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[Extract from Queensland Government Industrial Gazette, dated 24 August, 2007, Vol. 185, No. 17, pages 383-406]

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to Commission

Bernard Patrick O'Brien AND Q-COMP (WC/2006/21)

VICE PRESIDENT LINNANE 13 August 2007

Workers' compensation appeal - Psychiatric/psychological injury - Whether injury fell within the exculpatory provision in s. 32(5) of the Act - Finding that significant stressors resulted from unreasonable management action taken in an unreasonable way - Decision of Q-COMP set aside - Finding that Appellant suffered an injury within the meaning of s. 32(1) of the Act - Costs reserved - Workers' Compensation and Rehabilitation Act 2003 s. 32(1) and s. 32(5).

DECISION

[1] This is an appeal by Patrick O'Brien from a decision of Q-COMP dated 9 March 2006 which confirmed WorkCover's earlier rejection of Mr O'Brien's application for compensation dated 22 November 2005. The appeal is made pursuant to s. 550 of the Workers' Compensation and Rehabilitation Act 2003 (Act). The basis of the rejection by Q-COMP was that Mr O'Brien did not sustain an injury within the meaning of the Act. In his application for compensation Mr O'Brien, a Residential Support Worker with Endeavour Foundation, described how the injury occurred in the following terms:

"I was subjected to harmful management practices because of my advocacy on behalf of vulnerable clients of Endeavour and my advocacy on behalf of fellow support workers who reported the abuse of these vulnerable clients of Endeavour.".

[2] WorkCover's covering letter dated 22 November 2005 says that they are writing to Mr O'Brien about "your application for compensation dated 20 April 2005 and lodged with WorkCover Queensland on 9 December 2004". It is difficult to know where the date 20 April 2005 comes from as the employer's report to WorkCover is stamped as having been received by WorkCover on 9 December 2004 with the employer's signature on the document placed on 7 December 2004. The application for compensation which is before the Commission has the WorkCover received stamp as 27 April 2005 and appears to have been dated in the Payment Details section of the form on 20 April 2005. Mr O'Brien stopped work because of the injury on 11 November 2004. I can only conclude that the employer filed its report shortly after Mr O'Brien went on sick leave on 11 November 2004 and that Mr O'Brien did not lodge his application for compensation until 20 April 2005. The application, however, relates back to the period commencing 11 November 2004 or thereabouts.

[3] The issue for determination is whether Mr O'Brien suffered an injury within the meaning of the Act at a time prior to 11 November 2004 and thereafter.

Brief history of Mr O'Brien's employment with Endeavour Foundation up to 11 November 2004:

[4] Mr O'Brien commenced employment with Endeavour Foundation in 1997 as an assistant support worker at the Waterford West Residential (WWR). The WWR was termed a "high-needs residential" with four males and two females, each with severe intellectual disabilities, residing at the premises. Mr O'Brien was part of Endeavour Foundation's Metro South Branch for approximately three years and he expressed the fact that he had "excellent relations with all clients, staff, parents and management". He eventually became a support worker and describes the work of such persons as follows:

"Support workers basically are employed to meet the needs of vulnerable people that are clients of Endeavour. And that goes from the most basic things like assisting them with showering, ..., washing their clothes, making their beds, preparing meals. And also as part of that role was advocacy on behalf of those people."

[5] It was the evidence of Mr O'Brien that he really enjoyed his job, that he loved it up until he reported abuse of residents in 2002.

[6] In 2000, there was an organisational restructure of Endeavour Foundation and the WWR was transferred to the South East Branch of the organisation. Shortly thereafter, Mr O'Brien was elected as the Australian Services Union (ASU) workplace union delegate for the South East Branch. 2

[7] In March 2000, Mr O'Brien lodged a grievance against his then Area Manager alleging unprofessional conduct towards him. Mr O'Brien followed Endeavour Foundation's grievance procedure and, following a meeting between Mr O'Brien, the Area Manager and the General Manager, the grievance was withdrawn.

[8] In 2001, Mr O'Brien was the residential staff representative in the enterprise bargaining (EBA) negotiations with Endeavour Foundation. Mr O'Brien's evidence is that those EBA negotiations produced significant improvements to the working conditions of residential staff.

[9] The residents of the WWR go to the Endeavour Foundation's Kingston Adult Training Support Service (Kingston ATSS) during the day, Monday to Friday. In 2002, Mr O'Brien said that a number of the residents at WWR exhibited uncharacteristic behaviour and were arriving home at WWR from the Kingston ATSS in a distressed state. Mr O'Brien said that he sought a meeting to address the residents' families' concerns. This request was refused by Mr O'Brien's line manager, Richard Cornwall, and the ATSS line manager, Glenda Watkins. In or about July 2002, Mr O'Brien was informed that some of the residents were at risk of losing their day service because the Kingston ATSS staff stated that the WWR residents had become "unmanageable". The WWR staff then requested mediation between WWR and Kingston ATSS to address the client issues. Mr O'Brien alleged that this did not occur because Debbie Kingdom, the ATSS Manager, refused to attend any meeting. The evidence appears to support Mr O'Brien's contention in this regard.

[10] On 30 October 2002, Ms Watkins was appointed the Area Manager of WWR. On that day Ms Watkins handed Mr O'Brien a grievance against him taken out by Ms Kingdom. In a letter dated 30 November 2002 from Ms Watkins, Mr O'Brien was informed that Ms Kingdom had dropped her grievance.

[11] By January 2003 an internal investigation was initiated by Endeavour Foundation. This investigation was to be facilitated by Len Airey. It was the evidence of Ms Watkins that this investigation was arranged because of a discussion between Mr O'Brien and Mr Cornwall about the death of a Kingston ATSS client after becoming ill on a visit to Coochiemudlo for a Christmas function. It was Ms Watkins who contacted Mr Airey to undertake the investigation. According to the evidence of Ms Watkins, Mr Airey recommended that staff in the two services sit down and talk with each other. Whilst the Airey investigation was underway, a Kingston ATSS member of staff approached Mr O'Brien, in his capacity as the ASU delegate, and informed him that she and other Kingston ATSS staff had witnessed abuse of clients by members of the Kingston ATSS staff.

[12] On being approached by the Kingston ATSS staff member, Mr O'Brien immediately contacted his ASU official. The ASU official told Mr O'Brien to advise the Kingston ATSS staff making the allegations to put their allegations in sworn statements. At that time Mr O'Brien was informed that three ATSS staff had indicated that they were prepared to complete sworn statements. The ASU official also advised Mr O'Brien to contact Endeavour Foundation's General Manager and advise her of what he had been told by the Kingston ATSS. Mr O'Brien then made contact with Endeavour Foundation's General Manager, Glenda Alexander, and informed her of the allegations made by the ATSS staff. Mr O'Brien says that Ms Alexander then asked him to gather the statutory declarations and forwarded them to her. The four statutory declarations provided by Kingston ATSS staff were provided to Mr O'Brien at the WWR by the makers of the declarations. Mr O'Brien then contacted Ms Alexander who organised a collection courier to collect the statutory declarations from Mr O'Brien. Ms Alexander does not recall the events as Mr O'Brien describes them but states she could have arranged for the statutory declarations to be sent to her.

[13] On 13 March 2003 Mr O'Brien received correspondence from Ms Alexander that indicated that Endeavour Foundation was initiating an external investigation into the allegations raised in the statutory declarations and that the investigation was to be conducted by Dr Gail Parsons. Dr Parsons had previously been employed by Endeavour Foundation for approximately 25 years and continued to work as a consultant at Endeavour Foundation. Dr Parsons completed her report on the investigation on 8 April 2003 finding, inter alia, that the allegations of abuse were not substantiated. I will deal with Dr Parsons' report later in this decision.

[14] In April 2003 (although there was some suggestion it was 8 May 2003), family members of residents of Kingston ATSS attended a meeting which was facilitated by Ms Watkins, Mr Cornwall and Ms Kingdom to discuss Dr Parson's investigation of abuse. This meeting took place in the common area at Kingston ATSS. According to Mr O'Brien, persons attending that meeting advised him that they were told that the allegations were unsubstantiated and that Ms Kingdom had the full support of Endeavour Foundation. Mr O'Brien was not invited to attend the meeting. I will deal further with this meeting later in the decision.

[15] In correspondence dated 17 April 2003, Ms Alexander purported to advise Mr O'Brien of the outcome of the investigations into the issues concerning the complaints against the Kingston ATSS i.e. the Airey and Dr Parsons' reports. The correspondence refers to two reports from Dr Parsons each dated 8 April 2003. The letter advises Mr O'Brien and his wife that he will not be provided with a copy of the report but that he is welcome to read the reports but cannot take copies or notes. That correspondence further states as follows: 3

"The reports also conclude that your behaviour has contributed to the development of the current situation. Of particular concern is Dr Parsons' finding that you encouraged other people to make statutory declarations to continue raising additional issues before Len's report had been released.

In light of Dr Parsons' findings, it would appear that there may have been a lack of good faith in your actions in gathering up evidence to bolster your complaints against Ms Kingdom.

...it is essential that in making such complaints, staff always act with the utmost good faith. Dr Parsons has found that you have not done so in this case. This is a serious matter and a copy of this letter will be placed on your personnel file for two years in order to record that the matter has been formally addressed with you.

...You will be required to attend a meeting between yourselves and Ms Kingdom, which will be facilitated by Mark Shaw, Director, Better Workplace Management, so that a framework for communication between the two services can be established...".

[16] On 24 April 2003 a WWR resident who had attended the Kingston ATSS arrived back at WWR in a distressed state and told Mr O'Brien that he had been physically assaulted by an ATSS staff member. Mr O'Brien contacted the Endeavour Foundation's Hotline and reported the incident. In correspondence dated 13 May 2003 from the Abuse Hotline Manager, Mr O'Brien was advised that the resident's allegation was unsubstantiated.

[17] On 8 May 2003 family members of Kingston ATSS residents held a meeting concerning the Kingston ATSS. Mr O'Brien informed his line manager of the meeting and the outcome.

[18] Mr O'Brien then received correspondence from Ms Alexander on 9 May 2003 informing him that he was required to attend mediation with Ms Kingdom. Ms Alexander alleged in the correspondence that Mr O'Brien had informed Mr Cornwall that he proposed to establish an alternative day service at the WWR so that residents would not have to attend the Kingston ATSS. Mr O'Brien says that at all times he disputed what he was alleged to have said and, eventually on 20 June 2003, Ms Alexander accepted that Mr O'Brien's version of events was correct.

[19] Further on 9 May 2003, Mr O'Brien received correspondence from Sandy Healey, State Manager Specialist Services, concerning allegations that he is alleged to have made against members of her working team indicating that she was conducting an investigation into the matters. Mr O'Brien responded to that correspondence on 19 May 2003. In correspondence dated 27 May 2003, Ms Healey informed Mr O'Brien that she would respond to him within a fortnight. When he had not received a response, Mr O'Brien forwarded another letter to Ms Healey on 27 October 2003. He received correspondence from Ms Healey dated 6 November 2003 saying that the issue was resolved. Ms Healey then called a meeting on 3 March 2004 which Mr O'Brien attended with his union organiser. It appears that nothing further eventuated in relation to this matter.

[20] On 12 May 2003 Mr O'Brien attended the mediation meeting organised by Ms Alexander where the mediator was Mark Shaw. A written agreement was developed at this meeting. Mr O'Brien's evidence is that he felt intimidated throughout this meeting and felt pressure to agree to relinquish his role as union delegate. He also stated that he was offended because the mediator made a comment about his young daughter having an intellectual disability. He could see no reason why this was added to the document. The dealings between Mr O'Brien and Mr Shaw will be further dealt with later in this decision. The document was forwarded to Mr O'Brien on 15 May 2003 and he and his wife signed it. Mr Shaw also signed the document. In the documentation provided to the Commission, Ms Kingdom appears not to have signed the document although this could be that the copy tendered was the one held by Mr O'Brien and Ms Kingdom may have signed the document afterwards.

[21] On 21 May 2003 a meeting was organised by Endeavour Foundation at its Mary Street community centre. Present at that meeting representing Endeavour Foundation were Ms Alexander, Ms Healey, Ms Watkins, Mr Hutchinson and Dr Parsons. Those invited to the meeting were the family members and/or carers of residents of the Kingston ATSS who had been referred to in Dr Parsons' report. The aim of the meeting was to discuss the investigation conducted by Dr Parsons into the allegations of abuse at the Kingston ATSS. Neither Mr nor Mrs O'Brien were invited to this meeting and they did not attend. I will deal with this meeting later in this decision.

