Bawden Vs The WorkCover Corporation: A Whistleblower’s Perspective
March 1993 – An employee is dismissed by a prominent non-government church agency following disclosure of her employer’s misappropriation of $90,000 of public funds and consistent failure to address serious shortcomings in service and safety standards.12
Prior to her suspension, the worker had endured 18 months of persistent harassment by her employer relating to these disclosures and had sought the assistance of the WorkCover Corporation through her lodgment of a work-related stress claim.
WorkCover’s response was to enter into a process of effective collusion with the employer34 by systemically avoiding the investigation and management of the case, despite an assessment by the Corporation’s own resident psychiatrist affirming the work-related nature of the stress condition.5
With the worker’s dismissal, the process of isolation has expanded. Since that time neither the Minister, the Corporation, nor its representatives have spoken with the worker concerning her disclosures; nor have they made any serious effort to address the issues raised in her written correspondences. Furthermore, the Corporation specifically has failed to interview workplace colleagues or to examine relevant documented evidence which could have supported the worker’s allegations of maladministration and wrongdoing by the employer.
Since March 1993, contact between the worker and WorkCover concerning the case has been largely restricted to Review forums where strategies of demoralization and marginalisation have been effectively used against the worker; including the gathering and manipulation of selective information to bolster an ongoing adversarial framework, as well as the practice of postponement, cancellation and adjournment of Review Hearings to delay any favorable outcome for the employee.6
Despite pleas for protection from reprisals under the Whistleblower Protection Act 1993, no protection has been offered or made available to the worker,7 whilst the worker has incurred legal costs in excess of $25,000 and can no longer afford legal representation.8 Meanwhile, WorkCover and the worker’s employer continue to take full advantage of their access to publicly funded legal representation in order to continue their strategy of wearing down the resolve of this whistleblower, including the vexatious and sinister misuse of the WorkCover Act. Furthermore, evidence will show verballing of witnesses by the Corporation’s own legal representatives to secure “Witness Statements” in support of the Corporation’s efforts to obstruct the worker’s claim.9 10
During the worker’s second round of appeals (before a Review Officer and the WCAT), the worker had been:
Refused the right to call witnesses.
Refused the right to have the matter properly resolved at Review, and was subsequently prematurely terminated at Review.
Refused the right to self-protection from malicious reporting of the worker in WorkCover files, by having all matters discussed at the Tribunal put on-the-record.11
Forced to appeal a decision which resulted in a large quantity of original documents to mysteriously vanish off the Review file – documents which were crucial to corroborating the worker’s own evidence under oath!
Refused the right to subpoena a witness who had falsely been implicated as an informant against the worker, and who could substantiate the worker’s allegations of perjury by key WorkCover witnesses.
Pressured to undertake legal representation and warned of the remoteness of succeeding without legal representation.12
Refused the right to have her allegations of fraud, corruption, maladministration and wrongdoing by corporate officials treated as a Public Interest Disclosure under the Whistleblower Protection Act 1993.
Refused the right to hear tape recordings of WCT proceedings where it was believed that the transcript had been altered. The worker suspects transcripts prior to this time were also altered.
Advised that her “stress” claim had been deemed ‘Scheme Critical’ as it held a ‘significant financial or legislative impact’.13
Advised that her claim had been rejected in 1993, using precedents created in 1994.
Referred to as a “nutter” by a WCT Arbitration Officer, after having challenged his jurisdiction to hear her claim for psychiatric injury. The worker maintained that since the WCT has ruled that WorkCover officials are immune from any civil or criminal liability under s122(4) of the WR&C Act, it could therefore not hear matters in which it was alleged that the Corporation had acted illegally, improperly or maliciously as it could only bring down one finding – against the worker!
In 1999, the worker sought Leave to Appeal to the Full Supreme Court and many claims alleging wrongdoing and maladministration under the Whistleblower Protection Act by Judge Parsons were struck out from the Grounds of Appeal by the Judge without any inquiry as to merit. However, the worker won Leave to Appeal to the Full Supreme Court on many other outstanding matters which suggest the worker always had a legitimate and live claim against the Corporation and employer all along, despite many years of litigation. The Leave to Appeal was not pursued by the worker due to the existence of the Scheme Critical List and the likely adverse impact that would have on her claim ever succeeding in any SA Court.
This case remains unresolved since 1993 and serves to highlight a deeply entrenched culture within the WorkCover Corporation that seeks at all costs to stop and obstruct work-related stress claims and entitlements under the current act by outlawing in practice that which could not be outlawed in legislation. 14 15Meanwhile, the employer has continued to misappropriate funds, flaunt Disability Service Standards and harass other workers.16
POST SCRIPT: As before her experiences at the hands of the employer and WorkCover, pre-1993; since 1995, the worker has most successfully been employed in many professional positions and, at the time of this submission, had been with one employer for almost 10 years! Throughout this time, and at the present the worker has continued to enjoy exceptional feedback and performance appraisals concerning her professional practice and competency.
1 A short time following the worker’s dismissal a client had died after being burned in hot bath water. The agency had previously been warned of the difficult and dangerous situation which existed for staff when supervising residents of this particular facility, but nothing was done. A lack of funds was blamed for the inaction.
