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  • Unreported Judgment

State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator

 

[2020] QIRC 97

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2020] QIRC 097

PARTIES: 

State of Queensland (Department of Agriculture and Fisheries)

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2018/58

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

30 June 2020

HEARING DATES:

10 June 2019, 11 June 2019, 12 June 2019, 13 June 2019, 14 June 2019, 24 June 2019 and 9 September 2019

DATES OF WRITTEN SUBMISSIONS:

Respondent's written submissions filed on 6 August 2019

Appellant's written submissions filed on 27 August 2019

Respondent's written submissions in reply filed on 3 September 2019

MEMBER:

Merrell DP

HEARD AT:

Brisbane

ORDERS:

  1. The appeal is allowed.
  1. Pursuant to s 558(1)(c) of the Workers' Compensation and Rehabilitation Act 2003, the decision of the Respondent is set aside and another decision is substituted, namely, that Mr Mattley Davis did not suffer an injury within the meaning of the Workers' Compensation and Rehabilitation Act 2003.
  1. The Respondent is to pay the Appellant's costs of the appeal.

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR - psychiatric or psychological injury - whether injury excluded under s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 - perceived conflict of interest - whether action taken to try to move worker to another work unit so as to deal with a conflict of interest was management action - whether the management action taken had a causal connection with the injury - whether the management action taken was reasonable management action taken in a reasonable way - whether worker's psychiatric or psychological injury arose out of the worker's perception of reasonable management action being taken against worker

LEGISLATION:

Acts Interpretation Act 1954, s 14 and s 14D

Public Service Act 2008, s 26, s 133 and s 186

Workers' Compensation and Rehabilitation Act 2003, s 11, s 32 and s 558

CASES:

Allwood v Workers' Compensation Regulator [2017] QIRC 088

Avis v Workcover Queensland [2000] 67 QIC; (2000) 165 QGIG 788

Bale v Mills [2011] NSWCA 226; (2011) 81 NSWLR 498

Betfair Pty Ltd v Racing New South Wales [2010] FCAFC 133; (2010) 189 FCR 356

Blackwood v Mana [2014] ICQ 027

Canadian General Electric Company Limited v The Ontario Labour Relations Board [1955] CanLII 162 (ON SC); (1956) OR 437

Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031

Davis v Blackwood [2014] ICQ 009

Delaney v Q-COMP Review Unit [2005] QIC 11; (2005) 178 QGIG 197

Exide Australia Pty Ltd v WorkCover Queensland [2002] QIC 24; (2002) 170 QGIG 95

Food and Beverage Australia Ltd v Andrews [2017] VSCA 258

Gilmour v Workers' Compensation Regulator [2019] QIRC 022

Haack v Workers' Compensation Regulator [2017] QIRC 115

Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 027

Ivey v Workcover Queensland [1999] 65 QIC; (1999) 162 QGIG 392

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Keating v Morris & Ors; Leck v Morris and Ors [2005] QSC 243

Keen v Workers' Rehabilitation and Compensation Corporation [1998] SASC 7056; (1998) 71 SASR 42

Kuhl v Zurich Financial Services Australia [2010] HCA 11; (2011) 243 CLR 361

Lawton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 99

Manly Council v Byrne [2004] NSWCA 123

Misevski v Q-COMP [2009] ICQ 2

MWJ v R [2005] HCA 74; (2005) 222 ALR 436

Parker v Q-COMP [2007] ICQ 31; (2007) 185 QGIG 269

Prizeman v Q-COMP [2005] ICQ 53; (2005) 180 QGIG 481

Q-COMP v Hohn [2008] QIC 56; (2008) 187 QGIG 139

Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 643

Read v Workers' Compensation Regulator [2017] QIRC 072

Sabo v Q-COMP [2010] ICQ 47

Simon Blackwood (Workers’ Compensation Regulator) v Chapman [2016] ICQ 011

Simon Blackwood (Workers’ Compensation Regulator) v Mahaffey [2016] ICQ 010

State of New South Wales v Hunt [2014] NSWCA 47; (2014) 86 NSWLR 226

State of Queensland v Q-COMP [2010] ICQ 6

State of Queensland (Queensland Health) v QCOMP and Beverly Coyne [2003] ICQ 9; (2003) 172 QGIG 1447

Versace v Braun [2005] QIC 18; (2005) QGIG 315

Waugh v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 028

WorkCover Queensland v Kehl [2002] ICQ 23; (2002) 170 QGIG 93

Wyllie v Q-COMP [2009] ICQ 9; (2009) 190 QGIG 233

Yousif v Workers' Compensation Regulator [2017] ICQ 004

APPEARANCES:

Mr C J Murdoch QC of Counsel instructed by Crown Law for the Appellant.

Mr P B O'Neill of Counsel directly instructed by the Respondent.

TABLE OF CONTENTS

Background7

Matters not in dispute8

The issues in dispute9

The construction and application of ss 32(5)(a) and (b) of the Act10

Section 32(5)(a) of the Act10

Section 32(5)(b) of the Act11

What is 'management action' within the meaning of s 32(5) of the Act?11

The actions of the Department's management referred to by the parties13

The State's case14

The Regulator's case15

Were the actions of the Department, as identified by the parties, 'management action' within the meaning of s 32(5) of the Act?18

The action taken by Mr Davis' managers prior to action being taken to address the perceived conflict of interest19

The action taken by departmental management to transfer or move Mr Davis from his role19

Did the management action taken by Mr Davis' managers, prior to the action to address the perceived conflict of interest, have a causal connection with Mr Davis' injury?20

The conflict of interest scenario was created by Mr Fullelove20

The failure by Mr Fullelove to act on the concerns raised by Mr Sharman24

The failure by Dr Hall to take action to address the perceived conflict of interest27

Did the management action taken by Mr Davis' managers to move him from his position have a causal connection with Mr Davis' injury?31

Did Mr Davis' injury arise out of or in the course of reasonable management action taken in a reasonable way in connection with his employment?31

The management actions referred to by the Regulator31

The manner in which management prepared for and conducted the meeting on 21 March 201732

Were performance issues the real or motivating factor behind moving Mr Davis?36

Did Dr Hall come to the 21 March 2017 meeting with a predetermined position, namely that Mr Davis was to be transferred out of Toowoomba to Gatton?37

The 13 January 2017 meeting37

The 3 March 2017 meeting38

Did Dr Hall come to the meeting on 21 March 2017 with only one predetermined decision, namely, to transfer Mr Davis out of the CFSG to Gatton?39

Dr Hall misled Mr Davis by stating that he had the power to transfer Mr Davis when he did not41

Dr Hall misled Mr Davis by stating that the conflict of interest process had not arisen out of a complaint43

Dr Hall misled Mr Davis by stating that the sole reason for the proposed move was the conflict of interest issue when another reason was the alleged and unidentified performance issues of Mr Davis44

Dr Hall misled Mr Davis by stating that he had not spoken to Mr Fullelove about the perceived conflict of interest issue47

There was never any genuine intent given by Dr Hall or Mr Fullelove to consider the options of either a restructure or a line management alteration48

Mr Davis and Dr Colson were being singled out compared to other couples in the Department52

The grievance lodged by Mr Davis against Dr Hall and the way that was managed55

Procedural failures by the Department in addressing the perceived conflict of interest59

The failure to retain the services of an organisational psychiatrist/psychologist59

The failure to ensure that Mr Davis and Dr Colson had the availability of another source of HR advice other than Ms Luck62

The failure by management to comply with the timeframes indicated to Mr Davis and Dr Colson in the meeting on 21 March 2017 for a resolution of the process, and the delay in the return of the signed declaration of interest forms and the management plan64

The failure to have a further meeting with Dr Colson and Mr Davis by representatives of HR67

The failure by management to properly explain the process and the procedure of how the conflict of interest was to be dealt with71

That unreasonable pressure was brought to bear on Mr Davis to provide a response to the offer of a transfer to BQ particularly in light of the other management failures76

The management action referred to by the State77

The requirement for Mr Davis to sign a declaration of interest form was reasonable management action taken reasonably77

The proposal to transfer Mr Davis to a position outside of CPS was reasonable management action taken reasonably82

Mr Davis' injury arose out of or in the course of reasonable management action taken in a reasonable way in connection with his employment84

Did Dr Davis' injury arise out of or in the course of Mr Davis' perception of reasonable management action being taken against him?85

The State's submissions85

The Regulator's contentions and submissions86

What is the evidence about Mr Davis' perception of the management action taken against him?86

Mr Davis' statements to Dr Hall on 10 March 201786

Mr Davis' email to Ms Luck sent on 14 March 201787

Mr Davis' statements to Dr Hall in the meeting on 21 March 201787

The content of the written grievance Mr Davis made to the Director-General on 25 May 201788

Was the management action being taken against Mr Davis reasonable?89

Is there a causal connection between Mr Davis' perception of the reasonable management action being taken against him and his injury?90

Conclusion90

Reasons for Decision

Background

  1. [1]
    Mr Mattley Davis commenced employment with the State of Queensland in April 1998 in what is now the Department of Agriculture and Fisheries ('the Department').
  1. [2]
    By 2015, Mr Davis was employed in the position of Experimentalist, later called Diagnostic Coordinator, in Crop Protection Systems (the 'CPS').  The CPS is part of the Crop and Food Science Group (the 'CFSG') of Agri-Science Queensland ('ASQ'). ASQ is a business area of the Department.
  1. [3]
    At the times relevant to this proceeding:
  • Mr Davis worked from the Department's premises in Toowoomba; and
  • the classification of Mr Davis' position was TO3.
  1. [4]
    In about 2001, Mr Davis became the partner of Dr Emma Colson.  At that time, Dr Colson was employed in the Department.  In 2005, Dr Colson became the Science Leader, later called Director, of CPS.  They married in 2007.
  1. [5]
    In about 2013, Mr Garry Fullelove was appointed as the General Manager of the CFSG.
  1. [6]
    In the years immediately before 2014, Mr Davis' line supervisor was Mr Matthew Hickman. Mr Hickman was the Science Leader of the Sustainable Farming Systems, Research, Development and Extension Directorate (the 'SFS').  The SFS was part of the CFSG.  Mr Hickman worked in Toowoomba.
  1. [7]
    In September 2015, Mr Murray Sharman, Senior Plant Pathologist, CPS, became Mr Davis' line supervisor principally because of Mr Hickman's view that he could not supervise the technical aspects of the work Mr Davis was performing.  Mr Sharman worked in Brisbane.  This change in the line supervision of Mr Davis meant Mr Sharman was supervised by Mr Davis' wife, Dr Colson.
  1. [8]
    In between September 2015 and November 2016, Mr Sharman expressed concern to Mr Fullelove about his supervision of Mr Davis, because, amongst other reasons, it could put him in an awkward position, given that Mr Sharman's supervisor (Dr Colson) was Mr Davis' wife, if he had to deal with performance issues of Mr Davis.  Ultimately, Mr Sharman's concerns were escalated through Ms Keely Smith, Manager, Government and Ethics, and Ms Naomi Luck, Principal Consultant, both of whom worked in Human Resources of the Department, to Dr Wayne Hall, Executive Director, ASQ.  On 16 December 2016, Dr Hall met with Ms Smith and Ms Luck where they raised with Dr Hall the issue of Dr Colson having managerial responsibility for Mr Davis.
  1. [9]
    In early 2017, Dr Hall formed the view that there was a perceived conflict of interest with Dr Colson having managerial responsibility for Mr Davis.  On 21 March 2017, Dr Hall acted to manage the perceived conflict of interest by, with Ms Luck, meeting with Mr Davis and Dr Colson. In that meeting, Dr Hall:
  • directed Mr Davis and Dr Colson to complete Declaration of Interest Forms ('DIF'); and
  • proposed that Mr Davis be transferred, at level, out of CPS and the CFSG to the Horticulture and Forestry Science Group (the 'HFSG') of ASQ located at the Department's Gatton Research Station ('the Gatton proposal').
  1. [10]
    Proposals were also made by Mr Davis or Dr Colson about how the perceived conflict of interest could be managed.  They were:
  • that the management of Mr Davis be realigned so that he reports to another Director in the CFSG ('the management realignment proposal');
  • that Mr Davis and Ms Lisa Kelly, who made up the Plant Pest Diagnostic Service in CPS, be moved to the Crop Improvement Research, Development and Extension Directorate, under Dr Rex Williams ('the restructure proposal'); and
  • that Mr Davis work in Toowoomba but in Biosecurity Queensland ('BQ') which was a different business unit of the Department ('the BQ proposal').
  1. [11]
    Ultimately, on 2 June 2017, a written offer was made to Mr Davis that he accept a temporary host placement in BQ for a period of four months. Mr Davis did not see that offer until 5 June 2017 and he decompensated on that day.[1]
  1. [12]
    On 6 June 2017, Mr Davis made an application for compensation under the Workers' Compensation and Rehabilitation Act 2003 ('the Act').  On 13 September 2017, WorkCover Queensland rejected Mr Davis' application.  Mr Davis then sought a review with the Workers' Compensation Regulator. By review decision of 13 February 2018, the Regulator accepted Mr Davis' application for compensation ('the review decision').
  1. [13]
    The State of Queensland appeals against the review decision.

Matters not in dispute

  1. [14]
    There is no dispute that Mr Davis was a worker within the meaning of s 11 of the Act.[2]
  1. [15]
    The parties agree that on the evidence:
  • Mr Davis suffered a personal injury, namely, anxiety and depression, and that the injury arose out of his employment;[3] and
  • Mr Davis' employment was the major significant contributing factor to his personal injury.[4]
  1. [16]
    Having regard to the medical evidence tendered by consent, I am satisfied that Mr Davis' anxiety and depression arose out of his employment and that his employment was a major significant contributing factor to that injury.[5]

The issues in dispute

  1. [17]
    Due to Mr Davis' injury coming within s 32(1)(b) of the Act, s 32(5) must be considered.[6] Section 32(5) of the Act relevantly provides:

(5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances–

  1. (a)
    reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
  1. (b)
    the workers expectation or perception of reasonable management action being taken against the worker;

  1. [18]
    Having regard to the contentions of the State[7] and the Regulator,[8] the issues for my determination are whether Mr Davis' anxiety and depressionarose out of or in the course of:
  • reasonable management action taken in a reasonable way by the Department in connection with Mr Davis' employment, within the meaning of s 32(5)(a) of the Act; or
  • Mr Davis' expectation or perception of reasonable management action being taken against him, within the meaning of s 32(5)(b) of the Act.[9]
  1. [19]
    An appeal of this type is a hearing de novo[10] of the issue determined by the review decision.[11]
  1. [20]
    The onus is on the State to prove, on the balance of probabilities, that Mr Davis' injury is of the kind described in either ss 32(5)(a) or (b) of the Act.[12]

The construction and application of ss 32(5)(a) and (b) of the Act

Section 32(5)(a) of the Act

  1. [21]
    Section 32(5)(a) of the Act only operates to remove a psychological disorder from the statutory definition of 'injury' where reasonable management action is taken in a reasonable way.[13]
  1. [22]
    In order for s 32(5)(a) of the Act to apply, three things must be shown, namely:
  • that there was reasonable management action; and
  • that it was taken in a reasonable way; and
  • that the 'action' gave rise to the disorder.[14]
  1. [23]
    The correct enquiry is not whether or not unreasonable management action was the dominant cause of the injury.[15] The phrase 'arising out of' in section 32(5)(a) of the Act can be readily understood, when combined with 'reasonable management action,' as requiring the demonstration of a causal relationship; and the phrase 'in the course of' in section 32(5)(a) of the Act generally requires a temporal connection.[16]
  1. [24]
    The task for the Commission, when applying s 32(5)(a) of the Act, does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances.  The proper task is to assess the management action which was taken and determine whether it was reasonable and whether it was taken in a reasonable way; and sometimes that may involve consideration of what else might have been done however that will only be relevant to whether what was done was, in fact, reasonable.[17]
  1. [25]
    The determination of whether the management action is reasonable and whether such action was taken in a reasonable way is evaluative as well as judgemental.[18] Whether the management action is reasonable and whether such action was taken in a reasonable way will be an inquiry of fact to be determined objectively.[19]
  1. [26]
    Reasonableness does not necessarily equate with 'industrial fairness' although considerations of 'fairness' will always be relevant.[20]  An imperfection in management action may not justify the characterisation of the management action as unreasonable.[21] Management action need only be reasonable; it does not need to be perfect.  Instances of imperfect but reasonable management action may, in the appropriate circumstances, be considered a blemish and management action does not need to be without blemish to be reasonable.[22]
  1. [27]
    Reasonable, in the context of s 32(5) of the Act, means reasonable in all the circumstances of the case.[23] It is the reality of the employer's conduct that must be considered and not the employee's perception of the employer's conduct.[24]
  1. [28]
    However, the reasonableness of action by management has to be considered '… in connection with the worker's employment' which requires consideration of all disparate elements which contribute to the injury.[25] In an appropriate case, that consideration may require a global view of the management action to determine if the action was reasonable.[26] However, simply because a large number of stressors are nominated does not mean a consideration of the impact of the stressors on a global basis is justified.[27]
  1. [29]
    Such a global view may be justified where there are repetitive blemishes joined by subject matter, time and personality in a discordant workplace housing.[28]

Section 32(5)(b) of the Act

  1. [30]
    Section 32(5)(b) of the Act has operation:
  • when a psychiatric or psychological disorder arises out of or in the course of the worker’s expectation or perception of reasonable management where the management action is being taken against the worker;[29] and
  • in respect of a worker’s perception of action actually taken against the worker.[30]
  1. [31]
    Even if the elements in s 32(5)(a) of the Act are not made out, but the psychiatric or psychological disorder arises out of or in the course of the worker’s expectation or perception of reasonable management being taken against the worker, then the disorder is withdrawn from being an injury.[31]

What is 'management action' within the meaning of s 32(5) of the Act?

