Rebecca Brown AND Q-COMP (WC/2012/205)

CITATION: Rebecca Brown AND Q-COMP
(WC/2012/205) - Decision
<http://www.qirc.qld.gov.au>
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to commission
Rebecca Brown AND Q-COMP (WC/2012/205)
COMMISSIONER BLACK
22 March 2013
DECISION
Introduction
[1]
On 13 May 2011, Ms Rebecca Brown (the Appellant) lodged an Application for Compensation with WorkCover
Queensland (the Insurer) for a psychological injury said to have been sustained during the course of her
employment with the Property Palace, a real estate agency.
[2]
By its decision dated 19 March 2012, the Insurer rejected Ms Brown's claim for workers' compensation.
[3]
Ms Brown lodged an Application for Review with Q-COMP dated 22 March 2012 seeking a review of the
Insurer's decision. By its decision dated 24 April 2012 the Q-COMP Review Unit confirmed the Insurer's
decision and determined that Ms Brown's claim should be rejected.
[4]
Ms Brown now appeals Q-COMP's decision pursuant to s. 550 of the Workers' Compensation and Rehabilitation
Act 2003 (the Act).
Jurisdictional Documents
[5]
The jurisdictional documents [Exhibit 1] tendered by Q-COMP were as follows:
 Application for WorkCover Queensland Compensation dated 13 May 2011;
 Decision of WorkCover Queensland dated 19 March 2012;
 Application for Claim Review dated 22 March 2012;
 Q-COMP Review Unit Decision dated 24 April 2012; and
 WCR Notice of Appeal dated 17 May 2012.
Nature of Appeal
[6]
The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the
Appellant.
Issue for Determination
[7]
Q-COMP made a number of concessions which narrowed the scope of the proceedings. It was conceded that the
Appellant is a worker within the meaning of the Act; that the Appellant has suffered a personal injury; that the
Appellant's personal injury has arisen out of, or in the course of, her employment; and that the Appellant's
employment was a significant contributing factor to her injury.
[8]
The issue for determination in this appeal, therefore, is whether the Appellant's injury was excluded by virtue of
s. 32(5) of the Act. Section 32 of the Act relevantly provides as follows:
"32
Meaning of injury
(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.
…
(5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder
arising out of, or in the course of, any of the following circumstances (a) reasonable management action taken in a reasonable way by the employer in connection with
the worker's employment;
(b) the worker's expectation or perception of reasonable management action being taken against
the worker;
(c) action by the Authority or an insurer in connection with the workers' application for
compensation.".
2
Standard of Proof
[9]
The standard of proof upon which an Appeal of this type must be determined is that of "on the balance of
probabilities".
Evidence
[10]
During the course of the proceedings, evidence was provided by seven witnesses. The witnesses for the
Appellant were as follows:
 Ms Rebecca Brown;
 Mr Matthew Boettcher;
 Ms Sandra Turner; and
 Ms Sonia Woolley.
The witnesses for Q-COMP were as follows:
 Ms Suzy Niemeyer;
 Mr Jeff Niemeyer; and
 Ms Karlene Munday.
[11]
The Appellant was represented at the hearing by her father, Mr Kelvin Brown. Mr Brown sought to tender
prepared witness statements for Sonia Woolley and Sandra Turner. Mr Merrill, representing Q-COMP, objected
to the tendering of both statements. It was necessary to make a ruling in respect to these matters during the
course of the hearing.
Mr Merrill objected to the tendering of the statements on the following grounds:
 the evidence of Ms Turner and Ms Woolley does not in any way touch upon the work events that the
Appellant asserts caused her psychological injury; and
 Ms Turner and Ms Woolley had ceased employment with the Property Palace at a time prior to the dates
of the work events to which Ms Brown attributes her decompensation.
My determination in respect to the objections raised was to the effect that the written statements would not be
accepted into the evidence and that it was a matter for Mr Brown to determine what evidence he wished to
adduce from the two witnesses particularly having regard to considerations of relevance.
Overview
[12]
The Appellant commenced work for, or in connection with, the Property Palace in November 2008. The
evidence was that for the period November 2008 to November 2009, the Appellant was not directly employed by
the Property Palace but was engaged by a Ms Roxanne Workman who may have been providing services to the
Property Palace under some form of contract arrangement; however, from November 2009 the Appellant was
engaged on a permanent full-time basis by the Property Palace and she undertook administrative and clerical
duties in the Booval office until her employment ended in late March or early April 2011.
[13]
For the most part the Appellant did not work on Saturdays; however, in the latter stages of 2010 administrative
support staff were informed that they would have to take turns in working on Saturdays from 8.30 am to
2.00 pm. As a consequence, the Appellant did commence Saturday work on a rotational basis where one
Saturday in three was worked. The Appellant said that she agreed to work on Saturdays because her children did
not have any sporting commitments during the summer as the football season had ended. It was her belief,
however, that once the football season commenced again in March 2011 she would revert to the previous
arrangement where she did not work Saturdays.
[14]
On 17 March 2011 the Appellant was presented with a written employment contract by Karleen Munday
(Munday), the Finance Manager for the Property Palace, and asked to sign the document. Munday then acceded
to the Appellant's request for time to consider the contract and, in particular, to give her the opportunity to ask
her father to review the contract. Her father expressed some concerned about a clause in the contract that
required the employee to reimburse the employer for any policy excess in the event that the employee's conduct
led to a claim against the employer's professional indemnity insurance policy. Her father said that this was
something that he needed to "double-check" because he thought the clause may be unlawful. The clause in
question is set out below:
"In the event the employee is responsible for any conduct that results in a claim against The Property
Palace's professional indemnity insurance policy, the Employee will reimburse The Property Palace for the
policy excess applied by the insurer when the claim is finalized."
