IN THE MAGISTRATES COURT OF VICTORIA by Q1zswRe

VIEWS: 7 PAGES: 32

									IN THE MAGISTRATES COURT OF VICTORIA
AT LATROBE VALLEY

WORKCOVER DIVISION
                                                                   Case No. B10717659


JOANNE KRYGSMAN - YEATES                                                         Plaintiff

v

STATE OF VICTORIA                                                              Defendant


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MAGISTRATE:                    S GARNETT
WHERE HELD:                    LATROBE VALLEY
DATE OF HEARING:               4, 5, 6 OCTOBER 2011
DATE OF DECISION:              4 NOVEMBER 2011
CASE MAY BE CITED AS:          KRYGSMAN-YEATS v STATE OF VICTORIA


                              REASONS FOR DECISION

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Catchwords: S 109 Rejection – s 191 Accident Compensation Amendment Act 2010 – s
304 – application of “new” S 82(2A): adjustment disorder – whether “management action”
taken on reasonable grounds and in a reasonable manner: Primary school teacher subject
to Complaints process and Unsatisfactory Performance process – Merit Protection Board
Determination – Monitoring & Mentoring process – meaning of “reasonable”: principles to
apply when determining whether action “reasonable”.




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APPEARANCES:                 Counsel                       Solicitors

For the Plaintiff            Mr Horner                     Maurice Blackburn

For the Defendant            Mr Batten                     Minter Ellison




                                                                                       !Und efined Boo km ar k, I
HIS HONOUR:


    1    Ms Krygsman-Yeates was employed as a teacher at Briagolong Primary

         School from 30 January 2001 and alleges that she has sustained an

         adjustment disorder with mixed anxiety and depressed mood as a result of

         having her performance as a teacher being subjected to a performance

         monitoring and mentoring process and being bullied and harassed by the

         Principal, Mr Christie.


    2    Ms Krygsman-Yeats lodged a workcover claim on 6 September 2010 which

         was rejected by the defendant on 1 November 2010 on the basis that her

         condition arose wholly or predominantly from management action taken on

         reasonable grounds and in a reasonable manner by her employer.


    3    Ms Krygsman-Yeates gave lengthy evidence and numerous documents were

         tendered by her relating to the management and monitoring of her

         performance as a teacher from March 2009 to the date she finally ceased

         work on 9 August 2010. She told the court that after she obtained her teaching

         qualifications in 1981, she worked as an emergency teacher in 1982, at the

         Gutheridge Primary School between 1985 and 2000 and then commenced as
         the Prep-Grade 1 teacher at Briagolong Primary School in 2001. She gave

         evidence that the school had approximately 70 students and 4 teachers. She

         told the court that Mr Christie commenced work at the school in the role of

         Acting Principal in Term 3, 2008 and that she had prior dealings with him

         when he was the Vice Principal of a school at which her son attended.


    4    Ms Krygsman-Yeates alleged that her psychiatric condition arose in October

         2009 and was aggravated by particular incidents that occurred from that date

         until she finally ceased work on 9 August 2010. As the parties tendered

         numerous documents relating to the correspondence exchanged between Ms
         Krygsman-Yeates and Mr Christie, it is necessary to go through these in detail

         as it helps explain the chronology of events as they unfolded and which it is


                                           1                                  DECISION
    alleged led to Ms Krygsman-Yeates to suffering adjustment disorder.


    Chronology of Events


5   On 30 March 2009, Mr Christie provided a letter to Ms Krygsman-Yeates

    referring to a meeting that occurred the week before regarding her

    Performance and Development Plan which had to be completed by May. The

    letter contained a number of issues that Mr Christie believed she should work

    on and change on the basis that the records indicated a number of year 1

    students were struggling, particularly in the area of literacy. The letter also

    indicated that a further meeting would occur prior to the completion of the

    Performance and Development Plan. Ms Krygsman-Yeates told the court that

    previously the development of the Plan would occur through discussion with

    the Principal and was not formalised by way of a letter. She told the court that

    it was Education Department policy for a formal Plan to be prepared which set

    out professional standards, proposed performance requirements and

    statement of achievements for a 12 month cycle from May of each year. She

    told the court that normally these would be handwritten Plans but this Plan

    was typed on a computer using a Department of Education template. She

    gave evidence that Mr Christie required more information and details in the

    Plan than previously required and suggested to her that she have a look at his

    wife's plan (Ms Christie commenced at the school in 2009) as a guide. She

    told the court that after further meetings and discussions she ultimately

    presented him with the agreed plan on 26 June 2009 for the period 1 May

    2009 to 30 April 2010.      She gave evidence that at no time were any

    discussions had between her and Mr Christie concerning performance issues

    and all discussions were related to the content of the Plan.


6   Mr Christie gave evidence that all teachers were required to complete a

    Performance and Development Plan in consultation with him and after he had
    observed their teaching methods. He told the court that there were a number

    of issues that he believed Ms Krygsman-Yeates had to address and that he

                                       2                                  DECISION
    had a number of meetings with her between 30 March and 26 June 2009 in

    which he discussed these issues and to assist her in developing a Plan to his

    satisfaction.


7   Ms Krygsman-Yeates told the court that she took long service leave in term 3

    between 13 July 2009 and 18 September 2009 and was then on school

    holidays to 5 October 2009.      She told the court that whilst on leave she

    received a letter from Mr Christie dated 15 September 2009 noting that she

    was to return to work on 5 October 2009 and that he would like to meet with

    her to discuss the class before she began planning. She gave evidence that it

    was her normal practice to attend school on weekends and during the holiday

    period to plan and prepare for her classes. She gave evidence that she had

    contacted Mr Christie in the holiday period in an attempt to obtain keys to

    access the school but her request was refused. She told the court that when

    she arrived at school on 5 October she was told that Mr Christie wanted to

    see her and that she was not to take her class until that meeting occurred.

    During the meeting, which occurred between 11 a.m. and 11.30 am, she was

    told by Mr Christie that there had to be a number of changes to her class

    routines and she was given a typed list of the changes required and an

    envelope containing a three-page letter with attachments, relating to those

    matters and was told to provide a written response within four days. Ms

    Krygsman-Yeates gave evidence that she did not read the letter until after the

    meeting and told the court that she was in a “state of shock” regarding the

    contents of the letter. She told the court that she had returned to work after

    long service leave refreshed, revitalised and enthusiastic but was in a “state of

    shock” following the meeting and the contents of the letter, so much so that

    she was unable to teach during the day and only observed her class being

    taken by the graduate teacher, Ms Davidson, who had taken her class during

    her absence on long service leave. Ms Krygsman-Yeates told the court that
    she knew Ms Davidson as she had been the kindergarten teacher who had

    recently obtained her qualifications and had been employed one day per week

                                       3                                   DECISION
    in 2009 at the school. She told the court that she observed Ms Davidson's

    routines during the course of that day and she found it extraordinary that a

    graduate teacher be given carte blanch to reorganise her class routine without

    any discussion with her and that the systems she had implemented had been

    dismantled by Ms Davidson.