[22] Following this meeting there were a number of issues involving Mr O'Brien and Endeavour Foundation which included:

 on 27 May 2003 Ms Kingdom is alleged to have stated that Mr O'Brien made a resident of Waterford West pregnant. Mr O'Brien's line managers were advised of the allegation on 30 May 2003. Mr O'Brien says that the rumour was allowed to run for days before it was shown that Ms Kingdom had lied. Mr O'Brien says that this caused him emotional harm and grief;

 on 8 September 2003 Mr O'Brien forwarded two letters (including a grievance) to Ms Alexander which were responded to in correspondence dated 19 September 2004 from Endeavour Foundation's General Manager, Gerard Menses, who informed him that he was conducting an investigation. On 24 September 4

2003 Mr Menses informed Mr O'Brien that there were no reasonable grounds on which Mr O'Brien could lodge a grievance. Mr O'Brien was also advised that Mr Menses was engaging a mediator/facilitator to counsel him;

 in correspondence dated 25 September 2003, Ms Watkins advised Mr O'Brien that she had withdrawn an offer of employment to his sister to which Mr O'Brien responded on 12 October 2003. The employment of relatives was against Endeavour Foundation policy. A meeting was organised at the Buranda office of Endeavour Foundation with Penny Beeston, the new Area Manager, to discuss this issue, however, when Mr O'Brien and his wife arrived, Ms Beeston was not present. Instead both Mr Shaw and Alan Carman were there to meet with Mr and Mrs O'Brien. Mr O'Brien was informed that a new agreement needed to be signed as Ms Kingdom was no longer in charge of Kingston ATSS. This matter is dealt with in more detail later in this decision;

 at a meeting at Waterford West on 20 October 2003, Ms Alexander and Ms Beeston, advised Mr O'Brien that he needed to move on and that the past was the past;

 on 9 March 2004, Mr O'Brien received correspondence from Mr Carman advising him that he had breached the workplace management agreement developed by Mr Shaw in November 2003 by corresponding with Endeavour Foundation's Client Advocate. Mr O'Brien responded on 15 March 2004 stating that he had a right to engage with the Client Advocate as part of his role as a support worker;

 on 2 November 2004, Mr O'Brien was telephoned and asked to attend a meeting at the Buranda office with Stephen Whickman. Mr O'Brien did not know who Stephen Whickman was so asked for the request to be put in writing. No request in writing was made;  on 5 November 2004, after the residents had returned from Kingston ATSS, Mr O'Brien, on the instructions of his wife, telephoned the Kingston ATSS Manager to advise that the communication book did not arrive with the residents and that the residents were in a distressed state when they arrived back at WWR. Jean Jensen, Service Manager at the Kingston ATSS, advised Mr O'Brien that she had been instructed not to communicate with Mr O'Brien and asked to speak with his wife. Mrs O'Brien then spoke with Ms Jensen. This matter is dealt with in more detail later in this decision;

 on 10 November 2004, Mr O'Brien wrote to his wife stating that a resident of WWR had been exposed to triggers at the Kingston ATSS over the week when he had advised the Kingston ATSS not to expose him to such triggers. Mr O'Brien believed that Kingston ATSS had purposively exposed the resident to such triggers. Mr O'Brien went on stress leave on this day.

[23] The significant events that led to Mr O'Brien suffering an injury, and for which further elaboration is required, are as follows:

(i) April 2003 meeting at Kingston ATSS; (ii) Ms Alexander's correspondence dated 17 April 2003 (Exhibit 21); (iii) meetings with Mr Shaw on 15 May 2003 and November/December 2003; and (iv) Dr Parsons' report and the use made of that report (Exhibit 58) at the Mary Street meeting on 21 May 2003.

(i) April 2003 meeting at Kingston ATSS

[24] This meeting appears to have been held sometime after the release of Dr Parsons' report on 8 April 2003 and prior to Ms Alexander's correspondence dated 17 April 2003. The meeting involved family members of clients of Kingston ATSS and was by way of written invitation. The meeting was conducted by Ms Watkins and was organised to inform families of Dr Parsons' investigation of abuse allegations. Ms Watkins' evidence is that the families of clients of the Kingston ATSS could be informed of the actual allegations at such a meeting. It was her evidence that families wanted to know what the allegations were about. It was Ms Watkins who conducted the meeting and Ms Kingdom was also in attendance. Ms Watkins had read Dr Parsons' report prior to attending this meeting. Mr O'Brien was not invited to this meeting and did not attend the meeting.

[25] Eva Hallam gave evidence for Mr O'Brien and she is his daughter. Ms Hallam is a senior manager with Multicap which is a non-profit service provider for people with intellectual and physical disabilities. She has a degree in human services with a disability major and has worked in the area for approximately sixteen years. She worked at Endeavour Foundation from 1993 to 2000 and at the Kingston ATSS from 1995 to 2000. Her evidence of this meeting is that Ms Watkins and Ms Kingdom represented Endeavour Foundation. Ms Watkins addressed the meeting and advised the attendees that there had been issues between Kingston ATSS and WWR, that these issues had been ongoing for some time, that allegations of abuse of residents had been made, that there had been an investigation and that no allegations of abuse had been substantiated. She did not recall any names being mentioned at this meeting. Mr O'Brien's evidence is that he did not believe that his name was mentioned at this meeting. I accept Ms Hallam's evidence in this regard given that she had no family member at either the Kingston 5

ATSS or the WWR and she is the daughter of Mr O'Brien. I would think her recollections of the meeting would be reliable.

[26] Donna J also gave evidence. Ms J had a brother who had been a resident at WWR for approximately ten years. She attended this April 2003 meeting expecting to find out about the abuse that had occurred with her brother. Ms J's evidence is that Ms Watkins did most of the talking at the meeting although Ms Kingdom denied that any abuse occurred at Kingston ATSS and stated that they were false allegations. Ms J recalls that it was said that "Pat and Ronnie had made the false allegations" and that "Pat and Ronnie weren't getting along with the Kingston ATSS staff and it was because of that that they made the false allegations". Ms J recalls that Ms Watkins said that Endeavour Foundation would support Ms Kingdom legally.

[27] I can understand the difficulty for witnesses who attended this meeting and the Mary Street meeting trying, some four years later, to recall what was said at each of the particular meetings. Given that this meeting was apparently conducted a short time after the release of Dr Parsons' report it is likely that some family members of residents of WWR who attended the meeting, would have been left in no doubt that it was Mr O'Brien that was being accused of making false allegations about abuse of clients of Kingston ATSS, even if his name was not mentioned. Dr Parsons had found, amongst other things, that Mr O'Brien had orchestrated the statutory declarations.

[28] I accept that those family members and/or carers (including Ms Hallam) who attended the meeting did convey to Mr O'Brien what occurred at the meeting. Mr O'Brien was, at that time, charged with providing care to their family members. Mr O'Brien's evidence, however, is that he did not think that his name was mentioned in this meeting. Given that I have accepted Ms Hallam's evidence that Mr O'Brien's name was not mentioned at the meeting, it is unlikely that the April 2003 meeting at Kingston ATSS was a significant stressor for Mr O'Brien when it occurred or shortly after it occurred.

[29] If I am wrong and this Kingston ATSS meeting is found to be a significant stressor for Mr O'Brien, then taking into account my findings as to Dr Parsons' report in (iv) below, I find that the actions of management in calling this meeting, and relying upon the findings of Dr Parsons as they relate to Mr O'Brien, without ensuring that there was evidence to support the allegations, was not reasonable management action taken in a reasonable way. It should also be remembered that this meeting appears to have been conducted at a time prior to Ms Alexander's letter of 17 April 2003 and therefore, at a time prior to Mr O'Brien having seen Dr Parsons' report and certainly at a time prior to Mr O'Brien being given an opportunity to respond to the allegations raised in Dr Parsons' report (Mr O'Brien was never given such an opportunity). On the other hand, Ms Watkins had read Dr Parsons' report at this time. In those circumstances, the manner in which the meeting was conducted by Ms Watkins was not reasonable management action taken in a reasonable way.

(ii) Ms Alexander's correspondence dated 17 April 2003 - Exhibit 21

[30] Ms Alexander's evidence is that her letter of 17 April 2003 was the starting point of her dealings with Mr O'Brien although she did admit to a couple of telephone calls with Mr O'Brien prior to this time. Ms Alexander admitted that Exhibit 21 was her correspondence. That correspondence states that the purpose of the letter was to advise Mr O'Brien of the outcome of the investigations into the issues at the Kingston ATSS. In this correspondence, Mr O'Brien was advised that the two reports of Dr Parsons were confidential and that he would not be given copies of the reports but he was advised that he could read the report at head office but would not be allowed to take notes. Ms Alexander advised Mr O'Brien in this letter that his behaviour had contributed to the development of the current situation and that, of particular concern, was Dr Parsons' finding "that you encouraged other people to make statutory declarations to continue raising additional issues before Len's report had been released". The fact is there was no evidence of this before Dr Parsons in her investigation as she has no handwritten notes or typed notes of any allegation that Mr O'Brien encouraged other people to make statutory declarations.

[31] Ms Alexander's correspondence, however, goes further and states that "[i]n light of Dr Parsons' findings, it would appear that there may have been a lack of good faith in your actions in gathering up evidence to bolster your complaints against Ms Kingdom". Further, Ms Alexander states that "it is essential that in making such complaints, staff always act with the utmost good faith. Dr Parsons has found that you have not done so in this case. This is a serious matter and a copy of this letter will be placed on your personnel file for two years in order to record that the matter has been formally addressed with you.".

[32] These are very serious allegations being made against Mr O'Brien in circumstances where Ms Alexander had read Dr Parsons' report and obviously found no evidence to support the allegations, where Dr Parsons had no evidence before her which could lead to such a conclusion and where the allegations had not been put to Mr O'Brien prior to disciplinary action being taken against him.

[33] Ms Alexander's evidence is that she relied upon Dr Parsons' report when she wrote this correspondence and she further stated that the investigation by Dr Parsons was the justification for making the statements she did in her correspondence. She just accepted the conclusion of Dr Parsons. Ms Alexander stated that what she was really 6 saying in her correspondence is that Mr O'Brien had acted in bad faith in gathering up evidence to bolster his complaint against Ms Kingdom. 7

(iii) Meetings with Mr Shaw on 15 May 2003 and November 2003

[34] Mark Shaw, a Director of Better Workplace Management, gave evidence for Q-COMP. His evidence was that his company provided services in the area of human resource management, particularly in the areas of performance management and in salary management issues. Mr Shaw's evidence is that he was telephoned by Ms Alexander wherein she indicated that there were some communication difficulties between a number of Endeavour Foundation employees and asked for his assistance in resolving those difficulties. Following some meetings with Endeavour Foundation management, Mr Shaw set up a meeting on 13 May 2003 with Mr and Mrs O'Brien and Ms Kingdom to develop a protocol to assist the parties in moving forward. Given the difficulties experienced by Endeavour Foundation between these two services, it was reasonable of them to try some form of mediation in an effort to resolve the difficulties. Mr Shaw provided a report which is Exhibit 44. Paragraph 4 of that document outlines the agreed outcomes of this meeting as follows:

"4.1 Agreement reached

As a result of the discussion held today, it was agreed by all parties that:

1. Ronnie will do all the communications between the residential and the ATSS as the supervisor/manager of the residential.

2. Pat will confine his communications to that of a Key Worker/Link Worker for the residential.

3. Debbie will be responsible for the running of the ATSS.

4. When an issue or problem occurs between the services, Debbie and Ronnie will discuss.

. Consideration by both Debbie and Ronnie will be given to advising Richard and Glenda Watkins of the issue under discussion.

. If an issue cannot be resolved at a service level, the service managers will jointly discuss the issue with both the Area Manager and Senior Services Delivery Manager.

5. All parties comply with their condition of employment.

6. Pat will relinquish his role of union delegate but will retain an involvement in the Industrial Consultative Committee.

7. Where issues need to be discussed, as much detail as possible will be shared by both parties.

8. All parties follow lawful management instructions.

9. All parties make genuine attempts to resolve issues through the proper internal channels (up to General Manager level) prior to referring to external authorities.