3
[15]
The employment contract also included a clause stating that employees may be required to work on Saturdays on
a rotational basis from 8.30 am to 2.00 pm. It appeared to be common ground that the proposed contract, among
other things, was to effect a change in the Appellant's Saturday work arrangements. After the contract was
issued on 17 March, the employer did not follow-up the matter until the week commencing 28 March, nor did
the Appellant go to her employer and initiate a discussion about the contents of the contract.
[16]
Matters started to come to a head on 29 March 2011 when Matthew Boettcher (Boettcher), the Sales Manager for
the Property Palace, informed the Appellant that she would be required to work on the upcoming Saturday and
also asked the Appellant if she had signed the employment contract. This discussion led to Boettcher requesting
that the Appellant attend a meeting the following morning to discuss her hours of work.
[17]
The meeting the following day (30 March) was attended by the Appellant, Boettcher, Munday and Jeff Niemeyer
(part-owner of the Property Palace). All attendees gave evidence in the proceedings. The meeting concluded
when the Appellant said she wanted more time to consider her response to the Saturday roster and to the
employment agreement. It was agreed that a further meeting would be held the next day (31 March).
[18]
Munday, Boettcher and the Appellant attended the meeting on Friday, 31 March 2011. Munday's evidence was
that the meeting was convened to receive the Appellant's decision in relation to the Saturday roster and to find
out if the Appellant would agree to sign the employment contract. At the meeting, however, the Appellant
indicated that she still had not made up her mind and asked if she could leave the meeting to make a telephone
call. When she returned to the meeting she again indicated that she had not made a decision on the matter. At
this point she was informed that if she did not agree to sign the employment agreement and/or if she did not
agree to participate in the Saturday roster, then "there was no job for her". It is a matter in contention between
the parties whether this expression meant that the Appellant's services were being terminated; however on the
day the Appellant said that she responded by saying that she needed to see her doctor and left the office for that
purpose.
[19]
The Appellant returned to the workplace later that day and presented her employer with a doctor's certificate.
The certificate [Exhibit 4] stated that the Appellant would be unfit for duty from 31 March to 3 April 2011.
After visiting the doctor, the Appellant phoned Suzi Niemeyer (Principal of the Property Palace) and told her
what had occurred, including that she had been fired by Boettcher. During this discussion Ms Niemeyer
informed the Appellant that Boettcher did not have the authority to sack her and that Ms Niemeyer would
convene a meeting in the office the following Monday (4 April 2011) to discuss the matter further.
[20]
The meeting on 4 April canvassed a number of matters, including a proposal dealing with continuing
employment and the creation of a new position description. On 6 April 2011 the employer emailed some further
information to the Appellant which included a revised list of duties and a different salary level. The Appellant
decided to reject the proposal. She did not work again for the Property Palace.
[21]
The Appellant's evidence was that her psychological injury was attributable to five workplace stressors. These
stressors are listed below:
 the first event occurred on 28 March 2011 when Boettcher approached the Appellant and demanded that
she sign the new employment contract even though the Appellant advised him that some content was
unlawful;
 the second event occurred on 29 March 2011 when Boettcher raised his voice at the Appellant, stating
that if she did not work on Saturdays, she would not have a job;
 the third event occurred on 30 March 2011 when Boettcher again demanded that the Appellant sign the
workplace agreement without any alteration regarding the clause of concern. At this point the Appellant
urged Boettcher to wait until Ms Niemeyer returned to work, as the arrangement not to work on Saturdays
was made with her, and the Appellant further stated that she would work on Saturdays as long as she
could leave 15 minutes early for family responsibilities - but Boettcher refused to accept this
arrangement;
 the fourth event occurred on 31 March 2011 when Boettcher again demanded that the Appellant sign the
employment agreement and when she refused for the same reason Boettcher said, "Right then. We're
done". In response the Appellant said that she told Boettcher that she was very upset and that she needed
to see her doctor, but his response was to just walk away without saying anything; and
 the fifth event also occurred on 31 March 2011 and involved the dismissal of the Appellant by Boettcher.
Evaluation of Events
The relevant workplace events occurred in the week commencing Monday, 28 March 2011.
4
First Event (Monday, 28 March 2011)
The first event occurred on 28 March 2011 when Boettcher approached the Appellant and demanded that she
sign the new employment contract even though the Appellant advised him that some content was unlawful.
[22]
No evidence was adduced by the Appellant in respect to a discussion between the Appellant and Boettcher on
28 March 2011. While the Appellant confirmed the inclusion of this stressor in cross-examination, no reference
to the discussion was included in the Appellant's examination in chief which was principally set out in a prepared
statement [Exhibit 3]. No other evidence was led relating to a discussion on 28 March. In the circumstances I
am unable to make a finding that the discussion alluded to in the first event took place. There is, therefore, no
issue for consideration in terms of a review of management action.
