Bernard Patrick O’Brien v Q-Comp

Bernard Patrick O’Brien v Q-Comp (WC/2006/21) was handed down by the Queensland Industrial Relations Commission on 13 August 2007 and addresses the exculpatory provision in Section 32 of the Workers Compensation and Rehabilitation Act 2003. 

The Relevant Facts

Mr O’Brien was an assistant support worker at the Waterford West Residential and dealt with high needs residents.  His employer was the Endeavour Foundation. He was the union representative and advocate for resident’s rights. He made a number of reports about abuse of residents to management. 
 

The Commission identified four significant events that may have led to Mr O’Brien’s psychological injury.[1] These comprised of two meetings involving management, a letter from management and a report from an investigator commissioned by management.

1. Mr O’Brien did not attend the first meeting about the allegations of abuse, nor was his name mentioned, so it was unlikely to be a significant stressor. Nevertheless, a meeting citing unsubstantiated findings about the investigation was not reasonable management action taken in a reasonable way.

2. The General Manager, Ms Alexandra, wrote to Mr O’Brien advising that his behaviour had contributed to current problems at work and that a report of Dr Parsons[2] made scathing findings about his conduct. The correspondence stated that there had been a lack of good faith in his actions and this letter would be placed on his personnel file for two years as evidence the matter had been formally addressed. 

3. Another meeting between management and Mr O’Brien produced an “agreement” in which Mr O’Brien was blamed for the majority of the problems. It stipulated that he would relinquish union role[3] and not communicate with staff/management about issues. It was held that urging compliance with certain protocols may be reasonable but, the protocols should apply to all staff.

4. Finally, a report by a Dr Parsons that was found to follow Endeavour Foundation management guidelines discredited Mr O’Brien’s reports of abuse. The Commission found that a number of allegations were put in the report that were verified.  The report personally attacked Mr O’Brien, but, he was not interviewed by Dr Parson in her investigation.

The Commission accepted Mr Johnston’s, clinical and consulting psychologist, evidence that Mr O’Brien attributed the onset of his condition and his eventual cessation of work to bullying and unjustified criticism by senior management, public humiliation, threats against himself and his family, and an undermining of his authority with disabled residents and their parents.[4] It is quite probable that Mr O’Brien’s syndrome arose in the context of a lengthy period of difficulties in dealing with workplace managers.[5]
 

Judgment

Q-Comp conceded that Mr O’Brien was suffering from an ‘injury’ being a psychological condition and that employment was “a significant contributing factor” but, that the injury was excluded by s32(5) as the management action was reasonable and taken in a reasonable way.
 

The Commission outlined several questions to be determined. Firstly, whether the worker suffered an injury arising out of, or in the course of his employment and was this was a significant contributing factor. In Lakckey v WorkCover Queensland[6], Hall P stated that what is required is some cause or consequential relationship between the employment and the injury.  The Commission accepted the evidence of Mr Johnston and Mr O’Brien satisfied the causation connection test.[7]
 

Next, was ‘management action’ involved? Canadian General Electric Company Limited v Ontario Labour Relations Board[8] defines it management action as:  

“… the taking or attending to a matter. It apparently includes the action or manner of conduction affairs or administering and directing or controlling any matter.”[9]

 

It was held that the facts, as stated above were ‘managerial actions’. 

The ultimate question was whether this managerial action was reasonable. The Commission listed the issues surrounding the above events that could be unreasonable management action taken in a unreasonable way. In WorkCover Qld v Margaret Kelh[10] “reasonable” was held to mean to reasonable in all the circumstances. 

Specifically, the Commission found that Mr O’Brien was not given the opportunity to respond to allegations against him prior to the disciplinary action outlined in the “agreement”. Employers should provide employees with this opportunity, prior to any disciplinary action being imposed. It was accepted that it was not until after the correspondence from management and the meeting had taken place that he was given access. When access was eventually permitted, he not able to take notes nor was he given a copy. 

While the Endeavour Foundation’s attempt to sort out the difficulties between staff was held to be reasonable, Mr O’Brien felt discriminated against because he was the only employee required to sign an agreement about his behaviour. Further, while prima facie, that meeting was to resolve issues and so is reasonable, the motives of the management and the subsequent agreement were deemed, unreasonable.  
 

Finally in relation to Dr Parson’s report and the findings therein, management action in conducting an investigation into allegations of abuse is certainly reasonable, but the investigation itself was seriously flawed.[11] The subsequent actions of Ms Alexandra in repeating the allegations made in the report to families of residents, despite the fact they were unsubstantiated, is also inappropriate.[12]
 

The Commission was satisfied that the relevant management action taken by the Endeavour Foundation was unreasonable and carried out in an unreasonable way. The Commission set aside the decision of Q-Comp Review Unit substituting a decision that Mr O’Brien suffered an injury within the meaning of Section 32.  

Conclusion and Further Thoughts

While the decision as to what is reasonable in this case was no doubt conclusive, it is worthwhile noting that the facts emphasise the phrase, “carried out in an unreasonable way”. The Commission noted several times throughout its judgement that prima facie, some basic initiatives such as:-

• Investigating claims of abuse;
• Addressing the issue with family of residents; and
• Attempting to resolve disputes between staff

were reasonable, the manner in which they were carried out was not – though the separation of this sub-section is not expressly mentioned by the Vice President. 
 

Therefore, simply having procedures in place to deal with issues that arise is well and good, however, it is their subsequent implementation, the way in which they are carried out, which could trigger a compensable injury especially given the broad interpretation of what constitutes ‘management action’.

On another point, it is interesting to note that the judgment cited the decision of Q-Comp v Education Queensland [13] where it was discussed that some stressors could involve reasonable management action and unreasonable management action. If this is the case, Hall P found that due to the wording of the sub-section, an injury would be excluded. Nonetheless, all that is required in terms of a number of stressors is for one such event or occurrence to be a significant contributing factor to the injury.[14]

Please Login to make comments