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[Extract from Queensland Government Industrial Gazette,
dated 6 July, 2007, Vol. 185, No. 10, pages 224-228]
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to commission
ISS Security Pty Ltd AND Q-Comp (WC/2007/6)
COMMISSIONER BECHLY29June 2007
Workers Compensation and Rehabilitation Act 2003 s. 550 -Application for compensation for psychological injury - Definition of "Injury" s. 32(5) - Review sought - Background - Allegations of bullying - Investigation and Report - Meetings - Issue regarding representation - Correspondence - Re-deployment offered - Complaints disclosed to other employees -Unauthorised contact with customer - Final warning - Refusal to work other than airport - No reasonable cause found for personal safety concerns -Management action found reasonable - Decision of Q-Comp overturned - Appeal upheld - Costs reserved.
DECISION
On 18 August 2006 Ms Hayley Penelope Fabé filed an application with WorkCover Queensland seeking compensation for a psychological injury alleged to have occurredat 10.30a.m. on 3 July 2006 in a meeting room at her place of employment, BrisbaneAirport where she worked for her employer, ISS Security, as a security officer engaged in screening passengers.
On 31 October 2006WorkCover Queensland informed Ms Fabé that it had decided not to accept her application as the circumstances of her condition did not fall within the definition of an "injury" contained in the Workers' Compensation and Rehabilitation Act 2003 (the Act).
In its decision summary WorkCover Queensland advised that it was satisfied that Ms Fabé was a "worker" under the Act at the relevant time and that she developed a psychological condition where the employment was a "significant factor".
However WorkCover Queensland was also satisfied that the employment related events contributing to the condition were "reasonable management action taken in a reasonable way" as referred to in the Act and that thus the condition suffered by MsFabé did not fall within the definition of injury stated at s. 32(5).
MsFabé sought a review of that decision. Q-Comp reviewed the decision and found that the actions of the employer were not reasonable management action. The employer has now appealed that finding.
A short background to the matter is that Ms Fabé was employed by Group 4 Securitas for some years. It is her evidence that she rejected various offers of employment by that entity in shopping centres and other places because she only wanted to work at the airport as a passenger screener. Her reasons related to personal safety. She was eventually offered employment in that position. She was informed on induction, along with other new starters that she could be transferred to other work environments. She raised this possibility with the person conducting the induction but was told not to worry about it.
Sometime in 2006 the security role at the airport transferred to the present employer, ISS Security.
During her employment with Group 4 Securitas she was appointed as a second-in-charge of a shift and her uniform included an epaulette to so signify. That role included taking over the shift in the absence of the shift supervisor during breaks etc., and some limited administrative work.
The new employer did not have such a position but operated with senior and junior operatives. Whether or how this was conveyed to employees was not disclosed. It seems that the Group 4 uniforms were worn until the time the relevant events occurred. New uniforms without the previous epaulettes were issued at about this time.
The new employer came to the view that there was a questionable work environment or ethic and employed a person to investigate and report. This was made known to employees by way of a memo to all staff dated 28 April 2006.
The memo advises that Mr Neil Pitkin, the ISS Security Risk and Compliance Manager will be conducting investigations into claims of workplace bullying and harassment and encourages employees to take the time out to discuss any matters of concern with him. Ms Fabé says she was unaware of this memo but later enquired as to who he was and what his role was. When she was told she carried out some investigations through the internet to attempt to find out more about him.
During the course of investigations at the worksite Mr Pitkin became aware of allegations of bullying against Ms Fabé. He sought written advice of the allegations from those making the complaints. About three complaints were received.
Ms Fabé became aware that this was occurring. She then made various complaints/grievances, against a number of other employees. It was put to Ms Fabé that she lodged these grievances because she knew that an investigation was underway about allegations that had been made against her. She denied that this was the case.
However this is contradicted by her own correspondence (Exhibit 6 - letter dated 2 June 2006). While that letter is dated 2 June the contents relate to events which occurred one week later.
On 1 July 2006 Ms Fabé was handed a letter early in her shift by the respondent addressed as a private and confidential matter. Surprisingly she simply put the letter in a drawer and later took it home at the end of the shift before opening it. The letter advised her that two letters of complaint had been received against her regarding bullying and harassment at the workplace. She was requested to attend a meeting on Monday 3 July at 10.00 a.m.and she was encouraged to have union support with her at the meeting.