10. All of the above will commence immediately.

4.2 Comments and clarifications on the above agreed points

a. It is understood and agreed that day to day communications between all staff at both the residential and ATSS must occur to ensure workable relationships exist. The principle of the agreements reached in section 4.1 is to establish a positive way of resolving issues and difficulties that go beyond day to day communications.

b. Pat acknowledged that on occasions his role of Assistant Support Worker and union delegate may have overlapped. He therefore proposed to relinquish the union delegate role as a way of helping to improve the current situation.

c. To ensure the re establishment of workable relationships, all staff will share as much information as possible. However the extent and format of such information will vary from situation to situation.

d. All parties understand that miscommunication can occur very easily (e.g. it was identified that the term "incident report" had at least three different meanings depending on who used the term within Endeavour). As such, every effort will be made by all parties to ensure the other service receives an honest and accurate description of the issue being discussed. 8

e. That although the communications book is a valuable means of communications, it is not meant to replace the need for discussion and/or other forms of communication.

f. All parties agreed that if an improvement in the working relationship between the services did not occur, that it was understood Endeavour Senior Management would have not (sic) option but to take some form of serious intervention to provide along (sic) term solution.".

[35] It was the evidence of Mr O'Brien that at no time did he relinquish his role as union delegate. Mr Shaw's evidence is that Mr O'Brien proposed that he relinquish his union delegate role. Mr O'Brien denies this. Mr O'Brien's evidence is that it was put to him by Mr Shaw that he relinquish his union role and that Mr Shaw put pressure on him to agree to it. Mr O'Brien's evidence is that Mr Shaw said that it would be in his "own best interests to relinquish my union role". Apparently Mr Airey, in his report, had indicated that Mr O'Brien's union delegateship had been a problem. Mr Shaw says that when stating that "Pat is currently the ASU delegate" in part 3 of his report he himself made the statement and Mr O'Brien agreed with it. During the course of the meeting, Mr Shaw says that the issue of Mr O'Brien having a personal vendetta against Ms Kingdom did come up. The overlapping of the role of support worker and union delegate came up, according to the evidence of Mr Shaw, where Endeavour Foundation managers were unclear as to whether Mr O'Brien was acting as a union delegate or as a support worker when he raised issues. To have him relinquish that role would assist in the process that Mr Shaw was engaged in. It was about the communication protocol of going forward according to the evidence of Mr Shaw.

[36] The document was drawn up by Mr Shaw and then faxed to the parties. Mr and Mrs O'Brien returned a signed copy of the document on or about 21 May 2003.

[37] Mr Shaw says that in or about November 2003, he was again contacted by an Endeavour Foundation manager who arranged to meet with him. Mr Shaw recalls that there had been a number of staff changes at Endeavour Foundation and people were not quite sure of what had happened in May 2003. Mr Shaw then gave a number of Endeavour Foundation managers a briefing of what had occurred in May 2003 and what had sought to be achieved. That meeting of Endeavour Foundation management agreed that Mr Shaw should again meet with Mr and Mrs O'Brien. Mr O'Brien met with them on 21 November 2003.

[38] However, Mr and Mrs O'Brien were not informed that they were to meet with Mr Shaw on this occasion. They were told that they were to meet with their line manager, Alan Carman, and the Area Manager. When they arrived for this meeting Mr Shaw and Mr Carman only were in attendance. Mr Carman was not the Kingston ATSS Manager but rather the Senior Services Manager.

[39] Following the meeting Mr Shaw produced a document (Exhibit 7) which was dated 21 November 2003. Mr and Mrs O'Brien provided a response to that document at a meeting on 12 December 2003. Mr Shaw's evidence is that he incorporated the comments of Mr and Mrs O'Brien into another draft of the document which was faxed to the O'Briens on 12 December 2003.

[40] Mr Shaw in his evidence indicated that there was no pressure placed on Mr or Mrs O'Brien to sign this document, however, the following notation is handwritten at the end of the document following the signatures of Mr Carman and Mr Shaw:

"We the undersigned agree:

(A) That on 12.12.03 Ronnie and Pat O'Brien verbally agreed that if the feedback provided by Ronnie at the meeting held today was incorporated into the summary, the summary would be accurate.

(B) That Ronnie and Pat O'Brien have been given opportunities to sign this summary and have chosen not to sign.".

[41] This notation is signed by both Mr Carman and Mr Shaw with their signatures being witnessed by another person. The notation, however, is not in Mr Shaw's handwriting. It appears that Mr Carmen has written the notation. Mr Shaw admitted that he had a discussion with Mr Carman outside the process that he was engaged to provide.

[42] In cross-examination, Mr Shaw was confronted with an email he had sent to Ms Beeston and copied to Ms Alexander dated 24 November 2003 which purported to be an "Executive Summary" of the events of 21 November 2003 (Exhibit 61). For a person who is allegedly brought in to an organisation to mediate an issue between employees, there are some disturbing comments made in this email. It should be noted that this email was forwarded prior to the notation made on or about 12 December 2003 that Mr Shaw says was simply to record that an opportunity was given to Mr O'Brien to sign the document. Such disturbing aspects can be seen in (3) and (4) of Exhibit 61 as follows: 9

"3. My predicted next step As discussed with you all, Alan and I believe Pat will breach sooner than later - it could even be this week. The most likely scenario I can see is:

o Pat breaches. o Alan tells him it is a breach. o Pat get very upset and claims something like; a set up/discrimination/harassment/all Debbie's fault etc. o About here my guess is that it will be necessary for Endeavour to make Pat to take time off (leave/paid leave of absence whatever) as he will be causing major disharmony in the workplace - probably at both services. o Endeavour considers the breach and then terminates Pat for breaching the agreement. o Pat claims unfair dismissal.

4. Business Risk

o The only area of potential risk I can see in the above is if Endeavour cannot prove at the unfair dismissal process that it had fully reviewed, accounted for and made changes surrounding any 'weakness/error' of Debbie's actions. It may be worth taking a little time now to just review that aspect. o I see no business risk in why or how Pat will be terminated as Endeavour can now clearly show it has managed Pat correctly AND adequately explained the May - Nov 2003 period.

I'll issue the official summary as soon as we have four signatures and as always I am available as things progress.".

[43] Mr O'Brien's evidence is that he refused to sign the document firstly, because it was discriminatory as no other Endeavour Foundation employee was required to sign such a document, and secondly, that he believed that clause 5.2.2 limited his role as an advocate. He believed that it was a document to restrict his advocacy on behalf of these vulnerable people so he did not sign it.

[44] In light of that correspondence with Ms Alexander, it is difficult to see Mr Shaw as an independent mediator attempting to resolve conflict between two employees. Debbie, or Ms Kingdom, was not involved in this meeting, Mr Carman was. Yet obviously Mr Shaw and perhaps, Endeavour Foundation, as late as November 2003, still had concerns about Ms Kingdom's earlier actions and whether Ms Kingdom's actions still left Endeavour Foundation vulnerable. Mr Shaw, when questioned about his role in this so-called mediation, expressed the view that he could see no conflict in his trying to resolve a personal relationship problem, and, at the same time, advising management on:

 how best to protect the organisation by advising on what Mr O'Brien was likely to do;  as to what their response to Mr O'Brien's likely actions should be; and  Endeavour Foundation's prospects of success in any resulting unfair dismissal application brought by Mr O'Brien.

[45] I have my doubts as to whether Mr Shaw was trying to resolve a personal relationship problem given his correspondence with Ms Beeston and Ms Alexander. This correspondence and Mr Shaw's evidence concerning this attempt at mediation certainly casts doubt on Mr Shaw's evidence about the first attempt at mediation in May 2003 and whether there was pressure on Mr O'Brien to relinquish his union delegate role. I prefer the evidence of Mr O'Brien to that of Mr Shaw concerning the relinquishing of the union delegate role.

[46] The plan arranged by Mr Shaw in May 2003 was instituted as a result of Dr Parsons' report. Mr O'Brien was directed to meet with Mr Shaw in correspondence received from Ms Alexander dated 17 April 2003 i.e. the correspondence that also disciplined Mr O'Brien. As I have mentioned previously, there is nothing wrong with Endeavour Foundation arranging for staff to comply with protocols about communication. The protocols should however apply to all staff. There is no evidence of such communication protocols being in place for other members of Endeavour Foundation staff. Any other member of the WWR staff could telephone staff at Kingston ATSS at any time about issues relating to the residents at WWR. Mr O'Brien was the only member of staff prevented from doing so. There was no protocol in place stipulating how Ms Kingdom, or any other member of the Kingston ATSS staff, was to communicate with WWR staff. As Mr O'Brien stated, he would not have minded the agreement had it been fair and non-discriminatory. The main reason it applied to Mr O'Brien, and no other member of staff, was the findings concerning Mr O'Brien by Dr Parsons.

(iv) Dr Parsons' report (Exhibit 63) and the use made of that report (Exhibit 58) at the Mary Street meeting on 21 May 2003

[47] Dr Gail Parsons gave evidence in this proceeding. Dr Parsons is a psychologist, has a PhD, a Masters of Educational Studies, a Bachelor of Educational Studies, a VA Diploma in Psychology and a Certificate in the 10

Teaching and Training of, what is now termed, the intellectually disabled. Dr Parson's practice has always been in the area of the intellectually disabled and in particular behaviour management of such persons, firstly as a teacher, then as a psychologist, then as a manager and finally as a private consultant. Dr Parsons was the Manager of Client Service Development at Endeavour Foundation between 1961 and 1996 (less a couple of years where she was employed elsewhere). Since commencing in private practice in 2000, Dr Parsons has done work for Endeavour Foundation, Disability Services Queensland and the Adult Guardian. Dr Parsons' role with Endeavour Foundation has been in helping staff manage people who have got difficult behaviours and from "time to time I do some investigations for Endeavour when complaints have been made". One of the areas where Dr Parsons has been called upon to investigate has been the abuse of disabled people. So if families complained about abuse, Dr Parsons indicated that Endeavour Foundation was likely to engage her to investigate. Further, if there was dissatisfaction by a whole lot of people with services provided by Endeavour Foundation then she would also be called upon to investigate.

[48] Dr Parsons' involvement in this matter arose as she said because "there had been some difficulties between Kingston ATSS and Waterford West residential and that had previously been investigated by an Endeavour staff member, Len Airey, and he wrote a report and I guess the expectation was that that report would be final and that would be the end of it. But after that report ... Endeavour ... received six statutory declarations claiming abuse of ... clients at the service and ... Endeavour asked me ... to look at those, follow up on the stat decs, and also look at the other issues that were affecting the relationship ... between those two services.".

[49] According to the evidence of Dr Parsons, these statutory declarations received by Endeavour Foundation alleged broad abuse but they lacked detailed specifics.

[50] Dr Parsons' report (Exhibit 63) includes the six Statutory Declarations, the typed record of interview of those six declarants that Dr Parsons interviewed, Dr Parsons' handwritten records of interview of those interviewed, a summary of the allegations made in the Statutory Declarations, allegations made against specific support workers and their responses, a summary of the support workers' comments and additional allegations made by Mrs O'Brien.

[51] Dr Parsons stated that she followed the Endeavour Foundation Management of Investigations guidelines in conducting her investigation. Dr Parsons made appointments with each of the complainants in order to seek more details. She took notes of those meetings in handwriting and these are attached to her report. Dr Parsons then typed up her handwritten notes, gave those typed notes to the complainants and asked them to sign the document. Dr Parsons' evidence is that "anything of relevance" in the interviews appeared in her handwritten notes. Anything a complainant told her was written down so that her handwritten notes formed a "full and accurate record of what was said". Only Mrs O'Brien indicated that she wanted to add further information and her additional information is also included in the report.

[52] Dr Parsons then extracted the allegations from the typed documents and decided upon the staff members that she would need to interview. Where there was an allegation such as "Ms Kingdom admonishing staff and clients in front of other clients" which was alleged to have happened on several occasions, Dr Parsons' action was to recommend that it was poor management practice and it should be brought to Ms Kingdom's attention but such matters were not included as part of the abuse allegations. Dr Parsons thus distilled the abuse allegations from management type matters at this point.