  1. [32]
    In Canadian General Electric Company Limited v The Ontario Labour Relations Board,[32] the Supreme Court of Ontario was required to determine whether the Ontario Labour Relations Board acted beyond its jurisdiction in issuing certificates that a trade union was a bargaining agent for particular employees of the applicant company. One of the questions was whether or not the employees concerned exercised '… managerial functions …' within the meaning of the relevant statute. That question arose because the Board had no jurisdiction to issue the certificates if the employees met that statutory description.
  1. [33]
    In this regard, Wells J relevantly held:

It therefore becomes necessary for me to determine as best I can what the Legislature meant when it exempted employees exercising managerial functions and employees employed in a confidential capacity in matters relating to labour relations from the Board's powers as to employees. It is obvious, I think, that "managerial" means something pertaining to or characteristic of a manager and it is equally obvious that the word "manager" means one who manages. In Murray's New English Dictionary the word "function" is defined as the action of performing, or as the special kind of activity proper to anything, the mode of action by which it fulfils its purpose. The word "manage" is said to be equivalent to conducting or carrying on a business or undertaking or an operation, to conduct affairs. It is also said to be equivalent to controlling or directing the affairs of a household, institution or state, or as the taking charge of or attending to a matter. It apparently includes the action or manner of conducting affairs or administering and directing or controlling any matter. It is obvious, I think, that the essential meaning of the word is to control and direct and that must obviously include not only administration but direction of and planning for any particular enterprise.[33]

  1. [34]
    In 2007, Vice President Linnane in O'Brien AND Q-COMP[34] cited, with approval, this part of the decision of Wells J in determining whether particular action met the description of 'management action' within the meaning of s 32(5) of the Act.[35] Vice President Linnane's decision has been cited with approval by Deputy President O'Connor.[36]
  1. [35]
    In my view, the decision of Wells J in Canadian General Electric is of some assistance in construing the phrase 'management action' in s 32(5) of the Act.
  1. [36]
    The verb 'manage' relevantly means '… to handle, direct, govern, or control in action or use'[37] and the noun 'management' relevantly means '… the act or manner of managing; handling, direction, or control.'[38]
  1. [37]
    Section 32 of the Act provides the following examples of actions that may be reasonable management actions taken in a reasonable way, namely:
  • action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker
  • a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment
  1. [38]
    An example in an Act of the operation of a provision of the Act is part of the Act.[39] Section 14D of the Acts Interpretation Act 1954 provides that if an Act includes an example of the operation of the provision:
  • the example is not exhaustive; and
  • the example does not limit, but may extend, the meaning of the provision; and
  • the example and the provision are to be read in the context of each other and the other provisions of the Act, but, if the example and the provision so read are inconsistent, the provision prevails.
  1. [39]
    The examples contained in s 32 of the Act are an aid to its interpretation and having regard to the examples, the phrase 'management action' means action taken by a manager, in relation to a worker, in managing, handling, directing or controlling the worker.
  1. [40]
    I accept the Regulator's submission that the Industrial Court of Queensland has taken a wide view of what is 'management action', ranging from the introduction of a behavioural management plan for students administered by a school,[40] to an investigation of a school principal, that principal’s removal from the school and that principal's demotion,[41] to the restructuring of businesses.[42]
  1. [41]
    More recently, Vice President O'Connor, following his Honour's consideration of other authorities and the examples of reasonable management action taken in a reasonable way contained in s 32 of the Act, held that the exclusory action in s 32(5) of the Act was intended by Parliament to relate to specific management action directed to the worker's employment itself, as opposed to action forming part of the everyday duties or tasks that the worker performed in employment. His Honour held that, therefore, the management action said to enliven s 32(5) of the Act must be something different to the everyday duties and incidental tasks of the worker's employment.[43]
  1. [42]
    Of course, even if relevant action meets the description of 'management action', there must be a causal or temporal connection with the worker's injury before a consideration of whether the management action was reasonable or taken in a reasonable way in connection with the worker's employment.

The actions of the Department's management referred to by the parties

  1. [43]
    Statements of facts and contentions were filed and served by the State and the Regulator, as were detailed written submissions.  Further, on 9 September 2019, counsel for the State, Mr Murdoch QC, and counsel for the Regulator, Mr O'Neill, made oral submissions in support of their client's cases.
  1. [44]
    Having regard to the cases developed by the State and by the Regulator, the following is a summary of the action of the Department's management, referred to by the parties, as to whether or not ss 32(5)(a) or (b) of the Act have been enlivened in respect of Mr Davis' personal injury.

The State's case

  1. [45]
    The State's statement of facts and contentions, as to why Mr Davis does not have a compensable injury, focused on the statement supporting Mr Davis' application for workers' compensation. In that statement, Mr Davis identified the following actions by Dr Hall as contributing to his injury, namely:
  • being forced to sign a DIF to be made to comply with a predetermined management action, thereby inappropriately using his (Mr Davis') marital status;
  • having to transfer to another position within the organisation which would hinder his (Mr Davis') career and personal/family life; and
  • unreasonable management action and bullying.[44]
  1. [46]
    The Regulator accepts that it was reasonable management action for the Department to try and address the perceived conflict of interest that had arisen from the relationship between Dr Colson and Mr Davis.[45]
  1. [47]
    The State contended that:
  • the requirement for Mr Davis to sign the DIF was reasonable management action taken reasonably;[46]
  • the requirement for Mr Davis to transfer to a position outside of CPS, including the management consideration of various proposals made about such a transfer, was reasonable management action taken reasonably;[47] and
  • the steps taken by the Department to resolve the conflict of interest arising from the reporting relationships between Mr Davis and Dr Colson was reasonable management action taken reasonably; and there was no bullying, at any stage, of Mr Davis and Mr Davis was actively encouraged, supported, consulted and kept informed throughout the process implemented by management.[48]
  1. [48]
    The State submitted that the medical evidence is that the injury arose out of what the medical practitioners described, on the reporting by Mr Davis to them, as being workplace bullying and victimisation in respect of the proposal that Mr Davis change roles.[49] 
  1. [49]
    The State further submitted:
  • having regard to the Regulator's concession, that it was reasonable management action for the Department to try and address the perceived conflict of interest that had arisen from the relationship between Dr Colson and Mr Davis, and that the focus of attention in the present case is whether the manner in which the Department sought, by the proposal that Mr Davis move out of CPS, to address the perceived conflict of interest, was undertaken in a reasonable way;[50] and further
  • that Mr Davis' injury arose out of his mistaken perception of the reasonable management action being taken against him.[51]
  1. [50]
    The State submits that in respect of its contention that the manner in which the Department sought to take the reasonable management action, to try and address the perceived conflict of interest, which was taken in a reasonable way, is proven by a consideration of two issues, namely:
  • the requirement for Mr Davis to sign a DIF was reasonable management action taken reasonably;[52] and
  • the proposal to transfer Mr Davis to a position outside of CPS was reasonable management action taken reasonably.[53]
  1. [51]
    The State also submits that in respect of its contention that Mr Davis' injury arose out of his mistaken perception of the reasonable management action being taken against him, that is proven by the fact that all the steps taken by the State to resolve the perceived conflict of interest was reasonable management action taken reasonably and, as such, the bullying and victimisation allegations made by Mr Davis are based on his misconception of those facts.[54]
  1. [52]
    The State also makes submissions in response to the contentions of the Regulator, as summarised below, that the management actions that preceded the reasonable management action to address the perceived conflict of interest were unreasonable or not reasonably taken, and that certain management actions taken in addressing the perceived conflict of interest were not reasonably taken.[55]

The Regulator's case

  1. [53]
    The Regulator contends that Mr Davis' injury did not arise out of reasonable management action taken in a reasonable way.[56]
  1. [54]
    This contention was expanded upon during the course of the hearing.  The Regulator contended that:
  • it was unreasonable for Mr Fullelove to put in place a scenario where Mr Davis was reporting through Dr Colson's line of management;
  • there was a failure by Mr Fullelove to act on the concerns raised by Dr Sharman to try and address the issue at an earlier stage;
  • there was a joint failure by Dr Hall and Mr Fullelove to address the perceived conflict of interest at an early stage, thereby missing opportunities to resolve the issue;
  • the manner in which the meeting on 21 March 2017 was conducted was that it was a fait accompli in that Dr Hall came to the meeting with a predetermined position, namely, the Gatton proposal;
  • there was never any genuine intent given to consider the management realignment proposal or the restructure proposal;
  • the decision to transfer Mr Davis was made without adequate explanation and was made without retaining the services of an organisational psychiatrist in circumstances where there was a substantial upheaval to Mr Davis' employment;
  • there was a failure to ensure that Mr Davis and Dr Colson had the availability of another source of Human Resource ('HR') advice other than Ms Luck given Ms Luck's substantial involvement as a management advisor;
  • there was a failure to comply with the timeframes, given at the meeting on 21 March 2017, to resolve the process;
  • there was a delay in the return of the signed DIFs and the accompanying management plan;
  • there was a failure to have a further meeting with Dr Colson and Mr Davis by a representative of HR as requested by Dr Colson on 5 May 2017;
  • there was a failure by management to properly explain, to Dr Colson and Mr Davis, the process and procedure of how the conflict of interest was to be dealt with; and
  • there was unreasonable pressure brought to bear on Mr Davis to provide a response to an offer to accept a temporary host placement at BQ.[57]
  1. [55]
    These contentions were developed further in the Regulator's submissions.  The Regulator submitted that:
  • preceding the reasonable management action to address the perceived conflict of interest, there had already been a series of management actions that were either unreasonable or unreasonably taken such that Mr Davis' psychiatric injury arises out of those earlier management actions;[58] and
  • once the Department did take steps to address the perceived conflict of interest, the actions taken by the Department contained a series of flaws compelling the conclusion that the management action was both unreasonable and was not reasonably taken.[59]
  1. [56]
    In terms of the management actions that preceded the reasonable management action to address the perceived conflict of interest, the Regulator contends the following management actions were unreasonable or unreasonably taken:
  • the conflict of interest scenario that was created by Mr Fullelove;[60]
  • the failure by Mr Fullelove to act on the concerns raised by Mr Sharman;[61] and
  • the failure by Dr Hall to take action to address the perceived conflict of interest.[62]
  1. [57]
    In terms of the management actions taken in addressing the perceived conflict of interest, the Regulator contends the following management actions were unreasonable and/or not reasonably taken:
  • the manner in which management prepared for and conducted the meeting on 21 March 2017;[63]
  • that Dr Hall misled both Mr Davis and Dr Colson in the meeting on 21 March 2017 by:
  1. stating that he had the power to transfer Mr Davis when he did not;[64]
  2. stating that the conflict of interest process had not arisen out of a complaint;[65]
  3. stating that the sole reason for Mr Davis' proposed move was the conflict of interest issue when another reason was the alleged and unidentified performance issues of Mr Davis;[66] and
  4. stating that he had not spoken to Mr Fullelove about the perceived conflict of interest issue;[67]
  • that there was never any genuine intent given by Dr Hall or Mr Fullelove to consider the options of either a restructure or a line management alteration;[68]
  • that Mr Davis and Dr Colson were singled out compared to other couples in the Department;[69]
  • the grievance lodged by Mr Davis against Dr Hall and the way that grievance was managed;[70] and
  • six procedural failures by the Department in addressing the perceived conflict of interest, namely:
  1. the failure to retain the services of an organisational psychiatrist/psychologist;[71]
  2. the failure to ensure that Mr Davis and Dr Colson had the availability of another source of HR advice other than Ms Luck;[72]
  3. the failure by management to comply with the timeframes indicated to Mr Davis and Dr Colson in the meeting on 21 March 2017 for a resolution of the process, and the delay in the return of the signed DIFs and the management plan;[73]
  4. the failure to have a further meeting with Dr Colson and Mr Davis by a representative of HR;[74]
  5. the failure by management to properly explain the process and the procedure of how the conflict of interest was to be dealt with;[75] and
  6. that unreasonable pressure was brought to bear on Mr Davis to provide a response to the offer of a transfer to BQ particularly in light of the other management failures.[76]

Were the actions of the Department, as identified by the parties, 'management action' within the meaning of s 32(5) of the Act?

  1. [58]
    As is evident from the foregoing:
  • the Regulator seeks to impugn certain action taken by Mr Davis' managers prior to action being taken to address the perceived conflict of interest; and
  • both parties refer to action taken by departmental management in addressing the perceived conflict of interest.

The action taken by Mr Davis' managers prior to action being taken to address the perceived conflict of interest

  1. [59]
    For the reasons which I give below,[77] I find that in September 2015, Mr Fullelove made a decision that Mr Sharman supervise Mr Davis. That action was not action directed to controlling part of the everyday duties and incidental tasks of Mr Davis' employment, but was specific action about who should supervise Mr Davis.  For these reasons, that action was management action within the meaning of s 32(5) of the Act.
  1. [60]
    The evidence about Mr Fullelove's actions in responding to Mr Sharman's concern about supervising Mr Davis, first expressed by Mr Sharman to Mr Fullelove in September 2015, is referred to below.[78]  The Regulator submits that the failure by Mr Fullelove to take action concerning the perceived conflict of interest was management action taken in connection with Mr Davis' employment.[79]  The State accepted that Mr Fullelove's actions were management action.[80] I agree. 
  1. [61]
    Mr Fullelove's actions were not actions directed to controlling the everyday duties and incidental tasks of Mr Davis' employment, but concerned Mr Fullelove's management response to the concerns raised by Mr Sharman.  I agree with the Regulator that Mr Fullelove's actions had a connection with Mr Davis' employment.  For these reasons, that action was management action within the meaning of s 32(5) of the Act.
  1. [62]
    The evidence about Dr Hall's response to the perceived conflict of interest, prior to March 2017, is referred to below.[81]  Dr Hall's actions were not actions directed to controlling the everyday duties and incidental tasks of Mr Davis' employment. In my view, Dr Hall's actions were actions concerning the specific issue around Dr Colson having managerial responsibility for Mr Davis.  For these reasons, Dr Hall's action, prior to March 2017, was management action within the meaning of s 32(5) of the Act.

The action taken by departmental management to transfer or move Mr Davis from his role

  1. [63]
    The parties agree that the action taken by management to try to transfer or move Mr Davis from his role clearly constituted management action taken in connection with his employment which enlivens the consideration of s 32(5) of the Act.[82]  I also agree. 
  1. [64]
    The action taken by Dr Hall, from March 2017, was action to deal with the perceived conflict of interest arising from the relationship between Dr Colson and Mr Davis, by attempting to control where Mr Davis worked in the Department.  Further, that action was not action forming part of the everyday duties and incidental tasks of Mr Davis' employment.  That action was management action within the meaning of s 32(5) of the Act.

Did the management action taken by Mr Davis' managers, prior to the action to address the perceived conflict of interest, have a causal connection with Mr Davis' injury?

  1. [65]
    The State, in its submissions contends that some of the action taken by Mr Davis' managers, prior to the action being taken to address the perceived conflict of interest, did not have a causal connection with Mr Davis' injury. These were:
  • the allegation that the conflict of interest scenario was created by Mr Fullelove;[83]
  • the alleged failure by Mr Fullelove to act on the concerns raised by Mr Sharman;[84] and
  • the alleged failure by Dr Hall to take action to address the perceived conflict of interest.[85]
  1. [66]
    I will address these matters below using the Regulator's sub-headings.