2 Amongst other cases, the worker had been accused of unprofessional conduct for advocating that a severely intellectually disabled female client not be chemically sterilized on the grounds that ‘a twenty year old study showed that all intellectually disabled women in institutions are “at risk” [of being sexually abused], therefore, all intellectually disabled women should be sterilized’. This case was argued before the Guardianship Board by a doctor employed with the Intellectual Disability Services Council. The worker’s ‘unprofessional’ position was supported by the Women’s Community Health Services and the Disability Complaints Service. An independent Gynecologist, later appointed by the Guardianship Board, also supported the worker’s allegedly ‘unprofessional’ assessment, namely, that the woman ought not to have been sterilized using a drug which had not, at the time, been an approved drug and that the same drug ought not to be used on a person who was incapable of indicating that she was experiencing any adverse side-effects. The woman’s employer (Product Action) argued that she should be sterilized due to the fact that she could not manage her own menstrual hygiene needs. The worker questioned whether the employer would also seek to cut out the woman’s bladder and bowel, since she could not manage her toiletting needs at all.
3 During evidence given under oath in 1993, the employer had maintained that reasonable attempts were made to “discipline, counsel and warn” the worker of alleged poor performance throughout her period of employment. By 1994 the worker had won an appeal, which questioned the truthfulness of the employer’s evidence as it was deemed to be “circumstantial and largely based on hearsay”. However, in 1995, under cross-examination, the responsible Manager conceded that there had in fact never been any “disciplinary, counselling or warning” proceedings issued against the worker during her employment. In spite of this confession, the worker lost the second round of appeal before the WCAT. It was later discovered that the judge had been made aware of the “scheme critical” nature of the worker’s claim prior to the worker appearing before her!
4 The WorkCover Corporation and the employer entered an arrangement whereby the Corporation would supply the employer with the transcript of proceedings at no cost in exchange for the employer’s legal representative (Ward and Partners) conducting the workplace investigations and providing it with written testimony of the workplace colleagues. In so doing, WorkCover gave the employer its own statutory powers of investigation, thus denying the worker access to any independent workplace investigation and evaluation.
5 The significance of the work-related issues have since been recognized by Dr William De Maria of the Department of Social Work and Social Policy and has used the worker’s case-study in a paper titled Flapping on Clipped Wings: Social Work Ethics in the Age of Activism. The paper was delivered in Wagga Wagga to the Third National Conference of the Australian Association for Professional and Applied Ethics, Charles Sturt University, 3-6 October, 1996. Dr De Maria also heads the Queensland Whistleblower Research Study.
6 In December, 1995, WorkCover was unsuccessful in an action taken to the Full Supreme Court against Review Officer Saunders and Bawden (S5405, 21/12/95). The Corporation sought to overturn a precedent ruling which was applied by Saunders to force the Corporation to produce documented evidence in support of its determination to reject Bawden’s claim for work-related stress. The Corporation sought to withhold these documents from the worker as they did not exist at the time of the original determination, but were gathered more than 17 months after the original determination. It is clear from the reasons cited by CJ King and reaffirmed by Judges Williams, Cox and Perry for rejecting WorkCover’s appeal, that it was acting out of self-interest and not with the intention of fulfilling its statutory function.
The decision by the Corporation or exempt employer in relation to a claim is not simply a decision by a private person or corporation against whom a claim is made whether or not to admit or deny liability. It is a decision made in pursuance of a statutory function. The function of the exempt employer is not distinguished from that of the Corporation. Both have the statutory function of investigating and determining claims for compensation. Neither is entitled in determining claims simply to consult its own interests. There must be proper grounds of rejection of a claim and they must be notified to the claimant. It follows, in my opinion, that the Corporation or exempt employer are not parties to review or appeal in the ordinary role of litigant but as primary decision makers defending their primary decision against a person affected by the decision (emphasis added).
7 To date, the Act has never offered anyone protection despite the passage of four years since its ascent. Is our judicial and public administration system free of corruption or was it designed to conceal the same???
8 The worker’s legal representatives have advised her not to continue unrepresented as they consider it “dangerous”, since the earlier Review proceedings had denied the worker natural justice.
9 Legal representatives of the Corporation had supplied witnesses copies of transcripts before giving their evidence under oath. In so doing, the Corporation had effectively tainted and contaminated the nature of the evidence which would otherwise have been available to corroborate the worker’s allegations. The worker, however, was denied the opportunity of having her own witnesses present at any of the proceedings before they had given evidence.
10 When the matter of fraudulent “witness statements” being used to stitch a case against injured workers was raised with MMI’s Claims Manager, Mr Steve Park, he initially undertook to sack the legal firm (Piper Alderman) in question. Instead, he later wrote (3/7/97) to the worker to assert that verballing of witnesses is a ‘common and accepted practice in the industry’ and that it ‘is not a practice confined to just legal providers’.
