October 16, 2015

A supervisor at the State Library used employer-issued equipment to take thousands of covert photographs of the breasts of female staff before his deeds were discovered.

One employee – building manager Astrid Waugh – developed a psychiatric reaction when she learnt that she had been one of her supervisor’s subjects.

Bruce MacGregor was reported by Library chief Jeanette Wright after she learned that he had captured a solicitor employed by another government department doing work at the Library, on his smartphone in late 2012.

A departmental investigation resulted in MacGregor’s electronic devices being confiscated. He collapsed at work and was admitted to psychiatric care before resigning in March and leaving at the end of his contract in July 2013.

Ms Waugh only became aware of the scandal by rumour. She was granted a meeting with the library chief who disclosed the result of the investigation.

The Library did not respond to several requests from Waugh that she be provided copies of the pictures until nearly 2 weeks after that meeting and after – still distressed – she had left her office on sick leave.

According to Waugh, her requests had been diverted with words to the effect of “Oh Astrid, your head is not even in most of the pictures”.

Waugh eventually received 14 prints that “specifically concentrated on my breast area with my face not even being in the shot” by post to her home while on leave in May 2013.

She developed anxiety and depressive disorder but the Workers Compensation Regulator denied her time off work and medical expense payments.

It contended the incident was “unconnected to her employment”. Rather, the workplace was merely a “background” for Mr MacGregor’s inappropriate conduct.

The WCR decision was upheld by the Queensland Industrial Relations Commission prompting a further appeal.

Psychiatrists Khoo and Richardson both swore there was a significant employment connection to the specific stressors that gave rise to Waugh’s condition.

These included “her perceived lack of support from her workplace; her superiors’ failure to anticipate the impact such conduct could have; and the delay in responding to her request to view the pictures”.

Quite apart from her employer’s handling of the situation, the perpetrator’s actions themselves had an employment connection in their view, in that has occurred at work she felt demeaned, violated and invalidated in terms of her professional life.

Accepting the specialists’ opinions, the Industrial Court ruled the QIRC had been wrong in holding that the workplace was merely the “background or setting in which the inappropriate behaviour took place.”

“The fact that the photographs were taken at the workplace was integral to the development of the psychiatric injury,” ruled Justice Glen Martin. “Her distress was greatly magnified by the fact that the photographs are taken at work by a superior employee”.

But did the employer’s handling of the incident constitute “reasonable management action”?

Justice Martin thought not.

Its delay in advising Ms Waugh of the incident, its omission in disciplining MacGregor, its “benign acceptance” of his conduct and its failure to report the incidents concerning Ms Waugh or any other employee to a higher authority – considered “globally” – constituted less than a reasonable management response.

“What may have been reasonable management action taken with respect to the employment of MacGregor was not reasonable so far as it concerned Ms Waugh”.

The court reversed the WCR and QIRC decisions and reinstated that of WorkCover. Ms Waugh will now be paid her workers’ compensation entitlements in accordance with her original application.

Waugh v Simon Blackwood (Workers’ Compensation Regulator) & anor [2015] ICQ 028 Martin J, President 08/10/2015

Categories: Personal Injury , Litigation & Law Practice

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