8   The letter from Mr Christie indicated that matters had been raised with him on

    15 July 2009 (during Ms Krygsman-Yeates leave) and due to his own

    concerns as a result of his observations of her during term 1 and 2 together

    with concerns raised by Ms Davidson, Ms Christie (his wife) and several

    parents, which had to be addressed. The letter set out in detail the allegations

    made which included; that her teaching was not well planned and that she

    was ineffective in teaching basic skills to students; that she had failed to

    implement the investigating of learning program effectively and did not provide

    a variety of individualised learning opportunities; and, that her assessment

    and reporting of student learning was inconsistent and did not accurately

    reflect individual student progress. Mr Christie requested a written response

    to the allegations and indicated that once he considered her response he

    would convene a meeting with her to discuss the matter at which she could

    bring a support person.     Mr Christie indicated in the letter that he was

    following the Complaints Processes section of the Department’s Guidelines

    for Managing Complaints, Misconduct and Unsatisfactory Performance and

    provided Ms Krygsman-Yeates with the website address enabling her to

    access the document. The Minutes of the meeting between Mr Christie, Ms

    Krygsman-Yeates and Ms Randle (Bursar and Minute taker) were tendered

    which noted that she had been presented with a list of the changes to

    classroom routines that had taken place whilst she was on long service leave

    and was informed that Mr Christie and some parents and staff had expressed

    concern about the students learning experiences in the prep/grade 1 class
    and that students were comprehensively tested by any independent teacher

    and found to be at differing levels to what they were graded at in mid year

                                       4                                  DECISION
     reports.


9    Ms Krygsman-Yeates gave evidence that she consulted Dr Williams on 6

     October as she felt stressed and had high blood pressure. She told the court

     that she took the 6th, 7th and 8th of October off work on sick leave and used

     that time to compile a response to Mr Christie's letter dated 5 October as had

     been requested by him. She gave evidence that she handed her response to

     Mr Christie on Monday 11 October when she returned to work. The response

     consisted of an eight-page letter noting that Ms Krygsman-Yeates was in

     shock to receive the allegations made against her and that she takes great

     pride in her professional integrity and continually strives to make any

     necessary adjustments to meet standards and expectations. She also noted

     that if Mr Christie had first discussed his concerns with her, the complaints

     procedure may have been avoided. Ms Krygsman-Yeates then provided, in

     great detail, her responses to the specific allegations made in a letter dated 5

     October.


10   Mr Christie told the court that prior to deciding to present Ms Krygsman-

     Yeates with the letter dated 5 October he had discussed the issues with her

     and had sought guidance from the Conduct and Ethics Branch of the

     Department after relaying his concerns to them about Ms Krygsman-Yeates

     performance as a teacher. He told the court that he followed and relied on the

     Performance and Development Guide, the Guidelines for Managing

     Complaints against Employees – Part 2 Complaints Process and Part 4

     relating to the Guidelines for Managing Unsatisfactory Performance Under

     Division 9A of the Education and Training Reform Act when dealing with Ms

     Krygsman-Yeates. Mr Christie told the court that he had serious concerns

     about the students learning at the Prep-Grade 1 level under Ms Krygsman-

     Yeates. In cross examination, he denied that presenting her with the letter on

     her first day back after LSL constituted an “ambush” of her. He described his
     actions as “striking while the iron is hot”, that it was not unreasonable of him to


                                         5                                    DECISION
     do so and that it was never his intention to “get rid” of her.


11   Ms Krygsman-Yeates gave evidence that following her response she received

     a further letter from Mr Christie, dated 14 October, on 16 October wherein he

     raised concerns about the way she conducted her classes at the end of the

     day on Monday 11 October. The letter indicates that he did not believe the

     students received sufficient supervision and that they were not engaged in the

     tasks set out for them. The letter also indicates that he visited the classroom

     at the end of the day and found it in a very untidy state and that it was

     reported to him by Ms Davidson and Ms Christie that Ms Krygsman-Yeates

     was working on her computer whilst the lesson was being conducted with her

     other class being unsupervised.          He requested a response to these

     allegations by 19 October. Ms Krygsman-Yeates told the court that these

     issues were not raised with her on 11 October but conceded that the room

     was left untidy. She told the court that she responded to these allegations by

     way of letter dated 19 October and pointed out in the letter the “trying

     conditions” she had been working under since returning from leave. She also

     noted that a she was not able to obtain keys to the school before re-

     commencing work on 5 October and was not able to familiarise herself with all

     of the changes that had occurred in the classroom which would have helped

     her to operate more efficiently. Furthermore, she noted that as she had not

     been given the opportunity to review the planning and evaluations of the relief

     teacher during term 3 it did not enable her to gain a comprehensive

     understanding of the work given to the students and their progress during that

     period which would have allowed her to plan and evaluate more effectively

     from the beginning of term 4. She also disputed that the class received

     insufficient supervision and that they were not engaged in the tasks set out for

     them. In conclusion she noted and wished to emphasise the importance of

     speaking to her about any allegations and that the allegations in the letter
     dated 14 October had been “slipped into an envelope” and that she first

     became aware of the allegations when she discovered the envelope in her

                                         6                                 DECISION
     pigeonhole on 16 October. She told the court that she had seen Mr Christie

     between 14 October and 16 October and he had not mentioned any of these

     issues to her in person. She also told the court that she did not receive a

     response by Mr Christie to her letter dated 19 October.


12   Ms Krygsman-Yeates gave evidence that a meeting was conducted on 30

     October between 1.30 p.m. and 4 p.m. with Mr Christie to discuss her

     response to the allegations made in the letter from Mr Christie dated 5

     October and her response to them. She told the court that Mr Gray from the

     Australian Education Union also attended on her behalf. The Minutes of the

     Meeting was tendered which recorded the various issues that Mr Christie

     raised and Ms Krygsman-Yeates responses to them. She told the court that

     she was unaware that the meeting would involve rigorous scrutiny of her

     performance and accordingly she did not take all relevant documents with her

     to the meeting in order to respond to all issues in detail. Ms Krygsman-Yeates

     told the court that she reached the view at that time that Mr Christie had a pre-

     determined mindset and was not prepared to consider her responses to the

     criticisms he made of her teaching performance. In her view, Mr Christie

     wanted her out of the school which distressed her greatly. She told the court

     that after she received a copy of the Minutes she told Ms Randle (the Minute

     taker) that in her view the Minutes were brief and inaccurate. Ms Krygsman-

     Yeates told the court that a further meeting occurred on 4 November at which

     her husband attended and she was told by Mr Christie that his final

     determination concerning the allegations listed in his letter dated 5 October

     would be sent by post to her in the next few days.