11 Throughout the years of litigation, the worker had been accused by WorkCover and the church employer of ‘escalating conflict’, being hostile, aggressive and ‘dangerous’. To ensure that further such allegations could be challenged, the worker sought to tape a Conciliation conference in which she had reason to believe WorkCover and the employer would attempt to bully and intimidate her. Her experiences up to that time showed that neither could be trusted to keep their word and that their conduct would only be provocative. The conciliation conference was terminated after the Conciliation Officer refused to allow the worker to taping the proceedings. The worker, however, felt it inappropriate that the Corporation and the employer could legitimately falsify written documentation about the proceedings before the Conciliator without having access to her own proof about the actual events. The worker was concerned that, unlike her own personal notes and witnesses, her WorkCover file was subpoenable and that , therefore, any written documentation by WorkCover w/could be used to serve the purpose of tainting/ pre-empting a judge’s perceptions of the worker whilst the Corporation’s own conduct could not, similarly become a consideration within that judgement.
12 This is in spite of the fact that the WCAT/WCT systems were originally designed to limit the cost of representation for workers by maximizing the very opportunities for self-representation and the fact that (with two tertiary degrees) this worker was more articulate and capable of self-representation than most workers who would likely enter the WCAT/WCT systems. One should, therefore, question the potential for workers with literacy or language difficulties to navigate their way through the system (e.g. non-English speaking; intellectual or psychiatric disabilities; etc…).
13 This practice was exposed on the SBS Insight Program for 15/6/2000 titled “Bullies at Work”. The Scheme Critical list is a “hit list” issued by WorkCover and ‘widely circulated’ to the judiciary at across Courts (including Supreme) and Tribunals, as well as agents and legal representatives for the Corporation. This list is illegal as it clearly identifies individuals by name and claim type as being “tagged” for obstruction. Moreover, the notion that a claim can ever be rejected/ obstructed on the grounds that it holds a “significant financial or legislative impact” is contrary to any notions of social justice or statutory duty and obligation, as it attaches to any claim two additional, secret, criteria which:
are not made known to the worker
cannot be challenged, as the Workers’ Rehabilitation and Compensation Act does not provide for any appeal on such criteria or grounds; and
cannot be independently evaluated as such criteria are not governed by any publicly known guidelines (i.e. how might one demonstrate that a claim does not hold “significant financial or legislative impact”!).
Workers on this list and their legal representatives are never informed of the “scheme critical” nature of their claims and are often left to flounder in a justice system which is not permitted to rule according to the merits of their claim. Instead judges are, for the most part, forced to rule in WorkCover’s favour (i.e., even if the worker wins, WorkCover will never be exposed for its corrupt practices!). If that happens then the Corporation usually appeals the decision and uses the indemnity issue as ‘leverage’ with which to win. This is because Courts and Tribunals have routinely sought to have workers indemnified from wearing the costs of an appeal (supposedly to protect workers from legal costs!). However, WorkCover has seized on this practice to ensure that only appeals desirable to it proceed, by refusing all others indemnity from legal costs. Thus, merit-worthy appeals are stopped dead-in-their-tracks, especially those where the Corporation’s interpretation of legislation is the matter being challenged. This practice also ensures that the Corporation can set its own legal precedents. (i.e. “HEADS I WIN, TAILS I WIN!”)
14 A memo was written by the Case-Manager to the employer seeking “Anything to help reject the claim…”. In the context of the fact that the Case-Manager had never spoken with the worker prior to, or since, that time, this clearly shows that the objective never was to assess or determine the claim – but to reject!
15 The cost of rehabilitating the worker is estimated to have been worth between $270 to under $1500. However, as at 27/6/97, over $57,000 has been spent on fighting the worker. Over $900 was spent in video surveillance of the worker for nine minutes of footage showing the worker engage in routine daily activity (the purpose of which has yet to be explained by the Corporation).
16 Employees at the workplace had been threatened with legal action and instant dismissal if discovered communicating with the injured worker following the leak of highly defamatory correspondences against the worker, by the church employer.
SBS Insight Program, June 15, 2000
“Bullies at Work”
Bullying at work – the murky side of office politics estimated to cost Australian industry a staggering four billion dollars a year in sick leave, reduced productivity and workers compensation. And the quest for justice can be as painful as the bullying itself.
Reporter: Belinda Hawkins
The only car Lee Jones will ever work on now is his own.
Lee Jones, former apprentice: NO, AT THE MOMENT I CAN’T. I DON’T THINK I EVER WILL BE ABLE TO GO BACK TO DOING IT. IT JUST BRINGS BACK TOO MANY MEMORIES.
Lee was a 16 year old apprentice in an autoshop when the bullying began. One mechanic taped his feet and arms together and others forced him on top of a vending machine. When he jumped down they taped him to a pole.
Lee Jones: I WAS PRETTY HUMILIATED , ESPECIALLY ONE OF THE MECHANICS RAN UP TO THE FRONT OF THE DEALERSHIP AND GOT ALL THE SALES STAFF DOWN TO HAVE A LOOK AND A LAUGH.
The bullying got worse. At the workshop Christmas party Lee was wedged in a drum, his ankles taped to the sides. One of the mechanics sprayed his boots with a flammable liquid and set him alight.