[53] Dr Parsons then sent the written allegations to Endeavour Foundation who forwarded them to the staff members concerned and Endeavour Foundation gave those persons an opportunity to respond in writing. In her evidence, Dr Parsons said that she spoke with the persons who provided responses, asking them specifically about the allegations made against them, she recorded those responses and then made a comment about what should be done. There are no handwritten notes of such meetings nor any typed notes of such meetings contained in Dr Parsons' report. There is no written evidence of any allegation being put to a staff member or any response of that staff member in the material before the Commission. Dr Parsons then said that she completed her report.

[54] In respect of each of the allegations of abuse (these are detailed in the report), Dr Parsons in her report (Exhibit 63) recommends the following action in relation to each abuse allegation:

 This is poor management practice and should be bought to Ms Kingdom's attention.  Ms Kingdom should respond to this allegation. Appropriate strategies for managing client behaviour should be made available to Ms Kingdom and other staff at the service and regular support provided to ensure that such strategies are effective.  This should be brought to Ms Kingdom's attention as being unprofessional conduct.  The word allegedly used was "bloody" which may or may not be considered a swear word. Whether it is considered to be a swear word or not, it is inappropriate to speak to clients using such language and this should be bought to Ms Kingdom's attention. Ms Kingdom should respond to the second allegation in this section. 11

 That Ms Kingdom should respond to these allegations.  This should be brought to Ms Kingdom's attention as being unprofessional conduct.  This alleged comment would not be helpful in maintaining a working relationship with other staff and is unprofessional. Ms Kingdom should be counselled about this inappropriate conduct.  This is an unprofessional comment for a manager to make to staff though it should be seen in the context of a holiday and of a frustrated manager letting off steam. Further, the comment should not have been made in the presence of clients. Ms Kingdom should be counselled about this issue.  Ms Kingdom should be counselled about her unprofessional conduct.  However, the comments made, in the situation, when Ms Kingdom was the manager of the service, should be bought to her attention as inappropriate conduct as the manager of a service.  No action.  That the allegations in bold print should be answered by the staff mentioned. One of the three allegations in bold print was directed at Ms Kingdom. The other two were directed to other staff at the Kingston ATSS.  Talk to the manager about these issues. The manager was Ms Kingdom.  No action is required.  No action on the allegations is required. Clarification of the role of volunteers in an ATSS service should be undertaken and clearly specified to volunteers as a part of the orientation to the service. All support staff should be made aware of the role of volunteers in the service.  No action is required.  Ms Kingdom should respond to this allegation.  The staff mentioned in the allegations in bold print should be asked to respond to them. In regard to the final allegation, the manager should be asked to provide copies of current notes in regard to toileting Theresa. Two of the four allegations are directed at Ms Kingdom and the remaining two are directed at other Kingston ATSS staff.  No action is required.  No action is required. The inappropriateness to admonishing staff or clients in front of others has been covered in an earlier point in this report.  The manager made a decision which was followed through by the volunteer. However, it would appear that there is some confusion on the part of volunteers as to where they stand with the distribution of medication. Clarification of role of volunteers in regard to the giving of medication should be provided.  Staff should be asked to respond to the allegation in bold print. The two staff members referred to were Kingston ATSS staff.  The allegations in bold type should be put to the staff mentioned for a response. Again the staff referred to were Kingston ATSS staff.  No action required.  Nil.  No action to be taken on allegation. Clarification of role of volunteers in regard to the giving of medication should be provided.  The allegations in bold type should be put to the staff member concerned for response. Some of the allegations are too general to determine which of the staff were involved. The role of volunteers should be clarified, the issue of clients being on the bus alone should be investigated and the use by staff of their own vehicles to transport clients should be made clear. The staff member referred to was a member of the Kingston ATSS staff.

[55] Dr Parsons' analysis of the responses is as follows:

"Whilst support workers have denied the allegations made, there are still some issues that remain unresolved. While the statutory declarants may have 'gone over board' in trying to think of issues to raise, the fact remains that concerning issues were raised which staff deny. This suggests that some of the incidents may have occurred, but were possibly nowhere near as bad as the statutory declarations stated.

However, given the circumstances in which the statutory declarations were made, there seems little option but to accept the statements that the support workers have made. Many of the alleged incidents occurred some time ago, are vague and lacking in detail and were not bought to light until the opportunity arose to try to discredit support workers.

It is important that the issues that were raised were treated seriously and support workers asked to make responses. If this had not occurred then Endeavour would have been seen as sweeping the complaints under the carpet. This action is the first step 'inlaying to rest' issues that have been around for some time.

This is not to suggest that there are not problems at the service and from observation it would appear there are some problems with the management of those clients who present with high support needs and behaviour problems and the way programs are structured. One way of determining what is going on is to do a full 12

evaluation of the service where all aspects of operation and programs provided for clients are assessed. This would have the following benefits:

 The issues that have been raised in this report and the second report would be covered in such an evaluation.  If there are problems then these can be bought to the manager and support workers attention and plans developed to remedy any shortcomings. Any evaluation should be seen as a learning opportunity by staff and as a means to improve their performance and the operation of the service.  An evaluation of the service would 'prove' to dissatisfied parents and other workers that what is happening in the ATSS is seen as acceptable and proper by Endeavour.

Such an evaluation would, hopefully, stop people from 'knocking the service', allow any improvements to be determined and made, which in turn will allow support workers to provide a service that is meeting the needs of the people who attend the service.

While this action would go a long way towards getting Kingston ATSS back on its feet, the other issue to be resolved is what to do about Pat O'Brien. Unfortunately, his negative influence on families, volunteers and support workers has made it very hard for Kingston ATSS staff to work effectively with the client group. The whole matter of the statutory declarations which was orchestrated by Pat has led to the manager being suspended and other support workers being under a cloud of suspicion as to their actions in the service. Further, Pat's actions has (sic) left support workers upset and anxious, has (sic) affected Endeavour's name at the local TAFE and, no doubt, in the community and has (sic) some parents completely off side and dissatisfied with the service provided for their son/daughter. Endeavour will need to determine what action should be taken about Pat O'Brien's involvement in what has been an upsetting, costly and time-consuming matter for the Foundation.".

[56] Those are Dr Parsons' findings on the abuse allegations. Most of the allegations were directed against Ms Kingdom. As the persons, against whom the allegations were made, denied the allegations, that seems to have been the end of it for Dr Parsons. Then of course Dr Parsons goes further and provides her report on the "Investigation of Issues Relevant to Kingston ATSS" where her analysis of Mr O'Brien is again detailed. When Endeavour Foundation management gave evidence, including Ms Alexander, it was of Mr O'Brien being a good support worker yet, Dr Parsons finds that he has a "negative influence on families". That is certainly not the evidence given in these proceedings by members of the families of residents at WWR. Ms Wylie's evidence is that she thought that Mr O'Brien "honestly believed that abuse was taking place" and that "we were all in part of the conspiracy". Her evidence was that whilst most people were of the view that Mr O'Brien lodged the complaints of abuse to assist in the personality conflict issue he had with Ms Kingdom i.e. that it was a "personal vendetta against certain people", there were others who felt as she did.

[57] Even in her report on the abuse allegations, Dr Parsons deals with the origin of the statutory declarations in a manner exceedingly derogatory of Mr O'Brien and for which there was no evidence before her to support the allegations. Dr Parsons had no allegation about Mr O'Brien before her, yet most of her negative comments are directed towards him. At no stage does Dr Parsons feel the need to get a response from Mr O'Brien before she details her findings about him in an official report. In fact, she thinks it would be wrong to do so.

[58] Under cross-examination, Dr Parsons admitted that she had received no formal training in investigations but that she had resort to the Endeavour Foundation manual. She said that she regarded herself as independent when performing the investigation. She agreed that, given her background as an employee of Endeavour Foundation, some people might consider that she was not independent.

[59] She agreed that four out of the six complainants about Ms Kingdom's conduct were employees of Kingston ATSS and not employees of the WWR. She agreed that Exhibit 58, which I shall deal with later, contains quoted parts from her report. There are no notes of any interviews conducted with the persons against whom the allegations are made.

[60] In her report she states that "[m]any of the alleged incidents occurred some time ago, are vague and lacking in detail and were not brought to light until the opportunity arose to try to discredit support workers" and in evidence stated that she was attributing to the complainants who had made statutory declarations that their "motivation" was to "try and discredit support workers". When it was suggested to her in cross-examination that that was a "wicked, evil thing to do", Dr Parsons response was "[n]o, because ... they were contrived stat decs, and they were practically the same in many cases, so it was a case of people didn't get what they wanted with the first enquiry, we'll continue on". When asked what she meant by "contrived" Dr Parsons responded "they were put together by people ... they're almost the same sentences and things". She accepted that she did not think that there was a remote possibility that the witnesses might have seen the same things.

[61] The following paragraph in Exhibit 58 was put to Dr Parsons in cross-examination: 13

"[Pat O'Brien's] negative influence on families, volunteers and support workers has made it very hard for Kingston ATSS staff to work effectively with the client group. The whole matter of the statutory declarations which was orchestrated by Pat has led to the manager being suspended and other support workers being under a cloud of suspicion as to their actions in the service. Further, Pat's actions have left support workers upset and anxious, have affected Endeavour's name at the local TAFE and, no doubt, in the community and have some parents completely off side and dissatisfied with the service provided for their son/daughter... [This] has been an upsetting, costly and time-consuming matter for the Foundation.".

[62] Dr Parsons agreed that those were her words. When asked what she meant by "orchestrated by Pat", Dr Parsons said that because he had picked them up from the people who had prepared them and delivered them to Endeavour Foundation. Dr Parsons went on to say that she had been told and it was reported in one of the meetings with one of the statutory declarants that "it had been suggested and they'd been helped to do it by Pat". She said that she had not been told by any of the declarants that they had approached Mr O'Brien as their union delegate to forward the allegations to management. Dr Parsons believed that this allegation was put to her by one only of the declarants and that it was recorded in her written notes of the meeting with that declarant. She agreed that at no time did she put this allegation of "contrived" or "manufactured" statutory allegations to Mr O'Brien for a response from him. Dr Parsons, however, stated that she believed that the statutory declarations were "partly" manufactured. Dr Parsons believed that Mr O'Brien "initiated" the statutory declarations.

[63] In her report on the "Investigation of Issues Relevant to Kingston ATSS", Dr Parsons stated as follows:

"The clear impression is gained that the conflict between the two services is being instigated, maintained and aided and abetted by Pat O'Brien. As mentioned previously, Pat seems to have gathered about him the disgruntled volunteers and support staff and has used the parents of the residents of Waterford West to make complaints. The evidence is that he initiated the statutory declarations as he was involved to the extent of asking some of the declarants to make a statutory declaration (they admitted this) and he then collected them and took them to the head office of Endeavour.

What started out as a difference of opinion and minor conflict between Pat and Debbie has now escalated to what appears to be a personal vendetta by Pat against Debbie and to a lesser extent the support staff at the ATSS. Further, he has become so embroiled in the conflict and so determined to 'get rid' of Debbie that he cannot stop himself providing 'evidence'.".

[64] When questioned on the statement that "the evidence is that he initiated the statutory declarations ... Endeavour", Dr Parsons said that she relied on what one declarant told her. Yet, Dr Parsons said in her report that "they admitted this". This assumes more than one person.

[65] Dr Parsons was then referred to the fact that Mr O'Brien was the union delegate for staff at Kingston ATSS. Dr Parsons reluctantly agreed, after having been taken to the statutory declarations, that some of the allegations contained therein involved allegations of inappropriate or bullying behaviour by a staff member against another staff member. The statutory declarations clearly involve allegations of this nature. Dr Parsons then admitted that she could not criticise Mr O'Brien, as the ASU delegate, for passing the allegations up to management.

[66] When questioned on the following sentence in her report quoted above "[w]hat started out as a difference of opinion and minor conflict between Pat and Debbie has now escalated to what appears to be a personal vendetta by Pat against Debbie and to a lesser extent the support staff at the ATSS", Dr Parsons said that she was relying on her own personal knowledge of what had been going on in the service for the last six months and Mr Airey's report. Mr Airey's report was not before the Commission. Dr Parsons admitted, however, that she only spoke to the statutory declarants about the points that were contained in their statutory declarations.

[67] When asked whether she ever attempted to put to Mr O'Brien that he had been acting on a personal vendetta and get a response from him, Dr Parsons stated that she would not do that, that it was not her role. If it was not her role then why did she make findings about it in her report?