[23]
The proposition that the proposed employment contract contained an invalid provision was raised in the
proceedings. While there is no evidence to support the assertion that the matter was raised in a discussion
between the Appellant and Boettcher on 28 March, there is other evidence dealing with the matter. It is not
disputed that the Appellant's father did suggest to her that the provision requiring an employee to pay an
insurance policy excess in defined circumstances may be unlawful. What is in doubt, however, is whether the
Appellant ever relied on this matter in justifying her reluctance to sign the employment agreement or in asking
for more time to consider her response to the agreement. Boettcher's evidence was to the effect that the presence
of the "unlawful" clause was never raised with him. He said that the clear reason that the Appellant was hesitant
to sign the agreement was because of the provision in the agreement requiring the Appellant to work one
Saturday in three.
[24]
The Appellant's evidence in chief does not contain any assertion to the effect that she was not prepared to sign
the agreement because it included the alleged unlawful clause. There is also no evidence establishing that the
matter of the "unlawful" clause was raised in the meetings that were held on 30 or 31 March 2011. On the other
hand, there was no shortage of evidence stating that the main purpose of these meetings was to resolve the
Saturday work issue. In regard to the meeting on 30 March, the Appellant's evidence in cross-examination was
that the issue of hours of work was her "biggest issue". Munday also attended the meeting on 30 March and her
evidence was that the principal topic of discussion was about the Saturday roster. In cross-examination Munday
was asked whether the "unlawful" clause was raised with her:
"The clause in question that has been raised is the one that requires employees to pay for any additional
insurance pay out in the event of a claim against the Property Palace? -- I don't recall that ever being raised
in any of the two meetings.". [Transcript: 1-42, line 35]
[25]
Munday’s further evidence relevant to the topic is set out below:
"Now, you were not aware at any stage that that clause was questioned as being unlawful? -- No.
At no stage during your employment was that brought to your attention? -- My employment while Ms
Brown was there?
Yes? -- Is that what you mean? No.
Even on the day that it was brought up on these two meetings--? -- I don't recall it being brought up in those
meetings. I believe the issue of the meetings was more the Saturday roster.
Okay. The recollection of Ms Brown is that she did bring that up to persons but you're saying it was not you?
-- I don't recall it at all.
You don't recall it but there is a possibility that she may have? -- I don't recall it at all. I don't - I don't
believe it was an issue in those meetings about the clause.
I mean, when you first gave it to her that she went away and had it reviewed--? -- Yes.
--there was no - she did not come back to you at any stage and say, 'I'm holding it at the moment till its being
checked.'--? -- That's correct.
Did she ever say to you what the clause was? -- No, I don't-But she said - she told you she wouldn't sign it but--? -- She asked - when I gave it to her on the 17th of
March, she asked if she could have her father review it. I said, 'Yes.' And between then and the 30th March I
don't recall her ever coming and saying that there was an issue with that specific paragraph.
5
Okay?-- Or even with the agreement itself. I don't even recall me chasing her up for it in between that time.
All right. In the two meetings that you mentioned, the 30th and the 31st of the March, you stated that the
main topic of conversation was working Saturdays? -- Yes.". [Transcript: 1-44, line 5-50]
[26]
The matter was also canvassed with Ms Niemeyer in cross-examination. Her evidence was to the effect that no
one had suggested to her that a particular clause was unlawful. She did not agree that the Appellant's objection
to the employment contract was related to the alleged unlawful clause. In her view the requirement to participate
in the Saturday roster was the issue. [Transcript: 1-56, line 1-20; 1-53, line 30].
[27]
I find that the evidence supports the following conclusions:
(a) While the Appellant's father had expressed concern to the Appellant about the inclusion of the "unlawful"
clause in the contract, this concern was not communicated as an issue of significance to management; and
(b) That the Appellant's predominant concern arising from discussions about the contract was the inclusion of
a clause requiring her to participate in a Saturday roster; and
(c) that management was not aware that the inclusion of the "unlawful" clause posed a barrier to the
execution of the agreement.
Second Event (Tuesday, 29 March 2011)
The second event occurred on 29 March 2011 when Boettcher raised his voice at the Appellant stating that if she
did not work on Saturdays, she would not have a job.
[28]
The Appellant's evidence in Exhibit 3 does not support the facts alleged to have caused the second stressor. She
says in the Exhibit that she was: "approached by Boettcher who stated that I was working the upcoming
Saturday. He also raised the requirement for me to sign the employment contract. Boettcher then directed me to
attend his office the following morning to discuss my hours of work." This evidence does not indicate that
Boettcher raised his voice during the exchange or that he said that the Appellant would not have a job if she did
not work Saturdays. No evidence was adduced to support the claim that Boettcher raised his voice or told the
Appellant on 29 March that she would not have a job if she did not work on Saturdays.
[29]
The evidence supports a finding that Boettcher did ask the Appellant on 29 March whether she had signed the
contract and that, in response, the Appellant said that she would discuss the matter with him the following day or
give him an answer the following day. The Appellant agrees that Boettcher did not object to the deferral of the
matter until the next day.
[30]
The available evidence does not support a conclusion that the exchange between Boettcher and the Appellant on
29 March 2011 amounted to unreasonable management action taken in an unreasonable way.
Third Event (Wednesday, 30 March 2011)
The third event occurred on 30 March 2011 when Boettcher again demanded that the Appellant sign the
workplace agreement without any alteration regarding the clause of concern. At this point the Appellant urged
Boettcher to wait until Ms Niemeyer returned to work, as the arrangement not to work on Saturday was made
with her, and the Appellant further stated that she would work on Saturday as long as she could leave
15 minutes early for family responsibilities - but Boettcher refused to accept this arrangement.