The conflict of interest scenario was created by Mr Fullelove

  1. [67]
    While there was no express contention by the Regulator that Mr Fullelove's decision was part of the unreasonable management action that had a causal connection with Mr Davis' injury, the issue was the subject of evidence led by both parties and the subject of argument by both parties.
  1. [68]
    The Regulator submits that it was unreasonable management action for Mr Fullelove to put in place the very reporting arrangement, namely, that Mr Davis reported to Mr Sharman who in turn reported to Dr Colson, which gave rise to the perceived conflict of interest which led to Mr Davis having to be moved.[86]
  1. [69]
    The State submits that:
  • the Regulator's assertion is inconsistent with the stresses admitted by the Regulator and the medical evidence, and submits that the injury did not arise out of any action by Mr Fullelove in 2015 or 2016;
  • the Regulator's assertion is inconsistent with the Regulator's contention that the injury arose out of the management action taken by the Department in trying to remove Mr Davis from his position; and
  • if the management action taken by the Department to address the perceived conflict of interest between Mr Davis and Dr Colson was taken in a reasonable way, then s 32(5)(a) has been satisfied regardless of whether earlier management action was unreasonable, because s 32(5) of the Act excludes from the definition of 'injury', an injury that arises out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with the worker's employment.[87]
  1. [70]
    In its submissions in reply, the Regulator submits that the Commission can take into account the management action of Mr Fullelove (and Dr Hall) prior to the management action taken to try to move Mr Davis to address the perceived conflict of interest. This is  because, in reliance of the decision of the Industrial Court of Queensland in Parker v QCOMP,[88] it is open to the Commission to conclude that Mr Davis' injury occurred in the course of a continuum of management action that commenced with the decision of Mr Fullelove to put in place the arrangement that gave rise to the conflict of interest.[89]
  1. [71]
    In Parker, the claimant made a complaint to management about a verbal altercation with another employee concerning the claimant's use of a car park and about that employee's treatment of a co-worker.  The claimant's complaints were investigated which resulted in the other employee receiving a warning, in consequence of which the other employee abused the claimant. Other incidents of bullying by the employee against the claimant occurred, in respect of which the claimant made complaints to the manager but asked the manager to take no action.  An Industrial Magistrate found that the claimant did not suffer an injury within the meaning of the Act because she had suffered an aggravation of a psychiatric/psychological disorder which arose out of or in the course of reasonable management action taken in a reasonable way by the employer in connection with the claimant's employment.[90]
  1. [72]
    On appeal to the Industrial Court, the claimant argued that the initial complaints and investigation should have been severed from her subsequent complaints and dealings about stress.  President Hall found that:
  • while the claimant's initial complaints, and the subsequent investigation, did not cause any anxiety or stress to the claimant, those events were inextricably linked with all which subsequently happened;[91] and
  • the Industrial Magistrate was correct to take the view that there was one continuum of management action that, whilst not taken against the claimant, had a causal connection with the aggravation of the claimant's psychiatric/psychological injury.[92] 
  1. [73]
    In oral submissions, the State distinguished Parker on the basis that, in the present case, the problems for Mr Davis started after Dr Hall decided to try to move Mr Davis out of his position (as a way of dealing with the perceived conflict of interest), which was after the alleged conduct of Mr Fullelove of putting Mr Davis in a situation where he was under Mr Sharman's supervision who, in turn, was under Dr Colson's supervision.[93]
  1. [74]
    The evidence was that from about late 2013 or early 2014[94] to about the middle of September 2015, Mr Hickman supervised Mr Davis[95] and that Mr Sharman supervised Mr Davis after that time.[96]
  1. [75]
    There is a factual dispute about whether Mr Davis, being supervised by Mr Sharman, was proposed by Dr Colson or proposed by Mr Fullelove.  Mr Fullelove's evidence was that he never doubted that it was Dr Colson who suggested making the change so that Mr Davis was supervised by Mr Sharman[97] but stated that it would have been his decision that Mr Davis work under Mr Sharman.[98]
  1. [76]
    It was put to Dr Colson, in cross-examination, that it was she that suggested to Mr Sharman that Mr Davis should come under Dr Sharman's supervision.  Dr Colson said she did not recall having that conversation and that it was Mr Fullelove's decision to do that.[99]
  1. [77]
    On 10 September 2015, in responding by email to Mr Fullelove's earlier email enquiring as to who had suggested the proposed change, Mr Sharman informed Mr Fullelove that it was Dr Colson who suggested making the change.[100]
  1. [78]
    Mr Sharman's oral evidence was that around 9 September 2015, it was Dr Colson who suggested Mr Davis come under his supervision[101] and in cross-examination Mr Sharman stated it would surprise him if it was true that Mr Fullelove proposed he (Mr Sharman) supervise Mr Davis.[102] Mr Sharman's evidence was that within a couple of weeks of Dr Colson suggesting that he supervise Mr Davis, he was in fact supervising Mr Davis.[103]
  1. [79]
    Having regard to Mr Sharman's email, Mr Sharman's evidence and Dr Colson's lack of recall, the weight of evidence is that it was Dr Colson who suggested Mr Davis be supervised by Mr Sharman. Having regard to Dr Colson's and Mr Fullelove's evidence, Mr Fullelove approved that change in supervision. It was Mr Fullelove's decision that that Mr Davis work under Mr Sharman ('Mr Fullelove's decision').
  1. [80]
    It is for the Commission to weigh and determine the probable cause of an injury, and in doing so, it may be assisted by the medical evidence; however, that task is for the Commission and not the witnesses, and the tribunal must ask itself whether, on the whole of the evidence, it is satisfied on the balance of probabilities of the fact.[104]
  1. [81]
    There is no clear medical or other evidence that tends to prove Mr Fullelove's decision was part of a chain of management action that had a causal connection with Mr Davis' injury.
  1. [82]
    On the medical evidence, the management action that had the causal connection to Mr Davis' injury commenced with the decision taken by Dr Hall, approximately 18 months later in March 2017, to try to move Mr Davis so that he could not be subject to any supervision by Dr Colson in CPS.
  1. [83]
    Dr Andrew Nielsen, Psychiatrist, reported that the cause of the injury, as reported to him by Mr Davis, was that:
  • Mr Davis was bullied by a local boss[105] and another boss in Brisbane,[106] both of whom had conspired with one another to have him move to a different job with the excuse being he was incorrectly supervised by his wife which caused a conflict of interest;
  • Mr Davis did not know what it stemmed from and whose idea it was to bully him;
  • the conflict of interest was not discussed with Mr Davis' supervisor or team and his bosses wanted to push him out of a job he had been in since 1998, wanting him to drive to a different job, 45 minutes away, in Gatton;
  • other staff had a conflict of interest issue but were not so treated; and
  • Mr Davis was accused of a breach of the Code.[107]
  1. [84]
    Under the heading of 'Conclusions', Dr Nielsen:
  • diagnosed Mr Davis as having a 'Major depressive disorder in partial remission'; and
  • opined that the relevant stressors and cause of Mr Davis' psychological injury was being '… obliged to change jobs.'[108]
  1. [85]
    When asked to consider if employment was the major significant contributing factor to the injury, Dr Nielsen reported that employment was the major significant contributing factor to the injury and that the cause of the injury was '… the obligation to change roles and the surrounding events and interactions.'[109] Dr Nielsen does not particularise or specifically identify the surrounding events and interactions; however, reading his report as a whole, it is reasonable to conclude that those surrounding events and interactions were those reported to him, by Mr Davis, referred to above in paragraph [83], as being the cause of the injury as understood by Mr Davis.  These events concern actions taken by management after Dr Hall's identification of the perceived conflict of interest.
  1. [86]
    Mr Davis did not give any evidence that Mr Fullelove's decision caused him any anxiety.
  1. [87]
    Unlike the facts in Parker,[110] Mr Fullelove's management action, taken in about September 2015, of approving that Mr Sharman supervise Mr Davis, is remote in time to the injury suffered by Mr Davis.  For that reason, I accept the State's submission that Mr Davis' injury was not causally connected to Mr Fullelove's decision.
  1. [88]
    For these reasons, Mr Fullelove's decision is not relevant to whether Mr Davis' personal injury is withdrawn from being a compensable injury by the operation of s 32(5) of the Act.

The failure by Mr Fullelove to act on the concerns raised by Mr Sharman

  1. [89]
    The Regulator submits that despite Mr Fullelove, in September 2015, being informed of Mr Sharman's concerns about having to supervise Mr Davis when Dr Colson was his (Mr Sharman's) supervisor, between September 2015 and about September 2016, Mr Fullelove sat on his hands and did nothing which resulted in Mr Sharman escalating his concerns to Ms Smith in November 2016.[111]
  1. [90]
    In particular, the Regulator submits that Mr Fullelove failed to take steps to address Mr Sharman's concerns either by taking steps to reinforce with Mr Sharman his obligation to perform his supervisory functions, or by removing Mr Sharman as Mr Davis' supervisor and/or putting in a different reporting structure to remove the perceived conflict of interest.[112]
  1. [91]
    The Regulator submits Mr Fullelove's action was not reasonable management action nor was it taken in a reasonable way.[113]
  1. [92]
    The State submits that:
  • the Regulator's submission concerns management action prior to the reasonable management action that caused the injury;
  • even if Mr Fullelove did engage in unreasonable action in respect of his management of Mr Sharman's concerns, that did not undermine the legitimacy of Mr Sharman's concerns which were ultimately acted upon by Dr Hall; and
  • the Regulator's submission - that Mr Fullelove's failure to take early action to address the perceived conflict of interest meant other opportunities to resolve the matter were missed - is based on speculation as there is no evidence as to what those other opportunities may have been.[114]
  1. [93]
    Mr Sharman's evidence was that he had concerns about the suggestion that he supervise Mr Davis because of the relationship between Dr Colson and Mr Davis; and because of his concerns of compromising his relationship with Dr Colson should he be required to manage HR issues involving Mr Davis.[115]
  1. [94]
    By email dated 9 September 2015, Mr Sharman asked for Mr Fullelove's opinion about this matter and set out the potential good and bad aspects of the proposal that he supervise Mr Davis.  In that email, Mr Sharman stated:

On the balance of things, I'm not keen but I feel I'm in a difficult position to say no. I guess my question for you is are you ok with this proposed arrangement? If so, I'll give it a go.[116]

  1. [95]
    Mr Fullelove's email response on 10 September 2015, was that he was keen to explore the landscape as the supervision of Mr Davis had been an ongoing issue for exactly the 'bad' points which Mr Sharman had raised in his earlier email including that he was in a different city to Mr Davis.[117]
  1. [96]
    Mr Fullelove took no other action in relation to Mr Sharman's concerns until he emailed Mr Sharman on 4 November 2015 stating that he had been working on a plan to have Mr Davis report to Ms Lisa Kelly.[118] Mr Sharman expressed the view that that proposal was a better option than the current arrangement.[119] Ms Kelly worked on the Diagnostics Project in Toowoomba and if that plan had eventuated, Mr Davis would have reported to Ms Kelly, who in turn reported to Mr Sharman, who in turn reported to Dr Colson.[120] Mr Fullelove was unsure if Ms Kelly ever took on that supervisory role.[121] Mr Sharman's evidence was that this proposal, concerning Ms Kelly, never went ahead.[122]
  1. [97]
    Mr Sharman's evidence was that he was still expecting a response from Mr Fullelove and for something to happen in the background but it never did.[123] On 21 September 2016, at the time performance development agreements with staff were being completed, Mr Sharman sent a further email to Mr Fullelove stating, once again, that he felt it was not appropriate for him to be the supervisor of the partner of his supervisor, that he was concerned that if there was a performance management issue in the future, it may reflect badly on him as a supervisor and that he did not feel he was in a position to manage Mr Davis openly and effectively.[124]
  1. [98]
    Mr Fullelove's email response, on the same day, was that the matter remained an ongoing issue, that he had an idea or two but he '… would be keen to hear any solutions you may have' and that he was '… open to all suggestions at present in search for a lasting solution.'[125]
  1. [99]
    Mr Sharman stated that he was disappointed nothing had happened at that point and that he received no further response from Mr Fullelove about the issue.[126] Mr Sharman then took the opportunity, at a training seminar he attended on 16 November 2016, which was conducted by the HR staff in the Department, to speak with Ms Smith and told her what his concerns were about his current line management structure.[127] In response to Ms Smith's suggestion that he give her more details, by email sent on 17 November 2016, Mr Sharman set out for Ms Smith, in detail, his concerns about supervising Mr Davis.[128]
  1. [100]
    As will be referred to below, that email resulted in Ms Smith and Ms Luck organising to meet with Dr Hall, which ultimately led on to Dr Hall and Ms Luck meeting with Mr Davis and Dr Colson on 21 March 2017.
  1. [101]
    In my view, leaving aside whether Mr Fullelove's management action from 10 November 2015 through to 21 September 2016, in dealing with Mr Sharman's concerns about supervising Mr Davis, was reasonable or unreasonable management action, the claim made by the Regulator about Mr Fullelove's management action cannot be accepted.
  1. [102]
    There are two reasons for this conclusion.
  1. [103]
    First, unlike in Parker, there is a distinct break in the management action of Mr Fullelove's responses to Mr Sharman's concerns and the injury suffered by Mr Davis.  Mr Fullelove did not take any action, about Mr Sharman's concerns, after 21 September 2016.  Mr Davis decompensated on 5 June 2017.  In my view, Mr Fullelove's impugned management action (or inaction) was remote in time to Mr Davis' injury.
  1. [104]
    Secondly, the medical evidence is that it was the management action that obliged Mr Davis to change roles and the surrounding events and interactions, that had the causal connection with his injury.  There is no medical evidence that tends to prove that Mr Fullelove's management action was part of a chain of management action that had a causal connection with Mr Davis' injury.
  1. [105]
    For these reasons, Mr Fullelove's management action in response to the concerns raised by Mr Sharman, between September 2015 and September 2016, did not have a causal connection with Mr Davis' injury.
  1. [106]
    Mr Fullelove's management action is not relevant to the consideration of whether Mr Davis' injury is withdrawn from being a compensable injury by the operation of s 32(5) of the Act.