13   Ms Krygsman-Yeates gave evidence that she worked on the 5th and 6th of

     November, saw her doctor on Monday 9 November and was certified unfit for

     work and referred to Ms Gibson, Psychologist whom she first saw on 10

     November. She told the court that she received a letter from Mr Christie dated
     9 November on 13 November, posted to her home, which set out his findings


                                        7                                   DECISION
     in relation to the allegations made against her. The letter indicates that he

     made the following findings;


     Allegation 1 - That your teaching is not well planned and you are ineffective in
     teaching basic skills to your students: I wish to inform you that the conduct I

     have found is substantiated is not acceptable. Individual learning plans have

     not been prepared, Maths lessons have no focus and the activities appear

     arbitrary, the Jolly Phonics program has not been taught as required and there

     is no evidence of writing in any format other than a journal.


     Allegation 2 - That you have failed to implement the Investigative Learning

     Program effectively and do not provide a variety of individualised learning
     opportunities: I wish to inform you that the conduct I have found substantiated

     is not acceptable. The Investigative Learning Program is not student driven

     and what is done is stereotyped as can be seen from evidence in the digital

     portfolios.


     Allegation 3 - That your assessment and reporting of student learning is
     inconsistent and does not accurately reflect individual student progress: I wish

     to inform you that the conduct I have found substantiated is not acceptable.

     The absence of detail in reports, the generic nature of many of the comments,
     the failure to comply with the benchmarking processes and the failure to

     accurately record the prep students has not given the parents or the

     Department an accurate record of the students progress.


14   In conclusion, Mr Christie indicated in his letter that Ms Krygsman-Yeates was

     expected to; demonstrate a comprehensive knowledge of relevant curriculum

     areas; demonstrate and model excellent teaching and learning skills; and,

     successfully apply assessment and reporting strategies that take account of

     relationships between teaching, learning and assessment. He found that Ms

     Krygsman-Yeates was unable to demonstrate that she was meeting these
     standards and that in order to assist her to adopt and maintain the appropriate


                                        8                                  DECISION
     professional standards she would be provided with a period of mentoring from

     23 November 2009. He noted in his letter the assistance that would be given

     to her and invited her suggestions as to what additional support she required.

     He also noted that he would be monitoring her progress by means of

     classroom visits to assess her performance and that he would give regular

     feedback at the end of each day in which a lesson was observed. He also

     informed her that he would be reviewing her planning documents and her

     assessment records and that he would meet with her on Monday 22 February

     2010 to review the monitoring and support period.


15   Ms Krygsman-Yeates told the court that she was unsure if she was being put

     through a misconduct process as the letter from Mr Christie indicated that her

     conduct was unacceptable. She told the court at that stage she was of the

     opinion that Mr Christie was determined to pressure her out of the school or to

     terminate her employment noting that the letter contained red highlighted

     parts and included the following statement; Please note that a repeat of this,

     or Iike conduct, may constitute a breach of the Education and Training Reform

     Act 2006 and may lead to action against you. Such action may result in a

     reprimand, fine, and reduction in classification or termination of employment.

     Ms Krygsman-Yeates told the court that she remained on sick leave until the

     new school year commenced in 2010 an on 25 November 2009, lodged an

     Application for Review of a Personal Grievance with the Merit Protection

     Board following the findings made by Mr Christie in his letter dated 9

     November. In her application she alleged that Mr Christie ignored extensive

     evidence that refutes his allegations, that he misrepresented evidence and

     distorted her responses, that he had shown bias towards her in that he had

     accepted his wife's judgement to her detriment, and that he had used unfair

     measures to discredit her performance. Ms Krygsman-Yeates told the court

     that mediation prior to the Board Hearing did not occur and that she appeared
     at the hearing, accompanied by Mr Gray from the Australian Education Union

     with her application being unsuccessful.

                                       9                                   DECISION
16   The Merit Protection Board determination was tendered with the Board finding

     that she was unable to provide grounds for review. The Board was satisfied

     that the management of the allegations raised by Mr Christie was in the main

     compliant with Departmental policy and that the findings were reasonable.

     However, it did find that Mr Christie's action in presenting Ms Krygsman-

     Yeates with the letter dated 5 October detailing the allegations of

     unsatisfactory performance on the first day she returned from long service

     leave was not reasonable particularly in the circumstances where she had her

     annual performance Plan signed off as satisfactory prior to taking leave. In

     the Board's opinion, the letter could have been delayed until she had re-

     established herself with her class. The Board recommended a new period of

     monitoring and support from three weeks into Term 1 of 2010. Ms Krygsman-

     Yeates gave evidence that she received email correspondence from Mr

     Christie on 7 and 15 December 2009 which was forwarded to all staff

     regarding the Department’s $50,000 “Career Transition Program” to assist

     teachers to leave the profession, retrain and establish new careers.


17   Ms Krygsman-Yeates gave evidence that she received a letter from Mr

     Christie dated 17 December outlining her teaching responsibilities for 2010.

     She told the court that she received this letter the same day as she received

     the Merit Protection Board determination. The letter indicated that she would

     be teaching specialist areas; sport/PE, art, science, cooking and the garden

     and possibly some of the 3/4 classes. She was also advised that the keys to

     the school allowing her access would not be made available to her but that Mr

     Christie would be available at the school from 21 January 2010. Ms

     Krygsman-Yeates told the court that this caused some distress to her as she

     wanted access to the school over the holiday period to help her plan and

     organise the rooms for the new classes she was to teach. She told the court

     that   a meeting occurred on 22 January with Mr Christie and Ms Randle
     regarding the key issue with other matters being discussed including the

     outcome of the Merit Protection Board application. A copy of those Minutes

                                       10                                   DECISION
     was tendered which recorded Mr Christie reinforcing that any decisions after

     the mentoring process was completed would be made by the Conduct and

     Ethics Board and the Secretary of Education which could include

     deregistration. Ms Krygsman-Yeates told the court that she was unhappy with

     the contents of the Minutes and corresponded by email with Mr Christie

     regarding their contents.


18   Mr Christie told the court that the changes he made to Ms Krygsman-Yeates

     duties in 2010 actually reduced her work load and that he was not prepared to

     allow her access to the school over the Christmas period as she had

     previously accessed a teacher's filing cabinet to obtain student records which

     he considered inappropriate. He did not consider the change in her role to a

     “specialist teacher” or refusing her access to the school would result in

     additional pressure being put on her. Ms Krygsman-Yeates gave evidence

     that during the first half of 2010 she had regular meetings with both Mr

     Christie and Ms McCann as part of the mentoring and monitoring process as

     well as attending the Maffra Primary School for mentoring but was provided

     with little professional development to assist her in teaching her new classes.