Lee Jones: LUCKILY THE TAPE MELTED THAT WAS AROUND MY BOOTS AND ANKLES FROM THE FLAMES… BECAUSE THAT MELTED AND I COULD FREE MY LEGS AND I STARTED ROCKING A BIT FROM SIDE TO SIDE UNTIL IT TIPPED OVER AND I FELL OUT.’
The bullying continued for eighteen months. Lee was stuffed in the boot of a car and driven around at high speeds, he was bitten and taunted. What really upsets Lee’s mother and his old friends is that all the while, there were people at the workshop who knew what was going on but did nothing.
Rhonda Jones: THEY JUST DON’T WANT TO BE ON THE OUTER. BECAUSE I GUESS THEY WATCH PEOPLE LIKE LEE AND SEE THE THINGS THAT ARE HAPPENING TO HIM AND SAY “GEE I DON’T WANT TO BE THERE SO IF I KEEP QUIET I’M GOING TO BE FINE.
And why did you stay on at this place with all this stuff happening to you? What kept you there?
Lee Jones: I WANTED TO FINISH MY APPRENTICESHIP AND I DIDN’T WANT TO BE KNOWN AS A DOBBER. I WAS THREATENED BY SOME OF THE PEOPLE THERE THAT IF I SAID ANYTHING IT WOULD JUST GET WORSE.
As well as fining the mechanic involved in the bullying, a court found the car dealership guilty of health and safety charges and fined it 45 thousand dollars. So do you think you’re the winner or the loser of all of this?
Lee Jones: I’D LIKE TO SAY I’M THE WINNER BUT I THINK, WHAT HAPPENED HAPPENED TO ME AND NOTHING’S GOING TO CHANGE THAT WHETHER THEY ARE CHARGED OR NOT, YOU CANT TAKE THAT BACK SO PROBABLY I’M THE LOSER.
Rhonda Jones: HE’S NOT THE SAME BOY ANYMORE, NOT AT ALL.
He sort of lost his childhood?
Rhonda Jones: HE’S LOST HIMSELF AND THAT’S WHAT HURTS AND PEOPLE DON’T SEE THAT.
Least of all the bully?
Rhonda Jones: NONE OF THEM DO. THEY CAN GO HOME AT NIGHT AND THEY CAN SLEEP AND THEY DON’T HAVE TO SEE WHAT HAS HAPPENED TO A VERY VIBRANT YOUNG KID WHO DOESN’T KNOW WHERE HE’S GOING NOW.
At this gala function the Victorian WorkCover Minister gives out awards to companies that are trying to turn the tide and make workplaces safer places to be. Throughout the evening there’s a lot of talk of maintaining the health and safety regulations. But there’s no mention of bullying – what is it and what, if anything, is being done about it. So far there’s no award for the business that tried to cut the cost of bullying to Australian industry. It’s estimated bullying accounts for 4 billion dollars a year worth of sick leave, staff replacement, reduced productivity and workers compensation. For it’s not only apprentices who are copping it. So too are experienced workers. Michael used to work for a South Australian timber mill that’s won health and safety awards in the past.
Michael, former timber worker: IT WAS A PRETTY SCARY TIME. I HAD TAPED PHONE MESSAGES, DEATH THREATS, I’VE HAD TYRES DEFLATED, I’VE HAD STUFF TAKEN OUT OF MY BAG, NUISANCE PHONE CALLS. IT ALSO COMES FROM WHEN YOU WALK INTO A ROOM AND EVERYONE WALKS OUT OR THEY STOP TALKING ABOUT SOMETHING AS YOU WALK IN. THE EXCLUSION, I SUPPOSE YOU’D CALL IT… AND YOU HAVE DOUBTS ABOUT YOURSELF.
Michael’s job was to move newly cut wood in and out of huge kilns to dry it out. Michael endured taunting from other workers for 4 years. The breaking point came when he was ordered to do a job normally done by a machine … one that Bill the union rep at the site said was too dangerous. Michael felt he had to do it and got hurt.
Bill, Workplace union representative: IN MICHAEL’S CASE… CAUSE MICHAEL’S A LITTLE BIT SOFT, WHAT I’D SAY IS A LITTLE BIT SOFT… A BIT TOO EASY GOING. AND THE WHOLE SECTION WHERE HE WORKED TOOK TO HIM SORT OF … LIKE A LOT OF MAD DOGS, YOU KNOW… AND THEY WERE ALL ON TO HIM.
Michael: MY BODY ACTUALLY SHUT DOWN AND OVER A FEW DAYS I WANTED THEM TO STAND UP AND TAKE NOTICE OF WHAT I HAD BEEN THROUGH AND I WAS SICK OF IT . I GOT TO WORK AND HAD TWO IDEAS – ONE WAS TO JUMP OFF A 60 FOOT/ 80 FOOT BIN AND THE OTHER IDEA I HAD WAS TO SHOW ‘EM HOW TOUGH I WAS, TO BURN MYSELF, TO SHOW THEM THAT I WASN’T TOUGH… I WASN’T WEAK. I POURED PETROL ON BOTH MY LEGS BUT I ONLY GOT TO LIT IT UP ONCE BECAUSE OF THE EXTREME PAIN. IT WAS A BIT MORE PAIN TO SHOW ‘EM HOW TOUGH I WAS BUT IT WAS JUST AN HORRENDOUS FEELING AND AN HORRENDOUS TIME.