The failure by Dr Hall to take action to address the perceived conflict of interest

  1. [107]
    The Regulator submits that:
  • following the meeting between Dr Hall, Ms Smith and Ms Luck on 16 December 2016, Dr Hall delayed for a further four months before addressing the issue with Mr Davis and Dr Colson in the meeting on 21 March 2017;[129] and
  • if it is accepted that Dr Hall had been aware, in the 13 to 15 months prior to him meeting with Mr Davis and Dr Colson on 21 March 2017, that Dr Colson and Mr Davis had been married and had delayed acting on the conflict of interest issue, then Dr Hall's failure to act earlier, and perhaps allow for a greater period of time to explore and consider other solutions and afford Mr Davis more time to adjust to the proposal that he move position, was either unreasonable management action or management action not taken in a reasonable way.[130]
  1. [108]
    The State submits that:
  • Dr Hall took prompt action once the matter was brought to his attention as being a specific problem;[131]
  • following his meeting with Ms Smith and Ms Luck on 16 December 2016, Dr Hall did not delay addressing the issue, in that:
  1. the time between 16 December 2016 and 21 March 2017 was only slightly more than 3 months;
  2. there were two meetings between him, Ms Smith, Ms Luck and Mr Fullelove in February and early March 2017; and
  3. Dr Hall had liaised with Dr Michael Kennedy, the General Manager of the HFSG, regarding what position may be available for Mr Davis at the Gatton Research Station; and
  • once it is accepted that it was reasonable management action to seek to resolve the perceived conflict of interest, any previous unreasonable management action is irrelevant.[132]
  1. [109]
    Having regard to the evidence of Dr Nielsen, it does not appear to me that there is any clear medical evidence of a causal connection between Dr Hall's alleged failure to address the perceived conflict of interest prior to March 2017, which caused a reduction in time to explore and consider other solutions for Mr Davis, and Mr Davis' injury.  However, there is a faint suggestion. Dr Nielsen's evidence was that the cause of Mr Davis' injury was the obligation to change roles and the surrounding events and interactions.[133]
  1. [110]
    Both parties seemed to assume there was such a causal connection and this issue has been argued by both parties. In these circumstances, I will give it consideration.
  1. [111]
    Dr Hall commenced as Executive Director of ASQ in December 2015[134] and his evidence was that he believed the first time he became aware that Dr Colson and Mr Davis were married was in a general briefing provided by Mr Fullelove in either late December 2015 or early 2016.  Dr Hall stated that, at that time, Mr Fullelove informed him that Dr Colson was managing a group in which her husband sat and that there had been some issues about Mr Davis' performance and how he worked within a group environment.[135]
  1. [112]
    Mr Fullelove's evidence was that he recalled having a discussion with Dr Hall about an issue concerning Mr Davis reporting through Dr Colson within the first 12 months of Dr Hall taking over as Executive Director of ASQ.[136] Mr Fullelove then stated that in the time after 16 November 2016, he recalled the relationship between Dr Colson and Mr Davis becoming a more hot topic for discussion about there being a potential conflict of interest and that he thought that was brought to his attention in discussions with Dr Hall.[137]
  1. [113]
    Dr Hall's evidence was that the issue of Dr Colson managing Mr Davis came back to his attention in December 2016 when it was raised with him by Ms Smith and Ms Luck in response to which Dr Hall stated he was not across the detail and said they all should have a follow-up meeting with Mr Fullelove.[138] In cross-examination, Dr Hall stated that he did not take any action until December 2016 because he was not aware of the seriousness of the nature of the conflict of interest.[139]
  1. [114]
    In the 13 to 15 months prior to 21 March 2017, Dr Hall knew that Dr Colson and Mr Davis were married, however, there is no evidence he knew it was a serious problem until December 2016.
  1. [115]
    Having regard to the decision in Parker, I accept that I can take into account the management actions of Dr Hall commencing with the meeting on 16 December 2016. 
  1. [116]
    There are two reasons for this.
  1. [117]
    First, from Dr Nielsen's evidence, Dr Hall's management actions from March 2017 had a causal connection with Mr Davis' injury. Secondly, Dr Hall's action commencing on 16 December 2016, after being informed of the issue by Ms Smith and Ms Luck, of wanting to be provided with further information about the issue and having follow-up meetings with Mr Fullelove, Ms Smith and Ms Luck, were inextricably linked with the later action he took in March 2017. 
  1. [118]
    After the issue was raised with Dr Hall by Ms Smith and Ms Luck on 16 December 2016, a meeting took place on 13 January 2017 with Dr Hall, Ms Smith, Ms Luck and Mr Fullelove during which was discussed, amongst other matters, whether Mr Davis could work elsewhere including as a Technical Officer ('TO') at the Gatton Research Facility which would involve Mr Davis still working within ASQ but outside of the CFSG and working under Dr Kennedy.[140] Exhibit 1, document 23 contains emails between Dr Kennedy and Dr Hall and between Ms Luck and Dr Hall about the identification of a TO position at the Gatton Research Facility in February 2017.
  1. [119]
    A further meeting took place on 3 March 2017 between Dr Hall, Ms Smith, Ms Luck and Mr Fullelove.  Dr Hall's evidence was that the discussion was about there being a potential role for Mr Davis at the Gatton Research Facility and the development of a strategy to gauge that proposal with Dr Colson and Mr Davis.[141] 
  1. [120]
    The Regulator submits[142] that the issue did not become a priority for Dr Hall until Mr Sharman, a relatively junior employee, made unsubstantiated allegations to Ms Smith which then came to the attention of Dr Hall and that neither the Commission nor it (the Regulator) has the benefit of knowing what Ms Smith told Dr Hall. This is because the State failed to call Ms Smith to give evidence despite her still being employed by the State in the Department, and where she was in Brisbane and available to give evidence.[143]  The Regulator then submitted[144] that in these circumstances, based on the decision of the High Court in Jones v Dunkel,[145] it is open for the Commission to draw an inference that the evidence of Ms Smith would not have assisted the State in light of its failure to call her to give evidence.[146]
  1. [121]
    This submission was developed further in oral submissions.  The Regulator submitted that from the evidence of Dr Hall, it was reported to him by Ms Smith that issues had in fact been raised by multiple staff from the Toowoomba office, rather than the reality being that it was simply Mr Sharman, the reluctant supervisor, who was the person lighting the fuse for the management action which was to follow.[147]  The Regulator points to Exhibit 1, document 16, being Ms Luck's brief note of the 16 December 2016 meeting, in which she records the situation apparently being described by Ms Smith as 'toxic' and submitted that the entire management response to the perceived conflict of interest was premised upon hyperbole, exaggeration and hearsay allegations made by Mr Sharman to Ms Smith.[148]
  1. [122]
    The State submits that no such inference can be drawn because this was not a situation where there was one person who could have told the Commission the facts and the Commission had no answer from that one person.[149]
  1. [123]
    The principle in Jones v Dunkel was referred to in Kuhl v Zurich Financial Services Australia.[150] In that case, Heydon, Crennan and Bell JJ stated that two inferences may be drawn from the application of the rule, namely:
  • the unexplained failure by a party to give evidence or to call a witness or tender certain documents may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted the party's case and that is particularly so where it is the party which is the uncalled witness; and
  • the failure to call a witness may also permit a court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn.[151]
  1. [124]
    The inferences permitted by Jones v Dunkel which are drawn, if at all, are drawn once all the evidence in the case is in.[152] Further, if the evidence which has been admitted is enough to prove the case of the party who was not called a witness, the tribunal of fact could be justified of not counting the failure of that party to call that witness as something that reduces the strength of that case.[153]
  1. [125]
    The inference sought to be drawn by the Regulator is the first type of inference available by the application of the principle in Jones v Dunkel, namely, that Ms Smith's unexplained absence would not have assisted the State's case.
  1. [126]
    This is not a case where I am persuaded I should draw the inference that Ms Smith's evidence would not have assisted the State.  This is because, for reasons which I give below, upon a consideration of all the evidence, the management actions of Dr Hall, particularly those from March 2017, were management actions directed towards his attempt to resolve the perceived conflict of interest arising out of Dr Colson having supervisory responsibility for Mr Davis.[154]
  1. [127]
    That is, in my view, Dr Hall's actions from March 2017 were not taken on the basis of hearsay complaints from many employees or on the basis of there being a toxic workplace, but rather were taken on the basis of his attempt to resolve the conflict of interest arising out of Dr Colson having a supervisory responsibility for Mr Davis.
  1. [128]
    In any event, Dr Hall's management action on 16 December 2016 was reasonable and taken in a reasonable way.  It was reasonable for him to take steps to find out more about the specific issue that had been brought to his attention by Ms Smith and by Ms Luck.  There was a further meeting on 13 January 2017 where the issue about whether Mr Davis could work at the Gatton Research Facility was discussed.  There was the further meeting on 3 March 2017 about a potential role for Mr Davis at the Gatton Research Facility and the development of a strategy to gauge the proposal with both Dr Colson and Mr Davis. 
  1. [129]
    Whilst perhaps these meetings prior to 21 March 2017 could have occurred more quickly after December 2016, they were meetings taken in a reasonable timeframe, with a view to exploring an option to resolve the perceived conflict of interest, before meeting with Dr Colson and Mr Davis.  The draft discussion points, drawn up by Ms Luck for Dr Hall to use when he did meet with Dr Colson and Mr Davis, are in evidence.[155] It is apparent from the meetings which took place prior to the March 2017 meeting, and from those discussion points, that Dr Hall wanted to go to the March 2017 meeting proposing a solution to resolve the conflict of interest issue.
  1. [130]
    For these reasons, Dr Hall's action from 16 December 2016, was reasonable management action taken in a reasonable way. 

Did the management action taken by Mr Davis' managers to move him from his position have a causal connection with Mr Davis' injury?

  1. [131]
    The parties agree that Mr Davis' personal injury arose out of or in the course of the management action taken by the Department in trying to move him from his position.[156]
  1. [132]
    At paragraphs [83]-[85] of these reasons, I referred to Dr Nielsen's opinion about the cause of Mr Davis' injury.  Dr Nielsen was not called to give evidence in the hearing and his report was tendered by consent.  The particular actions of Mr Davis' employer, which Dr Nielsen opines caused Mr Davis' injury, are referred to in very general terms.
  1. [133]
    Having regard to the evidence of Dr Nielsen,[157] I am satisfied that Mr Davis' injury arose out of the action of Mr Davis' managers to attempt to move him so as to deal with the conflict of interest and arose out of the '… the surrounding events and interactions.'[158]
  1. [134]
    The next issue, having regard to the contentions and submissions of the parties, is whether Mr Davis' injury is withdrawn from being a compensable injury by the operation of s 32(5)(a) or s 32(5)(b) of the Act, having regard to the management action taken to address the conflict of interest.

Did Mr Davis' injury arise out of or in the course of reasonable management action taken in a reasonable way in connection with his employment?

The management actions referred to by the Regulator

  1. [135]
    At paragraph 78 of the Regulator's submissions filed on 6 August 2019 ('the Regulator's submissions'), it concedes it was reasonable management action for the Department to address the perceived conflict of interest that had arisen from the relationship between Mr Davis and Dr Colson.
  1. [136]
    The Regulator then points to a number of management actions taken to address the perceived conflict of interest which it contends were unreasonable or taken in an unreasonable way which had a causal connection with Mr Davis' injury. Given the number of issues in dispute, it is convenient to deal first with the management actions impugned by the Regulator.

The manner in which management prepared for and conducted the meeting on 21 March 2017

  1. [137]
    The Regulator submits that:
  • Dr Hall formed the intention, due to the alleged conflict of interest and the concerns raised with him by Ms Smith, that Mr Davis had to be transferred to a location away from Toowoomba without making any enquiry as to Mr Davis' family circumstances or how the proposed transfer would impact upon Mr Davis;[159]
  • because of the mention in Dr Hall's file note of the meeting on 13 January 2017 of 'performance issues' in relation to Mr Davis, which had never been raised with Mr Davis, the inference may be drawn that a further factor driving the management intention to transfer Mr Davis were the alleged performance issues;[160]
  • the email trail between Dr Hall, Ms Luck and Dr Kennedy, concerning the proposed transfer of Mr Davis to Gatton as a TO in the HFSG, contained an email from Dr Kennedy where he referred to sending a message to Mr Davis to be quite clear about expectations of future performance, such that the only sensible conclusion or inference that can be drawn is that there was some communication between Dr Hall and Dr Kennedy about Mr Davis' performance issues, and that a driving force behind the intention to transfer Mr Davis was the alleged performance issues;[161]
  • having regard to an email from Ms Luck to Dr Hall dated 20 February 2017, in which Ms Luck referred to discussing and firming up their position about there being no suitable vacancies in Toowoomba, management set about manufacturing the outcome that the only viable option was for Mr Davis to be transferred;[162]
  • on all the evidence, the Commission should be satisfied that the only solution that was going to satisfy Dr Hall, to address the conflict of interest, was a permanent one, namely, to transfer Mr Davis out of the CFSG;[163]
  • having regard to these circumstances, and it being highly unlikely, given her history with the Department, that Dr Colson would ever act unethically or unprofessionally in respect of Mr Davis, the approach taken by Dr Hall was heavy-handed and not reasonable management action;[164]
  • the entire management approach to dealing with the conflict of interest issue was flawed from the outset because Dr Hall came to the meeting on 21 March 2017 with a predetermined position, namely, that Mr Davis was to be transferred to Gatton;[165] and
  • the appropriate and reasonable management action would have been to:
  1. arrange a meeting between Dr Hall, Mr Fullelove, Ms Luck, Dr Colson, Mr Davis and Mr Sharman (if he was willing to attend);
  2. explain to Dr Colson and Mr Davis why the perceived conflict of interest was now viewed to be an issue that required resolution; and
  3. prior to forming a final position, invite Dr Colson and Mr Davis to put forward options to resolve the issue, investigate such suggestions, fully explain the process to Dr Colson and Mr Davis, raise any management proposals with them and ask them for their feedback, arrange one further meeting (or more) to answer any questions Dr Colson and Mr Davis may have, and provide them with the outcome of the investigations, undertaken by management, to explore the proposals that Dr Colson and Mr Davis had made.[166]
  1. [138]
    The Regulator developed this contention further in oral submissions.  The Regulator submitted that:
  • having regard to Dr Hall's and Ms Luck's contemporaneous handwritten notes of the meeting of 13 January 2017, there was no mention of there being any discussion about options for Mr Davis within the CFSG;[167]
  • it was open for the Commission to draw the inference that management did not, in fact, ever give any real consideration to try to adopt a strategy to keep Mr Davis within the CFSG;[168]
  • no consideration was ever given to Mr Fullelove to be the responsible line manager for Mr Davis;[169]
  • in the months that followed the issue being raised at the meeting on 16 December 2016 to the meeting on 21 March 2017, there was only one proposed solution developed by Dr Hall, Mr Fullelove, Ms Luck and Ms Smith, which was transferring Mr Davis to Gatton;[170]
  • the feeling expressed by Dr Colson and Mr Davis at the meeting on 21 March 2017, that they were being singled out, was not their perception, because they were in fact being singled out when regard is had to the fact that other couples within the CFSG, and in the Department, were not the subject of the same action as was taken against Dr Colson and Mr Davis;[171] and it was only when Dr Colson and Mr Davis raised the facts of the other couples that Dr Hall sought information about other couples to address any other conflicts of interest;[172]
  • it was clear from the audio recording of the meeting of 21 March 2017 that:
  1. Dr Hall was willing to consider other options to address the perceived conflict of interest, but only other options that involved Mr Davis being moved out of the CFSG;[173]
  2. the proof of this came from Ms Luck's email to Dr Hall sent on 20 February 2017 where she stated, after being informed that Dr Hall had found a position for Mr Davis at Gatton (after speaking to Dr Kennedy) that they would '… need to discuss firm up our position [i.e. rationale about no suitable vacancies in Toowoomba; operationally preferred that the TO takes up new duties to that of the SES] and discuss strategy';[174]
  3. at the beginning of the meeting, Dr Hall stated that he held off conducting the meeting until he had a solution that he believed was realistic, stated that were no suitable vacancies in Toowoomba and that the solution that management was proposing was the transfer Mr Davis to a vacancy in the HFSG;[175] and
  4. Dr Hall, prior to Dr Colson or Mr Davis ever explaining what other options they had in mind, stated that if they could put forward a satisfactory solution that would be acceptable but that he did not believe what they had in mind would be satisfactory; and further, Dr Hall rejected Dr Colson's suggestions of the management realignment proposal and the restructure proposal, indicating that it would not be acceptable;[176] and
  • the restructure proposal, as proposed by Dr Colson at the meeting on 21 March 2017 - that Dr Hall asked Mr Fullelove to consider - was quickly rejected due to input from Dr Hall and Ms Luck, confirming that they were looking to achieve one outcome, namely that the restructure proposal was not viable and would not be accepted, leaving the only viable alternative of the transfer of Mr Davis out of the CFSG.[177]
  1. [139]
    In response, the State submits that:
  • the Department needed to take some action because, as accepted by the Regulator, it was reasonable management action to deal with the perceived conflict of interest;[178]
  • the Regulator's submissions that Dr Hall had formed the view, prior to the meeting on 21 March 2017, that Mr Davis had to be moved from the CFSG prior to any discussions with him is inconsistent with the evidence;[179]
  • Dr Hall rejected the suggestion that a reason to transfer Mr Davis was his alleged performance issues;[180]
  • the allegation that management was manufacturing the outcome, that the only viable option was that Mr Davis had to be transferred, which alleges dishonest conduct, was not put to the State's witnesses;[181]
  • there is no basis in the evidence to contend that prior to the 21 March 2017 meeting, the decision had already been made to transfer Mr Davis to Gatton because Dr Hall's note of the meeting of 13 January 2017 states that 'Gatton is an option' and is not supported by a fair reading of the transcript of the meeting;[182]
  • it was a misunderstanding on the part of Mr Davis and Dr Colson that Mr Davis remaining in the CFSG was an effective solution to the perceived conflict of interest because:
  1. the management realignment proposal would mean the other Director would not be knowledgeable as to the nature of Mr Davis' work and that that proposal would still compromise the capacity of another Director to take action in respect of the spouse of a Co-Director; and
  2. the restructure proposal meant that Mr Davis' work would be transferred to an area to which his work did not relate;[183] and
  • the contention that the approach taken by Dr Hall and Ms Luck to the meeting on 21 March 2017 bordered on authoritarian, and one destined to put Mr Davis and Dr Colson offside, was incorrect having regard to the record of the meeting.[184]
  1. [140]
    The State also developed its argument in oral submissions.  The State submitted that, having regard to the Regulator's apparent concession that it was more appropriate to move Mr Davis, as opposed to moving Dr Colson given her seniority, there were only four options.[185] They were:
  • leaving Mr Davis in the CPS unit working in the virology area but having him reporting to another Director within the CFSG, however that would leave Mr Davis reporting to a person who was not responsible for his work and may know nothing about his work which in terms of Mr Davis' career would be inappropriate and not helpful; and it would involve Mr Davis reporting to a professional peer to Dr Colson which would have the capacity to impact negatively upon the assessment of the executive leadership team because Dr Colson would be involved in discussions that could impact upon Mr Davis, or she would be required to absent herself;[186]
  • Mr Davis remaining in the CFSG, his work being transferred to another unit and having him reporting to Dr Williams, in the Crop Improvement Research, Development and Extension Directorate; however that was problematic for two reasons, first, it placed Mr Davis' work in a work unit which was not relevant and Mr Davis, again, would be reporting to a professional peer to Dr Colson;[187]
  • Mr Davis transferring to another work unit within the CFSG, with the problem being that there would need to be work available for him to perform;[188] and
  • Mr Davis staying where he was but reporting to Mr Fullelove, however the difficulties were that change was never raised by anyone and there would still be the situation where Dr Davis would be reporting to a person who did not have any direct or particular involvement in the work he was performing, and he would still remain under Dr Colson's supervision.[189]
  1. [141]
    The State submitted that:
  • having regard to the above options and their problems, that the most effective solution was to move Mr Davis out of the CFSG either to Gatton, as was suggested by Dr Hall, or across to BQ as (later) suggested by Dr Colson;
  • it was therefore reasonable for Dr Hall to explore such moves;
  • there was no direction given by Dr Hall that Mr Davis had to move to Gatton or that he had to move to BQ and that, on the evidence, they were always put as proposals; and
  • while it was Dr Hall's strong preference that Mr Davis move out of the CFSG, he did not have a closed mind in respect of that, which is proven by a fair reading of the transcript of the audio recording of the meeting of 21 March 2017 and a fair listening of that audio recording.[190]

Were performance issues the real or motivating factor behind moving Mr Davis?