[31]
A meeting was held on 30 March involving the Appellant, Munday, Boettcher and Mr Jeff Niemeyer. The
Appellant indicated in Exhibit 3 that the meeting was requested by Boettcher to "discuss my hours of work".
Munday's evidence was to the effect that the "Saturday roster" was the principal topic of discussion
[Transcript: 1-39]. Mr Jeff Niemeyer's evidence was that the purpose of the meeting was to discuss "a rotational
Saturday morning roster with Ms Brown and also smoking breaks" [Transcript: 1-59, line 10]. Boettcher's
evidence was to the effect that the meeting discussed the employment contract, hours of work and the Saturday
rotation [Transcript: 3-10, line 40]. The Appellant's oral evidence was to the effect that the meeting discussed
the signing of the employment agreement and her hours of work. She agreed that the subject of "hours of work"
was her biggest issue. She also said that in the meeting she was informed that her daily arrangement of hours
would change with a requirement that she observe fixed starting and ceasing times and take her lunch during a
specified period.
[32]
The Appellant's evidence in Exhibit 3 was that she suffered a mental disability that necessitated flexible hours.
The Appellant said in Exhibit 3 that the disability required medication which produced side effects that meant
that she "sometimes had difficulty in arriving to work on time". Another side effect was that the Appellant did
not eat during the day and that in lieu of taking a lunch break she would go to the car park and smoke three to
four times a day.
6
[33]
While the Appellant claimed that Boettcher told her on 30 March that her flexible working arrangements were to
end, these claims were not put to Boettcher when he gave his evidence. Nor were Munday or Mr Niemeyer, who
also attended the meeting, questioned about this matter. Consequently there is limited evidence upon which to
make a finding that Boettcher told the Appellant she would lose this flexibility. Further whatever evidence was
available did not disclose in any specific terms what particular benefits the Appellant might forego. In a context
where the evidence supports a view that the predominant matter for discussion was the issue of the Saturday
roster, it is doubtful that the loss of flexibility was a significant factor in the discussions taking place, either from
the management perspective or from the Appellant's perspective.
[34]
Suzi Niemeyer did concede that she did have an understanding with the Appellant which allowed her some
flexibility in terms of her working hours, but she believed the matter in contention in terms of the contract was
the requirement to work Saturdays. Her evidence on the subject is set out below:
"All right. Ms Niemeyer, would you agree - sorry, Ms Niemeyer, would you agree that you did have an
agreement with Ms Brown in terms of a flexible work--? -- Yes. Yes, I would.
Would you also agree that when the agreement, the new agreement was created, at no stage was Ms Brown
spoken to or negotiated in terms of the change? -- The new agreement being working every third Saturday
in.
The change of the 9 to 5 hours and every third Saturday, that particular agreement? -- From - I think that the
Saturday, every third Saturday, was the issue. Like Becky always had flexibility around her hours. She
would come late, go early and nobody ever complained. The problem that arose for us was that, as I said, in
the June, July of 2010, it was really important that we have somebody that we could rely on Becky working
every third Saturday and it was - that to me is the crux of the whole thing. That she just refused to do it. She
refused to work every third Saturday. Flatly refused.". [Transcript: 1-53, line 18]
[35]
Jeff Niemeyer's evidence also included some reference to flexibility in working hours. In his evidence he
expressed concern about the frequency of the Appellant's smoking breaks:
"What did you say? -- I just said - I explained to Becky or tried to explain to Becky that with her smoking,
we need - she was never really at her desk, she was out the back or down what we call the middle office on
the back veranda.
Mmm-hmm? -- I needed - when I needed somebody, I needed her to be there, so if we could break it down
that she smoked between this time and that time -Mmm-hmm? -- that would be fine, and I also touched on the - because of the economic times and the third
Saturday rotational working on - sorry, the third Saturday of every month.". [Transcript: 1-59, line 40]
[36]
While the evidence does establish that the Appellant was given some level of flexibility in her working hours
arrangements, it did not establish whether all of this flexibility might be lost or only part of it. Nor was it clear
what it was in specific terms that might be foregone. If the discussion was limited to a reduction in the number
of smoking breaks and the participation in the Saturday roster, in my view these matters do not give rise to
unreasonable management action taken in an unreasonable way. Ultimately, there was insufficient evidence to
establish that there was a specific intention on the part of management to withdraw all the flexibility previously
allowed.
[37]
There was nothing in the evidence to support the view that Boettcher demanded that the Appellant sign the
workplace agreement without any alteration regarding the unlawful clause in the 30 March meeting. The
Appellant's own evidence does not suggest that the "unlawful clause" proposition featured, nor does the evidence
of Boettcher, Munday or Mr Jeff Niemeyer. In the circumstances I am not prepared to find that any relevant
management action occurred which indicated or implied that adverse action was being taken against the
Appellant on the basis that she declined to sign the contract because it contained an alleged unlawful clause.
[38]
No evidence was adduced supporting the proposition that the Appellant had asked for the Saturday work issue to
be deferred pending the return to work of Suzi Niemeyer during this meeting. The specific question was not put
by the Appellant to either Munday, Boettcher or Jeff Niemeyer when they gave their evidence. The proposition
is not included in the Appellant's statement of evidence [Exhibit 3]. There is no basis for me to make a finding
about management action in these circumstances.