     She told the court that although she put in a lot of hours coming to grips with

     the curriculum she was finding it very difficult because it was a completely

     new role and very challenging for her. She also told the court that Mr Christie

     denied her access to the school after 6 p.m. and on weekends which

     restricted her ability to cope with her new demands. She gave evidence that

     she was very worried and concerned about her future and in particular the risk

     of her being deregistered which would prevent her teaching in any school.


19   Ms Krygsman-Yeates gave evidence that on 16 April 2010, she attended a

     “support group” meeting with Mr Christie and Ms McCann and was provided

     with a letter of complaint from a parent dated 14 April. She told the court that

     by this stage she was becoming physically and mentally “worn out”. She also
     told the court that Mr Christie requested a response to the letter of complaint


                                       11                                  DECISION
     by 19 April which she ultimately provided on 28 April after having

     unsuccessfully trying to hand it to him on 22 April. Ms Krygsman-Yeates told

     the court that due to her state of “ exhaustion” she took three weeks sick leave

     in June 2010 and returned to work on 23 June. She gave evidence that on her

     return to work she attended a meeting with Mr Christie who presented her with

     a five-page letter dated 22 June informing her that in his opinion she was not

     performing to the required standard as an Expert Teacher.            The letter

     highlighted five areas of unsatisfactory performance with specific examples

     given by him illustrating the grounds of unsatisfactory performance. The letter

     concluded by informing Ms Krygsman-Yeates of the possible action that could

     be taken by her employer under the Education and Training Reform Act and

     invited her to explain any reasons for her unsatisfactory performance with a

     response date of no later than 12 July.      The letter also indicated that Mr

     Christie had scheduled a meeting to occur on 12 July to discuss her response

     following which he would advise her in writing of what action, if any, he

     intended to take.


20   Ms Krygsman-Yeates told the court that during the 12 week mentoring and

     monitoring process Mr Christie had not indicated to her that in his view she

     was performing below standard and at no time was she offered all given any

     further assistance to meet the standards expected of her. She told the court

     that the criticisms made of her in the letter affected her considerably in that

     she regarded those criticisms of more of a personal nature as it referred to her

     delivery as a teacher rather than the way she assessed and reported. She

     also told the court that she tried to improve but expected a negative outcome

     because she had received few positive comments during the mentoring and

     monitoring process. Ms Krygsman-Yeats gave evidence that she provided a

     detailed response to Mr Christie's view that her performance was

     unsatisfactory by way of letter dated 9 July 2010 which was composed during
     the school holidays. She told the court that she returned to work after a

     period of sick leave on 26 July on which date a meeting occurred to discuss

                                       12                                  DECISION
     her response to the matters raised in Mr Christie's letter dated 22 June. She

     gave evidence that she simply read her letter in response at the meeting and

     was told by Mr Christie that he would respond in writing in the near future.


21   Mr Christie told the court that from June 2010 the issues with Ms Krygsman-

     Yeates had moved from a complaints process to an unsatisfactory

     performance process. He told the court that he did not consider it appropriate

     to discuss these performance issues with her prior to giving her his letter

     dated 22 June as it would not have achieved anything and it was a less

     confrontational method as she was then able to go away and digest its

     contents and provide a considered response. He confirmed that he wrote to

     her on 4 August 2010 to inform the day after considering her written response

     and the meeting conducted on 26 July he still considered her performance to

     be unsatisfactory but would give her an opportunity to improve her

     performance to the required standard by having a further period of support

     and monitoring for the period 10 August to 17 September. He also invited her

     in that letter to suggest any additional support that she may find useful and

     that at the end of the monitoring period he would undertake an assessment of

     her performance to determine whether the required standard had been

     reached. Ms Krygsman-Yeates told the court that physically and emotionally

     she was not in a position to cope with yet another mentoring and monitoring

     process and ceased work on 9 August 2010. She then lodged a WorkCover

     claim dated 6 September alleging that she was suffering from stress, anxiety

     and hypertension due to workplace bullying conducted in an unreasonable

     way by Mr Christie and that she was denied natural justice. Ms Krygsman-

     Yeates told the court that at no stage during the process was she assessed

     independently and that it was always done by Mr Christie.


22   Ms Krygsman-Yeates gave evidence that she continues to be treated by Dr

     Sundermann and Ms Gibson, psychologist, and is also prescribed anti-anxiety
     medication. She also told the court that from October 2010 she is also under


                                       13                                   DECISION
     the care of a psychiatrist, Dr Schrueder, who she sees on a monthly basis.

     She gave evidence that she still suffers from sleep disturbance and has

     difficulty concentrating and would like to return to teaching in the future but

     does not believe she would be able to cope at present. In cross-examination,

     she agreed she was not prepared to mediate with Mr Christie prior to a

     hearing before the Merit Protection Board and agreed that she was unhappy

     with the Board's determination.     She agreed that she had received legal

     advice concerning her grievances and that she had the assistance from Union

     officials throughout the process. She disagreed that she was an unhappy and

     disgruntled teacher and agreed that she had not made any application to

     transfer to another school or to find work elsewhere. She agreed that her

     options included flight, compliance or fight and that she chose the latter. She

     agreed that in his role as principal Mr Christie had obligations to students and

     parents in relation to supervising, directing and controlling as best he could

     the performance of teachers.      She also agreed that part of her emotions

     involve being angry with Mr Christie and that she believed she was denied

     natural justice on the basis that Mr Christie ignored the evidence she

     presented to him. She disagreed that she has been fit for work since August

     2010 and that she is fit for work at another school and denied the suggestion

     to her that she had hijacked this court in order for it to determine a personal

     and industrial dispute in relation to Mr Christie's performance as a Principal.

     Ms Krygsman-Yeates did agree with the defendant’s counsel that she is

     somewhat eccentric in her behaviour but not in her teaching style.


23   Mr Christie denied that he had bullied or harassed Ms Krygsman-Yeates and

     told the court that she had been given every opportunity to improve her

     performance and respond to criticisms made of her during the process. He

     also told the court that she was never denied access to a support person to

     assist and on many occasions Mr Gray from the AEU attended with her at the
     meetings to discuss her performance. He gave evidence that Ms Krygsman-

     Yeates was aware of performance issues prior to taking long service leave in

                                       14                                  DECISION
     July 2009 and knew that she had to improve her performance. He told the

     court that his main concern was that of the students welfare and he had an

     obligation to act on their behalf and to take action in response to the parents

     complaints about Ms Krygsman-Yeates. He also refuted the suggestion that it

     was inappropriate for him to be part of both the mentoring and monitoring

     process or that he had “set her up” for failure.


     Medical Evidence


24   The defendant in its Defence admitted that Ms Krygsman-Yeates sustained a

     mental injury which arose out of or in the course of her employment.