The company paid Michael compensation for his leg, but did nothing about the bullying that he says, drove him to set it alight..
Gary Collis, South Australian Employee Ombudsman: I THINK BULLYING IN THE WORKPLACE IS, I WOULD SAY, AT EPIDEMIC PROPORTIONS IN THE WORKPLACE. I THINK IT HAS BEEN FOR SOME TIME. WE HAVE JUST NEVER RECOGNIZED… ONE THAT IT EXISTS, OR WE DON’T WANT TO RECOGNIZE IT OR ACKNOWLEDGE IT… AND IT’S NEVER BEEN EXPLAINED TO EMPLOYERS JUST HOW MUCH IT’S COSTING THEM AND THEIR INDUSTRY.
As the South Australian employee Ombudsman, Gary Collis gets hundreds of bullying complaints. He believes one in three Australian workers experience some form of bullying at some stage in their career, but says most of that bullying happens in offices – the Public Service being especially rife with examples of it.
Gary Collis: IN THE WHITE COLLAR AREA, IT’S THAT SUBTLE…. IT’S THE NITPICKING, IT’S THE CONSTANT “YOU DIDN’T DO THIS RIGHT”. THE MESSAGES LEFT FOR A PERSON SUDDENLY DISAPPEAR SO THE NET… DON’T GET THOSE MESSAGES AND THE EMPLOYER STARTS QUESTIONING THE PERSON’S ABILITY… NOT BECAUSE THEY’RE NOT DOING THE JOB RIGHT BUT SOMEONE ELSE IS UNDERMINING THAT WORK.
If a manager writes abusive e-mail on the hour to a high achieving employee say, swears at her, shouts at her, when the employee tries to raise the matter with the manager, hangs up on her, is that an example of bullying or do you think that that’s perhaps just a management style?
Gary Collis: OH NO, I THINK THAT’S A GOOD EXAMPLE OF BULLYING IN THE WORKPLACE AND IF THAT’S NOT ADDRESSED THEN EITHER THE EMPLOYER IS GUILTY OF BREACH OF DUTY OF CARE AND CAN BE PROSECUTED… IF FELLOW EMPLOYEES KNOW IT’S HAPPENING AND THEY DON’T REPORT IT, THEY MAY ALSO BE GUILTY OF THE BREACH OF THE OCCUPATIONAL HEALTH AND SAFETY ACT.
The legal ramifications can be significant. For example, a Queensland woman won a record half a million dollars in damages after she proved her manager’s bullying behaviour caused her serious depressive disorder.
Some workplaces have taken up the challenge of educating all staff about bullying, including managers. Role Play is now helping the Queensland Police appreciate the realities of bullying and what can be done about it. But this sort of pro-active work against bullying is only taking place in Queensland and Victoria. And for every office that genuinely tries to get on top of it , there are many more where it’s going on unchecked.
These people have all come from different walks of life… but they meet regularly to talk about their common experience. They’re part of a group called SAEBOW, South Australian Employees Bullied Out Of Work, a volunteer self -help group that’s got more than 800 people on its books since starting up early last year. With bullying comes a raft of emotional and medical problems … and these people say trying to get income maintenance through WorkCover just adds insult to injury.
Everyone in this group who’s tried to get help from the South Australian WorkCover Corporation has a tale to tell of feeling humiliated by the adversarial nature of the process and the way in which the corporation has to ascertain whether or not they’re telling the truth.
But it’s Matilda Bawden whose story is most disturbing.
Matilda Bawden, Social Worker: THE BULLYING THAT I EXPERIENCED AT THE HANDS OF MY EMPLOYER WAS ONLY ONE SMALL PART. NOW LOOKING BACK ON IT, IT WAS ONLY ONE SMALL PART OF A FAR GREATER BULLYING EXPERIENCE THAT I UNDERWENT ONCE I ENGAGED IN THE LEGAL SYSTEM AND INTO THE WORKCOVER PROCESS. AND THAT WAS SOMETHING THAT I WAS TOTALLY UNPREPARED FOR.
Matilda’s case dates back to 1991 when she says a colleague started harassing her. Matilda was a social worker and until then had glowing performance reports. In 1993 she lodged a WorkCover claim for stress. Since then she’s been in and out of the South Australian Workers Compensation Tribunal and the Supreme Court with little success. WorkCover repeatedly contested her claim. This added to the trauma.
Matilda Bawden: IT WOULD INSTIL FEAR IN MOST PEOPLE LET ALONE SOMEBODY WHO COMES IN RATHER GREEN AND NOT KNOWING WHAT TO EXPECT.
There’s no doubt that WorkCover needs to check out the validity of every claim it receives to make sure public funds aren’t going into undeserving hands. It’s the way that’s done which has come under question.
