WCRA: Lewd covert chesty photos not merely work background or setting

Waugh v Simon Blackwood (Workers’ Compensation Regulator) & Anor [2015] ICQ 28

The appellant worked for State Library of Queensland (SLQ) and she along with other female colleagues were covertly photographed by a male work colleague, Mr McGregor. The photographs concentrated their chest areas and were numerous (2500+). Many of the photographs did not depict their faces, but in the appellant’s instance there were some. Mr McGregor used equipment supplied by the SLQ to perpetuate the inappropriate conduct. His conduct come to the knowledge of the SLQ through an unrelated matter and was reported to the then Crime and Misconduct Commission and to the Head of the Department. However, it was some time before Mr McGregor met with the State Librarian and the electronic devices were confiscated. Later he collapsed at work and was admitted to psychiatric care. Still later Mr McGregor tended his resignation and was allowed to run out his contract for another 3 months.

Around the time of Mr McGregor’s collapse the appellant heard rumours about Mr McGregor and she approached the SLQ who advised there had been an investigation. She asked to see the photographs on several occasions, ultimately taking sick leave. Later the photographs were mailed to her. The appellant subsequently was diagnosed to suffer an adjustment disorder.

Whilst, the appellant’s claim was initially accepted, it was overturned by the Regulator and upheld by the Deputy President who found the injury did not arise out of or the course of employment, but the employment was “merely the background or setting in which the inappropriate behaviour took place” in reference to the decision of Croning v Workers Compensation Board [1].

The Deputy President further found that the action taken by the SLQ was “reasonable management action” and hence excluded from the definition in s. 32(5) of the Workers’ Compensation and Rehabilitation Act 2003.

President Martin set aside the decision of the Deputy President and allowed the appeal.

The definition in s. 32 of injury at the time required it to be “a significant contributing factor”.

Pivotal to upholding the appeal was the evidence of the psychiatrists, Dr Khoo and Dr Richardson who made the clear link that the conduct of McGregor was a gross violation of the appellant’s professional standards and that the response of the SLQ failed to validate her concerns, but rather that Mr McGregor appeared to be getting off ‘scot free’.

[18] Dr Khoo opined that her “symptoms developed less out of feelings of being inappropriately photographed against her will, and more in the context of feeling totally let down… by her workplace and the management.”
[19] Dr Richardson noted that “Ms Waugh… feels that there has been a gross violation of her professional standards and her personal self and she understands that up to 2000 images may have been taken by Mr McGregor and that in short this represents an issue of some significant proportions that is devastating to a whole range of staff members particularly the female staff members who without their consent have been filmed serially by this man over a number of years along with other aspects of sexual harassment.” (emphasis added)
[20] Dr Richardson also said that: “Ms Waugh believes that Mr McGregor may be getting off ‘scot-free’ due [to] the actions of management and that there is every possibility that he may reoffend”.
[21] In his conclusions, Dr Richardson made the following remarks:
“With respect to a DSM IV diagnosis, I believe the claimant suffers from an Adjustment Disorder with Depressed and Anxious mood. It is clear that previously she has a history of Depression following the breakdown of her relationship in 2002 but on this occasion it appears that her mood symptoms are directly the result of the experiences in the work place which involve Mr McGregor taking unwanted photographs of up to 2000 images of unaware female staff members over the course of the last number of years.
In particular Ms Waugh has been in receipt of 12 photographs forwarded to her which show her body being photographed without her consent or permission by Mr McGregor. …
Ms Waugh understands the matter is before C.M.C. who are investigating these particular images.
From Ms Waugh’s point of view, the stressors in this case involve both her knowledge and awareness that photographs were taken of her without her permission that were of a sexual nature but also the awareness that up to 2000 images have been taken by Mr McGregor of various members of staff including an underage girl aged 15.
She is extremely distressed by this particular violation of herself and the other staff members and as such has taken police action due to what she feels is lack of management action in that she believes that they are more supportive of Mr McGregor then they are to the female staff in the State Library.

