State of Queensland (David Piccinelli) v Q-COMP

Date of decision: 9 October 2009, I.M. Mack

Mr Max Spry of Counsel, instructed by Crown Law for the appellant

Mr Chris Murdoch of Counsel, directly instructed by Q-COMP

Key words – Corrective Services Officer - Injury Type: psychological injury (acute anxiety syndrome) – 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

David Piccinelli was employed as a Corrective Services Officer at the Townsville Correctional Centre.

On 28 October 2008, Mr Piccinelli alleged that he sustained a psychological injury, namely acute anxiety and stress, as a result of being accused of sexual harassment and misconduct.

On 14 November 2008, Mr Piccinelli applied for compensation attributable to these factors:

1. Management terminating his position as instructor based solely on verbal allegations

2. Management failing to provide him with: notice of the interview on 28 October 2008; an opportunity to have a support person attend the interview; any offer of support; written substantiation of the allegations against him; and natural justice

3. Management failing to provide ‘follow up’ contact and possibly leaking information about the allegations against him to the media

On 5 December 2008, the Insurer accepted the claim on the basis that his condition did not fall within the exclusion to the definition of ‘injury’ in section 32(5) of the Workers’ Compensation and Rehabilitation Act 2003, as reasonable management action was not undertaken.

On 5 January 2009, the State of Queensland applied to Q-Comp for review of the decision to accept the claim.

On 10 February 2009, Q-Comp confirmed the decision of the Insurer to accept the claim.

Q-Comp’s decision was on the basis that management failed to afford Mr Piccinelli natural justice at the meeting of 28 October 2008. This failure to afford Mr Piccinelli natural justice constituted management action taken unreasonably. The specific management failures considered to be management action taken unreasonably were:

- Failing to forewarn Mr Piccinelli of the intent of the meeting

- Failing to provide Mr Piccinelli with the opportunity to bring a support person

- Failing to explain to Mr Piccinelli the reasons for not being offered the opportunity at that time to respond to the allegations

On 9 October 2009, the Industrial Magistrate allowed the appeal by the State of Queensland against Q-Comp’s decision. This was on the basis that as employer, the State of Queensland undertook reasonable management action in a reasonable way. Specifically:

- In accordance with natural justice the Employer’s General Manager personally advised Mr Piccinelli as soon as possible of the allegations against him and the investigation of the allegations by the Ethical Standards Branch

- It would have been improper and unfair to Mr Piccinelli for the Employer to provide the worker with an opportunity to answer the allegations

- It would have been imprudent for the employer to disclose the identity of the complainant to Mr Piccinelli in the absence of a written complaint

- Informing Mr Piccinelli that he could bring a support person at the meeting of 28 October 2008 would not have mitigated against Mr Piccinelli being upset and would be “unnerving at best and potentially injurious”

- Management’s reluctance to engage in a conversation about the merits of the allegations protected Mr Piccinelli from himself by preventing him from making admissions in the absence of the opportunity to seek independent advice

Conclusion

The Industrial Magistrate determined that in the circumstances of the case, natural justice only required Mr Piccinelli to be informed of the allegations against him and a likely investigation into those allegations as soon as possible.

The Industrial Magistrate further determined that in the circumstances of the case, natural justice did not extend to immediately providing Mr Piccinelli with the identity of the complainant, an opportunity to bring a support person or to answer the allegations.

The circumstances relied upon by the Industrial Magistrate were that there was “bad news to be delivered”, it needed to be delivered promptly and there was no easy way to deliver it.