7
[39]
In regard to an offer to work on Saturdays, the Appellant’s evidence in Exhibit 3 was that her offer to work on
Saturday was made "for the upcoming Saturday" and on the basis that she could leave 15 minutes early. In his
evidence Boettcher confirmed that he had declined the Appellant's request to leave early on the upcoming
Saturday. It is difficult on the evidence to form a view about the reasonableness of the decision not to allow the
Appellant to leave 15 minutes early. The central management action was clearly intended to secure the
Appellant's participation in the Saturday roster and to put her on the same footing as other staff required to work
Saturdays. It would be inconsistent to management's objectives if they were to require the other two employees
to work through to 2.00 pm, but to allow the Appellant to leave early. This reasoning supports a finding that
there was nothing unreasonable about Boettcher's response. Converse reasoning might suggest that, pending the
Appellant making alternative arrangements, a small concession around the departure time for the first Saturday
to be worked in the new roster was entirely reasonable. If this latter view were to prevail, however, it would be
fair to characterise the management failure to make the concession as something in the order of a blemish.
Fourth and Fifth Event (31 March 2011)
The fourth event occurred on 31 March 2011 when Boettcher again demanded that the Appellant sign the
employment agreement and when she refused for the same reason Boettcher said, "Right then. We're done". In
response the Appellant said that she told Boettcher that she was very upset and that she needed to see her doctor,
but his response was to just walk away without saying anything.
The fifth event also occurred on 31 March 2011 and involved the dismissal of the Appellant by Boettcher.
[40]
The fourth and fifth events involve a consideration of what transpired during the meeting held on Thursday,
31 March 2011, and some subsequent developments. The 31 March meeting was attended by the Appellant,
Boettcher and Munday. The Appellant's evidence was that she had asked to consider the matters under
discussion overnight at the meeting the previous day and that Boettcher acceded to this request
[Transcript: 1-19]. Munday said that the 31 March meeting was organised and agreed to at the meeting on the
previous day [Transcript: 1-40].
[41]
At the 31 March meeting, the Appellant's evidence was that she was asked whether she had decided to accept the
new employment agreement and the new hours. In response she stated that she was unable to provide an answer.
She then asked if she could make a telephone call. Having made the call she returned to the meeting and again
stated that she was yet to make a decision. She indicated in Exhibit 3 that she stated that Boettcher had put her
under too much pressure in a short period of time and she was not dealing with it very well. She then stated that
she needed to go and see her doctor. The Appellant asserts that Boettcher responded by saying, "then I'm gonna
have to ask you to leave, as we're done."
[42]
Munday said the reason for the meeting was to enable the Appellant to provide her answer about the Saturday
work and to indicate whether she was agreeable to sign the contract. It was her evidence that when the meeting
commenced the Appellant indicated that she had not made a decision regarding her Saturdays and she then asked
if she could make a telephone call. Having made the phone call the Appellant returned to the meeting and
announced that she had still not made a decision. In response, Boettcher said that "if she could not work
Saturdays, there was no work for her." [Transcript: 1-41, line 44].
[43]
The 31 March meeting took place at the request of the Appellant who said at the meeting on the previous day
that she wanted to consider the matter overnight. Despite this, when the Appellant arrived at the 31 March
meeting she had still not made up her mind. This position had not changed by the end of the meeting,
notwithstanding, that the Appellant had taken time out to make a telephone call to her father to get some advice.
It is clear that the management action associated with the convening and conduct of the 31 March meeting was
reasonable. The only contentious issue arises from the position adopted by Boettcher at the end of the meeting.
In this regard it is not in dispute that Boettcher expressed his position in words to the effect that the Appellant's
continuing employment was conditional on her agreement to sign the contract and to participate in the Saturday
roster. An evaluation of Boettcher's position requires a review of whether the Appellant was justified in
declining to give an answer in respect to the contract at that point in time.
[44]
Munday was charged with the administrative exercise of bringing employee files up-to-date and ensuring a
signed copy of the current employment contract was held on file. Munday's evidence was that she gave the
employment contract to the Appellant on 17 March 2011. When she did this she said she explained to the
Appellant that "I'd been updating all files and I noticed on her file we did not have the agreement or the authority
and had printed them out, asked her to review them and to - any questions to talk to me and to sign them and to
bring them back." [Transcript: 1-38, line 50]. In response the Appellant asked if she could refer the contract to
her father for review. Munday agreed with this request.
8
[45]
The distribution of the contract was a process undertaken at the direction of Suzi Niemeyer. In their efforts to
ensure that staff signed and returned contracts, both Munday and Boettcher were acting on the instructions of Ms
Niemeyer. There was no further action in respect to the contract until 29 March when the Appellant was asked
by Boettcher whether she had signed the agreement. In response the Appellant asked for more time to consider
and said she would give him a response the next day.
[46]
The Appellant submitted that her consideration of the contract focussed on the "unlawful" clause and the
Saturday roster clause. The Appellant suggested that her reluctance to sign the agreement stemmed from the
inclusion of what was regarded as an illegal clause; however, the employer witnesses denied that the "unlawful"
clause was ever in contention. Their evidence was that the principal issue went to the requirement to participate
in a Saturday roster.
[47]
The evidence adduced in the proceedings supports a finding that the principal issue in contention in relation to
the proposed contract was the Saturday roster clause. It follows that the prevarication of the Appellant in
response to attempts to execute the contract was primarily attributable to the Appellant's strong preference to
avoid Saturday work. It was inevitable that at some point this issue had to be confronted by the Appellant and I
consider that Boettcher was acting appropriately in trying to secure a timely resolution.