  1. [142]
    For the reasons I give below,[191] while Mr Davis' work performance, at a high level of generality, came up in the discussions involving Dr Hall, Ms Luck, Ms Smith and Dr Kennedy, I find that Mr Davis' work performance was not the real or motivating factor behind Dr Hall's decision to move Mr Davis out of the CFSG.

Did Dr Hall come to the 21 March 2017 meeting with a predetermined position, namely that Mr Davis was to be transferred out of Toowoomba to Gatton?

  1. [143]
    The Regulator characterises the unreasonable management action as there being only one solution that was going to satisfy Dr Hall, being Mr Davis' permanent transfer out of the CFSG.[192] In making this submission, the Regulator refers to meetings involving Dr Hall, Mr Fullelove, Ms Luck and Ms Smith prior to the 21 March 2007 meeting, and also what was said by Dr Hall and Ms Luck in the meeting on 21 March 2017.
The 13 January 2017 meeting
  1. [144]
    The Regulator submits that, from Dr Hall's notes of the meeting of 13 January 2017, a conclusion was reached, at that early stage, that Mr Davis would be moved from the CFSG, prior to any discussion with him, in that Dr Hall had already turned his mind to moving Mr Davis to Gatton.[193]
  1. [145]
    Dr Hall's handwritten notes of that meeting do state 'need to move him', 'need to have discussions [with] Matt & Emma' and 'robust discussion & put on notice'.  The conclusion of that file note states: 'Where to put Matt - Gatton is an option'.[194]
  1. [146]
    Dr Hall gave evidence about his recollection of what occurred in that meeting.  Dr Hall said that there was a discussion about what opportunities there were within the CFSG for Mr Davis, but those opportunities required travel and were not suitable because of Mr Davis' family responsibilities, which is how the Gatton proposal came up given its proximity to Toowoomba.[195] It was following the discussion of Gatton as an option, that Dr Hall then met with Dr Kennedy about whether there was an opportunity for Mr Davis to work, as a TO, at the Gatton Research Station in the HFSG.[196]
  1. [147]
    In cross-examination, Dr Hall said they did consider the possibility of keeping Mr Davis within Toowoomba, within his current working environment and retraining him in another TO3 role, and that there was a discussion about the possibility of retraining Mr Davis in that meeting.[197]
  1. [148]
    In cross-examination, Ms Luck denied the suggestion that the outcome of that meeting was effectively that a decision was reached that Mr Davis was to be moved from his role.[198] Ms Luck stated that there was an agreement in the meeting that the Department needed to do something, that one of the options was to look at moving Mr Davis and/or his position and that there was a discussion about Gatton being a possible location because it was very close to Toowoomba.[199]
  1. [149]
    Subsequently, Dr Hall's discussions with Dr Kennedy identified a TO position for Mr Davis at Gatton as being available.[200] After that was communicated to Ms Luck, she emailed Dr Hall on 20 February 2017, giving advice about the next steps.  In this regard Ms Luck advised:

We will need to discuss to firm up our position [i.e. rationale about no suitable vacancies in Toowoomba; operationally preferred that the TO takes up new duties to that of the SES] and discuss strategy.

The initial steps will involve discussions with both officers reporting through Garry and the need to resolve the conflict of interest situation; and then proposing our solution i.e.transfer to vacancy in Gatton. Under the Public Service Act 2008, we can direct employees to resolve conflicts of interest and to transfer. But these aren't ideal situations as we want to maintain working relations with both officers.

Michael and Nick wouldn't be involved in these initial discussion; but we would bring them back on board once it is confirmed the officer will be taking duties and what support would be required.[201]

The 3 March 2017 meeting
  1. [150]
    Dr Hall's handwritten minutes of that meeting make reference to the Gatton proposal, that Mr Davis' family was a '1 car family', with one child at school and that Mr Davis worked on a part-time basis. The notes contained the phrase 'flexible work arrangements'.[202]
  1. [151]
    Dr Hall's evidence-in-chief was that the meeting discussed the potential role for Dr Davis at Gatton and about the steps to be taken in gauging with Dr Colson and Mr Davis about that potential role.[203]
  1. [152]
    Ms Luck stated that in that meeting there was some discussion about the personal circumstances of Dr Colson and Mr Davis, including that they only had one vehicle, they had one child, that Mr Davis worked on a part-time basis and was the primary caregiver for their child.[204]
  1. [153]
    It was suggested to Ms Luck the potential of Gatton, as being a viable location to transfer Mr Davis, was not really viable because the travelling distance between Toowoomba and Gatton would not allow him enough time to take and pick up his child from school and complete a normal workload.  Ms Luck's response was:

I don't agree with that suggestion.  You will see that people are able to accommodate driving the 30 minute commute to work and drop their kids off and fulfil their duties ordinarily.  And it wasn't a decision that we could make.  It was we were aware of it and mindful of it when we were looking at that particular role as being an option and it was something that Emma and Mattley, particularly Mattley, would need to consider in considering whether or not it was an option that he could take up.[205]

  1. [154]
    On the above evidence, I find that that Dr Hall had formed a preliminary view, before 21 March 2017, that Mr Davis could not remain in the CFSG because of the perceived conflict of interest. However, he and Ms Luck were cognisant of Mr Davis' parttime work arrangement, his transport situation and his family responsibilities.

Did Dr Hall come to the meeting on 21 March 2017 with only one predetermined decision, namely, to transfer Mr Davis out of the CFSG to Gatton?

  1. [155]
    The Regulator submits that the manner in which Dr Hall came into the meeting on 21 March 2017, with a predetermined position that Mr Davis was to be transferred to Gatton, meant that the entire management approach to dealing with the conflict of interest issue was flawed from the outset.[206] In support of this submission, the Regulator refers to Dr Hall's evidence in cross-examination where he agreed that by coming into the meeting and presenting the transfer to Gatton as the management preferred option without exploring those issues first with Dr Colson and Mr Davis, that was always going to give rise to a push back or them rejecting the proposal.[207]
  1. [156]
    Exhibit 7 is the audio recording of the meeting of 21 March 2017 ('the audio recording'). I have listened to the audio recording rather than just relying on the transcript. This is because an audio recording adds a tone and colour not apparent from the printed word.[208]
  1. [157]
    There were occasions during the meeting that seem to suggest Dr Hall had a closed mind about options other than moving Dr Davis out of the CFSG. These are:
  • at 12:17-12:34 of the audio recording, when Dr Colson suggested a change of reporting relationships for Mr Davis, Dr Hall responded by saying that if she could put forward a satisfactory solution, that would be okay, but he did not '… believe what you have got in mind will be satisfactory' because '… as long as Matt is doing work within your group with you as the Director that won't be satisfactory, even if he is reporting off to …'; and
  • at 19:46-20:01 of the audio recording, when Dr Colson put forward that the Plant Test and Diagnostic Service be moved under a different Director, Dr Hall responded by saying 'Yeah we are not going to be doing that … because we don't have an issue with the whole group there in terms of the reporting structure'.
  1. [158]
    However, on a greater number of occasions during that meeting, both Dr Hall and Ms Luck make it clear that they were prepared to consider other options, other than the Gatton proposal, about resolving the perceived conflict of interest.
  1. [159]
    These were:
  • at 01:03-01:14 of the audio recording, when Dr Hall stated that they were open to solutions, he had held off having the meeting until he had a solution that he believed was realistic and could be applied, but that did not mean that was the only situation, and that Dr Colson and Mr Davis may have alternatives that they could put forward;
  • at 01:32-01:48 of the audio recording, when Dr Hall stated that he believed they would need to make changes to Mr Davis' position to resolve the conflict of interest situation, unless alternatives could be brought forward, and as there were no similar vacancies in Toowoomba, the solution they were proposing was to transfer Mr Davis to a vacancy they currently had in Gatton within the HFSG;
  • at 02:28-02:44 of the audio recording, when Dr Hall stated that resolving the reporting issue was the only way they could see it or address the conflict of interest issue to a satisfactory extent and, as he said, the Gatton proposal was one strategy they had identified, one solution, but there may be others that they may wish to put forward to resolve the issue;
  • at 03:01-03:33 of the audio recording, when Dr Hall said that they needed Mr Davis and Dr Colson to give reasonable consideration to their request for Mr Davis to consider a transfer to Gatton to resolve the conflict of interest and if Mr Davis and Dr Colson believed that other strategies could be used in a management plan, they (Dr Hall and Ms Luck) would be happy for them to put those forward and, if required '… we can discuss this further', although Dr Hall '…would expect to have an agreed strategy to resolve this within two weeks';
  • at 07:22-07:27 of the audio recording, when Ms Luck said that the solution they (she and Dr Hall) had come to the table with was not the final outcome at the end of the day;
  • at 19:47-21:05 of the audio recording, when Dr Colson again put forward the restructure proposal, Dr Hall responded by stating that he was happy for Dr Colson to put forward those options, but anything else needed to be as optimal as possible in terms of delivery of services and it would be dependent upon what Mr Fullelove wanted in terms of how he saw the group delivering and performing;
  • at 24:53-25:12 of the audio recording, when Dr Colson asked why Dr Hall and Ms Luck did not like the restructure proposal, Dr Hall stated that he did not think what she was suggesting addressed the problem and it created another one which was sub-optimal, but he was happy to see something in writing;
  • at 33:30-33:34 of the audio recording, when Ms Luck, in respect of the request that Dr Colson and Mr Davis fill in Part A of the DIF, stated '… you can also put forward some strategies as well and I would encourage you to put forward your strategies'; and
  • at 35:01-35:17 of the audio recording, when Dr Hall stated that it was a matter of being able to find a solution and that the Department had one solution on the table at the moment which it believed was acceptable, but if Mr Davis and Dr Colson could put forward another solution or solutions, Dr Hall and Ms Luck would be more than happy to consider them.
  1. [160]
    True, in the 21 March meeting, Dr Hall, fairly in my view, made his preliminary views known about the restructure proposal and the management realignment proposal as put forward by Dr Colson.
  1. [161]
    However, having regard to the audio recording, the evidence is that at the meeting on 21 March 2017, Dr Hall and Ms Luck, while certainly put forwarding the Gatton proposal as their preferred proposal, and asking for Mr Davis' response to that proposal, they were clearly indicating that they would be happy to consider other options with a view to trying to resolve the perceived conflict of interest.
  1. [162]
    I accept the Department's submissions that keeping Mr Davis in the CFSG would not resolve the perceived conflict of interest that existed.  On Dr Hall's evidence, transferring Mr Davis' work to another work unit within the CFSG (the restructure proposal) would place Mr Davis' work in a work unit (that of Dr Williams) which was not relevant.[209] Further, the evidence of Dr Hall and Dr Williams was that Mr Davis would be reporting to a professional peer to Dr Colson within the CFSG.[210] Dr Hall's evidence was that the management realignment proposal - that Mr Davis report to another Director in the CFSG - would also not have been practical because the other Director would not have knowledge of his work.[211] In my view, that proposal would still involve Mr Davis ultimately reporting to a professional peer of Dr Colson within the CFSG.
  1. [163]
    In the circumstances, in resolving the perceived conflict of interest, the preliminary view that Mr Davis be transferred out of the CFSG was a reasonable management position to hold.
  1. [164]
    However, my task is to assess the management action that was taken, which had a causal connection with Mr Davis' injury, and determine whether it was reasonable and taken in a reasonable way. On Dr Hall's evidence and Ms Luck's evidence that I have referred to above, I cannot conclude, on the balance of probabilities, that prior to the 21 March 2017 meeting, Dr Hall and Ms Luck had completely closed their minds to resolving the perceived conflict of interest issue by considering other options.
  1. [165]
    Furthermore, in my view, Dr Hall and Ms Luck were not just giving lip service to what they said in the 21 March 2017 meeting about considering other options put forward by Dr Colson and Mr Davis.  This is because, for the reasons I give below:
  • Mr Fullelove and Dr Hall gave proper and fair consideration to the Dr Colson's restructure and management realignment proposals;[212] and
  • Dr Hall promptly acted upon the BQ proposal put forward by Dr Colson.[213]

Dr Hall misled Mr Davis by stating that he had the power to transfer Mr Davis when he did not

  1. [166]
    The Regulator submits that Dr Hall misled Mr Davis by stating, in the meeting on 21 March 2017, that he had authority to transfer employees.[214]
  1. [167]
    The State submits that the Regulator should not be permitted to rely on this contention because it was not opened by the Regulator or, in the alternative, the submission ought not be accepted by the Commission because it was never put to Dr Hall that he dishonestly made that statement.[215]
  1. [168]
    The State confirmed that it did not require the Regulator to open its case on the proviso that if something came out in the course of the evidence-in-chief in respect of which instructions needed to be taken, some further time may be sought.[216] Before the Regulator called its first witness, it summarised what it contended was the unreasonable management action taken or the reasonable management action taken in an unreasonable way.[217] That followed on from the Commission making the request of the Regulator to summarise its contentions in those regards.[218] After providing that summary, the Regulator, having regard to the State's position about an opening, and the Commission's request, opened its case on a limited basis about the medical evidence.[219] Because the State did not require an opening, it cannot be said that the fact this contention has now been raised operates as unfairness against it.
  1. [169]
    The other response by the State is that it was never put to Dr Hall, in cross-examination, that he dishonestly made the statement that he had the power to transfer Mr Davis.
  1. [170]
    In the audio recording of the meeting of 21 March 2017, Dr Hall stated that under the Public Service Act 2008 ('the PS Act') he could transfer employees.[220]  The suggestion put to Dr Hall in cross-examination was that of him, Ms Luck, Mr Fullelove and Ms Smith, he was the only one that had the delegated authority to transfer Mr Davis.[221] Dr Hall seemed to say that it was the Director-General or the CEO who had the power.[222] Ms Luck's evidence was it was the Director-General who had the power.[223]
  1. [171]
    The adverse inference sought to be drawn against Dr Hall was that he lied to or misled Mr Davis in the 21 March meeting about his power to transfer[224] (and about three other matters referred to below).  However, it was not put to Dr Hall that he lied to or misled Mr Davis, in the meeting on 21 March 2017, about his statement of his power to transfer.
  1. [172]
    The rule in Browne v Dunn is essentially that a party is obliged to give appropriate notice to the other party, and any of that person's witnesses, of any imputation that the former party intends to make against either of the latter, about his or her conduct relevant to the case or a party's or a witness' credit.[225]
  1. [173]
    The rule in Browne v Dunn also applies to require a party to put to the witness any material upon which the party proposes to rely to contradict the evidence of that witness.[226]
  1. [174]
    A corollary of the rule is that judges and tribunal members should, in general, abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with it.  A further corollary of the rule is that not only will crossexamination of witnesses, who can speak to the conduct, constitute sufficient notice, but also that any witness whose conduct is to be impugned should be given an opportunity, in crossexamination, to deal with the imputation intended to be made against him or her.[227]
  1. [175]
    In the case where it is submitted that a witness intentionally deceived another person, the witness should have the opportunity to respond to it.[228]
  1. [176]
    Because Dr Hall did not have the opportunity to deal with the allegation that he lied to Mr Davis or was dishonest in his statement that he could transfer him, I am not inclined to make an adverse finding against Dr Hall about that matter.