[68] Dr Parsons believed that the comments in Exhibit 21 (the correspondence from Ms Alexander to Mr O'Brien dated 17 April 2003 which was to remain on his personnel file for two years) that "Dr Parsons has found that you have not acted with the utmost good faith" could be partially justified given the history between the two services. Dr Parsons would not accept that her finding had any adverse impact of Mr O'Brien's employment even though the correspondence was said to be kept on his file for two years.

[69] Ms Alexander's evidence is that the Mary Street meeting was conducted on 21 May 2003 and was open to persons who had family members attending the Kingston ATSS although one of the parents attended with a support worker i.e. Eva Hallam. As people entered the hall to attend the meeting they were provided with a copy of Exhibit 58 which was numbered. The idea being that all copies would be retrieved at the end of the meeting. Ms Alexander was the author of Exhibit 58 and she chaired the meeting. As far as she can recall, she provided an overview and then allowed the attendees to read the document and then ask questions. Ms Alexander said that 14

Dr Parsons was in attendance at the meeting because she was quoted in Exhibit 58 and also to arrange meetings with any family who wanted to discuss matters privately.

[70] Those parts of Exhibit 58 that relate to Dr Parsons' report are as follows:

"3.2.1 Dr Parsons' Analysis 'While support workers have denied the allegations made, there are still some issues that remain unresolved. While the Statutory Declarants may have 'gone over board' in trying to think of issues to raise, the fact remains that concerning issues were raised which staff deny. This suggests that some of the incidents may have occurred but were possibly nowhere near as bad as the statutory declarations stated.

However, given the circumstances in which the statutory declarations were made, there seems little option but to accept the statements that the support workers have made. Many of the alleged incidents occurred some time ago, are vague and lacking in detail and were not brought to light until the opportunity arose to try to discredit support workers...

This is not to suggest that there are problems at the service and from observation it would appear there are some problems with the management of those clients who present with high support needs and behaviour problems and the way programs are structured. One way of determining what is going on is to do a full evaluation of the service where all aspects of operation and programs provided for clients are assessed. This would have the following benefits:

. The issues that have been raised in this report and the second report would be covered in such an evaluation.

. If there are problems then these can be bought to the manager and support workers attention and plans developed to remedy any shortcomings. Any evaluation should be seen as a learning opportunity by staff and as a means to improve their performance and the operation of the service...

Such an evaluation would...allow any improvements to be determined and made, which in turn will allow support workers to provide a service that is meeting the needs of the people who attend the service...

[Pat O'Brien's] negative influence on families, volunteers and support workers has made it very hard for Kingston ATSS staff to work effectively with the client group. The whole matter of the statutory declarations which was orchestrated by Pat has led to the manager being suspended and other support workers being under a cloud of suspicion as to their actions in the service. Further, Pat's actions have left support workers upset and anxious, have affected Emdeavour's name at the local TAFE and, no doubt, in the community and have some parents completely off side and dissatisfied with the service provided for their son/daughter...[This] has been an upsetting, costly and time-consuming matter for the Foundation.'.

3.3 Report on Issues Relevant to Kingston ATSS

This is a smaller report and the most significant issue identified by Dr Parsons was the conflict between the support staff at Kingston ATSS and WWR. The following is Dr Parsons' analysis of this issue.

'The clear impression is gained that the conflict between the two services is being instigated, maintained and aided and abetted by Pat O'Brien. As mentioned previously, Pat seems to have gathered about him the disgruntled volunteers and support staff and has used the parents of the residents of Waterford West to make complaints. The evidence is that he initiated the statutory declarations as he was involved to the extent of asking some of the declarants to make a statutory declaration (they admitted this) and he then collected them and took them to the head office of Endeavour.

What started out as a difference of opinion and minor conflict between Pat and Debbie has now escalated to what appears to be a personal vendetta by Pat against Debbie and to a lesser extent the support staff at the ATSS. Further, he has become so embroiled in the conflict and so determined to "get rid" of Debbie that he cannot stop himself providing "evidence".

The situation has reached the stage where any change in a client's behaviour that is noticed at the accommodation service is blamed on something that happened at the ATSS. Further, anything that one of the residents tells staff at the accommodation service is believed and interpreted in a way to throw a bad light on the ATSS even when ATSS support staff have explained the incident in the message book...'".

[71] Now it should be realised that four of the declarants of abuse were staff of Kingston ATSS against other staff of Kingston ATSS. Yet, Ms Alexander states in the Background to Exhibit 58 that the "issues escalated when a 15 grievance was lodged by one service against the other... An extremely serious allegation was then made by one service against the other.". 16

[72] The most serious aspect of Exhibit 58 however is the following paragraph:

"The clear impression is gained that the conflict between the two services is being instigated, maintained and aided and abetted by Pat O'Brien ... The evidence is that he initiated the statutory declarations as he was involved to the extent of asking some of the declarants to make a statutory declaration (they admitted this) and he then collected them and [arranged for them to reach] ... the head office of Endeavour.".

[73] In her evidence, Ms Alexander said that she had compiled the report in consultation with Endeavour Foundation's solicitors. Ms Alexander said that she did not remember inquiring of Dr Parsons as to where the evidence was for the allegations concerning the "instigation, maintenance, aiding and abetting", the initiation of the statutory declarations or the request of a declarant to make a statutory declaration. Ms Alexander agreed that anyone reading Exhibit 58 could reach the conclusion that Mr O'Brien was being portrayed as a trouble maker.

[74] Yet these allegations are put in a document by Ms Alexander that is handed to the families of Kingston ATSS residents, six of whom are also residents of WWR, without any verification as to the truth of the statements. Ms Alexander's position is that Dr Parsons "would not have written something like that unless she was sure that it was an appropriate thing to write". When given an opportunity on the witness stand to find the evidence in Dr Parsons' report for these allegations, Ms Alexander could only point to the following comment by Dr Parsons in Attachment 5 at p. 3:

"There is no doubt that Pat O'Brien was involved in having people do the statutory declarations (some informed they had been asked to do them) and that he, in fact, collected these and delivered them to Head Office.".

[75] This of course is generally correct given Mr O'Brien's evidence i.e. the ASU delegate told him not to take the allegations of abuse any further unless the Kingston ATSS staff put their allegations of abuse in a sworn statement. Mr O'Brien's evidence is that he arranged with Ms Alexander to collect the sworn statements and forward them to her. Nothing that Mr O'Brien did was inappropriate. There is however no evidence before Dr Parsons that Mr O'Brien "instigated, maintained and aided and abetted" the conflict in this regard.

[76] Ms Alexander could not find any evidence to support Dr Parsons' comments in the material which Dr Parsons had indicated was the extent of the evidence before her. Ms Alexander did agree that she did not ask Dr Parsons to identify the evidence which supported her statement in this regard. Ms Alexander did not give Mr O'Brien any opportunity to respond to these allegations prior to issuing them in Exhibit 58 and providing them to the families of residents of WWR.

[77] Mr O'Brien says in his statement to Dr Johnston (Attachment 1 to Exhibit 15) that "[t]he management team distributed a condensed brief of the report written by Dr Parsons. Parents were not allowed to take minutes of the meeting and were not allowed to keep a copy of the brief. The parents advised me that throughout the meeting, the management stated that the abuse allegations were unsubstantiated and that the issues were about personality conflicts. The management stated that they tried to resolve the conflict on numerous occasions. When management were asked how they tried to resolve it, they could not answer the question. Throughout the document, I was the only staff member named in the brief on numerous occasions. The brief protected the identity of all other staff and management involved in the investigation. I was the only person continually mentioned in the brief. The parents reported to me that there was one paragraph which attributed sole responsibility of the situation to me. The parents also stated that comments 'their liars and troublemakers' was left unchallenged by anyone. The parents stated that Ms Watkins was caught out lying in the meeting. The report made allegations that I had discredited the ATSS with a local TAFE. I completely dispute this as I have had no association with any TAFE. The report stated that I 'gathered around me malcontents to bolster my claims'. The management concluded the meeting by stating that they supported the staff at the ATSS. The parents stated to me that the message from the meeting was that I was the person completely responsible. I would like to point out that in the original document, there were a vast number of statements about other people involved in this issue, but that wasn't presented at the meeting. Only those statements involving my name were added to the brief. This meeting was defamatory and harmful to me as it was facilitated in an open forum.".

[78] This statement of events given by Mr O'Brien to the Clinical Psychologist, Mr Johnston, is consistent with the evidence adduced during the hearing of this matter. Ms Watkins said that she could recall people at the meeting calling the makers of the allegations "liars" and asking for their sacking. She also agreed that a possible interpretation of Exhibit 58 was that Mr O'Brien was a troublemaker. I must also state that Ms Watkins was not critical of Mr O'Brien's handing of the statutory declarations to Ms Alexander.

[79] On 11 July 2003, Mr O'Brien's union organiser forwarded correspondence to Ms Alexander outlining his concerns at the Mary Street meeting held on 21 May 2003. Ms Alexander responded on 21 July 2003 denying that she had caused Mr O'Brien any harm or had defamed him at the meeting. It is rather difficult to agree with Ms Alexander's conclusion when she had distributed Exhibit 58 to others without even asking to be shown the evidence to support Dr Parsons' conclusion, and without gaining a response to the allegations from Mr O'Brien. 17

[80] Dr Parsons' evidence is that she recalls seeing Exhibit 58 and that it was handed out to persons attending the meeting on the basis that the document had to be returned and that note taking was forbidden. Those attending had the opportunity to read the document at the meeting. She did not compile the document. The meeting was convened and conducted by Ms Alexander. There were other Endeavour Foundation management at the meeting. She was not sure what her role was at the meeting. This is interesting to note given that it was Dr Parsons' recommendation in her report that "a special meeting of all families connected with the centre should be called once the issues regarding Kingston ATSS and Waterford West have been resolved as the families will be aware of the current unrest and the suspension of the manager. The above assurances can be given at this meeting and plans for the future outlined". As the author of the report, Dr Parsons says that she was asked to go along to the meeting. She said that she had a "fairly vague recollection of that meeting". She recalls that there were some people who were quite angry at the meeting but she can't remember about what issues.

[81] In her evidence Dr Parsons stated that she, personally, would not have mentioned Mr O'Brien's name in Exhibit 58 i.e. Ms Alexander's report handed out at the meeting.

[82] Ms J's evidence on the Mary Street meeting was that it was basically a meeting about Mr and Mrs O'Brien and the conflict between them and Kingston ATSS with statements being made that the abuse allegations raised about Kingston ATSS staff were false. According to Ms J, management at the meeting said that Mr O'Brien had put in the false allegations. Some non-management attendees suggested that Mr O'Brien was a "liar" and that he should be dismissed. It is apparent that no one from management sought to defend Mr O'Brien at this meeting. As Ms J said in evidence, it seemed like the "whole Mary Street meeting was a vilification of Pat".

[83] Ms W is a teacher who attended the Mary Street meeting on behalf of her mother who is the primary family member responsible for her brother. The brother attended Kingston ATSS and was a resident at WWR for approximately 10 years. At the commencement of the meeting, she said the Endeavour Foundation management team were being introduced and she started to write down their names so that she could provide details to her mother. She was told to stop writing and that if she continued to write she would have to leave the room. Ms W said that a report was handed to the attendees about the allegations of abuse at Kingston ATSS. She could recall Mr O'Brien's name coming up at the meeting several times, that he was made out to be a trouble maker and that his professionalism was questioned. Her evidence is that she was confused after hearing what was said about Mr O'Brien as Mr O'Brien had responsibility for looking after her brother. Her family had had a good relationship with Mr O'Brien. She also recalls that it was members of the management team that raised his name at the meeting. Ms W's evidence is that she did not walk away from the meeting any wiser on the allegations of abuse.

[84] Michael Hutchinson was a Client Advocate at Endeavour Foundation in 2003 and he attended the Mary Street meeting as part of the management team of Endeavour Foundation. He recalled that a document was handed out at the meeting but could not identify Exhibit 58. He could not rule out that Mr O'Brien's name came up at the Mary Street Meeting.

[85] Ms Alexander could not recall Mr O'Brien being portrayed as a trouble maker at the meeting nor could she recall that his professionalism was questioned. She did agree, however, that anyone reading Exhibit 58 could reach the conclusion that Mr O'Brien was being portrayed as a trouble maker. Ms Alexander could not recall any specific dialogue at the Mary Street meeting nor could she recall Mr O'Brien's name coming up at the meeting - she just didn't remember. It is interesting to note that Ms Alexander did state that she regarded Mr O'Brien as a "very good support worker". She said that she got feedback from his managers that he did good work with clients.