     Nevertheless, numerous medical reports were tendered and Dr Sundermann

     was required to give evidence and be subject to cross examination. Dr

     Sundermann told the court that she began treating Ms Krygsman-Yeates on

     13 November 2009. She confirmed that the medical records indicated that Ms

     Krygsman-Yeates attended the clinic on 6 October 2009 with abnormally high

     blood pressure readings and that when she saw her on 13 November she was

     distressed concerning the allegations made against her and the possible

     effect on her career. She told the court that Ms Krygsman-Yeates condition

     deteriorated during the first half of 2010 as a result of being given a change in

     duties, having regular meetings with the Principal, being worried about further

     criticism and was experiencing sleep disturbance. Dr Sundermann was of the

     opinion that Ms Krygsman-Yeates was experiencing symptoms consistent

     with post traumatic stress disorder. She told the court that Ms Krygsman-

     Yeates remains incapacitated for all employment because of her anxiety, lack

     of confidence and her inability to concentrate. In cross examination, Dr

     Sundermann agreed that Ms Krygsman-Yeates expressed feelings of anger

     and that she had been “wronged” but disagreed that all of her problems

     stemmed from her being subject to a performance review. She also agreed

     that her opinion is based on acceptance of the history given to her by Ms
     Krygsman-Yeates. In her report dated 22 March 2011, Dr Sundermann


                                        15                                  DECISION
                  diagnosed that Ms Krygsman-Yeates suffers from an adjustment disorder and

                  that ultimately she should be able to return to work.


          25      Ms Gibson, treating Psychologist, concluded that Ms Krygsman-Yeates has

                  suffered depression with some anxiety and stress due to her treatment in the

                  workplace.   She also believes that Ms Krygsman-Yeates may be able to

                  return to work in a supportive environment. Dr Dharwadkar, Consultant

                  Psychiatrist, who assessed Ms Krygsman-Yeates on 20 October 2010 for

                  CGU, Dr Gill, Consultant Psychiatrist, who assessed her on 7 March 2011 for

                  her solicitors and Dr Shan, Consultant Psychiatrist, who assessed her on 2

                  August 2011 on behalf of the defendant’s solicitors, were all of the opinion that

                  Ms Krygsman-Yeates suffers from an adjustment disorder with mixed anxiety

                  and depressed mood as a result of the process undertaken to address her

                  work performance and that she is incapacitated for her pre-injury employment.


                  The Law


          26      The defendant denies liability by reliance on s 82(2A) (a), (b) and (c) of the

                  Act as amended by the Accident Compensation Amendment Act 2010 (No. 9

                  of 2010). S191 of the amending Act provides that pursuant to s304, the

                  amendments made to s82 by ss 12, 13 and 14 of the amending Act applies in

                  respect of a claim, first given, served or lodged on or after the commencement

                  date, that being 5 April 20101. Ms Krygsman-Yeates lodged her claim on 6

                  September 2010 and on this basis the amendments made to s82(2A) apply.

                  S 82(2A) provides that; There is no entitlement to compensation in respect of

                  an injury to a worker if the injury is a mental injury caused wholly or

                  predominantly by any one or more of the following—


                  (a) management action taken on reasonable grounds and in a reasonable

                  manner by or on behalf of the worker's employer; or



1
    S 2 of Act 9/2010.

                                                     16                                  DECISION
(b) a decision of the worker's employer, on reasonable grounds, to take, or not

to take any management action; or


(c) any expectation by the worker that any management action would, or

would not, be taken or a decision made to take, or not to take, any

management action;


S82(10) provides that; In this section—


management action, in relation to a worker, includes, but is not limited to,

any one or more of the following—


(a) appraisal of the worker's performance;


(b) counselling of the worker;


(c) suspension or stand-down of the worker's employment;


(d) disciplinary action taken in respect of the worker's employment;


(e) transfer of the worker's employment;


(f) demotion, redeployment or retrenchment of the worker;

(g) dismissal of the worker;


(h) promotion of the worker;


(i) reclassification of the worker's employment position;


(j) provision of leave of absence to the worker;


(k) provision to the worker of a benefit connected with the worker's

employment;


(l) training a worker in respect of the worker's employment;

(m) investigation by the worker's employer of any alleged misconduct—


                                   17                                  DECISION
                 (i) of the worker; or


                 (ii) of any other person relating to the employer's workforce in which the


                 worker was involved or to which the worker was a witness;


                 (n) communication in connection with an action mentioned in any of the above

                 paragraphs;


          27     The amendments to the Act arose as part of the Hanks Review into the

                 Accident Compensation Act 1985. The Hanks Review recommended in

                 relation to s82(2A), that legislative amendments were needed to:


                 - provide greater clarity and certainty for both workers and employers in

                 determining what constitutes a compensable psychiatric or stress related

                 injury under the Act;


                 - to reduce unnecessary disputes; and


                 - to provide protection for employers when undertaking appropriate and fair

                 management actions, as intended by the legislature when introducing s82(2A)

                 in 1992.2


          28     In his Second Reading Speech to Parliament on 10 December 2009, Minister
                 Holding said; “ the relevant provisions do not deny injured workers the right to

                 claim compensation for any mental or psychiatric impairment which is said to

                 arise from a workplace injury. Rather, the limitation on mental injury claims is

                 narrowly focused and seeks to limit claims only where the mental injury is

                 wholly or predominantly caused by reasonable management action.              The

                 amendment thus only limits claims for compensation for mental injury to the

                 extent necessary to safeguard the ability of employer to take steps to manage

                 employee relations. A worker may continue to claim compensation where an

                 employer has acted inappropriately or unreasonably. Clause 12 encourages


2
    Paragraph 2.295 of the Hanks Report.

                                                    18                                   DECISION
               employers to appropriately and reasonably manage workplace activities. This

               restriction is consistent with the public interest in maintaining the productivity

               of workplaces and the legality of the relations governing them”.3


       29      The Minister also said; “This government supports the right to compensation

               for a worker who suffers an injury caused by the mental anguish of being the

               victim of unreasonable treatment in the workplace.               This right is to be

               balanced against the need to ensure employers are reasonably able to

               manage their businesses effectively. The provision previously developed to

               balance these competing interests has not worked as intended. At times it

               has resulted in delay and confusion. This bill therefore seeks to amend the

               act to simplify its language, to clarify the definition of “management action” to

               include contemporary management practices, but to preserve the protections

               afforded to workers who suffer injury arising from unreasonable employment

               circumstances”.4


       30      There is no dispute between the parties that the action taken by Mr Christie

               amounts to “management action” as defined in s82(10). It should be noted

               that the definition of “management action” is not exhaustive. The issue to

               determine is whether Ms Krygsman-Yeates adjustment disorder with mixed

               anxiety and depressed mood was caused wholly or predominantly by the

               “management action” referred to in any of, or a combination of subsections

               (a), (b) or (c) of s82(2A).5 This is a question of fact to which the employer has

               the evidentiary onus of establishing that the management action or decision of

               the employer was taken on reasonable grounds and in a reasonable manner,

               and if so, Ms Krygsman-Yeates has the legal onus of demonstrating that her

               condition did not arise wholly or predominantly from such action.6 In relation to

               the application of s82(2A)(c) which is relied on by the defendant, guidance is


3
  Page 4617.
4
  Page 4626.
5
  See para 18 State of Victoria v Leck [2010] VSCA 76.
6
  See decisions of Judge Strong in Beattie v State of Victoria 2 August 1999 and O’Brien v Sacred Heart
        Primary School 24 November 2000.