It has been put that this advice was too short for her to secure union representation and was therefore unfair management action. I disagree. Ms Fabé failed to act reasonably by disregarding the letter when given to her. There is clear evidence in these proceedings that the respondent willingly provides adequate time to address matters of this nature in working time. Had Ms Fabé attended to the correspondence then it is a reasonable probability that she would not have experienced the difficulties that she alleges she did in contacting a union official.
When she attended at the meeting she was unaccompanied. Arrangements were made for her to secure a support personfrom those on shift on the Monday morning. There has been some criticism that this process was unreasonable. Again I disagree. This is a commonly accepted course of action in such matters. The support person is not there to argue the case on the matters at hand but to observe and provide moral support. The purpose of the meeting was to provide detail of the allegations to enable Ms Fabé at a later time to respond. She was advised that no reply was expected at that meeting but that a time frame would be established for her to reply. She was advised that she would be re-deployed to another position in the meantime and the period of re-deployment would depend upon the time it took to carry out investigations. Ms Fabé has consistently used the term "stood down". That terminology has a meaning quite different from "re-deployment". On the material produced during these proceedings it would seem that the term "stood down" was not used by the employer.
It was agreed that a reply would be provided by Ms Fabé by 10 July and that she would be advised of the re-deployment as soon as possible. She was advised that she should not report to the site unless she has any real need to ensure that there will be no further confrontation from any party and to ensure procedural fairness. Ms Fabé acknowledged that she understood that requirement and asked if she was removed permanently. She was told that was not the case. She and her support person signed the contemporaneous notes as a true and correct record of the proceedings. Ms Fabé's request for the rest of the shift off was approved and she left the meeting.
There is nothing unreasonable about the management action taken to inform MsFabé of the complaints of bullying, to deploy her away from the work area involved in the complaints, to provide her with time to provide a response to the complaints and for the employer to conduct more detailed enquiries into the matter.
Understandably at the end of the meeting Ms Fabé was upset. She informed other staff when she left the meeting that she had been stood down and that she could lose her job. She denies that she showed the complaints made about her to others. She admits that she had the file beside where she was sitting when she was telling the other employees that she had been stood down. She says that at about this time she was told that she was being watched on camera.
The following day the two complainants reported being accosted by other employees and accused of causing Ms Fabé to be dismissed. The circumstances surrounding this matter caused the company to move one complainant to a similar role to that which she occupied but in the domestic rather than the international terminal.
The other complainant says she found an offensive note attached to her handbag containing the words "fuck off scum" which she attributed to the fact that she had written a report complaining about Fabé'sactions.
Subsequent to the meeting Ms Fabé commenced a series of mail and email communication to the employer which grew to such a flood that the employer, eventually, directed her to cease. Some of that correspondence was tendered. It contains a variety of allegations against various persons,demands for information about various people or events under freedom of information legislation which has no application to the employer, requests for private personal information about past employees, information about her partner's personal family relationships and attendant conflict with a relative supposed to have made a statement to the employer and threats about action she will or has taken. Some has been difficult to follow as repeat complaints are made but on different dates and some is given a date but refers to future events.
Ms Fabé was due to be rostered off for four days following 2 July when the meeting was held and rostered to recommence duty on the weekend of 7 July. This work cycle was altered by a re-deployment to the employers head office on clerical duties as an intermediate step while the matter was investigated. While outside her normal duties the work was well within her capabilities.
It is proposed that this was not reasonable action. Proximity to Mr Pitkin and the Manager and failure to re-deploy to other passenger screening duties were the issues raised.
Mr Pitkin was rarely in attendance at his office as his duties required him to work externally. He had no contact with MsFabé. The contact with the Manager seems to have been minimal and cordial.
The failure to transfer to other passenger screening sites at the airport was not unreasonable. This is the work environment from which Ms Fabé was re-deployed. It is unrealistic to propose that she should be re-deployed to the same work environment.
On 10 July the employer sought Ms Fabé's response. She said she had left it at home and would bring it in the following day.