Gary Collis: WE WERE PROMISED A SYSTEM WHERE CLAIMS WOULD BE DEALT WITH QUICKLY AND NON- LEGALISTICALLY AND PEOPLE WOULDN’T BE PUT THROUGH THIS GRIND OF HAVING TO GO TO SPECIALISTS, HAVING TO WAIT MONTHS, IF NOT YEARS, FOR DECISIONS TO BE MADE… BECAUSE WHILE PEOPLE ARE AT HOME WAITING FOR THESE THINGS, THE WHOLE CLAIM IS TAKEN OUT OF THEIR HANDS.
Do you think that in some respects WorkCover is the final bully?
Gary Collis: YES, THE WHOLE SYSTEM… BECAUSE YOU CAN’T GO INTO A PROCESS THAT REALLY IS A DISPUTE TIME PROCESS BECAUSE YOU ARE SAYING ‘I’M INJURED THROUGH MY WORK’, THE EMPLOYER OR THE INSURANCE COMPANIES ARE ARGUING THAT YOU’RE NOT, SO YOU’RE IN DISPUTE AND JUSTICE ISN’T ALWAYS AT THE END OF THE ROAD.
Matilda Bawden says the search for justice cost her 25 thousand dollars in legal fees… worse though is the time she’s missed being with her daughter. But a chance finding has convinced her that she’s been right to pursue her case. It’s a finding that has shaken members of the legal and employer rights fraternity around Australia. While another injured worker was researching his case at the Tribunal library, he asked for some scrap paper. When he turned it over he saw Matilda’s name. He went back and asked for more paper and got more copies of what’s known as the Scheme Critical List. WorkCover has told Insight these detail the cases which it believes could have a significant financial or legislative impact on the Corporation.
The documents make it clear that. WorkCover sends the Scheme Critical Lists to the Registrar of the South Australian Workers Compensation Tribunal. And it’s not only the Registrar who sees them … it’s the very judges hearing the cases detailed on the lists. Both the Tribunal and WorkCover concede the practice still continues.
Matilda Bawden: IT MAKES ME VERY ANGRY THAT I’D ONLY FOUND OUT ABOUT IT AFTER I LOST MY APPEAL AND THAT I WAS NEVER IN A POSITION TO BE ABLE TO FIRST OF ALL KNOW THAT THE JUDGE HAD RECEIVED THAT INFORMATION OR TO BE ABLE TO CHALLENGE THAT INFORMATION.
Insight asked the President of the Tribunal for comment. Senior Judge Jennings wrote in response: ‘The list plays no part in the listing or hearing of any of the matters before this Tribunal and the independence of this Tribunal is in no way compromised by WorkCover issuing the lists, nor our receiving it.’
Stephen Lieschke, South Australian Lawyer: WELL I THINK IF A JUDGE HAD RECEIVED THAT INFORMATION AND IS THEN HEARING A CASE THAT IS ON THAT LIST IT WOULD BE INCUMBENT ON THE JUDGE TO DECLARE THAT IN COURT.
Stephen Lieschke is a member of the South Australian Plaintiff Lawyers Association … the lawyers who represent workers in WorkCover cases. He hasn’t acted for Matilda but, like her, he’s shocked by our discovery.
I wonder if you’ve ever seen any of these sorts of lists and what you think of them?
Stephen Lieschke: NO I HAVEN’T AND I CAN IMMEDIATELY SEE TWO OF MY CLIENTS ON THIAT PAGE.
What’s the problem with that level of detail being provided to the Registrar or to others on the Tribunal?
Stephen Lieschke: IF I WAS ACTING FOR THAT WORKER I WOULDN’T KNOW WHAT IS THE EXTENT OF PRIVATE COMMUNICATION . I WOULDNT KNOW TO WHAT DEGREE THE JUDGE MAY BE INFLUENCED AT SOME LEVEL BY THIS DOCUMENT AND THE REAL RISK IS THAT THE WORKER’S INDIVIDUAL RIGHTS ARE GOING TO BE CONSUMED BY POLICY CONSIDERATIONS ABOUT WHAT MIGHT BE IN WORKCOVER’S BROAD FINANCIAL INTEREST AND ALL OF THIS IS HAPPENING SECRETLY UNKNOWN TO THE WORKER AND THAT WOULD BE OF CONCERN. I’VE JUST LOOKED AT ONE OF THESE THAT SAYS… THAT RECORDS THAT A DEPUTY PRESIDENT, WHICH IS A JUDGE, SUGGESTED TO THE WORKER’S SOLICITOR THAT THEY PURSUE A CLAIM IN A PARTICULAR WAY. NOW, NOT ONLY DO WE HAVE A DESCRIPTION OF THE IMPORTANCE OF THE CASE, BUT WE HAVE AN ASSERTION THAT A JUDGE HAS MADE A SUGGESTION TO A WORKER’S SOLICITOR, NOW DOES THAT COMPROMISE THE JUDGE? IS THAT ACCURATE? THAT’S JUST A COMPLETELY INAPPROPRIATE COMMENT.
The South Australian minister for Government Enterprises declined Insight’s request for an interview, saying he knew nothing of the lists. WorkCover also declined the invitation to appear in this story but wrote saying that: ‘…any suggestion such a list influences the independent Tribunal in its decision making is ludicrous’… and that it sent the lists to the Tribunal as: ‘a matter of courtesy’.