                                                     19                                      DECISION
                  obtained from two decisions of the Court of Appeal. In Department of

                  Education & Anor v Unsworth, the Court of Appeal held;7 “In summary, the

                  meaning which we give to s 82(2A) in its then-relevant form is as follows: (1) the expectation

                  referred to in paragraph (c) is the subjective expectation of the worker; (2) the expectation is

                  to be understood as an expectation of the taking of action or the making of a decision of the

                  kind described in paragraphs (a) and (b), accompanied by the qualities of reasonableness set

                  out in those paragraphs; (3) the expectation, congruently with paragraphs (a) and (b),

                  presupposes the existence of facts, known to the employer and the worker, which –

                  considerations of reasonableness aside - could found a relevant expectation; (4) paragraph

                  (c) is not necessarily inapplicable only because the worker’s expectation is that the employer

                  will take action or make a decision which the employer does not in fact intend to take or make.

                  Bearing in mind the fact that, as was common ground, the employer carries the burden of

                  establishing the applicability of s 82(2A), an employer could discharge that burden if it

                  established that the worker’s expectation, in the circumstances, was of reasonable action

                  taken in a reasonable manner. But if the worker’s expectation was that action would be taken

                  which, having regard to the known circumstances, would be unreasonable, or was an

                  expectation that action taken would be unreasonable in the manner of its taking, then

                  paragraph (c) would not apply.


                  We have referred, more than once, to there being, for the purposes of paragraph (c), a

                  presupposition of the existence of facts which - considerations of reasonableness aside –

                  could found a relevant expectation. This does not mean, however, that there is to be the kind

                  of enquiry contemplated by the learned judge below. The question will always be: did the

                  worker subjectively hold a relevant expectation? In answering that question, a first sub-

                  question will be: did the worker hold an expectation of action at all? If that sub-question is

                  answered in the affirmative, a second sub-question will be: did the worker have an

                  expectation of reasonable action reasonable in the manner of its taking? That sub-question

                  will require consideration whether there were any circumstances, known to the employer and

                  the worker, which – reasonableness aside - could found an expectation of action; and then

                  consideration whether, given those circumstances, the expectation was of reasonable action

7
    [2010] VSCA 77 at para 57-8.

                                                           20                                          DECISION
                 reasonable in the manner of its taking”.


          31     In Unsworth, the matter was remitted by the Court of Appeal to the Magistrate

                 for further hearing to determine whether the employer could establish whether

                 the workers expectation of dismissal was of “reasonable action reasonable in

                 the manner of its taking”.8 It appears to me, having regards to the Court of

                 Appeal decisions in Leck and Unsworth and the amendments made to

                 s82(2A) from 5 April 2010 in order to immunise “management action”; the

                 “management action” must be taken on reasonable grounds and in a

                 reasonable manner; the “mental injury” must be caused wholly or

                 predominantly by it; and, where sub-section (c) is relied on as in this case, the

                 questions to answer are; did the worker (subjective test) have an expectation

                 of management action being taken, and if so, did he or she expect it to be

                 taken on reasonable grounds and in a reasonable manner. Accordingly, I find

                 that the “reasonableness” criteria as discussed in Unsworth is applicable to

                 the amended s82(2A)(c).


          32     The words “management action” as defined in s82(10) applies to the

                 performance management and mentoring of Ms Krygsman-Yeates from

                 October 2009 to August 2010. Whether Mr Christie took “management action”

                 on “reasonable grounds” and in a “reasonable manner” is to be assessed

                 objectively after considering all of the circumstances leading to and during the

                 action being taken. In this case, it is appropriate to consider the circumstances

                 which gave rise to Mr Christie deeming it necessary to present Ms Krygsman-

                 Yeates with the letter dated 5 October 2009 and to thereafter embark on a

                 complaints process and unsatisfactory performance process which involved

                 monitoring and mentoring and the manner in which this process took place.


          33     The meaning of “reasonable” as used in s82(2A) was considered by His

                 Honour Judge G D Lewis in Finn v State of Victoria9. After considering the


8
    Para 59.
9
    6 October 2000.

                                                            21                          DECISION
                 numerous authorities to which he was referred, His Honour held; I am

                 satisfied that “reasonable” both in the context of “reasonable action” and

                 “reasonable manner” should be given its ordinary meaning as considered

                 curially in the authorities to which I have been referred, that is, less

                 demanding than one of necessity, but more demanding than a test of

                 convenience properly viewed objectively having regard to all of the

                 circumstances of the case”. In submissions, the defendant referred the court

                 to a number of decisions relating to the question of “reasonableness” and

                 urged the court to consider the conduct of Mr Christie in a global context when

                 considering his performance management of her. In support of this

                 submission, the court was referred to;


                 - Bropho v Human Rights & Equal Opportunity Commission10, where the Full

                 Court of the Federal Court considered the provisions of the Racial

                 Discrimination Act (1975) and had to determine whether the relevant “artistic

                 work” (a cartoon) racially vilified aboriginal people on account of their race.

                 The appeal raised the question of        the appropriate balance, in the Racial

                 Discrimination Act, between the prohibition of racial vilification and the

                 protection of freedom of expression and, in particular, the statutory

                 requirement of reasonableness and good faith in the exercise of that freedom.

                 S18C of the Act provided an exemption to the prohibition of such conduct if

                 the act was said or done reasonably and in good faith. In considering the
                 issue of reasonableness, French J (as he then was) said; “There is a number

                 of definitions of “reasonable” in the Shorter Oxford English Dictionary. The

                 relevant ones are:


                 3. Agreeable to reason; not irrational, absurd or ridiculous.


                 4.Not going beyond the limit assigned by reason; not extravagant or

                 excessive; moderate.



10
     [2004] FCAFC 16.

                                                    22                                 DECISION
                The adverb ”reasonably” is defined as “ in a reasonable manner; sufficiently,

                fairly.