On 12 July the employer commissioned an independent investigation of the complaints. A complaint/grievance had been made against Mr Pitkin by Ms Fabé as to his impartiality and the propriety of him conducting the investigation. As well Ms Fabé had made allegations that he had acted in an inappropriate manner in that he was standing and watching her from a distance trying to intimidate her. With respect to this last matter Ms Fabé states that Mr Pitkin was some distance away looking in the direction of the team of security officers. She believed that he was looking at her attempting to intimidate her as she moved around the work area. During the hearing Ms Fabé upgraded that complaint to one where she felt "dirty". No other members of the team made any complaint about Mr Pitkin's observations which would appear to be related to the duties associated with his employment. It should be noted that Ms Fabé made similar allegations against another person in the previous year and similar allegations were made against Ms Fabé's fiancée, an Australian Federal Police Officer who worked at the airport at the time, by another employee.
The report of the independent investigator was delivered on 28 July and a meeting with Ms Fabé was then held on 2 August to address the issues. That meeting was attended by Mr John McCullough, a union official to represent Ms Fabé as well as the divisional manager, Mr Nolan and Mr. J Jones, an industrial adviser. The employer contacted Mr McCullough directly to arrange the meeting.
MsFabé complains that this action denied her the right to select her own representation for the meeting. The difficulty with this is that she had, in writing, nominated Mr McCullough as her representative and support person on 7 July (Exhibit 26) and had not advised the employer of any change.
The notes of the meeting of 2 August indicate that three matters were addressed, these being the relationship between Ms Fabé and three employees, alleged breach of confidentiality with respect to the complaints provided to her at the meeting of 2 July and direct contact by her with the employer’s customer concerning matters relating to the complaint.
The evidence indicates that much of the time at the meeting was devoted to the relationship between Ms Fabé and some other employees. That is the perception that some other employees, the complainants, have about the way she deals with them. She was advised that it was recognised by the employer that she may not intentionally be intimidating but that was the way it was perceived by some and that she needed to be fully aware of that so that she could adjust her manner of dealing with other employees.
The matter of disclosure of complaint details or allowing other employees access to the complaint details was said to warrant a formal warning and that it had been decided that she should be re-deployed to another site. This particular issue was the subject of much communication from Ms Fabé to the employer, the principal focus being on the legality of camera observation in the workplace. No evidence was tendered as to the law on that matter beyond allegation. The employer did not rely upon camera evidence, that is, no physical camera evidence was produced although there was reference in Mr Pitkin's evidence that Ms Fabé had been observed at some stage showing another employee something after the meeting.
It is clear that details of the complaints were disclosed to other employees shortly after the meeting. Ms Fabé evidence on the matter, although denying that she gave copies of the complaints to others, leaves open the possibility that her file was accessible to others immediately after the meeting when she was telling them what had occurred. The telling of details to other employees was, at the least, unwise and something that exposed her to censure.
Direct contact with the customer was regarded as a more serious matter and was dealt with by way of a final warning. It was proposed that this was harsh and unreasonable because Ms Fabé's evidence is that she never sent the correspondence to the customer. The difficulty with this is that, in the plethora of correspondence from her to the employer she states that the communication had been sent either by her or another on her behalf. The evidence of Mr Pitkin is that the employer had been contacted by the customer about the matter.
The nature of all the circumstances surrounding this matter is such that a final warning was not unreasonable.
There was a complaint as to unreasonable action by the employer by its refusal to release the detail of the independent investigators report to MsFabé. In some other circumstances this may be a valid concern. In the circumstances of this matter I do not think so. The report was provided as evidentiary material. It contains both complimentary and uncomplimentary statements about Ms Fabé by the complainants and others interviewed. Given the reaction to the complainants following the meeting of 2 July and access by some employees to the complainants statements it was not unreasonable to withhold that reportmore so because of the employers response that it accepted that the approach taken by Ms Fabé to other employees was not deliberately or intentionally aggressive or bullying.
Shortly after the meeting of 2 August Ms Fabé was re-deployed to a security officer role at Australian Air Express which operated at BrisbaneAirport. The role was to ensure the security of mail being processed for receipt or delivery by air. It involved the general securing of the area in which mail was handled and operation of X-ray equipment as required.
It is put that this re-deployment was an unreasonable action by the employer. Briefly the argument put in support of this proposal is that Ms Fabé had an arrangement at commencement of employment that she would only work passenger screening duties. To place her in this new position would be in breach of that arrangement. Ms Fabé's evidence is that she refused offers of work in shopping centres and other placesbecause she only wanted to work as a passenger screener. A factor in this desire was her personal security. Within some of the writtenmaterial sent by her to the employer is a reference to an alleged attempted rape which has made her fearful of working in the area assigned.