[86] Ms Alexander, Mr Hutchinson and Dr Parsons' evidence on the Mary Street meeting revealed that they could not recall specifics about the meeting. As to whether Mr O'Brien's name was raised at the meeting, I prefer the evidence of family members who attended and who were quite definite that Mr O'Brien's name was raised on a number of occasions by Endeavour Foundation management. The fact that Exhibit 58 was provided to each family member and/or carer to read, supports my finding in this regard. If Ms Alexander thought so badly of Mr O'Brien as to communicate her thoughts in Exhibit 58 and hand them to family members, particularly family members of residents of WWR, then it defies imagination that those issues would not have been raised in the Mary Street meeting. The family members and/or carers had a particular interest in the meeting and I accept that their account of the meeting is more likely to be remembered than those of Endeavour Foundation management and Dr Parsons.

[87] After hearing reports of the Mary Street meeting, Mr O'Brien said that initially he was shocked and felt bewildered. He then went through a range of emotions - anger, frustration, sadness and a feeling of being undervalued. When he read Dr Parsons' report, Mr O'Brien said that he experienced "sheer anger mainly" and his wife "broke down". He did visit his local general practitioner and told him that he was feeling depressed. The doctor prescribed antidepressants and he took those for a week or two. At this time he felt "totally worn out", "anxious" and he couldn't sleep. He described himself as a "nervous wreck". Mr O'Brien's evidence is that ultimately he learnt to cope with the stress. 18

[88] It certainly was foreseeable, and must have been known by Endeavour Foundation management, that any attack on Mr O'Brien was likely to affect his standing with the family members of residents of WWR and therefore affect his work at WWR.

Did Mr O'Brien suffer a compensable injury?

[89] It is accepted that Mr O'Brien bears the onus of showing an entitlement to compensation. It is further accepted that the appeal is an appeal by way of hearing de novo: see State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447.

[90] Section 32 of the Act relevantly defines "injury" as follows:

"Meaning of injury

(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant factor to the injury.

...

(5) Despite subsection (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 worker's application for compensation.

Examples of actions that may be reasonable management actions taken in a reasonable way -

 action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker  a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment.".

[91] In its Statement of Reasons for Decision forwarded to Mr O'Brien by covering letter dated 22 November 2005, WorkCover's Claims Assessor, Leonie Hallam, and its Manager, Assessing, Sandra Stretton, stated that they were satisfied that Mr O'Brien was a worker as defined by s. 11 of the Act. Those officers further found that it was "clear from the medical evidence that you sustained a personal injury: a psychological condition diagnosed as ... a major depressive episode with melancholic features, chronic panic disorder without agoraphobia". Those officers further stated that they were satisfied that "the medical evidence supports the contention that your employment was "a significant contributing factor" to your personal injury. Mr O'Brien failed at the WorkCover stage because of s. 32(5) of the Act when the officers found that they were satisfied that "management action was reasonable and taken in a reasonable way.".

[92] Mr O'Brien then sought a review of the decision with Q-COMP. In correspondence dated 9 March 2006, Q- COMP's Review Officer, Alana Gore, was satisfied that:

 Mr O'Brien was a "worker" for the purposes of the Act;

 after analysing the medical evidence of Dr Gerard Dowdall, Mr O'Brien's General Practitioner, Mr Bradley Johnston, his Clinical Psychologist, Dr Joseph Mathew, a Consultant Psychiatrist, she concluded that Mr O'Brien had sustained an "injury" in accordance with s. 32(1) of the Act i.e. that Mr O'Brien had suffered a personal injury and that the workplace was a significant contributing factor to his psychological injury; and

 Mr O'Brien's injury arose out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with Mr O'Brien's employment and that therefore Mr O'Brien's claim for compensation fell "within the exculpatory provision in section 32(5) of the Act" and as such she was not satisfied that he had "sustained an 'injury' within the meaning of s. 32(1) of the Act".

[93] A Notice of Appeal against Q-COMP's decision was filed in the Industrial Registry on 6 April 2006. At the hearing of the appeal, Q-COMP's position was that, having earlier found that Mr O'Brien had suffered a personal injury and that the workplace was a significant contributing factor, it resiled from that position contending that the 19

Review decision was determined by the review section of Q-COMP and not the litigation section of Q-COMP which was running the appeal. Q-COMP did, however, concede that Mr O'Brien was a "worker".

[94] As mentioned previously, appeals under s. 550 of the Act are hearings de novo. The statements, however, that are contained in correspondence forwarded to Mr O'Brien on or about 9 March 2006 are admissions. To suggest, as was done by Mr Johnson, Counsel for Q-COMP, that because the statements were not made by the litigation section of Q-COMP they were not admissions, is semantic to say the least. They are in black and white and before this Commission. In fact, Mr Johnson tendered the documents himself, albeit, to set up the jurisdiction of this Commission. Having gone into evidence, however, one would think that they could be relied upon.

[95] The so-called litigation section of Q-COMP saw fit to concede that Mr O'Brien was a "worker" but decided to put Mr O'Brien to the added expense of calling his medical witnesses.

[96] The onus of proof rests with Mr O'Brien to prove, on the balance of probabilities, that he sustained an "injury" within the meaning of s. 32 of the Act and in particular, that Mr O'Brien's injury is not one that is excluded by virtue of s. 32(5) of the Act i.e. Mr O'Brien must prove that management action taken by Endeavour Foundation was unreasonable and/or undertaken in an unreasonable way or alternatively, that his injury did not arise out of or in the course of his expectations or perception/s of reasonable management action being taken against him.

Has Mr O'Brien suffered an "injury" within the meaning of s. 32 of the Act?

[97] Is it the opinion of Bradley Johnston Bsc(Hons), MA, MAPsS, MCCP, MCSP, Clinical and Consulting Psychologist, that Mr O'Brien presents with symptoms that are consistent with a diagnosis of "a Major Depressive Disorder (DSM IV - Classification 296.22) moderate - without psychotic features": see his medical report dated 3 June 2005 (Exhibit 15). Mr Johnston indicated that there "was no clear evidence to suggest he had ever suffered previous psychological or psychiatric difficulties" because of the presence in his life of two people who suffered disabilities.

[98] Mr Johnston reports that "Mr O'Brien attributes the onset of his condition, and his eventual cessation of work, as being due 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... He attributes the behaviour toward him as occurring because of his forthright stand on rights for the disabled and his role as union official, standing up for fellow employees who were treated unjustly. Over recent times, his distress has been made worse by the apparent failure of investigations (by supposedly impartial individuals or statutory bodies) to find sufficient evidence of the abuse of disabled residents to prosecute the wrong-doers.".

[99] In his medical report, Mr Johnston provides the following summary:

"Mr O'Brien is a 57 year old support worker who has been employed by Endeavour Queensland for the last eight years. From his description, he became suspicious of possible abuse occurring to disabled residents about 4 years ago. He went through the proper channels to try and uncover the truth about this abuse, but believes that a cover-up occurred through collusion between senior managers (one of who was apparently having a relationship with one of the alleged abusers). Mr O'Brien's opinion is that he was then subjected to a campaign of bullying and harassment in order to discredit him, as well as to a number of punitive management actions which he believes were reprisals for his whistle-blowing. Objective test results yielded a profile consistent with Mr O'Brien's presentation and his background history. Clinically significant levels of anxiety, depression and paranoia were found. There was no evidence to suggest malingering or deliberate exaggeration of symptoms.

Although Mr O'Brien was put off work for one month in November 2004, his symptoms have since continued, largely unchanged. He states he returned to work, against medical advice in order to protect his wife from being subjected to the same degree of bullying as himself.

In my opinion, it is quite probable that Mr O'Brien's current symptoms have arisen in the context of a lengthy period of difficulties in dealing with his workplace managers. He sees himself as an advocate for the disabled and an advocate for other employees. It appears that numerous staff came to him with their concerns, in the belief that he would have the courage and determination to follow through with the complaints. Assuming his version of the events is accurate, it appears quite likely he has been the target of whistle-blower reprisals and unfair management practices. However, Mr O'Brien's passion for the rights of the disabled may, at times, have clouded his judgment and his behaviour could conceivably have exacerbated the workplace situation. Nevertheless, in my opinion, anyone subjected to the type of intimidation and threats as Mr O'Brien is likely to have developed similar symptoms.".

[100] I accept Mr Johnston's evidence as to the fact that Mr O'Brien suffered an injury. The "version of events" as outlined by Mr O'Brien to Mr Johnston is supported by the evidence before the Commission. 20

[101] The next matter for determination is whether Mr O'Brien's Major Depressive Disorder can be said to have arisen out of, or in the course of his employment with Endeavour Foundation. In other words, is there a causal connection or relationship between Mr O'Brien's Major Depressive Disorder and his work at Endeavour Foundation such that his condition arose out of, or in the course of his employment? In Lackey v WorkCover Queensland (2000) 165 QGIG 22 Hall P stated:

"... the test posited by the words 'arising out of' is wider than that posited by the words 'caused by' and that the former phrase, although it involves some causal or consequential relationship between the employment and the injury, does not require that direct or proximate relationship which would be necessary if the phrase used were 'caused by'...". (see also Commonwealth v Oliver (1962) 107 CLR 353).

[102] All that is required in terms of the number of stressors relied upon by Mr O'Brien is for one such event or occurrence to be a significant contributing factor to the injury: see Federal Broom Company Pty. Limited v Semlitch (1964) 110 CLR 626 at 641 and Raymond John Welsford v Commonwealth Banking Corporation (1984) 1 A.A.R. 42 at 43.

[103] The stressors faced by Mr O'Brien clearly fall within the causal connection test required by s. 32 of the Act. This was ultimately conceded by Q-COMP in its submission.

[104] The next issue is whether Mr O'Brien's employment was a significant contributing factor to his injury. Q-COMP submit that it is open to find, that based on Mr Johnston's testimony that Mr O'Brien's condition arose out of his perception of management action, and that factors external to management/work were responsible for Mr O'Brien's condition, that the requisite nexus of work being a significant contributing factor does not, on the facts, exist.

[105] Mr Johnson stated that in his opinion "it is quite probable that Mr O'Brien's current symptoms have arisen in the context of a lengthy period of difficulties in dealing with his workplace managers ... anyone subjected to the type of intimidation and threats as Mr O'Brien is likely to have developed similar symptoms.". Given the evidence in this proceeding, the only conclusion that can be reached is that Mr O'Brien's employment was a significant contributing factor to his injury.

[106] The next issue is whether management action was involved. I was referred by Mr Johnson, Counsel for Q-COMP to a Canadian authority on the scope of what is and is not management action. In Canadian General Electric Company Limited v The Ontario Labour Relations Board (1956) OR 437 at 443 it was stated:

"... managerial means something pertaining to or characteristic of a manager and it is equally obvious that the word 'manager' means one who manages ... The word 'manage' is said to be equivalent to conducting or carrying on a business or under-taking or an operation, to conduct affairs. It is also said to be equivalent to controlling or directing the affairs of a household, institution or state, or as the taking of or attending to a matter. It apparently includes the action or manner of conducting affairs or administering and directing or controlling any matter. It is obvious ... that the essential meaning of the word is to control and direct and that must obviously include not only administration but direction of planning for any particular enterprise ...".

[107] The stressors identified by Mr Johnston and Dr Matthew are thus matters within the concept of managerial action.

[108] The ultimate matter for determination is whether s. 32(5) of the Act excludes Mr O'Brien from receiving compensation for his injury. Q-COMP in its submission relies firstly upon s. 32(5)(b) of the Act i.e. that "injury" does not include a psychiatric or psychological disorder arising out of, or in the course of, the worker's expectation or perception of reasonable management action being taken against him. This was, of course, a different basis for the rejection of Mr O'Brien's application for compensation that was provided by both WorkCover (Exhibit 3) and Q-COMP (Exhibit 5). WorkCover was satisfied that the management action taken by Endeavour Foundation was "reasonable and taken in a reasonable way" and Q-COMP determined that they were satisfied that the action of management was reasonable and conducted in a reasonable way. Both WorkCover and Q-COMP relied upon s. 32(5)(a) of the Act to reject Mr O'Brien's application for compensation.