Dr Hall misled Mr Davis by stating that the conflict of interest process had not arisen out of a complaint

  1. [177]
    The Regulator submits that:
  • on two occasions in the meeting on 21 March 2017, Dr Hall confirmed that it was not a complaint that was behind the management action of dealing with the perceived conflict of interest;
  • the fact was that the matter arose because of the complaint made by Mr Sharman in his emails to Mr Fullelove; and
  • as a consequence, Dr Hall (and Ms Luck) lied to Mr Davis about the genesis of the conflict of interest issue being raised which is unreasonable management action or management action taken in an unreasonable way.[229]
  1. [178]
    The State submits that Mr Sharman, understandably, did not want his name put forward and that it would have been unreasonable management action to disclose Mr Sharman as the person who raised the concern in the circumstances.[230]
  1. [179]
    The evidence is that by her email sent on 14 March 2017 to Mr Davis, Ms Luck did reassure Mr Davis, following his earlier enquiry to her, that the purpose of the meeting between her and Dr Hall, with Mr Davis and Dr Colson, was to work through a management plan of the reporting arrangements and that such discussion had not arisen out of a complaint.[231] Similarly, at the meeting on 21 March 2017, Dr Hall informed Mr Davis and Dr Colson that there was no complaint driving the conflict of interest issue.[232]
  1. [180]
    The Regulator submits that Mr Sharman's email to Ms Smith dated 17 November 2016,[233] on any fair analysis, can be found to be a complaint by Mr Sharman on the basis that on two occasions he had raised his concerns about supervising Mr Davis with Mr Fullelove, and when he failed to receive any satisfaction, he then escalated his complaint to Ms Smith.[234]
  1. [181]
    Dr Hall was cross-examined about Mr Sharman's email.  Dr Hall stated that he was not aware of the email and had not read it by the time of the meeting on 21 March 2017 or by the time he gave his evidence to the Commission.[235] Dr Hall also gave evidence that at his meeting on 16 December 2016 with Ms Luck and Ms Smith, the issues raised by them (about Mr Sharman's concerns) were not presented to him as there being a complaint.[236]
  1. [182]
    Having regard to this evidence, I am not satisfied, by stating that the conflict of interest issue was not driven by a complaint, that Dr Hall misled Mr Davis and Dr Colson at the meeting on 21 March 2017.

Dr Hall misled Mr Davis by stating that the sole reason for the proposed move was the conflict of interest issue when another reason was the alleged and unidentified performance issues of Mr Davis

  1. [183]
    The Regulator then submits that the Commission is entitled to conclude from Dr Hall's evidence that part of the motivation of moving Mr Davis from the CFSG was the alleged and unidentified performance issues and, as such, Dr Hall misled Mr Davis (and Dr Colson) by indicating that the sole reason for the proposed move was to address the perceived conflict of interest issue.  The Regulator submits that:
  • such misleading conduct was not reasonable management action; and
  • the failure to inform Mr Davis of the alleged performance issues, and not permitting him an opportunity to respond, was unreasonable management action.[237]
  1. [184]
    The Regulator developed this contention further in oral submissions.  The Regulator submitted that:
  • the unfairness arises because Dr Hall used the conflict of interest issue in the proposal to move Mr Davis out of the CFSG, rather than dealing with the identified performance issues;[238]
  • Dr Hall failed to adopt the Department's own procedures and policies about dealing with performance issues;[239] and
  • Mr Sharman, as the first line manager with responsibility to address performance issues, sat on his hands and failed to address those issues with Mr Davis and instead covertly sniped from the sidelines in his email communications with Mr Fullelove and Ms Smith.[240]
  1. [185]
    In terms of Dr Hall's evidence about him harbouring performance issues about Mr Davis prior to the meeting on 21 March 2017, the Regulator points to Dr Hall's file note of the meeting on 13 January 2017, where there was mention of 'performance issues' in relation to Mr Davis.  That file note is Exhibit 1, document 17.  The meeting was between Dr Hall, Mr Fullelove, Ms Luck and Ms Smith.  In the file note the following is recorded: 'Reporting lines - via' and then underneath that '- performance issues.'
  1. [186]
    When Dr Hall was cross-examined about this, he stated there was a perception that there were performance issues around Mr Davis' workplace performance.  Dr Hall also agreed that if there were such issues, the appropriate management action to be taken would be to directly raise those issues with the employee and then, if necessary, have more senior management involved in the discussion.[241] Dr Hall also agreed that an employee should be put on notice about what the alleged performance issues were and that the issues should be addressed through a Performance and Development Agreement.[242]
  1. [187]
    It was put to Dr Hall, in cross-examination, that Mr Davis was being moved by management, not solely because of any concern about a perceived conflict of interest, but to effectively try and move him out because of concerns that management held about his performance.[243]  Dr Hall's response was that principally, it was around the conflict of interest, but linked to that was the fact that the supervisor would be able to appropriately supervise and manage Mr Davis, and any workplace matters that may arise.[244] It was then suggested to Dr Hall that at least part of the motivation for moving Mr Davis was to address the performance issues.[245]  In response, Dr Hall stated:

Part of the motivation was to get Mr Davis from a - within a Crop and Food Science group, an outside area, was that should there be any need to performance manage him, it wouldn't impact on a relationship within the Crop and Food Science management team.[246]

  1. [188]
    The Regulator referred to an email from Dr Kennedy to Dr Hall, sent on 16 February 2017, concerning the proposed transfer of Mr Davis to Gatton as a TO in the HFSG in which Dr Kennedy said, amongst other things:

While we don't want to create an impression that we are pessimistic that past issues will continue, we also need to be quite clear about our expectations of future performance.[247]

  1. [189]
    The Regulator also referred to Dr Hall's evidence in cross-examination about the face to face meeting he had with Dr Kennedy the previous day in which Dr Hall stated he believed he mentioned to Dr Kennedy that he (Dr Hall) was trying to resolve a conflict of interest issue, and that he did not believe he discussed any performance issues concerning Mr Davis.[248]
  1. [190]
    Mr Davis' evidence was that from the beginning of 2013 up to June 2017, no one had raised any issues about his performance or made any critical comments or complaints about his performance[249] and that no issues were raised in his completed Performance and Development Agreements between 2011 and 2015.[250]
  1. [191]
    Later in the cross-examination of Dr Hall, it was put to Dr Hall that it would be fundamentally inappropriate and unreasonable to move Mr Davis because of an alleged performance issue under the guise of a conflict of interest, rather than address the performance issue.  Dr Hall agreed with that proposition, but he said that was not why the Department was looking to transfer Mr Davis.[251]
  1. [192]
    Certainly, from my listening of the audio recording of the meeting of 21 March 2017, there was no mention to Mr Davis that a reason for Dr Hall wanting to move him from the CFSG was his work performance.
  1. [193]
    The State submits that:
  • the evidence does not support the thesis that performance issues were behind the proposal to move Mr Davis out of the CFSG; and
  • that even if there were alleged performance issues, it would not be misleading to indicate to Mr Davis and Dr Colson that the sole reason for the proposed move was to address the perceived conflict of interest issue because, caught up in the perceived conflict of interest issue was the fact that if there was a need to performance manage Mr Davis, that could not effectively occur by Mr Sharman, who reported to Dr Colson, or by a fellow Director of Dr Colson.[252]
  1. [194]
    I have referred earlier to Dr Hall's evidence given in cross-examination about these issues.  Having regard to that evidence, it is my view that Dr Hall gave his evidence truthfully. This is because when he was discussing, with Ms Luck, Ms Smith and Dr Kennedy, the proposal to move Mr Davis, he agreed that Mr Davis' work performance was discussed. Dr Hall also conceded that there was a perception that there were performance issues around Mr Davis' workplace performance. However, this issue was discussed at a high level of generality.
  1. [195]
    Dr Hall also stated that while the principal concern about moving Mr Davis was the perceived conflict of interest, linked to that was the fact that his supervisor should be able to appropriately supervise and manage Mr Davis so as to deal with any workplace matters that may arise. That evidence, as a matter of common sense, seems to me to be entirely plausible. It is inherently plausible that in Dr Hall's discussions with Ms Luck and Ms Smith, and then with Dr Kennedy, about the transfer of Mr Davis to another work unit, some mention of Mr Davis' past work performance would be made, in terms of assessing whether the transfer would be viable, particularly from the point of view of the new work unit.
  1. [196]
    On the evidence, the issues about Mr Davis' work performance, as they were mentioned to Dr Hall, had not got to any point where any formal action had or needed to be taken by the Department against Mr Davis prior to Dr Hall's intervention to resolve the conflict of interest issue.
  1. [197]
    For reasons I gave earlier,[253] I find that the real and motivating reason Dr Hall wanted to move Mr Davis out of the CFSG was because of the perceived conflict of interest issue regarding Dr Colson having managerial responsibility for Mr Davis.
  1. [198]
    If the real reason Dr Hall wanted to move Mr Davis was Mr Davis' work performance, but Dr Hall lied and said to him that the reason was the perceived conflict of interest, then I agree that would have amounted to unreasonable management action taken in an unreasonable way.
  1. [199]
    However, on the evidence before me, that was not the case.  In my view, Dr Hall did not mislead Mr Davis about the reason why Dr Hall wanted to move Mr Davis out of his position.

Dr Hall misled Mr Davis by stating that he had not spoken to Mr Fullelove about the perceived conflict of interest issue

  1. [200]
    The Regulator submits that in the meeting on 21 March 2017, upon being questioned by Dr Colson about why Mr Fullelove and Mr Sharman were not present, Dr Hall lied by stating that there had not been any discussions with Dr Colson's supervisor, when the evidence establishes that he had spoken to Mr Fullelove.[254]
  1. [201]
    In the meeting on 21 March 2017, Dr Colson stated, in respect of the conflict of interest issue raised by Dr Hall on that day: ' … It is not something that I've had discussed with me by my supervisor to try to find a solution.  If it is such a problem why hasn't there been a solution discussed for the last ten years.'[255] Mr Davis then said: 'You haven't even got my supervisor at the table'.[256] Dr Hall responded: 'And we haven't had any discussions with your supervisors at all, so …' [257]
  1. [202]
    On 13 January 2017[258] and on 3 March 2017,[259] Dr Hall had a discussion about the conflict of interest issue in meetings that included Mr Fullelove. There was no evidence of Dr Hall having a meeting with Mr Sharman, who was Mr Davis' supervisor, about the conflict of interest issue prior to 21 March 2017.
  1. [203]
    The State submits that Dr Hall was not cross-examined on what is said to be a 'lie' and therefore the submissions ought to be rejected.[260]
  1. [204]
    I agree with the State's submissions.  In the absence of it being put to Dr Hall that he lied to Dr Colson, then that allegation should not be considered by me.[261]

There was never any genuine intent given by Dr Hall or Mr Fullelove to consider the options of either a restructure or a line management alteration

  1. [205]
    The Regulator submits having regard to the evidence, there was never any consideration given by Dr Hall or Mr Fullelove to consider a proposal to keep Mr Davis in the CFSG by way of the implementation of the management realignment proposal or the restructure proposal.
  1. [206]
    In this regard, the Regulator submits:
  • there is simply no documentary evidence, whether it be a file note, email, or diary note to suggest any consideration was given, between 16 December 2016 and 21 March 2017, to keep Mr Davis within the CFSG;[262]
  • the record of the 21 March 2017 meeting reveals the true attitude of Dr Hall to the suggestion that Mr Davis remain in the CFSG and that Dr Hall's undertaking that any proposal put forward by Dr Colson and Mr Davis would be considered was merely lip service, which was proven by what occurred in the subsequent two days, namely, Mr Fullelove's quick rejection of the restructure proposal that was put to him for his agreement or otherwise;[263]
  • Mr Fullelove's reasoning for the rejection of the restructure proposal does not stand up to scrutiny because:
  1. as there was an attempt to restructure the CFSG due to one Director having a smaller workload than others, that was inconsistent with Mr Fullelove's view that Dr Williams should not have to manage a pathology project;[264]
  2. Mr Fullelove's contention that there would be potential difficulties between Dr Williams and Dr Colson was inconsistent with the 10 year history of Dr Colson acting professionally and ethically around relationship issues with Mr Davis and there being a recent two year history where Mr Davis reported to another Director, Mr Hickman, without there being issues;
  3. if there were issues about the performance management of Dr Davis to be addressed in a management meeting, Dr Colson could have simply excused herself from that part of the meeting;
  4. Mr Fullelove stated that at no time was there any consideration given to an option of changing the line of reporting to him so that he would be Mr Davis' supervisor; and
  5. should any performance management have to occur, Mr Fullelove had the necessary skill set to support Mr Davis' supervisor through such a process, but he did not give consideration to such a change in the line of reporting;[265] and
  • for the above reasons, there was no serious consideration given to keeping Mr Davis within the CFSG or to changing Mr Davis' line of reporting to Mr Fullelove, which was not reasonable management action nor was it management action taken in a reasonable way.[266]
  1. [207]
    The State submits that:
  • the effect of the Regulator's submission is that Dr Hall and Ms Luck concocted their evidence and that in respect of such a serious allegation, that should have been put to both of them and because it was not, the contention should be disregarded;[267]
  • a fair reading of the transcript of the meeting of 21 March 2017 demonstrates that the suggestion, that any proposal put forward by Dr Colson and Mr Davis would be considered by the Department was merely lip service, ought to be rejected;[268] and
  • the evidence is that there was consideration given to the restructure proposal and that it was never put to Dr Hall, Ms Luck or Mr Fullelove that there was no serious consideration given to such a proposal.[269]
  1. [208]
    On 21 March 2017, on his way back from the meeting with Dr Colson and Mr Davis, Dr Hall called Mr Fullelove and asked him to look at the restructure proposal put forward by Dr Colson.[270] The next day, it appears that Mr Fullelove contacted Dr Hall about that proposal.  Dr Hall took a file note of that conversation.[271] I do not accept the Regulator's submission that the file note indicates Dr Hall was instructing Mr Fullelove that he should only accede to the management restructure proposal if it adds value to the structure.[272]  The file note does not read that way.
  1. [209]
    On 23 March 2017, Mr Fullelove sent an email to Dr Hall and Ms Luck attaching a draft of his position paper about the restructure proposal for their review and suggestions.[273] It is true that in the days after Mr Fullelove sent that email, Dr Hall and Ms Luck made some changes to that position paper as drafted by Mr Fullelove.[274] This included Ms Luck including information about Dr Williams' position, namely, that he was uncomfortable with the proposal.[275]
  1. [210]
    It was suggested to Dr Hall, in cross-examination, that because of his and Ms Luck's input, there was no independent consideration by Mr Fullelove of Dr Colson's restructure proposal.  Dr Hall's response was that he did not necessarily say it was an independent decision, but that it was a decision for Mr Fullelove to make, and that he and Ms Luck provided input and feedback, particularly in relation to whether Dr Williams should be named in the feedback.[276]
  1. [211]
    It was also suggested to Dr Hall that because of the emails from him and Ms Luck to Mr Fullelove, all attempts were being made to ensure that the restructure proposal was rejected, such that there would only be one option, namely, to move Mr Davis out of the CFSG.  Dr Hall rejected that proposition stating that they gave serious consideration to the restructure proposal, but that did not mean they were going to accept a suboptimal recommendation or solution.[277]
  1. [212]
    It was put to Mr Fullelove in cross-examination that Dr Hall and Ms Lucks' emails suggest that he was not independently exercising his discretion about the restructure proposal and was being directed by them on how to respond.  Mr Fullelove responded by saying that he was being advised as to how to respond rather than being directed, and that he would not be comfortable sending an email that contained information for which he was not happy to be responsible.[278]
  1. [213]
    The Regulator submitted that even though, in the 21 March 2017 meeting, Dr Hall stated that the decision of the management restructure proposal was Mr Fullelove's decision, that had not filtered down to Mr Fullelove because in his email of 29 March 2017 to Dr Hall and Ms Luck, Mr Fullelove stated:

