contributing factor to the injury, except to the extent that it was caused by the second respondent’s work for the Outdoor Environmental Education Centre Principal’s Association (OEECPA). IM Hall concluded that the OEECPA activities were within the scope of the second respondent’s employment, because these activities were an integral part of the second respondent’s responsibilities to undertake ongoing professional development and liaise with relevant industry groups, and because the OEECPA was used to raise staffing issues with the appellant.

IM Hall further concluded that the second respondent’s psychological injury did not arise out of reasonable management action taken in a reasonable way in connection with the second respondent’s employment, because the appellant made no response to the second respondent’s requests for extra staff. IM Hall found that this was despite the appellant recognising that it needed to address inadequate resourcing and being aware of the potential health impacts of the principal’s workload. IM Hall found that the appellant was responsible for its own funding allocations, and it could not rely on an inadequate funding allocation to categorise as ‘reasonable’ an otherwise unreasonable set of working conditions. IM Hall found that the second respondent was required to increase enrolments, and it was not his choice to increase student numbers in order to fund extra services. IM Hall further found that a senior manager spoke to the second respondent unreasonably during a telephone conversation about the second respondent’s attempt to limit student numbers.

The appeal was dismissed.