[48]
While the Appellant has argued that it was reasonable to expect that the employer would make some allowances
because of her disability, the evidence was clear that the Appellant's desire not to work Saturdays was solely
related to the participation of her step-children in Saturday sport and not to her disability. The employer's view
was that it was unfair for the other two administration employees to be required to work on Saturdays while the
Appellant was granted an exemption. The employer also said that the implementation of the rotational roster
would help reduce job losses following a downturn in business. In all the circumstances I do not consider that it
was unreasonable for management to require the Appellant to participate in the Saturday roster.
[49]
To the extent that the Appellant had enjoyed some form of exemption from Saturday work under an oral
agreement with Ms Suzi Niemeyer, it was clear that this arrangement was now being rescinded and the vehicle
for the rescission was the proposed new employment contract. It was open to the employer to propose changes
to the contract of employment. If the proposed changes are significant, the employer will be required to provide
the employee with notice of a change to the terms of the current or pre-existing contract. The notice should be
no less than that required to be given in the event that the employee's services were being terminated. If the
employee does not wish to accept the terms of the new contract, then the employment will come to an end. In
this case the Appellant's own evidence was that she was put on notice in late 2010 that "the administrative
support people, myself included, were advised that we all had to take turns in working Saturday mornings due to
a decrease in overall sales" [Exhibit 3]. The contract was presented on 17 March with a view to the contract
coming into effect on Saturday, 2 April (at least in respect to the Saturday roster provision). In the end result the
contract had not been implemented by Monday, 4 April with the Appellant declining to say whether she accepted
or rejected the new contract. Having regard to these particulars, I do not consider that the management action
associated with the request that the Appellant sign the employment contract to be unreasonable, nor do I consider
that the management action was taken in an unreasonable way.
[50]
Whether Boettcher terminated the Appellant's employment on 31 March is a matter in dispute. There is no doubt
that the Appellant had been put on notice that her continuing employment was conditional on her participation in
the Saturday roster. What is in doubt is whether the termination had been effected on 31 March given that the
Appellant had not answered the critical question, and given that Boettcher may not have had the authority to
terminate the Appellant's employment.
[51]
The Appellant's evidence was to the effect that when she informed Boettcher at the meeting that she had not yet
decided whether to sign the contract. Boettcher responded by saying, "then I'm gonna have to ask you to leave,
as we're done." The Appellant took these words to mean that she had been dismissed.
[52]
The Appellant's evidence as set out in Exhibit 3 was that sometime after the 31 March meeting she rang Ms
Niemeyer and told her what had transpired. At this point or in a second call later that day, Ms Niemeyer said to
the Appellant that she had spoken to Boettcher and he stated that he did not terminate the Appellant's
employment but that the Appellant had stormed out. Ms Niemeyer also told the Appellant that she would chair a
meeting on the following Monday (4 April) with all involved. In cross-examination the Appellant agreed that
Ms Niemeyer told her that Boettcher did not have the authority to sack her [Transcript: 1-22, line 41]. It is also
relevant that following the 31 March meeting the Appellant visited her doctor and obtained a certificate which
stated that the Appellant was unfit for duty up to and including 3 April 2011. The Appellant returned to the
office for the purpose of delivering this certificate to her employer.
9
[53]
On the balance of probabilities I find that the evidence does not support a conclusion that the Appellant’s
services were terminated on 31 March 2011. In my view the termination was to be confirmed as soon as the
Appellant indicated that she was not prepared to participate in the Saturday roster. However given the
Appellant's prevarication over the delivery of this response, given the evidence suggesting that Boettcher did not
have the authority to terminate the employment, and given the agreement to discuss matters further on 4 April
under Ms Niemeyer's chairmanship, I do not conclude that Boettcher terminated the Appellant's services on
31 March 2011. After 31 March, further action was suspended pending the 4 April meeting. On a review of all
the evidence I do not conclude that the management action associated with the fourth and fifth stressors
constituted unreasonable management action taken in an unreasonable way.
Submissions of the Appellant
[54]
It was submitted that the workplace stressors that caused the injury to the Appellant resulted from the arrogance
of management in its approach to the resolution of three issues:
(a) the inclusion of an "unlawful clause" in the employment contract;
(b) change of working hours; and
(c) a requirement to work Saturdays.
[55]
It was submitted that the Appellant's reluctance to sign the employment agreement was motivated in part by a
valid objection to the inclusion in the agreement of the "unlawful" clause. The Appellant submitted that the
failure of the employer to address this objection constituted unreasonable management action.
[56]
It was argued that a proposed change in working hours for weekdays failed to take into account the Appellant's
mental disability or, alternatively, constituted the abandonment of an established arrangement wherein
consideration had been given to the mental disability in the form of flexible working arrangements and that the
enforcement of a rigid-hours regime would create an unreasonable position for the Appellant. The employer also
acted unreasonably in proposing a change in working arrangements without any prior consultation with the
Appellant.
[57]
The Appellant asserted that the employer had agreed to a working arrangement which did not require her to work
on Saturdays in recognition of the Appellant's family responsibilities during football seasons. It was submitted
that it was unreasonable for the employer, having approved an arrangement for the Appellant to meet her family
responsibilities, to rescind or change that arrangement without consultation and without adequate notice.