                There are elements of rationality and proportionality in the relevant definitions

                of reasonably. A thing is done “ reasonably” in one of the protected activities

                in par (a), (b) and (c) of s18D if it bears a rational relationship to that activity

                and is not disproportionate to what is necessary to carry it out. It imports an

                objective judgement. In this context that means judgment independent of that

                which the actor thinks is reasonable. It does allow the possibility that there

                may be more than one way of doing things “reasonably”.             The judgement

                required in applying the section, is whether the thing done was done

                “reasonably” not whether it could have been done more reasonably or in a

                different way more acceptable to the court”.11(my emphasis)


                - Department of Education & Training v Sinclair12, where the NSW Court of

                Appeal consisting of Spigelman CJ, Hodgson JA and Bryson JA, dealt with a

                workers compensation claim of a teacher who was informed by letter that an

                allegation had been made against him that could amount to improper conduct

                against a student. The relevant statutory entitlement of a worker under the

                Workers Compensation Act 1987 is excluded in cases of psychological injury

                where the “sole or predominant cause” of the injury was “reasonable action

                with respect to”, discipline. The respondent worker had argued that four

                aspects of the investigation were not       “reasonable actions with respect to
                discipline”. CJ Spigelman on behalf of the court, concluded that; “the trial

                judge's analysis and that of the arbitrator, appeared to assume that any

                specific blemish in the disciplinary process, however material in a causative

                sense or not, was such as to deprive the whole course of conduct of the

                characterisation “ reasonable action with respect to discipline”. In my opinion,

                a course of conduct may still be “reasonable action”, even if particular steps

                are not. If the “whole or predominant cause” was the entirety of the

11
     Para 78-9.
12
     [2005] NSWCA 465.

                                                    23                                    DECISION
               disciplinary process, as much of the evidence suggested and his Honour

               appeared to assume, his Honour did not determine whether the whole

               process was, notwithstanding the blemishes, “reasonable action”. 13 (my

               emphasis)


               - MCGEE v Comcare14, where an Australian Taxation Office employee

               claimed compensation under the Safety Rehabilitation & Compensation Act

               1988 for a depressive condition which he alleged was caused by harassment

               and bullying in the workplace.      His claim was rejected on the basis his

               condition was as a result of reasonable administrative action taken by his

               employer. S5A(1) of the Act defined injury but it did not include a disease,

               injury or aggravation suffered as a result of reasonable administrative action

               taken in a reasonable manner in respect of the employee's employment. The

               Act defines “reasonable administrative action” in s5A(2) which is more limited

               than the definition of “management action” in s82(10). The Tribunal referred to

               and approved the reasoning in another decision of the Tribunal in the matter

               of Re von Stieglitz v Comcare15 as well as the decision in Bropho, in relation
               to the issue of “reasonableness”. The Tribunal in that case said;16 “ Whatever

               administrative action is to be taken must be ”reasonable”. Reasonableness is

               a chameleon-like concept, tailored to the circumstances. As a minimum, to be
               reasonable the action must be lawful.        What is reasonable is assessed

               objectively and relates to the specific conduct involved in light of the process

               overall. Reasonableness must be assessed against what is known at the time

               without the benefit of hindsight, taking into account the attributes and

               circumstances, including the emotional state of the employee concerned.

               There must be nothing “untoward” about the actions involved, and the

               administrative action must not be “ the irrational, absurd or ridiculous”.




13
   Para 97.
14
   [2010] AATA 386.
15
   [2010] AATA 263.
16
   Para 67.

                                                  24                                   DECISION
              - Crummer v Q-Comp17, where the appellant’s psychiatric disorder arose out

              of or in the course of her employment. The issue to be determined by the

              Queensland Industrial Relations Commission was whether her injury arose

              out of, or in the course of, reasonable management action taken in a

              reasonable way. Commissioner Fisher, after considering the conduct of all

              involved found that most of the matters complained of by her concerned

              omissions on the part of various managers. In this case, it was accepted by

              the parties that the management action should be assessed globally. In the

              circumstances, the Commissioner found that while there were some

              unreasonable management actions by omission, overall and in the main, the

              management actions were reasonable and where taken, were done in a

              reasonable way. Applying a global consideration led him to the conclusion

              that the injury was withdrawn because of the operation of the exclusion

              provision dealing with reasonable management action taken in a reasonable

              way.


       34     There are a number of other decisions of which I am aware that have

              considered the meaning of “reasonableness”. In Commissioner of Police v

              Minahan18, the respondent worker was employed as a Senior Sergeant of

              Police and was accused of selling drugs and being a paedophile. An enquiry

              was conducted under the Police Service Act 1990 which caused Mr Minahan

              great stress and would lead to the end of his career. After completion of the

              preliminary enquiry no further action was taken. The Compensation Court

              found that the defence that Mr Minahan’s depression was “wholly or

              predominantly caused by reasonable action taken in respect of the discipline

              of Mr Minahan was not made out. The Court of Appeal approved the

              Compensation Court’s reliance on the meaning of “reasonable action” as

              defined by Geraghty J in Irwin v      Director-General of School Education19

              where he said;

17
   26 May 2010.
18
   [2003] NSWCA 239.
19
   18 June 1998

                                               25                                 DECISION
                “The question of reasonableness is one of fact, weighing all the relevant

                factors.   The test is less demanding than the test of necessity, but more

                demanding than a test of convenience.         The test of “reasonableness” is

                objective, and must weigh the rights of employees against the objective of the

                employer. Whether an action is reasonable should be attended, in all the

                circumstances, by a question of fairness”. This meaning was also approved

                and applied in the NSW Compensation Commission case of Trustees of the

                Roman Catholic Church v Broad20 which involved an investigation into

                allegations made against a teacher by female students.


         35     Although these decisions related to different statutory schemes, the principles

                discussed are, in my opinion, applicable to s82(2A). The analysis required is:


                (a) whether the conduct of the employer complained of constitutes

                management action as contemplated by s82(10);


                (b) if so, whether the management action was taken on reasonable grounds;


                (c) if so, whether the management action was taken in a reasonable manner;


                (d) where s82(2A)(c) is relied on; whether the worker held the belief that

                management action would be taken and if so, whether it would be taken on

                reasonable grounds and in a reasonable manner;


                (e) whether the mental injury was caused wholly or predominantly by that

                management action which was taken on reasonable grounds and in a

                reasonable manner;


                (f) when considering the “reasonableness” of that action, it is to be considered

                objectively having regards to all of the circumstances leading to it being taken

                and the manner in which it is taken in a global context taking into account:


                       (i) that the management action and the manner in which it is taken


20
     [2008] NSWWCCPD 139 on 24 November 2008.

                                                  26                                   DECISION
            should not be irrational, absurd or ridiculous but moderate and fair;

            and,


            (ii) the judgement is whether the action taken was done “reasonably”

            not whether it could have been done more reasonably or in a different

            way more acceptable to the court; and,


            (iii) the action and the manner in which it is taken may be reasonable

            even if particular steps involved are not; and,


            (iv) the action and the manner in which it is taken should be assessed

            at the time it is taken without the benefit of hindsight, taking into

            account the attributes and circumstances including the emotional state

            of the worker.