In my opinion I consider her symptomology at this time to be attributable directly to the work-related injury in question.” (emphasis added)
[22] In his oral evidence, Dr Khoo said:
“So an adjustment disorder – any type of adjustment order from a psychiatric point of view needs a specific stressor and the specific stressor that has caused the adjustment disorder in this patient has been her workplace stressor referred to earlier in the report… to quickly summarise those they are the fact that, firstly, she was the subject of a clear kind of breach of professional boundaries and her – and her civil liberties in terms of these photographs that were taken of her, and the fact – I think another considerable stressor and something that added to perpetuating her condition has been the – her perceived lack of support from her workplace and – but not only in terms of their not understanding the impact – or not anticipating the impact that this may very reasonably have had on her personally, but also in terms of the perceived lack of understanding and support in an ongoing fashion in terms of how this was handled, not being able – or maybe it – feeling somewhat dismissed in terms of her concerns with regard to what may be in the photographs and then sort of getting access to the photographs and then sort of also rather than having her own – you know, how she might have reacted to it, rather than having that validated, she sort of very much felt that she was made to – she felt that the management tended to think that the person who actually took the photos, they made her feel that he was in fact mentally ill and he had resigned and that they were hoping that he would make a full recovery. So it sort of tended to sort of be quite divergent in terms of how she might have felt that her own liberties were intruded upon by this whole information.” (emphasis added)
[23] In cross-examination, Dr Khoo said:
“I would say that… That her symptoms developed at least as much due to feeling let down by her workplace and her management as much as being photographed against her will…. The symptoms developed out of both of those – both of those situations. I’d say still probably that she felt that it was more out of the context of being let down by her workplace and her management.” (emphasis added)
[24] He was asked:
“Just say that question, please. More out of – out of the context of management issues than the – than the photograph issue; is that so? – – – Yes, although both are important, I say the second one has led to – has had a greater impact on the perpetuation of her symptoms.” (emphasis added)
[25] When Dr Khoo referred to be “second” issue he was referring to be “management issue” which was the second category of stressors nominated by Ms Waugh.
[26] Dr Richardson gave evidence relating to the relative importance of the stressors and said:
“I believe that the primary stressor has been her distress at the revelations that these photographs had been taken and her distress that they were taken of her while she was performing her working role, which in turn made her feel quite violated and invalidated in terms of her work. Secondary to that comes the delay in – that she perceived in being able to have a look at the photos and receive support from management, and third was that other people may have been – may be, you know, impacted upon by this, particularly the mother of a girl who may have been in one of the photos.” (emphasis added)
[27] Of particular importance is the response by Dr Richardson to a question from the Deputy President. He was asked:
“You said that her concern was that there were photos taken of her while she was performing her work role. Do I take it from that if she had had photos taken of her that she was not aware of while she was walking in the street or somewhere other than at work that she wouldn’t have had that concern? – – – Yes, your Honour. I believe that given that she was performing a role for which she was being paid and regarded as a professional, that what distressed her significantly was that whilst performing this role there were photographs taken of her that were of a sexual nature, taken without her consent, that one could argue had someone taken that photo perhaps out in the community, one could argue that she would equally be distressed by someone photographing her in a way that seemed gratuitous.
Yes? – – – But in this case, I feel that she was more distressed because it was complete invalidation and demeaning of her in terms of her working role as a professional woman.” (emphasis added)

President Martin referred to Comcare v PVYW [2] and its analysis Hatzimanolis v ANI Corporation Ltd [3] and the circumstances in which the temporal element of arising of or the course of employment may be made out. President Martin was satisfied that the conduct arose of the appellant’s employment and was not merely the background or setting in which it took place. The expert evidence of the psychiatrists established that if it were not for the appellant’s employment the adjustment disorder would not have been caused.

Reasonable Management Action or Not

Whilst President Martin was of the view [41] that the circumstances were “most unusual” and “would test the best intentioned employer”, nevertheless the President found the SLQ’s response failed to be reasonable in a global sense.

President Martin found the reasonableness of the SLQ’s response “in connection with the worker’s employment” required consideration of all the elements, which contributed to the injury.

In finding that the SLQ’s response failed to be reasonable, President Martin took into account the following, which were not addressed by the Deputy President [40]:

  • the employer’s delay in advising Ms Waugh of the photographs and the nature of the photographs;
  • that the employer did not say anything to Ms Waugh until she approached another employee about the matter;
  • the omission by the employer to impose any disciplinary action or sanction on Mr McGregor as a result of the conduct;
  • the action of the employer in allowing Mr McGregor to resign at the expiration of his contract in July 2013 (after he had given notice in March 2013);
  • the tone and expression used in the correspondence to employees which advised of Mr McGregor’s resignation and which could reasonably be seen to be, if not in support of Mr McGregor, then a benign acceptance of his conduct; and
  • despite having reported a similar incident concerning an employee of another government entity to the Crime and Misconduct Commission, the employer did not report the incident concerning Ms Waugh or any other employee of the respondent.

President Martin stated [42]:

“…Each of the matters referred to above might, by themselves, not be susceptible to criticism. But management action can be viewed in a global way and, in the unusual circumstances of this case, the effect of the various omissions and the steps which were taken constitute management action which was not reasonable.


David Cormack – Brisbane Barrister & Mediator

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