[58]
The Appellant submitted that management of the Property Palace acted unreasonably in enforcing changes to the
Appellant's conditions of employment which:
(a) breached the Appellant's recognition / reasonable adjustment of her medical disability by altering her
hours from a flexible state to a rigid situation;
(b) altered arrangements regarding the Appellant's family responsibilities on Saturdays; and
(c) included an unlawful clause within the written agreement.
[59]
The Appellant submitted that the relevant management action was taken in an unreasonable way in that:
(a) the construction and delivery of the new agreement held no periods of discussion or consultation with any
staff or staff representatives;
(b) the agreement was ultimately delivered to the Appellant on the basis that she sign or lose her job;
(c) the process did not recognise the right of the Appellant to seek advice regarding the validity of the
contents of the proposed agreement and did not give reasonable consideration to the position of the
Appellant upon receipt of such advice;
(d) the Appellant should not have been required to sign an agreement which was legally flawed;
(e) the Appellant was denied the opportunity to discuss her concerns with Ms Niemeyer in circumstances
where some of the content of the proposed agreement involved changing informal agreements that the
Appellant had with Ms Niemeyer; and
(f) it involved a demand that the Appellant sign the new agreement then and there.
Submissions of Q-COMP
[60]
Q-COMP submitted that the Appellant did not lead any evidence to support the first stressor and that this claim
had not been proven. In respect to the second stressor it was reasonable management action for Boettcher to
raise with the Appellant the fact that the contract had not been signed and to ask her to execute the contract. It
was reasonable for the employer to ask the Appellant to work every third Saturday due to the economic reasons
given by Ms Niemeyer in her evidence.
10
[61]
In respect to the third stressor and the meeting held on 30 March 2011, it was submitted that the evidence of
Munday and Mr Jeff Niemeyer should be preferred over the Appellant's evidence in assessing whether Boettcher
behaved aggressively towards the Appellant in the meeting. It was noted that neither Munday nor Mr
Niemeyer's evidence relating to the conduct of the meeting or the demeanour of Boettcher was challenged in
cross-examination.
[62]
In respect to the fourth and fifth stressors it was argued that the Commission should not find that the Appellant
was dismissed by Boettcher. It was submitted that the Appellant's conduct in obtaining a medical certificate
stating that she was unfit for work and returning the certificate to the office of her employer was inconsistent
with the Appellant's view that she had been dismissed. It was conceded that the words spoken by Boettcher
during the 31 March meeting could have been better chosen; however, such an outcome reflects only a flaw or a
blemish that does not render his conduct unreasonable in circumstances where he was impressing on the
Appellant the importance to the employer of her working every third Saturday.
[63]
Finally it was put that, in light of the evidence, the Commission can be satisfied on the balance of probabilities
that the Appellant's injury arose out of, or in the course of, reasonable management action taken in a reasonable
way.
Conclusion
[64]
The determination in this matter goes primarily to a consideration of the management action involved in the
resolution of three workplace issues affecting the Appellant. These issues relate to:
(a) Management's request that the Appellant sign an employment contract which included an alleged
unlawful clause;
(b) Management's requirement that the Appellant participate in the Saturday roster; and
(c) Management's alleged intention to change the weekday working arrangements of the Appellant.
[65]
The first two issues listed in the preceding paragraph relate to clauses contained in the proposed contract. The
third issue arises from claims made by the Appellant in her evidence. In each case the Appellant asserts that the
management action taken constituted unreasonable management action taken in an unreasonable way. In this
respect the Appellant's attention is focussed on the conduct of Matthew Boettcher, the Sales Manager for the
Property Palace at the time.
[66]
The proposition that the contract contained an unlawful clause gave rise to various arguments which were
advanced by the Appellant. The first was that management should not have asked the Appellant to sign a
contract containing this clause and that it was unreasonable for management to press the Appellant to sign the
contract. The second argument suggested that the Appellant's delay in signing the agreement was attributable to
her concern about this clause and that management should have given her more time, or more latitude, in
reaching a decision on whether to sign the contract. The Appellant also submitted that it was unreasonable that
the presentation of the contract by the employer was not preceded by some form of consultation and discussion
process.
[67]
The difficulty for the Appellant in the first instance is that no evidence was led, nor any submissions advanced,
establishing that the particular clause was unlawful. Nor was any evidence led demonstrating how the clause
may adversely impact the Appellant. It may have been, for example, that the clause was only likely to apply to
sales staff not administrative staff. In any event there appeared to be no reason for the Appellant to prevaricate
over the matter in the manner that she did. The Appellant could have tried to resolve the matter by saying to the
employer that she was happy to sign the contract provided that the alleged unlawful clause was removed. There
was no evidence that she put such a proposition. In fact, the weight of the evidence supported a finding that the
inclusion of the unlawful clause was not a factor in the Appellant's discussions with the employer in the week
commencing 28 March 2011. Rather, the evidence established that the reason the Appellant was reluctant to
sign the contract was not because of the presence of the alleged unlawful clause but because of the inclusion of
the clause requiring the Appellant's participation in the Saturday roster. I do not think the criticism around lack
of process is justified. On the evidence, the only contentious provision in the contract was the clause requiring
participation in the Saturday roster. The Appellant was aware of management's intentions since late 2010 in this
regard and she also had the opportunity of promoting some discussion about the issue when she received the
contract on 17 March. In the circumstances I decline to find that unreasonable management action was
associated with the inclusion of the alleged unlawful clause in the proposed contract.