Matilda Bawden: WHAT A NONSENSE TO SUGGEST THAT THAT IS A MATTER OF COURTESY. IF I WAS TO WRITE TO A JUDGE I’D BE VERY QUICKLY EITHER BROUGHT IN FOR SOME SORT OF CONTEMPT CHARGE OR ALTERNATELY, THE JUDGE WOULD SIMPLY RETURN MY CORRESPONDENCE TELLING ME TO REFRAIN FROM SENDING ANY FUTURE CORRESPONDENCES OF THAT TYPE.
Stephen Lieschke: FOR MY CLIENTS THEY WOULD HAVE A REASONABLE BASIS TO FEAR THAT THE TRIBUNAL IS NOT JUDGING THE CASE JUST ON THE LAW AND THEIR OWN INDIVIDUAL CIRCUMSTANCES, BUT ARE TAKING INTO ACCOUNT WHAT’S IN WORKCOVER’S BEST FINANCIAL INTERESTS.
Is the court system something that should be safeguarded and against that kind of interference?
Gary Collis: I GUESS AS A MEMBER OF THE COMMUNITY WE ALL HAVE A BELIEF AND A TRUST THAT OUR COURT SYSTEM WORKS FAIRLY, HOWEVER IF THESE DOCUMENTS SHOW THAT PERSON OR PERSONS ARE INTERFERING WITH THAT PROCESS THEN OF COURSE THERE SHOULD BE AN INQUIRY, AND THAT INQUIRY SHOULD BE DONE INDEPENDENT OF THE COURT SYSTEM OR THE WORKCOVER SYSTEM.
Insight has found South Australia is not the only state where the bully is actually a system rather than simply one or two individuals. According to Jim Legatte, Queensland’s Department of Mines and Energy bullied him out of a job because he told the truth about sites like this one just outside Brisbane. This is an abandoned open cut coal mine. According to Queensland legislation, the company operating here was responsible for cleaning it up. That hasn’t happened. Jim used to be a well regarded environmental inspector for the department. His job was to check up on sites like this before the company pulled out. But, he says, the department stopped him enforcing the rules to avoid alienating the powerful mining industry in Queensland. The result? Environmental catastrophes like this one.
Jim Legatte, former Queensland Mines Inspector: IT IS VERY DANGEROUS TO GO TOO CLOSE BECAUSE THEY BURN A BIG CAVERN UNDER THE GROUND AND SOMETIMES JUST LEAVE A VERY THIN CRUST ON THE SURFACE. YEP… IT YOU GO TOO CLOSE YOU’LL FALL INTO A BURNING INFERNO.
And all this in the backyard of Brisbane?
Jim Legatte: YES.
Six years ago the Matthews Report into mining in Queensland noted there’d been a massive non compliance by mine owners.
Jim Legatte: I’M VINDICATED IN THE EXTENT THAT WHAT I SAID WAS CORRECT – THAT THERE WAS A BIG PROBLEM AND THAT IT STILL REMAINS, BUT IN TERMS OF MY PERSONAL PREDICAMENT I ‘M NOT VINDICATED AT ALL – I ‘M ALIENATED FROM THE INDUSTRY THAT I WANTED TO CONTINUE TO WORK IN AND I HAVEN’T GOT A JOB.
Jim Legatte says when he tried to draw attention to the problems he saw, he was excluded from meetings, his advice was ignored and he got abusive commentary on his site reports. One supervisor wrote: ‘An adversary attitude by staff of this department is not acceptable.’
Jim Legatte: I WAS PRETTY INDIGNANT AT THIS SORT OF TREATMENT. NOT ONLY BECAUSE IT WAS FRUSTRATING FOR ME NOT BEING ALLOWED TO DO MY JOB, BUT IT WAS PRETTY INSULTING… INSULTING TO MY INTELLIGENCE… INSULTING TO MY PROFESSIONALISM.
Paul Breslin was Director- General of the Department of Mines and Energy at the time.
Paul Breslin, former Queensland Mines Department Director-General: I’D SAY HE WAS GOOD AT HIS JOB. TECHNICALLY HE WAS VERY GOOD AT HIS JOB. HE KNEW HIS STUFF.
He was too good at his job in a sense?
Paul Breslin: WELL IT DEPENDS, ISN’T IT. I SOMETIMES THINK IT’S A QUESTION OF EGO. I SOMETIMES THINK IF IT’S…. IT’S A QUESTION OF ONE PERSON BELIEVING THIS JOB SHOULD BE DONE LIKE THIS.
Jim Legatte: IF YOU’RE A SCIENTIST YOU DON’T COMPROMISE SCIENCE. YOU CAN COMPROMISE YOUR STANDARDS BUT YOU DON’T COMPROMISE YOUR SCIENCE. IF I WENT TO A SITE AND CAME BACK AND WROTE A REPORT AND SAID: ‘THAT MOUNTAIN OF WASTE IS UNSTABLE FOR THESE SCIENTIFIC REASONS’, I SHOULD NOT HAVE BEEN BULLIED INTO SAYING THAT IT WAS ANYTHING ELSE.
Would you call what you did in some senses bullying?