Based on my discussions with Wayne yesterday I have tweaked the attached "note".  Is this is [sic] what is required to communicate my decision (or is it Wayne's decision?) not to accept Emma's proposal to move Lisa and Matt across under Rex?[279]

  1. [214]
    In the meeting of 21 March 2017, Dr Hall actually stated that it would be Mr Fullelove's decision around whether he believed the restructure proposal was the optimal structure from the CFSG perspective and that he (Dr Hall) did not think the restructure proposal was optimal either.[280]
  1. [215]
    I have read the emails that passed between Mr Fullelove, Dr Hall and Ms Luck about Mr Fullelove's draft response to the management restructure proposal.  Certainly, Dr Hall and Ms Luck amend the document to include more information about Mr Davis' position and the views of Dr Williams. Other than that, the changes made are about the relevant background or are style changes.  In Ms Luck's email to Mr Fullelove on 29 March 2017, she advises Mr Fullelove that when he communicates his analysis of the 'pros and cons' of Dr Colson's restructure proposal back to Dr Colson, he should let her (Dr Colson) know that the restructure proposal was only one strategy and that the document explores whether that strategy was a viable solution from Mr Fullelove's perspective, but that ultimately Dr Hall would make the final decision on the best strategy to resolve it.[281]
  1. [216]
    By Mr Fullelove's email to Mr Davis and Dr Colson on 4 April 2017, his concluded view about the restructure proposal was that the case against the move carried much more weight than the case for the move.[282] Mr Fullelove's evidence-in-chief was that his position paper contained his views and that he thought the downside of any realignment based on the arguments he had were greater than the upside to the realignment.[283] Dr Hall agreed with Mr Fullelove's view.[284]
  1. [217]
    The nature of the changes proposed by Dr Hall and Ms Luck to Mr Fullelove's position paper did not, in my view, prove that the ultimate position taken by Mr Fullelove was not his own.  The changes were not such that Mr Fullelove was being pressured or directed to a particular outcome. I accept Mr Fullelove's evidence that he was being advised as to how to respond rather than being directed to an outcome.  I find this way because of the nature and content of the amendments made by Dr Hall and Ms Luck as referred to above.  Further, in Mr Fullelove's draft provided to Dr Hall and Ms Luck, he does not express a concluded view.  The changes to the draft made by Dr Hall and Ms Luck do not insert a concluded view attributable to Mr Fullelove.  This suggests to me that Mr Fullelove's concluded view was his own.
  1. [218]
    The Regulator submitted that one of Mr Fullelove's reasons for not supporting the restructure proposal - that Dr Williams could be making decisions about Mr Davis on an executive management team which included Dr Colson - did not stand up to analysis.  The submission was that there had never been an issue in the past when other CFSG Directors supervised Mr Davis, and that if Mr Davis' performance was being discussed at an executive management team meeting, Dr Colson could excuse herself from the deliberation.[285] No doubt, reasonable minds may differ about Mr Fullelove's reasoning on that issue.  However, that cannot mean Mr Fullelove's view was unreasonable, particularly when Dr Williams' evidence was that he had that specific concern.[286]
  1. [219]
    Dr Hall, prior to the 21 March 2017 meeting, had formed a preliminary view that the management realignment proposal and the restructure proposal were not his preferred response to deal with the conflict of interest. Dr Hall, as the Executive Director of ASQ, was entitled to hold those views.  Clearly, on the evidence, Mr Fullelove's view and Dr Hall's view about the management restructure proposal aligned. However, on all the evidence, including the steps taken by Dr Hall and Mr Fullelove to give consideration to the management realignment proposal, I am not persuaded that the response to Dr Colson's restructure proposal was a sham.
  1. [220]
    There is one further matter.  The Regulator referred to Mr Fullelove's evidence in crossexamination that he did not consider changing the line of reporting from Mr Davis' supervisor to him (Mr Fullelove)[287] and Mr Fullelove's further concession that if Mr Davis had to be performance managed by his supervisor, that he (Mr Fullelove) had the skills and expertise to be able to support the supervisor through that process.[288]
  1. [221]
    The failure to consider those options do not amount to unreasonable management action.  The first suggestion seems to me to be artificial. Mr Fullelove was the General Manager of the CFSG, not a mid-level manager, and he would not ordinarily have the daytoday responsibility for supervising a TO.  Furthermore, notwithstanding that Mr Fullelove had the skills to support one of his Directors who had to performance manage Mr Davis, that was never a proposal put forward by Dr Colson or Mr Davis.  In those circumstances, particularly given that, following the 21 March 2017 meeting, the Department was responding to the proposals put forward by Dr Colson, the failure to consider it could not be seen to be unreasonable management action.

Mr Davis and Dr Colson were being singled out compared to other couples in the Department

  1. [222]
    The Regulator submits that by the process the Department initiated to address the perceived conflict of interest, Mr Davis and Dr Colson were being singled out compared to other couples in the Department.
  1. [223]
    The Regulator submits that the evidence for this contention includes:
  • the times Mr Davis communicated with Dr Hall and Ms Luck stating that he felt as though he and Dr Colson were being singled out; and
  • the investigation which was only undertaken because of the issue being raised by Dr Colson and Mr Davis that they were being targeted, and which identified about 16 other married or de facto couples.[289]
  1. [224]
    The Regulator contends that the process undertaken by Dr Hall and Ms Luck was not management action being taken in a reasonable way because:
  • upon Dr Hall being informed of the relationship between Dr Colson and Mr Davis, the management action that should have been taken was for Dr Hall to request an investigation be undertaken as to whether there were other, problematic relationships;[290]
  • what instead occurred was that Dr Hall, Ms Luck and Ms Smith adopted the approach of singling out Mr Davis and Dr Colson to be put through a process that no other couple was required to face;[291] and
  • Mr Davis and Dr Colson were in fact singled out because only two couples out of the other 15 identified relationships were actually required to provide DIFs and, in neither of those cases, did Dr Hall, as the Executive Director, have a key handson role in addressing the situation.[292]
  1. [225]
    The State contends that the evidence is against the Regulator's contention because:
  • Dr Hall explained why it was that different action was taken in respect of the two couples who were identified as being in a supervisory relationship with each other and therefore why they were the only two couples, out of the other 15 relationships, who were required to provide DIFs;
  • in respect of those two couples, namely the Subramanians and the Reeds, their situations were entirely different given the remoteness of their work locations, with the result that for them to be separated, one would have to work hundreds of kilometres away or resign; and that it was understandable that couples would be employed in remote locations; and
  • no persuasive evidence was led that the other couples, referred to in Exhibit 1, document 67, were in a situation that required a DIF.[293]
  1. [226]
    It is true, that in the meeting on 21 March 2017, Mr Davis raised with Dr Hall that there were other couples within ASQ and in the Department who were in reporting relationships to each other and were not being treated the same way as they were.[294] Dr Colson and Mr Davis named three couples.[295] Dr Hall stated that he would follow up with the other couples, but that he had asked and no others had been brought to his attention who were in the same situation.[296] Dr Hall gave an undertaking that if Dr Colson emailed him the names of the other couples, he would talk to the relevant General Managers or the Directors who might be appropriate, get an understanding of what the actual reporting situation was, and talk to Ms Luck around what needs to happen, if anything, in those situations.[297]
  1. [227]
    Dr Hall followed that up in an email to Dr Colson and Mr Davis sent on 27 March 2017.  In that regard, Dr Hall stated that they were happy for Dr Colson Mr Davis to provide the names of working couples they believed were in a similar situation, and that both he and HR had an interest to ensure that personal relationships that could be a conflict of interest were appropriately managed.  Dr Hall asked Dr Colson and Mr Davis to send the names of other ASQ couples to himself and the other details to the Ethics Unit within the Department so that the unit could follow up with the relevant management.[298]  Dr Colson responded the same day stating that it was not up to her to provide him with those names, that HR can do that, and that there was an expectation that Dr Hall apply the policy equitably.[299]
  1. [228]
    Dr Hall's evidence was that he requested his General Managers and his Directors to advise him of other married couples or couples of which they were aware in their group and that a list of 15 additional couples were identified.[300] Those names were included in an email to Dr Hall from his Executive Support Officer sent on 26 April 2017.[301]
  1. [229]
    Dr Hall's evidence then was that the information contained in that email was discussed at an ASQ management team meeting in early July 2017, and that three couples were identified in respect of a potential conflict of interest.[302] In respect of two of those couples, conflicts of interest declarations were made by them on 5 April 2018 and 5 June 2017 respectively.[303] The ASQ management team determined that there was no requirement for a conflict of interest form to be submitted in respect of the third couple.[304]
  1. [230]
    In respect of the two couples that provided conflict of interest declarations, Dr Hall's evidence was that because those couples were working in regional locations and because getting skilled people to work in those areas may be difficult to achieve, restrictions were put in place to deal with the conflicts of interest.  The first couple were located in Bowen at a research facility, where only 10 or 11 persons were employed.  In respect of the other couple, they were located at a research station located approximately 110 km from Charters Towers, at which seven or eight staff were employed.[305]
  1. [231]
    In respect of the first couple, restrictions were put in place so that the lower classified officer no longer reported to the higher classified officer.[306] In respect of the other couple, the restriction that was put in place to deal with the conflict of interest was that any alteration to the lower classified officer's hours or pay rate would only be done with the approval of another manager.
  1. [232]
    I do not accept the Regulator's submission that Dr Colson and Mr Davis were being singled out by Dr Hall.  Dr Hall's evidence was that prior to the 21 March 2017 meeting he had asked about other couples, but no others had been brought to his attention who were in the same situation.  Clearly, as at 21 March 2017, there were other couples in a conflict of interest situation within ASQ.  However, as at the date, Dr Hall did not know about them.  After these matters were brought to his attention by Dr Colson and Mr Davis, they were dealt with by ASQ.  I agree that they were dealt with belatedly.
  1. [233]
    However, assessing Dr Hall's knowledge as at 21 March 2017, there is no evidence that he was treating Dr Colson and Mr Davis unfavourably compared to other couples within the ASQ who were in the same or not materially different circumstances.  This is for the reason that despite him asking, he did not know of the circumstances of other couples at that time.  In any event, upon the two other couples being identified, where there was a conflict of interest, they were required to complete DIFs.

The grievance lodged by Mr Davis against Dr Hall and the way that was managed

  1. [234]
    The Regulator refers to the grievance that Mr Davis emailed to the DirectorGeneral, Dr Beth Woods, and the Deputy Director-General, Mr Malcolm Letts, on 25 May 2017.
  1. [235]
    Having regard to this contention by the Regulator and having regard to the State's (later) contention that Mr Davis' personal injury arose out of or in the course of his perception of reasonable management action being taken against him (dealt with below), I think it is necessary to set out Mr Davis' written grievance in full.  Mr Davis stated:

I would like to lodge a formal grievance about the bullying and harassment I have endured for the past 8 weeks by Wayne Hall.  I want it to stop.

I do not take having to write a grievance lightly.  I feel like I've been backed into a corner and being bullied, threatened and penalized.  Wayne has threatened me on more than one occasion to transfer me out of my current position, and to another location, resulting in me incurring a career penalty and negatively impacting on my ability to meet my family responsibilities.  I raised the implications with him, which he acknowledged but doesn't care.  He is trying to implement an adverse action and it will injure my employment.

Wayne has based this around, and inappropriately used 'Conflict of Interest' process; my wife Emma Colson is a C&FS Director.  I never reported directly to Emma, nor have I faced a complaint for the entire time she has been a Director.  We have both worked together within C&FS and CPS unit for over 18 years and have been known partners for the past 17 years.  Wayne has taken this upon himself to personally handle our 'case', and has not followed protocol and has not included my supervisor Murray Sharman in any part of this process, or has he included Garry Fullelove in any meetings as Emma's supervisor, ignoring Emma's requests that Garry be present.

Wayne outlined his preferred option of transferring me, not only out of the CPS Unit, but out of the C&FS Branch altogether, where I have worked my entire career as an Crop Protection Officer.  At the end of that first and only meeting with Emma and I, he gave us a direct order to sign a COI form to indicate only that we are a married couple.  He did not and has not asked any other married couples in ASQ to follow suit and sign COI statements.  Emma and I feel singled-out and discriminated against on marital grounds, because we are the only couple in ASQ facing such an adverse action, and most likely the only couple in the Department to be treated like this.  Notably unlike us, there are other couples working together holding higher delegations than their partners and others with direct influence over their partner's positions, all within the same Branch and Units.

At no other time has an ED personally involved themselves in this issue; our line reporting has been managed by GMs in the past.  My only conclusion is that Wayne has the delegation to transfer staff and it was clear that he had a predetermined decision of transferring me as the final outcome prior to the meeting.  It's my view that ordering us to sign this COI documentation was to drive his fixed agenda.  As a manager, and as part of the process Wayne is required to officially respond to COI documentation 2 weeks after us signing and submitting it.  It is now 5 weeks overdue.  I'm concerned that departmental procedure and policy has not been followed and avoided to suit himself, to provide himself time to seek the outcome for his baseless decision.

I believe that Wayne has set about the using the COI process in an inappropriate way, causing harm to my career to my detriment.  I have not done anything wrong or deserve this heavy-handed treatment or penalty.  Both Emma and I have always acted in a professional manner, with integrity and transparency.  Wayne's conduct has impacted on our reputations and undermined our confidence in the Departments processes and ethics.  There is no objective basis for his decision, only a subjective personal view.  Wayne has said in writing that there is no complaint, no accusation, or any performance issues that are a catalyst for this, and could not and has not afforded us an explanation of how this is a reasonable action.  I do not understand why a line management resolution could not be sought with the least disruption without direct negative impacts.  He has caused a loss of respect for the ED position, and caused damage to our working relationships.

In the past, my line reporting has been adjusted by the General Managers to mitigate any 'perceived' conflict of interest.  My current reporting arrangements are something that Garry Fullelove put in place, and presided over during his tenure.  However all of a sudden Garry has now withdrawn his support and rejected our suggestion of a line reporting change or a minor staff restructure to allow me to report to another C&FS Director.  We have been given no explanation as to why, apart from Wayne saying Garry now feels 'uncomfortable' without any evidence of a COI, real or perceived.  Garry has also said that he would not support Emma and I working in the same Branch together, which is a preposterous and purely an arbitrary position to hold.

Wayne proposed that there was a vacant position in Horticulture in Gatton to transfer me into.  It was never listed as a vacancy on the FTE plan and Wayne was unable to produce a PD at the meeting or have any details about the position itself.  I believe it was hastily developed by Wayne over two working days after the meeting.  When it finally did arrive, it was a piecemeal of Operational Officer duties patched together and labelled TO3.  Since then, he has ordered me to send my CV to Mike Ashton in Biosecurity, as he asked Mike to create a new position, to transfer me into.  The thing that confronts me the most, is that I feel like I have no choice but forced to comply with something that I completely disagree with.  Wayne has harassed me to hand over my CV to him, I haven't because it is a personal document which I have no doubt he'll continue to canvass other GM's and Directors so he can get his way.

Recently I felt very grateful and optimistic that the Progression Scheme had been reinstated, which I will be eligible to apply for next year.  I have been at the top of TO3 pay scale for more than 10 years now and it has taken a lot hard work and time to rebuild my career after a serious traffic accident.  Over the past 5 years I've been working above level in my current role and often thought to try and GEMs my position.  Now just when my career is back on track and going well, I'm being forced to accept a career penalty.  A transfer to another position, even at level, will no doubt damage my chances of being a successful Progression applicant.  Wayne has admitted and agreed that it would be unlikely for me to be successful in applying for Progression, in another position and in such short timeframe.  For Wayne to knowingly continue, regardless of the implications is unjust, damaging, harmful behaviour towards me.

After giving 19 years of service to the Department, I am very extremely distressed about the actions of a senior manager, who was trying to hurt and ruin our careers.  Both Emma and I have tried to reason with Wayne, but he insists on taking this hard line, and he continues to threaten me with transfer to Gatton if I do not accept a position with Biosecurity.  This shows absolutely no regard or respect for me as an employee, my employment, or the project work that I currently conduct.  It also completely disregards the adverse effects to me and my family.

Wayne has continued to intimidate me, applying continued pressure to move to this newly formed position in Biosecurity, without even giving adequate time for me to consider my options and he still has not followed HR protocols regarding the COI process which he instigated and bases this on.  To date, the COI forms haven't been returned to include, or document, any management decision or action, but tells me to start the role as soon as this coming Monday (29/05/17).

