That’s the lesson (hopefully) learned by St John Ambulance Australia (Queensland) following the decision in [Name redacted] v Workers’ Compensation Regulator  QIRC 022 (January 21 2019).
The appellant (and I’m not giving his name as it’s not important) was one of three full time first-aid instructors employed by St John Ambulance in its Townsville office. He commenced part-time employment with St John Ambulance in February 2012 and from 14 January 2013 was a full-time employee.
The appellant was diagnosed with a recognised mental illness, and this diagnosis was not in dispute. What was in dispute was whether or not the workplace provide the major significant contributing factor to the injury and whether or not he was entitled to workers compensation.
An excessive workload
Vice President O’Connor said (at  and following):
For most of 2015 the Townsville office had three full-time trainers and seven office administration staff. The full-time trainers were supplemented with casual trainers…
The St John organisation experienced a significant restructure during the appellant’s final months of employment. On 15 December 2015 the Chairman of St John wrote to all staff advising that as part of a review the board had decided that it would be necessary to reduce staff numbers by retrenching some positions to improve the financial viability of its operations…
The downsizing of staff coincided with the resignation of [the other two] full-time trainers …
The ‘North Queensland Regional Manager who also had responsibility for the Mackay office’ () also resigned though her employment was continued until March 2016 ().
The appellant communicated with the state headquarters in Brisbane and the need for additional staff was noted. A new instructor was appointed in March 2016, but for reasons that are not explained, she remained for only five days. The appellant (at -):
… was saddened by [her] resignation as she was a trainer with an experienced background and he had been heartened that she had joined the team. During this time it was the appellant’s understanding that St John was constantly looking for new full-time trainers. He gave evidence that he could not fulfil the role of training and complete all of the other tasks that needed to be done around the workplace.
Significantly, additional full-time trainers were not employed until shortly before the appellant’s last day of work on 28 June 2016.
The appellant was (at ):
… passionate about first aid and takes the role of first aid trainer seriously. The appellant’s interest in first aid began when he worked as a detachment commander in the Australian Army in Cambodia. It was through this experience that it became evident to the appellant for the need for prompt and urgent first aid.
As is common in organisations that employ people with passion, The appellant took on more and more work as the number of staff diminished. At  Vice President O’Connor noted:
Since 2012 the appellant had shown a willingness to manage the store supplies because in his words “at times we were running out of things”. The appellant said his role broadened…
A new North Queensland Regional Manager was appointed, and the appellant wrote to her to detail issues in the Townsville office to do with staff and resources ( and following]). The workload began to take its toll. At - Vice President O’Connor said (emphasis in original)
There were signs that the appellant was at risk of burning out as early as 2015 and this can be seen in the appellant’s performance appraisal of 5 January 2016 which was completed by [the North Queensland Regional Manager]:
[The appellant] has had a very busy 2015 which has seen him work many more hours than usual. He has done this willingly and without complaint and maintained an excellent training standard…
[The appellant’s] continued diligence can be very exhausting on him personally. I would like to see him take a step back and be a little kinder to himself…
The performance appraisal of the appellant indicates that the employer was aware that the appellant had been working more hours than usual and that his work ethic meant he did this willingly and without complaint. It also identifies that the appellant had made numerous attempts to resolve issues at work however the employer had not addressed these attempts.
There was discussion, at various levels, about getting new trainers both casual and permanent but, in fact (at ) ‘no steps were taken to source trainers from outside the Townsville area’ and the Regional Manager could recall no time of allocating his work to casual staff but she did say ‘I’m fairly confident I must have at some point’. (As an aside one would have thought that if there had been casuals employed there would have been pay records that would have been identified what casuals were employed and when, but there was no discussion about the existence, or absence, of such records).
Adding insult to injury
In June 2016 the appellant travelled to Brisbane for training. Whilst there a complaint was made about his conduct. Rather than deal with it there and then, The appellant was ordered to leave the training and travel to the Brisbane HQ to meet with the CEO. At the head office he was required to wait for 20 minutes before a meeting with three people where he was not sure of what the complaint was and was not offered a support person. The meeting concluded that the issue ‘was an obvious misunderstanding which did not warrant any further investigation’ (). At 
The appellant recalled that he felt bewildered and gutted as a result of the allegation. He said he could not believe that after flying from Townsville and being excited to undertake the training that this would happen… The appellant could not believe that something so minor had led to him being requested to leave the training and asked to attend a meeting at Head Office.
During the course of the meeting the subject of the appellant’s well being came up and it was noted that he was working very hard. It was made clear to him () that ‘he should rest and have some time away from the organisation’. An offer was made that he could take advantage of the ‘new Employee Assistance Provider (EAP)’ but that assistance ‘was not forthcoming as no such scheme existed to which the appellant could access’.
Was the workplace a major contributing factor?
The respondent (ie the insurer, not necessarily St John (Queensland)) argued (at ) that it was not the workplace but the appellant’s ‘personality traits which have contributed to the development of any injury.’ Vice President O’Connor disagreed. At - he said:
I accept that the appellant had a demanding workload. The restructure within St John and resignation of the two full-time trainers increased the appellant’s workload. He was the only full-time trainer in Townsville. On occasions he worked up to 87.5 hours per fortnight. This is not withstanding that his contract of employment specified that his ordinary hours of work were 38 hours per week. He had administrative responsibilities including planning resources, preparation and cleaning. He complained about his workload and it was known and acknowledged by the employer that the appellant’s workload was having an adverse impact on his health. Notwithstanding this, the appellant’s responsibilities were not reduced or modified.