[68]
The management request that the Appellant participate in the Saturday roster was first made in late 2010. The
Appellant agreed to participate in the roster pending the commencement of the football season in
mid-March 2011, after which she wanted to be exempt from any requirement to work Saturdays. In declining to
work Saturdays the Appellant relied on informal assurances from Ms Niemeyer to the effect that she did not
have to work Saturdays provided that the Appellant was able to arrange a replacement. On the evidence, both
11
Munday and Boettcher were operating under the instructions of Ms Niemeyer when they requested the Appellant
to sign the contract. If there was any doubt in the mind of the Appellant about Ms Niemeyer's position on
whether she should work Saturdays, it appears that the Appellant could have called Ms Niemeyer and obtained
the clarification. I do not think that there was much doubt that the Appellant, in March 2011, was being
confronted with a situation where her exemption from Saturday work was about to end.
[69]
The Appellant's defence of her refusal to work on Saturdays surfaced some inconsistencies. In some instances
the Appellant suggested that it was unreasonable for management to require her to work on Saturdays because of
her mental disability. however, in this regard, her evidence was clear that her desire to avoid Saturday work had
nothing to do with her disability but was solely attributable to her desire to support her children's participation in
football. The Appellant also gave evidence that at the 30 March meeting she had arrived at the point where the
requirement to work Saturdays was no longer an issue for her and the only matter in contention was whether she
would need to work the upcoming Saturday:
"I explained to them that that particular Saturday was the first and so I didn't - and that year we had both
children starting football, so one had to go one location and one to another, so I did explain to him that could he give me that Saturday, because it was too short a notice to make other arrangements and from then
onwards I could try to make other arrangements.
I see. But as a general proposition--? -- So, it was that particular Saturday that I had the biggest problem with
it. I agreed to it after that.
I see. You say you agreed to work other Saturdays after that? -- Yeah, by the end of that meeting, yeah, I - I
did.
I see. Am I correct in suggesting this: that the reason that you were having difficulties at all working every
third Saturday was because of the fact of the football season--? -- Yes.
-- commencing? You'd agree with that? -- Yes.". [Transcript: 1-16, line 57]
[70]
The inconsistency is that the concession to participate in the Saturday roster was never disclosed in the
Appellant's written statement of evidence [Exhibit 3], nor is it consistent with the view, apparently shared by all
who participated on 30 March, that the meeting ended on the basis that the Appellant could not make up her
mind and that the meeting would be reconvened the following day to hear the Appellant's response. Finally,
immediately prior to making the concession, the Appellant had agreed that the principal issue for discussion in
the 30 March meeting was "the issue of the clause in the contract that provided that [she] may be required to
work on Saturdays on a rotational roster". If the issue of the Saturday work had been resolved on March 30, no
explanation was provided in the evidence about why a meeting the following day was necessary. To the
contrary, the weight of the evidence clearly established that the 31 March meeting was scheduled because the
Saturday work matter remained unresolved.
[71]
If the Appellant wanted to rely on a version of events that suggested there was no dispute around Saturday work,
she should have ensured that such a version was reflected in Exhibit 3 and she should have ensured that this
version was put to the other three persons who attended the 30 March meeting and who gave evidence in the
proceedings.
[72]
For the reasons already articulated in this decision I do not believe that it was unfair for the employer to ask the
Appellant to participate in the Saturday roster. I accept that Boettcher may have become frustrated with the
Appellant's prevarication around the issue, and may have responded to her failure to make up her mind on the
issue by expressing himself in a direct, abrupt or terse manner. Any such deficiency in communication,
however, should appropriately be described as a blemish rather than something that amounted to unreasonable
management action taken in an unreasonable way.
[73]
Issues relating to a proposed change in weekday working arrangements did not arise from a term in the proposed
contract of employment. It was the Appellant's assertion that Boettcher raised these matters in the 30 March
meeting. She said that he informed her that she would be required to observe strict starting and ceasing time and
meal arrangements. The Appellant said that she currently enjoyed some flexibility in these areas because Ms
Niemeyer acknowledged that such flexibility would assist the Appellant in dealing with her mental illness.
[74]
The difficulty for the Appellant in trying to establish that the management treatment of this issue was
unreasonable is that none of the management representatives who attended the 30 March meeting and who gave
evidence indicated that a withdrawal of the flexibilities was discussed. This state of affairs may have been
remedied if the Appellant had addressed the matter in cross-examination, but she did not. In the end result the
12
weight of the evidence overall does not support a finding that these issues were raised in the meeting or,
alternatively, if they were raised, they were not regarded by the participants as substantive and something that
would have significantly influenced the Appellant in arriving at the decisions she took during or after the 30
March meeting. Consequently, these matters do not give rise to management action that was unreasonable or
management action that was taken in an unreasonable way.
[75]
I dismiss Appeal No. WC/2012/205. I confirm the decision of Q-COMP dated 24 April 2012 and find that Ms
Brown's Application for Workers' Compensation, originally lodged on 13 May 2011, is one for rejection.
[76]
I reserve the question of costs.
[77]
I order accordingly.
G.D. BLACK, Commissioner
Hearing Details:
2013 10, 11 and 18 January
30 January (Respondent's Submissions)
18 February (Appellant's Submissions)
Released: 22 March 2013
Appearances:
Mr K. Brown, Agent for the Appellant.
Mr J. Merrell, Counsel, directly instructed by Q-COMP.