[109] In its submission, Q-COMP rely upon Mr Johnston's evidence. On reviewing Mr Johnston's evidence at T283-299 I am unable to conclude that s. 32(5)(b) of the Act has any relevance to the situation in which Mr O'Brien found himself. I accept that his personality traits may have meant that Mr O'Brien became preoccupied with disappointments or unfairness and that he found it difficult to put those matters out of his mind. I further accept Mr Johnston's suspicion that others might find it very difficult to get a message through to Mr O'Brien. I also note Mr Johnston's evidence on the results of the Minnesota Multiphasic Personality Inventory test on Mr O'Brien, and how some studies suggest that his results can be regarded as an indicator of the level of honesty of the individual in the interview itself.

[110] The evidence before me does not suggest that Mr O'Brien's psychiatric or psychological disorder arose out of, or in the course of, his expectation or perception of reasonable management action being taken against him. 21

[111] I now turn to s. 32(5)(a) of the Act and whether that excludes Mr O'Brien from receiving compensation for his injury i.e. whether what Endeavour Foundation did was reasonable management action taken in a reasonable way.

[112] In the context of s. 32(5), "reasonable" means reasonable in all the circumstances of the case: see WorkCover Queensland v Margaret Kehl (2002) 170 QGIG 93. I further accept that the management action does not have to be perfect or carried out "without blemish", so long as it is "reasonable" in all the circumstances. I further accept that it is for Mr O'Brien to prove on the balance of probabilities that his injury did not arise out of reasonable management action taken in a reasonable way.

[113] I also accept the submission of Mr Johnson, Counsel for Q-COMP, that in determining whether s. 32(5) is to apply, an overall approach can be taken i.e. it is for the Commission to decide whether or not the management action of Endeavour Foundation as a whole was reasonable management action taken in a reasonable way in all the circumstances: see Workcover v Kehl (supra).

[114] I have also had regard to the President's decision in Q-COMP v Education Queensland (2005) 179 QGIG 491 (the McArthur decision) which appears to preclude acceptance of a claim for compensation where there are mixed aetiology claims i.e. some stressors involving reasonable management action and some not involving reasonable management action. In that decision Hall P held that:

"The concern of s. 34(5) is to remove certain psychiatric and psychological disorders from the statutory definition of 'injury'. Where a situation arises in which s. 34(1) 'ropes-in' a particular psychiatric or psychological disorder and s. 34(5) excludes the same psychiatric or psychological disorder, there is an inconsistency which because of the use of 'notwithstanding' must be resolved by allowing s. 34(5) to prevail.".

[115] The result is, that if a psychiatric or psychological disorder is caught by s. 32(5), then that psychiatric or psychological disorder will be excluded from the definition of "injury" regardless of whether all of the stressors that precipitated that disorder are caught by s. 32(5) of the Act. In Merle Prizeman v Q-COMP (2005) 180 QGIG 481 Hall P applied Q-COMP v Education Queensland (supra) to hold that where a significant stressor is not other than "reasonable management action reasonably taken" that was sufficient to remove the psychiatric/psychological disorder from the definition of "injury".

[116] Mr O'Brien's employment with Endeavour Foundation was relatively unremarkable up until some time in 2002. He had enjoyed the work he did for Endeavour Foundation up until that time. Whilst there were some earlier issues, it seems that the significant stressors faced by Mr O'Brien commenced once Dr Parsons' report was presented. The earlier issues do not seem to have caused Mr O'Brien problems with his health and do not, in my view, rate as stressors. The earlier issues included:

 Mr O'Brien did indicate that he had concerns in 2002 about uncharacteristic behaviours of residents of WWR following their return to the WWR after being at the Kingston ATSS during the day. It would appear that Mr O'Brien did the appropriate thing and sought a meeting to enable the concerns of family members to be addressed. A meeting appears to have been arranged but was cancelled by Endeavour Foundation management. No further meeting was arranged. If I am wrong and this is found to be a stressor, then the failure on the part of Endeavour Foundation to organise such a meeting would take the management action outside the realms of reasonable management action taken in a reasonable way;

 sometime thereafter, Mr O'Brien became aware of complaints from Kingston ATSS staff that WWR residents were unmanageable. The WWR staff sought mediation to resolve the issues between WWR and Kingston ATSS but apparently Ms Kingdom refused to attend any such meeting. Once again, if this was a stressor, then allowing Ms Kingdom to refuse to attend such a meeting could not be classified as reasonable management action taken in a reasonable way by Endeavour Foundation;

 Ms Kingdom's grievance against Mr O'Brien on or about 30 October 2002 which was, by 30 November 2002, dropped. Once again, this does not appear to have been a stressor for Mr O'Brien given that the grievance was ultimately dropped;

 the Airey investigation conducted in or about January or February 2003 does not appear to have been a stressor as it was overtaken by the receipt of statutory declarations from Kingston ATSS staff and Mr and Mrs O'Brien. Mr Airey did not give evidence and the events surrounding his investigation were not addressed in any detail during the course of the hearing. It seems that Mr and Mrs O'Brien were interviewed by Mr Airey on 10 February 2003. The statutory declarations were signed in the first few days of March 2003;

 Mr O'Brien's evidence is that he had no difficulty whatsoever with Dr Parsons being asked to investigate the allegations of abuse. It is unclear as to why there was a submission from Q-COMP that Mr O'Brien waived any objection to the appropriateness of Dr Parsons' appointment by his own inaction. Mr O'Brien was clear in his evidence that he supported the appointment of Dr Parsons as the external investigator. The 22

appointment of Dr Parsons as the external investigator was not a stressor for Mr O'Brien. He had no need to object to the appointment of Dr Parsons. Further, Mr O'Brien co-operated with Dr Parsons in her external review. It should also be remembered that the appointment of Dr Parsons was to investigate complaints of abuse levelled at Kingston ATSS staff and not at Mr O'Brien;

 as for the allegations made against Mr O'Brien for his involvement in supplying Endeavour Management with the statutory declarations, Mr O'Brien conducted himself in an appropriate manner. He obtained advice from the ASU when approached by a member of the Kingston ATSS staff about the abuse allegations, he then telephoned Endeavour Foundation's General Manager, Ms Alexander. Once again, Mr O'Brien did nothing wrong in collecting the statutory declarations and adding his and his wife's statutory declarations to the other four and arranging for those statutory declarations to be forwarded to Ms Alexander. It should also be noted that the statutory declarations contained allegations of bullying of staff members by other staff members. Mr O'Brien was in fact the ASU delegate and it was appropriate for him to be involved in such matters;

 the appointment of Dr Parsons was notified on or about 13 March 2003 and her report was concluded on 8 April 2003;

 the meeting at Kingston ATSS after 8 April 2003 does not appear to have been a significant stressor for Mr O'Brien although it may have caused some of the family members of residents of WWR to view Mr O'Brien in a different manner. The fact that Ms Kingdom was given an opportunity to present her position to the meeting and Mr O'Brien was denied such an opportunity does not fall into the category of reasonable management action taken in a reasonable manner. This is particularly so when, at the time of this meeting, Mr O'Brien had not even been given an opportunity to read Dr Parsons' report. As I have found previously, Ms Watkins had read Dr Parsons' report prior to the meeting and therefore her view of Mr O'Brien at the meeting would have been tainted by Dr Parsons' findings.

[117] The first significant stressor came with the correspondence dated 17 April 2003 from Ms Alexander. That correspondence stated that the purpose of the letter was to advise Mr O'Brien of the outcome of the investigations into the issues at the Kingston ATSS. In this correspondence, Mr O'Brien is advised that the two reports of Dr Parsons are confidential and that he will not be given copies of the reports but he was advised that he could read the report at head office but he was not allowed to take notes. Ms Alexander advised Mr O'Brien in this letter that his behaviour had contributed to the development of the current situation and that, of particular concern, was Dr Parsons' finding "that you encouraged other people to make statutory declarations to continue raising additional issues before Len's report had been released". In fact, there was no evidence of this before Dr Parsons in her investigation as she had no handwritten notes or typed notes of any allegation that Mr O'Brien encouraged other people to make statutory declarations.

[118] I prefer Mr O'Brien's account, over that of Ms Alexander, of how the statutory declarations came to be in Endeavour Foundation's hands. I accept that Mr O'Brien telephoned Ms Alexander advising of the oral complaint, and that Ms Alexander had asked Mr O'Brien to arrange for the sworn statements to be forwarded to her, as and when he was in possession of those statements. Ms Alexander could not recall whether or not she arranged for a courier to collect the statements.

[119] Ms Alexander's correspondence further states that "[i]n light of Dr Parsons' findings, it would appear that there may have been a lack of good faith in your actions in gathering up evidence to bolster your complaints against Ms Kingdom" and further, "it is essential that in making such complaints, staff always act with the utmost good faith. Dr Parsons has found that you have not done so in this case. This is a serious matter and a copy of this letter will be placed on your personnel file for two years in order to record that the matter has been formally addressed with you".

[120] These are very serious allegations being made against Mr O'Brien in circumstances where Ms Alexander has read Dr Parsons' report and obviously found no evidence to support the allegations, where Dr Parsons had no evidence before her which could lead to such a conclusion and where the allegations had not been put to Mr O'Brien prior to disciplinary action being taken against him.

[121] Mr Johnson, Counsel for Q-COMP, made a rather interesting submission on this issue. The submission is as follows:

"The employer then received the Dr Parsons' Report and then wrote to the claimant advising him that Dr Parsons' Report had contained observations concerning the claimant's behaviour and bona fides in relation to the issues of alleged abuse and provided him with an opportunity to peruse the Report before any actual adverse steps were to be taken against him in a disciplinary sense. At no time were disciplinary processes put in place by way of adverse administrative action against the claimant arising from the Dr Parson's report about the conduct of the Appellant.". 23

And further:

"The letter did not make a definite finding of lack of bona fides by use of the term 'may'. The appellant could have taken issue with the contents of the letter but failed to do so within a reasonable period of time.".

[122] Mr O'Brien was not given an opportunity to peruse Dr Parsons' report before disciplinary action was taken against him. He wasn't given an opportunity to peruse the report before the Kingston ATSS meeting in April 2003. Ms Alexander made serious findings against Mr O'Brien in her letter of 17 April 2003 and advised him that it was a "serious matter" and that the letter would "remain on his personnel file for two years". That is disciplinary action being taken against Mr O'Brien. If there was no definite finding of lack of bona fides then why was the disciplinary action a fait accompli? Mr O'Brien was given no opportunity by Ms Alexander to respond to any allegation prior to the implementation of disciplinary action. Any employee should not have to pursue a right to put the record straight. The employer should provide the employee with such an opportunity prior to any disciplinary action being imposed.

[123] In all the circumstances, the letter of 17 April 2003 from Ms Alexander was a significant stressor for Mr O'Brien and could not, on any view, be seen as reasonable management action taken in a reasonable way by an employer. It also has nothing to do with a worker's expectation or perception of reasonable management action being taken against him. In circumstances where Mr O'Brien had not even been given an opportunity to read Dr Parsons' report, a serious adverse finding has been made and disciplinary action imposed. In circumstances where the evidence of Endeavour Foundation witnesses indicate that Mr O'Brien was a good support worker, such a serious finding (i.e. that he did not act in good faith), must have been exceedingly difficult for Mr O'Brien. Then to top it off, Mr O'Brien is disciplined in circumstances which did not warrant any disciplinary action whatsoever. In referring the statutory declarations to senior management of Endeavour Foundation, Mr O'Brien acted most appropriately.

[124] Then Mr O'Brien takes the opportunity to peruse Dr Parsons' report. Mr Johnson, Counsel for Q-COMP, makes a submission that Mr O'Brien was offered the opportunity to peruse Dr Parsons' report and make submissions and that had he any objection to the content of the report, prior to any public meetings, Mr O'Brien had the opportunity to "represent against the content of the Report" and that he failed to do so. The evidence is that Mr O'Brien was not given any opportunity to make submissions about Dr Parsons' report. Mr O'Brien got to see the report sometime after 17 April 2003, certainly after the Kingston ATSS meeting in April 2003. He was not allowed to take notes and was not given a copy of the report.

[125] The next matter of significance was the meeting with Mr Shaw on 12 May 2003. As can be seen from Ms Alexander's letter of 17 April 2003 this meeting was arranged following the receipt of both the Airey and Dr Parsons' reports. Mr O'Brien's evidence is that he agreed that the relationship between WWR and the Kingston ATSS needed to be improved so the fact that mediation was to be conducted did not cause Mr O'Brien concerns. As I have mentioned previously, the fact that Endeavour Foundation were attempting to sort out the difficulties between the two services was reasonable.