     Conclusion


36   I find that Ms Krygsman-Yeates suffers from a mental injury in the form of an

     adjustment disorder with mixed anxiety and depressed mood which arose out

     of or in the course of her employment with the defendant. I find her that her

     injury occurred on 5 October 2009 as a consequence of being given the letter

     by Mr Christie which detailed the changes that had to be made to work class

     routines and teaching methods in response to the various allegations made

     against her as detailed in that letter. I do not accept the defendant's

     submission that the injury can be categorised as one of a gradual process

     over time due to the nature of her employment pursuant to s82(6). I accept the

     evidence of Ms Krygsman-Yeates that on receiving the letter on 5 October

     2009 on her return from long service leave and after considering its contents,

     she was in a “state of shock” which resulted in her seeking medical attention

     the following day and be certified unfit for work for the following three days.

     From that date on she sought regular treatment from her doctors for
     symptoms of anxiety and depressed mood.         On this basis, the relevant date

     of injury is 5 October 2009. I also find that the events from that date until her

                                        27                                  DECISION
     last date of employment being 9 August 2010 contributed to an aggravation of

     her adjustment disorder with mixed anxiety and depressed mood.


37   I find that the actions taken by Mr Christie from March 2009 to 9 August 2010

     constitutes “management action” as defined in s82(10), and in particular, falls

     within the descriptions in (a), (b), (d), (i), (l), (m) (i) and (n). I find that the

     management action taken by Mr Christie was based on reasonable grounds.

     Mr Christie as Principal of a small country school consisting of four teachers

     and approximately 60 to 70 students had a legal duty and responsibility to

     respond to and take action in relation to the complaints that he had received

     from parents and other staff, in addition to his own observations of Ms

     Krygsman-Yeates teaching methods, practices and performance as a teacher

     of the Prep/grade 1 class. As a result of the issues detailed in his

     correspondence dated 5 October 2009, 14 October 2009 and 9 November

     2009, it was reasonable for him to instigate the complaints process as set out

     in the Department’s Guidelines for Managing Complaints and subsequently to

     embark on a performance management process which involved the

     monitoring and mentoring of Ms Krygsman-Yeates in accordance with the

     Department’s Guidelines. In submissions, Ms Krygsman-Yeates did not take

     issue with the right of Mr Christie to implement these processes. However,

     she did take issue with the manner in which it was undertaken and submitted

     that the “management action” was not taken in a reasonable manner.


38   I find that there is substance to her submission that the manner in which the

     process was conducted was unreasonable. In particular, I find that the

     following actions taken by Mr Christie could not be considered to have been

     taken in a reasonable manner:


     - the delivery to her of the three page letter and attachments dated 5 October

     2009 on her first day after returning from long service leave containing
     detailed criticisms of her lack of planning, ineffectiveness in teaching basic

     skills to her students, failure to implement the investigative learning program

                                         28                                    DECISION
effectively and inconsistent assessment and reporting of students. On this

issue, I have noted that the Merit Protection Board were of the view that this

was not a reasonable action to take. In my opinion, the delivery of the letter in

the circumstances was insensitive taking into account the detailed criticisms

made of Ms Krygsman-Yeates teaching style and performance and there

being no prior discussion with her regarding the specific criticisms of her

teaching style. The unreasonableness of the manner in which this action was

taken was compounded by the request that she respond in writing within 4

days;


- the decision to formalise the criticism of her relating to the alleged

inadequate supervision of her class on 11 October in the letter dated 14

October in preference to discussing the issue with her in the knowledge that

Ms Krygsman-Yeates had previously taken 3 days off on sick leave for

“stress/anxiety” as a consequence of the detailed criticisms of her in the letter

dated 5 October and the manner in which those criticisms were conveyed.

This finding is supported by the contents of Ms Krygsman-Yeates letter in

response dated 19 October where she noted that it would have been

preferable if Mr Christie had discussed the issues raised in his letter of 5

October in person. It is also supported by the fact that as early as 30 October

Ms Krygsman-Yeates had formed the view that based on his actions and the

manner in which they were taken, Mr Christie “wanted her out of the school”.


- the participation of Mr Christie in the monitoring and mentoring support

group in 2010 which was contrary to the Guidelines of the Department (4.1).

In my opinion, it was inappropriate for Mr Christie to participate in the support

group process with Ms McCann from early 2010 as it was clear at that stage

Ms Krygsman-Yeates was in an unsatisfactory performance management

process and his participation caused her additional stress and put her under

further pressure as he was the instigator of the allegations, the driving force
behind the management process and ultimately the person responsible for


                                  29                                   DECISION
     making the decision on her performance. Notwithstanding my conclusion, I do

     not consider Mr Christie’s decision to change Ms Krygsman-Yeates duties in

     2010 or the manner in which he advised her of this decision to be

     unreasonable as it was appropriate for him to do so having regards to the

     preliminary findings he made.


     - the failure of Mr Christie or Ms McCann to provide feedback to Ms

     Krygsman-Yeates during the monitoring and mentoring process as to her

     progress or lack of it and what additional actions or supports she believed she

     required to improve and achieve the desired standards. I do not accept Mr

     Christie’s explanation for not doing so as reasonable, that being; “it would not

     have achieved anything” and; the delivery to her of the letter dated 22 June

     2010, outlining criticisms of her performance rather than discussing the issues

     in person, “was a less confrontational method”.


     - I find that having been aware of Ms Krygsman-Yeates eccentricities and her

     previous emotional response and reaction to receiving letters detailing

     criticism of her performance the continuation of this process by the delivery of

     the letters dated 14 October 2009, 22 June 2010 and 4 August 2010 was

     insensitive and unreasonable action in all the circumstances. In reaching this

     conclusion, I do not find that Mr Christie bullied, harassed or denied Ms

     Krygsman-Yeates natural justice as she alleged or that his conclusion in

     relation to her teaching style and performance was unjustified.


39   Accordingly, I find;


     a. the employer’s conduct constituted “management action” as defined;


     b. the “management action” was taken on reasonable grounds;


     c. the “management action” was not taken in a reasonable manner;

     d. that where s82(2A)(c) is relied on, Ms Krygsman-Yeates did not hold a

     belief that the “management action” would be taken in a reasonable manner.

                                       30                                  DECISION
40   Therefore, the defendant’s reliance on s82(2A) is unsuccessful. I find that Ms

     Krygsman-Yeates remains incapacitated for employment because of her

     adjustment disorder with mixed anxiety and depressed mood and is entitled to

     weekly payments and reasonable medical and the like expenses in

     accordance with the Act.




                                      31                                  DECISION

								
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