Paul Breslin: NOT IN ANY SENSE AT ALL.
Why is that?
Paul Breslin: I CALL BULLYING WHEN I USE MY POSITION TO INTIMIDATE SOMEBODY OR TO INSULT THEM OR OR OFFEND THEM OR TO SOMEHOW GO ON A BIT OF A POWER TRIP. IF YOU’VE GOT SOMEBODY CONTINUALLY NOT WORKING TOWARDS YOUR COMMON GOAL, NOT WORKING WITH YOU AND ACTUALLY SLOWING YOU DOWN IN REACHING YOUR COMMON GOAL, THEN YOU’VE GOT TO ASK “WHAT’S YOUR JOB AS A MANAGER? TO KEEP THAT GOING OR TO MOVE THAT PERSON?” IT HAPPENS EVERY HOUR… YOU KNOW. IT HAPPENS WHERE PEOPLE ARE TRYING TO MANAGE GROUPS OF PEOPLE AND YOU’VE GOT SOMEBODY THAT IS NOT FITTING.
In 1982 Jim Legatte was told he no longer had a job and was transferred to another department.
It was a period of change in Queensland. The Bjelke Peterson government was out and the new one wanted to go tougher on the mining industry … but only up to a point.
Paul Breslin felt he had to get rid of Jim Legatte.
Paul Breslin: I SAW IT AS…
Pressure?
Paul Breslin: ….PRESSURE… OF COURSE IT’S PRESSURE… I WAS THE HEAD OF A DEPARTMENT AND DEPARTMENTS GET PRESSURE. I MEAN, IF YOU DON’T WANT TO BE IN A JOB LIKE THAT YOU SHOULDN’T APPLY FOR IT… OF COURSE THERE WAS PRESSURE. I HAD PRESSURE FROM… AT A POLITICAL LEVEL TO GET SOMETHING DONE ABOUT IT BUT NOT CLOSE THE INDUSTRY DOWN, TO KEEP IT MOVING. I HAD PRESSURE FROM THE INDUSTRY ITSELF WHO WERE USED TO GOING TO THE PREMIER.
At the end of last year Jim Legatte applied for a job as an environmental inspector back in the department. He was the favored candidate, but soon after his name was put forward the department decided not to fill the position. If you were Director-General of the Department of Mines, would you want him back as an Environmental Officer?
Paul Breslin: I DON’T KNOW… IT DEPEND HOW MUCH TIME I HAD A THOUGHT TO MANAGE ALL THAT STUFF. I PROBABLY WOULDN’T ACTUALLY.’
Most of the responsibility for mines inspections has now moved to the Environmental Protection Authority, better known as the EPA. According to a new generation of whistle blowers little has changed.
Chris McGrath, former EPA Inspector: IT’S VERY MUCH A “KEEP IT WITHIN THESE FOUR WALLS. LETS NOT SPEAK ABOUT PROBLEMS. LET’S ACT AS THOUGH EVERYTHING’S ROSY, EVERYTHING’S ABOVE BOARD AND WE’RE ACTING PROFESSIONALLY”… AND I DON’T THINK THAT THAT’S OCCURRING.’
Chris McGrath was an inspector with the EPA until late last year. He was reprimanded for a writing an article in a legal journal criticising parts of the legislation governing the organisation. He got out before the bullying got to him and is now pursuing a career as a lawyer.
Chris McGrath: ABUSE DOESN’T HAVE TO BE PHYSICAL. IF YOU BELIEVE IN THE LAW AND YOU BELIEVE IN ENFORCING THE LAW AND YOU WORK WITHIN A CULTURE THAT DOESN’T ACCEPT THAT OR DOESN’T… WANTS TO CONSTRAIN THAT, THEN IT’S VERY DIFFICULT TO CONTINUE TO WORK. PROBABLY THE FIRST STEP THAT WOULD OCCUR IN MOST CASES IS THAT PEOPLE GET CUT YOU OUT OF THE LOOP OF DECISION MAKING, OF INFORMATION AND YOU SLOWLY DIE IN YOUR CAREER. MANY STAFF ARE NOT WILLING TO SPEAK OUT BECAUSE OF CAREER DETRIMENT AND JIM LEGATTE, WHO YOU’VE BEEN SPEAKING TO, IS A VERY GOOD OR BAD EXAMPLE, DEPENDING ON YOUR POINT OF VIEW OF THE DANGERS OF SPEAKING OUT AGAINST THIS CULTURE.
For all the workers in this story the biggest problem is still that far too many Australians live under the misguided belief bullying stops when you leave school. No one talks about it at work and those who do, get treated worse than ever. Far too often the victim learns to say nothing… even when the bullying is life threatening. It’s a mistake former apprentice mechanic Lee Jones failed to realise until it was too late.
Lee Jones: AS SOON AS THE FIRST THING HAPPENS, DON’T BE AFRAID TO SAY IT. BECAUSE IF THEY DO IT ONCE, THEY’LL DO IT AGAIN. I GUARANTEE THAT.
And that was your mistake, if you like, that you were too scared to speak up?
Lee Jones: YES, IT WAS THE BIGGEST MISTAKE I’VE MADE.