The fluctuation in the appellant’s workload was attributable to the demands of his employment and no positive steps were taken by the respondent to manage the workload. Dr …’s diagnosis of adjustment disorder or a major depressive disorder was consistent with the appellant’s complaints. The appellant’s employment was according to Dr … the major significant contributing factor to his injury.
I accept that the appellant’s employment was the major significant contributing factor in the occurrence of the injury. I do not accept the argument that the employment was the setting in which the injury occurred or the background to its occurrence. It was in my view more probable than not that there was a clear causal relationship between the appellant’s employment at St John and the development of his psychiatric or psychological condition.
Is compensation payable?
Most if not all modern worker’s compensation legislation has provisions to the effect that compensation is not payable for injuries, in particular psychiatric injuries, caused by ‘reasonable management action taken in a reasonable way’ (see  and s Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 32(5)). The purpose of those provisions is for example, to stop people who are counselled for poor work performance or perhaps put on a performance management program then seeking compensation when an employer has to be able to get staff to actually perform their work.
Vice President O’Connor said (at ):
The management action said by the respondent to enliven s 32(5) of the Act included the responses to the appellant’s complaints regarding his workload; putting in place systems to reduce the work which the appellant had to perform; and the management action taken to address the “conduct” in the training session on 28 June 2016.
The Parliament did not intend to mean that any instruction was a relevant management action. A relevant management action () has ‘to relate to specific management action directed to the appellant’s employment itself, as opposed to action forming part of the everyday duties or tasks that the worker performed in their employment’. The things that the respondent relied on were no more than day to day operational direction and were not ‘management action’ as intended by s 32(5). Even if the actions were relevant management actions (at  and ):
I am of the opinion that the action taken by the employer was unreasonable. I have formed that view having regard to the fact that during the period of December 2015 (when the other full-time trainers resigned) until shortly before his last day of work, the appellant was the sole full-time trainer. It was well known to the employer that the appellant was under stress and this is demonstrated in the performance appraisal of the appellant completed in January 2016. It was clear to [the Regional Manager] that the appellant was demonstrating symptoms of frustration, fatigue and burnout arising from his work in April 2016. [The Regional Manager] accepted in her evidence that the employment of an additional full-time trainer would have reduced the appellant’s workload. Whilst the employer maintained a list of casual trainers I accept that [the Regional Manager] adopted a position whereby she would assign full-time trainers first and then additional courses would be assigned to casuals as needed. When asked in cross-examination if she could recall a single instance when she had allocated a casual trainer she was unable to do so. [The Regional Manager] accepted that she took no steps to source trainers from outside the Townsville area to reduce the appellant’s workload this is not withstanding the evidence of Mr Moren that there was no impediment in doing so…
I do not regard the management action taken in relation to the complaint on 28 June 2016 was reasonable. The appellant was asked to leave a training session course; was given limited explanation as to the nature and extent of the complaint; his explanation … was not initially accepted; he was asked to attend a meeting at head office; three senior executives were in attendance; there was significant power imbalance between the appellant and the executive team; and, he was not offered a support person. The meeting was conducted against the background that the employer had knowledge that the appellant was not in good health. Whilst it may have been necessary to investigate the complaint, I do not accept that it was necessary to conduct the investigation in the manner that it was. I do not consider that the nature of the complaint required that the appellant be asked to leave the training session and it could have been appropriately addressed at the conclusion of the session. There is no material before the Commission to suggest that the matter required an immediate response. In the circumstances, the approach taken by the employer was not, in my view, reasonable management action taken in a reasonable way. Accordingly, s 32(5) of the Act is not enlivened to exclude from the definition of injury the appellant’s psychiatric or psychological disorder.
The appellant was entitled to be paid workers’ compensation. An earlier decision of the Workers’ Compensation Regulator rejecting the application for compensation was set aside. The appellant will now receive compensation in accordance with, and be subject to the procedures of, Workers’ Compensation and Rehabilitation Act 2003 (Qld).
On one view this post if not really relevant to this blog. It is about workers’ compensation law. It says little new about the law and the only link to the emergency services is that the respondent was St John Ambulance (Queensland). The appellant was a first aid instructor, not a responder.
I did think about the value of reporting on this case but did determine that because the employer was St John Ambulance (Queensland) it did warrant a report here. Many readers of this blog are involved with St John Ambulance nationwide (including the author who is on the Board of St John Ambulance (ACT)). Mental health issues across the emergency services (and as other posts show I’ve always included first aiders and first aid training in that category) is a matter of increasing interest and concern. How a leading provider of first aid training and operations dealt with the issue is therefore of legitimate interest to readers of this blog.
The issue, too, is not just to see that this case occurred, but to learn from it. The learning that I would urge people to take away from this is that identifying that your colleague or employee is being subject to stress and suffering ‘burn out’ from an undue workload is not the end of the story. If that is the case something needs to be done. Telling a staff member to take time off but failing to provide the resources to allow that to happen is not a reasonable response to the identified need. Even more so when you know the employee is passionate and committed and rises to fill the need. Allowing him or her to burn out and then say ‘they should have done less’ is also not acceptable.
In colloquial terms, if (and particularly if you are an employer) you’re going to ask ‘R U OK?’ you have to be prepared to do something if the answer is ‘no’. Now that is not what happened here, it was not that they asked, but the employer knew the appellant was not ok and knew that it was the workload that was the problem. But they took no steps to actually manage the problem other than to acknowledge its existence. That was not good enough.
The fact that St John now has to pay workers compensation insurance for who knows how long is a problem for them. The fact that a committed passionate employee has had a career lost and no doubt a loyalty and passion destroyed is far worse.