[126] Mr O'Brien's evidence was, however, that he felt discriminated against because he was the only employee to have had to sign such an agreement. He was also concerned about the requirement for him to relinquish his role as the union delegate. If management had issues with Mr O'Brien's involvement in the ASU, then that was a matter for management, the ASU and Mr O'Brien to resolve. It was not a matter for a mediator to impose on an employee when mediating between two employees. I raised my concerns with respect to this issue during the course of the hearing.

[127] If, as clause 4.2(b) states that Mr O'Brien proposed to relinquish the union delegate role is correct, then why did he not do so? At all times Mr O'Brien retained his role as the ASU delegate. Apparently, Mr Shaw had the benefit of reading the Airey report prior to this meeting and that report indicated that Mr O'Brien's union delegateship had been a problem, because Endeavour Foundation management were unclear when dealing with Mr O'Brien as to whether he was acting in the capacity of union delegate or support worker. This issue was obviously a problem for Endeavour Foundation and not a problem for Mr O'Brien. In those circumstances, I have a difficulty accepting that Mr O'Brien proposed that he relinquish his ASU delegate role. As I indicated earlier, I prefer the evidence of Mr O'Brien in this regard to that of Mr Shaw.

[128] It is apparent from the document forwarded by Mr Shaw to Ms Beeston and Ms Alexander, following the second attempt to get a signed agreement with Mr O'Brien in November 2003, that Endeavour Foundation's motives in having Mr O'Brien sign such agreements were rather questionable. It is obvious that they were hoping that Mr O'Brien would breach such agreements.

[129] A mediation between Mr O'Brien and Ms Kingdom in order to resolve issues between the WWR and Kingston ATSS was not unreasonable. What was unreasonable management action taken in an unreasonable way, was the need to have Mr O'Brien sign up to an agreement that contained some of the conditions contained in Exhibit 44. 24

The other issue is that, but for the findings of Dr Parsons as they relate to Mr O'Brien, the need to get a signed agreement from Mr O'Brien would not have been a factor. Mr O'Brien had asked for mediation between the WWR and Kingston ATSS in 2002, but Endeavour Foundation had allowed Ms Kingdom to refuse to agree to such mediation. Mr O'Brien was thus not concerned about an attempt to mediate the real issues. Further, Mr O'Brien signed the agreement which is Exhibit 44. As I have indicated previously, this agreement restricted only one person from contacting others in Endeavour Foundation and that was Mr O'Brien.

[130] As for the November 2003 meeting, Mr O'Brien was not advised of the reason for the meeting let alone that it was a meeting with Mr Shaw. Mr Shaw's email (Exhibit 61) puts paid to any notion that this attempt to gain an agreement with Mr O'Brien involved reasonable management action taken in a reasonable way. Clearly, this was a meeting to get an agreement with Mr O'Brien which it was thought he would breach and then Endeavour Foundation could dismiss him from employment. This meeting didn't even involve the Manager of Kingston ATSS.

[131] The final significant stressor was Dr Parsons' report, the use of the findings in that report, the document provided to attendees at the Mary Street meeting (Exhibit 58) and the Mary Street meeting itself.

[132] Management action in appointing Dr Parsons to investigate abuse allegations may have been reasonable but the investigation itself is seriously flawed. I have dealt in detail with these issues in paragraph [47] onwards of this decision. The conclusion reached on each of these matters is that the actions of management were not reasonable and were not taken in a reasonable manner. Dr Parsons' report is seriously flawed in dealing with the "Investigation of Issues Relevant to Kingston ATSS". I have not had to deal with the report on the allegations of abuse except to say that Dr Parsons detailed the allegations of abuse to Endeavour Foundation management who in turn forwarded those allegations to the staff concerned. The staff concerned denied the allegations and Dr Parsons appears to have accepted those denials. There is no evidence in Dr Parsons' report of interviews with these staff members and no analysis of why she would accept the denials. Certainly the denials were never put to the statutory declarants to enable them to respond to the denials.

[133] The report, however, is not the end of it. Ms Alexander then sees merit in repeating some of Dr Parsons' allegations against Mr O'Brien in Exhibit 58 and handing that out to family members at the Mary Street meeting. This is done in the absence of putting any of the allegations to Mr O'Brien. Mr O'Brien is not invited to the meeting to provide any response. No one from Endeavour Foundation management, in attendance at the meeting, dealt appropriately with allegations about Mr O'Brien from the floor of the meeting. He received no support from management.

[134] It was submitted by Counsel for Q-COMP that this Mary Street meeting did not involve management action. The meeting was organised by, and conducted by, Ms Alexander. It was called in order to placate the families of clients attending Kingston ATSS because there was a threat to set up a counter day centre to Kingston ATSS. Exhibit 58, provided to such attendees, dealt with staffing issues in that it criticised Mr O'Brien who was a member of Endeavour Foundation staff. In the background section of Exhibit 58 the document refers to the "working relationship between the two services" having "completely broken down by December 2002", it refers to the involvement of the ASU, it refers to Mr Airey being asked to "investigate issues of conflict between staff at KATSS and WWR". The whole of Part 2 of Exhibit 58 deals with staffing issues. Mr O'Brien is referred to eleven times in the document, Mrs O'Brien is referred to on two occasions, Ms Kingdom is referred to three times and ASU representatives on three occasions. That Mr Shaw was engaged by Endeavour Foundation to develop a signed agreement between Ms Kingdom and Mr and Mrs O'Brien is also referred to in Exhibit 58. The calling of the Mary Street meeting and the distribution of Exhibit 58 at that meeting clearly involved management action. The distribution of Exhibit 58 at the Mary Street meeting did not involve reasonable management action taken in a reasonable way. Further, the actual meeting itself, in allowing families to call Mr O'Brien a "liar" and not respond and in allowing the comments about Mr O'Brien to be made was not reasonable management action taken in a reasonable way.

[135] Following this Mary Street meeting it is clear that Mr O'Brien was going to face difficulties in his employment at Endeavour Foundation. Clearly when Ms Alexander and Dr Parsons attended the Mary Street meeting they both had an adverse opinion of Mr O'Brien (see Exhibit 58 and Exhibit 63). When both persons will attend a meeting such as that conducted at Mary Street, and provide the families of severely intellectually disabled residents of WWR with their views of Mr O'Brien, one can only wonder at what was said about Mr O'Brien to the various levels of management at Endeavour Foundation.

[136] Mr O'Brien's difficulties, as and from May 2003, had their foundation in:

 Dr Parsons' findings against him;  in Ms Alexander's acceptance of those findings without question; and  the distribution of those findings both orally and in writing at the Mary Street meeting. 25

[137] The fact that Mr O'Brien was not dismissed from employment with Endeavour Foundation indicates that much of what Mr O'Brien did in the two years following May 2003, was care for, and support, the residents of WWR and generally comply with the restrictions that Endeavour Foundation had placed on him following the initial meeting with Mr Shaw. Once Dr Parsons' conclusions about Mr O'Brien were accepted without question, all management action on the part of Endeavour Foundation taken against Mr O'Brien was tainted to some extent. The significant stressors mentioned earlier in this decision have been tainted to a considerable extent.

[138] I have not had to deal with Dr Parsons' investigation into the abuse allegations in order to determine this matter. What is interesting, however, is that aspect of Exhibit 61 where Mr Shaw commented on the potential risk to Endeavour Foundation i.e. "if Endeavour cannot prove at the unfair dismissal process that it had fully reviewed, accounted for and made changes surrounding any 'weakness/error' of Debbie's actions". Mr Shaw suggests to Endeavour Foundation that they review that aspect of their operation. This would suggest that the investigations conducted by Endeavour Foundation found "weaknesses" and/or "errors" on the part of Ms Kingdom yet there was no criticism of her at either the Kingston ATSS meeting or the Mary Street meeting.

[139] If Ms Alexander was convinced by Dr Parsons' report of Mr O'Brien's lack of good faith, of his instigation, maintenance, aiding and abetting of the conflict between the two services, of his negative influence on families, volunteers and support workers, of his orchestration of the statutory declarations, that his actions affected Endeavour Foundation's name at the local TAFE, then the remainder of the management team at Endeavour Foundation must also have been so convinced. Even as late as 25 November 2003, Ms Alexander is giving instructions for Ms Wylie to read Dr Parsons' report so that she is aware of the issues.

[140] The treatment of Mr O'Brien by members of the management team at Endeavour Foundation, subsequent to Dr Parsons' report being released, have been influenced by the unsubstantiated findings of Dr Parsons about Mr O'Brien's involvement in the so-called "orchestration" of the statutory declarations. Thus, their dealings with Mr O'Brien following release of that report have been tainted by Dr Parsons' findings and the Endeavour Foundation management's acceptance of those findings about Mr O'Brien. The management actions taken (grievances, letters, memorandums, restrictions on Mr O'Brien's ability to communicate with management and staff etc), subsequent to Dr Parsons'; report, did not have anywhere near the impact on Mr O'Brien's health that the dissemination of Exhibit 58 and the Mary Street meeting did. My finding that Mr O'Brien did not deserve to be vilified in the manner in which he was on 21 May 2003 casts serious doubt on all actions by management subsequent to that time. There was just no reason why Endeavour Foundation needed to conduct the Mary Street meeting in the manner in which it did. Any persons who had spent a considerable part of their adult life caring for seriously intellectually disabled persons would not deserve such treatment. Mr O'Brien did not deserve such treatment.

[141] I accept that Mr O'Brien, following May 2003, may have been a difficult employee to manage however much of that difficulty arose because of the events in or about May 2003. Mr O'Brien was certainly concerned about Dr Parsons' finding that the abuse allegations were unsubstantiated but it seems that he was devastated with the adverse findings made against him and the manner in which those adverse findings were conveyed to the families of residents of WWR.

[142] When WorkCover investigated Mr O'Brien's claim, it appears to have been interviewed Ms Wylie, Mr Rowe, Mr Carman and Mr Hutchinson as representatives of Endeavour Foundation. Of those, only Mr Hutchinson was involved in the significant stressors to Mr O'Brien in 2003. Mr Hutchinson's evidence was that he attended the Mary Street meeting as the Client Advocate and he could recall the handing out of a document. He did not recall reading the document and has a hazy recollection of the meeting. He could not recall much about the content of the meeting. Mr Hutchinson in cross-examination, said that he was not aware of the allegations about Mr O'Brien raised in Exhibit 58. All basically he could recall was a conversation with Mr O'Brien wherein Mr O'Brien indicated that he had statutory declarations in his possession but he was not sure when this conversation occurred i.e. either before or after the Mary Street meeting.

[143] It was the same with the Q-COMP's investigation where the Endeavour Foundation representatives relied upon were Ms Wylie, Mr Carman and Mr Rowe. None were involved in the significant stressors to Mr O'Brien in 2003.

[144] Ms Wylie first commenced managing the WWR in December 2003. She and Mr Carman first met Mr O'Brien around this time and even in the first meeting Ms Wylie states that when Mr O'Brien raised Kingston ATSS she "just shut him down in terms of stuff ... that had been gone and dealt with". She wanted him to move forward. One must also recall that Ms Alexander had suggested that Ms Wylie read the Parsons' report when she came into the job.

[145] In all the circumstances, I set aside the decision of the Q-COMP Review Unit dated 9 March 2006. I am satisfied on the evidence before the Commission that the relevant management action taken by Endeavour Foundation was unreasonable and was carried out in an unreasonable way. I find that Mr O'Brien's injury does not fall within the exculpatory provision in s. 32(5) of the Act. In those circumstances, I substitute Q-COMP's decision, with a 26

decision that Mr O'Brien suffered an "injury" within the meaning of s. 32(1) of the Act and therefore the claim is one for acceptance. I reserve the question of costs.

I order accordingly.

D.M. LINNANE, Vice President. Appearances: Mr D. Kent of Counsel instructed by Hall Payne Hearing Details: Lawyers for the Appellant. 2007 January 24 Mr A.B. Johnson of Counsel directly instructed by Q- February 12, 13, 14 and 28 COMP. March 1 and 2 April 18 Written Submissions by Respondent Released: 13 August 2007 June 26 Written Submissions in Reply by Appellant

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