The situation has been so poorly handled, and the subsequent bullying has caused me a great deal of undue anguish and stress while at work.  It has caused a high level of worry to me and my family and impacted on life at home.  The results from Wayne's behaviour is compounding, ongoing and unnecessary.  I find it improper and unacceptable that a senior manager can mishandle things badly and act like this towards me, and then have the audacity to direct me to EAP.  I want a stop to his bullying, along with a simple and appropriate change to my line management to mitigate this issue, like it has been done in the past, without negatively impacting on my career or my current position / role.

I now feel that I have no choice but to call out this behaviour and challenge this action.  I'm not looking forward to any retribution from either Wayne or Garry for having raised this.  I feel that I need to speak up and defend myself by appealing to you both.[307]

  1. [236]
    The Regulator submits that:
  • apart from the formal email acknowledgement of the receipt of his grievance, the evidence is that the only conversation Mr Davis had with senior management regarding his grievance, prior to him going off on sick leave on 5 June 2017, was with Mr Letts, and that Mr Letts, after speaking with Mr Davis at length about the situation, told Mr Davis he would see what he could do about the situation;
  • when Dr Hall found out about the grievance, there was no suggestion or proposal for him to take a backseat role and have someone else handle conflict of interest issue in light of the grievance;
  • Dr Hall did have a conversation with Mr Letts, in which Mr Letts stated it would be worthwhile for Dr Hall to have a discussion with Mr Davis to reassure him that the Department was committed to making sure that any trial period (as part of the BQ proposal) was a success following which Dr Hall attempted to call Mr Davis;
  • because Dr Woods and Mr Letts did not give evidence, the Commission should draw the inference, based on the principle in Jones v Dunkel, that their evidence would not have assisted the State;
  • in light of the serious concerns raised by Mr Davis in his grievance about the conduct of Dr Hall and to the extent that Dr Hall's conduct had caused Mr Davis a great deal of undue anguish and stress at work, the Department should have acted proactively to remove Dr Hall from managing the issue, yet the only response was Mr Letts advising Dr Hall to contact Mr Davis to reassure him about the Department's commitment to making any trial period a success; and
  • the response of Dr Woods and Mr Letts to the grievance and the failure by them to act to reduce Dr Hall's role or remove him from the process, and to communicate that to Mr Davis, was not reasonable management action and was not management action taken in a reasonable way.[308]
  1. [237]
    The State objects to this ground being relied upon by the Regulator, because:
  • it was not opened by the Regulator and that there was nothing in the Regulator's contentions that suggested the response to the grievance was to be in issue; and
  • there was nothing in the outline of witness evidence filed by the Regulator on behalf Mr Davis that took any issue with the response in respect of the grievance.[309]
  1. [238]
    The State also objects to the submission that the relevant adverse inference should be drawn because Dr Woods and Mr Letts were not called as witnesses in circumstances where the State was not put on notice in respect of this aspect of the Regulator's case.[310]
  1. [239]
    In appeals under the Act where the nature of injuries, their cause and the times at which they were suffered are essential to the resolution of an appeal, the Commission is entitled to rely on the statement of facts and contentions as a complete statement of a party's case.[311] Further, such a statement of facts and contentions alerts the other party to the case it will have to deal with and identifies the issues which exist, which in turn, allow for a confinement of the matters in dispute.[312]
  1. [240]
    Paragraph 18 of the Regulator's contentions refers to Mr Davis, on 25 May 2017, lodging a grievance with the Department's Director-General regarding his treatment by Dr Hall.  However, it is true that there is no specific allegation that the failure by Dr Woods and/or Mr Letts to remove Dr Hall from the process, following the receipt of Mr Davis' grievance, was not reasonable management action.
  1. [241]
    I am conscious that a party's statement of facts and contentions is not attended with the same level of formality as pleadings under civil procedure rules[313] and that in courts bound by the rules of pleadings, if a party allows the other party to raise other material facts and issues for the determination by the court not contained in the pleadings, then the court is permitted, and possibly obliged, to decide proceeding on the further material facts and issues raised and addressed at trial.[314]
  1. [242]
    Some facts about this matter were raised in the hearing.  Dr Hall was crossexamined about his knowledge of Mr Davis' grievance, which arose from a discussion he had with Mr Letts on either 30 or 31 May 2017.[315] Dr Hall agreed that there was no suggestion or proposal for someone else to handle the conflict of interest issue in light of the grievance.[316] Dr Hall also stated that Mr Letts advised that it would be worthwhile him (Dr Hall) having a discussion with Mr Davis to reassure him that the Department was committed to making sure that any trial period (in relation to the BQ proposal) was a success.[317] Dr Hall accepted that he may have tried to call Mr Davis four times after he spoke with Mr Letts.[318] Dr Hall was called as a witness by the State.  Despite the lack of any clear contention about this claim in the Regulator's contentions, it would have been reasonably apparent to the State, arising out of the cross-examination of Dr Hall, that the Department's response to the grievance was in issue.
  1. [243]
    Furthermore, there was no objection to the evidence given by Mr Davis that, by late May 2017, he was feeling pushed and bullied by Dr Hall, that he felt Dr Hall was 'on his case' and that as a consequence he lodged his grievance.[319] Mr Davis' grievance document was tendered by consent.[320] Mr Davis also gave evidence, without objection, about his conversation with Mr Letts, following his submission of the grievance, where after Mr Davis describing his grievance, Mr Letts said he would see what he could do about the situation.[321]
  1. [244]
    The essence of this claim is that the response of Dr Woods and Mr Letts to the grievance, and the failure by them to act or reduce Dr Hall's role or remove him from the process, and communicate that to Mr Davis, was not reasonable management action which was taken in a reasonable way.
  1. [245]
    In Mr Davis' grievance, he made a plea to Dr Woods and Mr Letts that he wanted the alleged bullying and harassment he had endured for the past eight weeks by Dr Hall, '… to stop'.  Mr Davis alleged that pressure was being brought to bear on him to accept the BQ proposal, so as to start on 29 May 2017.  Dr Woods, in her email acknowledging receipt of the grievance, stated that she would advise Mr Davis further when the issues he had raised had been considered and any necessary action identified.[322]  However, apart from Mr Letts' discussion with Dr Hall and Dr Hall's attempts to speak with Mr Davis, there is no evidence of any other action being taken in response to Mr Davis' grievance.
  1. [246]
    Mr Davis' grievance was detailed and specific in respect of the outcome he wanted. In considering whether the Department acted reasonably in response to Mr Davis' grievance, I may consider what else may have been done in determining whether what was in fact done, was reasonable. In all circumstances as alleged in Mr Davis' grievance, and having regard to Dr Woods' acknowledgement response, it would have been reasonable to, at the very least, temporarily suspend the action being taken to move Mr Davis from the CFSG, so that proper consideration could be given to how Mr Davis' grievance should have been handled.  That was not done. For that reason, the Department's response to Mr Davis' grievance was not reasonable management action.
  1. [247]
    To this extent, the Department's response to Mr Davis' grievance was not reasonable management action taken in a reasonable way in connection with his employment. 

Procedural failures by the Department in addressing the perceived conflict of interest

The failure to retain the services of an organisational psychiatrist/psychologist

  1. [248]
    The Regulator submits that:
  • the issue of the Department retaining the services of an organisational psychologist was the subject of discussion at the meeting between Dr Hall, Ms Smith, Ms Luck and Mr Fullelove on 13 January 2017;
  • ultimately, on 3 March 2017, the decision was made not to engage an organisational psychologist, but Dr Hall could not recall the reasons for that despite him conceding that it would have been an entirely appropriate step to take;
  • Ms Luck's evidence was that when she called Mr Davis on 9 March 2017 about the meeting to take place with Dr Hall and her, Mr Davis made it clear that he felt he was being targeted and that the issue was causing stress in his household and affecting his health, to the extent that Mr Fullelove was requested to undertake a welfare check on Mr Davis;
  • Dr Hall's evidence was that when he spoke to Mr Davis on 10 March 2017, Mr Davis was distressed in that telephone call;
  • neither Dr Hall nor Ms Luck reconsidered the need to retain an organisational psychiatrist/psychologist for Mr Davis despite the above and other indications that Mr Davis was becoming anxious and stressed, namely:
  1. Mr Davis' email correspondence to Ms Luck on 14 March 2017, where he stated he had to seek assistance from the Employee Assistance Service;
  2. Mr Davis' demeanour during the 21 March meeting and the statements he made during that meeting about the stress he was under; and
  3. Dr Colson's advice to Dr Hall on 27 March 2017 when she referred to, amongst other matters, the difficulties Mr Davis would have working in the job the subject of the proposed transfer to Gatton; and
  • because of Mr Davis' known stress and anxiety arising out of the process up to that point, the failure to engage an organisational psychologist was a further example of management action not being taken in an unreasonable way; and even if that is considered to be a mere blemish, that combined with the blemishes (referred to below in these reasons for decision) of the way management action was not being taken in a reasonable way, compels the conclusion that the management action was not been reasonably taken.[323]
  1. [249]
    The State concedes that the issue of retaining the services of an organisational psychologist was the subject of discussion at the meeting of 13 January 2017 and that it was also true that ultimately it was decided not to engage an organisational psychologist.[324]
  1. [250]
    However, the State submits that the Regulator has not explained:
  • how it contends an organisational psychologist might have assisted the process; or
  • what the work of an organisational psychologist, in respect of the process, would have been.[325]
  1. [251]
    The State further submits that given the irrational way in which Mr Davis and Dr Colson behaved in the meeting of 21 March 2017, and Mr Davis' continual misperception of events, it was difficult to see how the involvement of an organisational psychiatrist might have improved matters.[326]
  1. [252]
    Dr Hall's evidence was that at the meeting between himself, Mr Fullelove, Ms Luck and Ms Smith on 13 January 2017, there was a discussion about engaging an organisational psychologist to try to increase the chance of the transfer being successful and to support Mr Davis in the process.[327] Ms Luck's evidence was that there was a discussion at that meeting about appointing an organisational psychologist to support all parties through the process.[328] Dr Hall stated that at the meeting on 3 March 2017 (involving the same four persons) an agreed decision was made, as the pathway forward, not to engage the services of an organisational psychologist to have some meetings with Mr Davis and Dr Colson.[329] Dr Hall's evidence was consistent with what he recorded in his file note of that meeting namely: 'No pre-emptive org psych involvement'.[330] Ms Luck did not recall a further discussion about that topic.[331]
  1. [253]
    On the evidence, the retaining of an organisational psychologist was discussed at the meeting on 13 January 2017. A decision was then made not to proceed with retaining such a psychologist.  No reason was given by Dr Hall for that decision. 
  1. [254]
    The State's submission is that the Regulator has failed to explain how it contends an organisational psychologist might have assisted in the process or what the work of an organisational psychologist would have been in the process.  There is some evidence of what that work would have been. Ms Luck's evidence in cross-examination was that the Department did engage the services of organisational psychologists when it was dealing with complex employee related matters.[332] Ms Luck also agreed that what was being proposed in relation to Mr Davis - effectively uprooting him from his job that he had been undertaking for some 19 years with the potential of actually transferring him somewhere else to undertake a new role - could be quite distressing and, in those circumstances, it was prudent for an organisational psychologist to be retained to provide support and counselling for the employee.[333]
  1. [255]
    It is true that Mr Davis had expressed to Dr Hall and Ms Luck that he was feeling upset and stressed about the process that had been embarked upon by the Department.  For example, in their telephone discussion on 9 March 2017, when Ms Luck raised with Mr Davis the requirement to meet about the conflict of interest, Mr Davis stated the issue was causing him stress at home.[334] This resulted in Mr Fullelove being asked to carry out a welfare check on Mr Davis.[335]  Mr Davis, in his email to Ms Luck dated 14 March 2017, stated that the conflict of interest issue raised with him had made him highly anxious and stressed to the extent that he had sought assistance from the Department's Employee Assistance Service.[336] In the audio recording of the meeting of 21 March 2017, Mr Davis stated that since the phone call he had received from Ms Luck on 9 March 2017, he had been under undue stress for the reason that the (conflict of interest) issue emanated from the mishandling of things in the past and that it was a 'nonissue' because he had not faced a complaint in over 10 years when Dr Colson had been Director.[337]
  1. [256]
    In my view, the failure to retain an organisational psychologist does not result in a conclusion that Dr Hall and Ms Luck acted in an unreasonable way in dealing with the conflict of interest issue.
  1. [257]
    There are three reasons for this conclusion.
  1. [258]
    First, merely because the retaining of an organisational psychologist was discussed at the meeting on 13 January 2017, and then not proceeded with, does not compel the conclusion that the reasonable management action of the Department in dealing with the conflict of interest issue was, for that reason, undertaken in an unreasonable way. Simply because a particular management process was considered and then not proceeded does not make the whole process unreasonable.
  1. [259]
    Secondly, in my view it would be common for any employee to feel anxious and stressed about such an issue being raised with him or her. Granted, from Mr Davis' perspective, there was some history to the conflict of interest issue that contributed to his anxiety.  No doubt, as he expressed to Dr Hall and Ms Luck, his grievance about his past treatment by the Department, regarding his view that he had suffered a career penalty, also contributed to his anxiety. However, that an employee expresses that he or she is anxious or stressed about management action being taken in relation to that employee does not, on its own, mean the management action was undertaken in an unreasonable way because an organisational psychologist was not appointed to support the employee.
  1. [260]
    Thirdly, Dr Hall did advise Mr Davis in his email sent on 27 March 2017, that the Employee Assistance Program was available if he required additional support counselling.[338] That is to say, the Department did not completely ignore the stress from which Mr Davis expressed he was suffering.
  1. [261]
    While it may have been a perfect management response to retain an organisational psychologist to provide support to Mr Davis, for the reasons given above, the fact that it was not done cannot mean that the reasonable management action of dealing with the conflict of interest was undertaken in an unreasonable way.

The failure to ensure that Mr Davis and Dr Colson had the availability of another source of HR advice other than Ms Luck

  1. [262]
    The Regulator refers to:
  • Ms Luck's evidence in cross-examination that she did not put in place any arrangement where either Mr Davis or Dr Colson could access additional HR advice about the conflict of interest issue and the proposal to transfer Mr Davis, from someone other than her; [339] and
  • Mr Davis' evidence that no arrangement was put in place for him to be able to access another HR officer, other than Ms Luck.[340]
  1. [263]
    The Regulator then developed the following submission.  It was contended that because Ms Luck was a key component or member of the management team that was seeking to transfer Mr Davis, any bystander would not regard Ms Luck as being independent.  Given that, the Regulator submitted that the Department should have had in place some process whereby Mr Davis could access HR advice from another source, other than Ms Luck, about the process in which he was involved and about his options, such that the failure to put in place a suitable arrangement meant that the management action taken to address the conflict of interest was not being taken in a reasonable way.[341]
  1. [264]
    The State submits that:
  • the position of Dr Colson is irrelevant, because the case does not involve whether management action taken in respect of Dr Colson was taken in a reasonable way;
  • the evidence was that Mr Davis repeatedly informed the Department's representatives that he would be seeking advice, be it either union or legal advice; and in those circumstances, there was plainly no need for the Department to provide another source of HR advice other than Ms Luck;
  • Ms Luck's uncontradicted evidence was that the Department did not have a practice of providing employees with HR advisors; and
  • it is not the place of an employer to provide an employee with an independent advisor, particularly when the employee has made it known he is accessing union advice.[342]
  1. [265]
    The State developed this in oral submissions.  It submitted there were a number of problems with the clarity of this contention of the Regulator, namely:
  • where would this person have come from?
  • if the person was to be a departmental employee assigned by the Department on behalf Mr Davis and Dr Colson, whose interests were they intended to prefer? and
  • if it was suggested that the Department engage a person from outside the Department, was the Department to use government funds to engage an independent HR person to assist Mr Davis and Dr Colson?[343]
  1. [266]
    The suggestion that the Department should have had in place a process whereby Mr Davis could access HR advice from a source, other than Ms Luck, raises significant difficulties of the kind identified by the State in its submissions.  If the source was a public service employee of the Department, that employee's work performance and personal conduct must be directed towards, amongst other things, giving effect to State government policies and priorities.[344] It seems to me that such an employee would be placed in a difficult situation if the employee was expected to give independent advice to Mr Davis which may be in conflict with the position taken by the Department.  For that reason, I do not think the failure to organise another source of HR advice results in a conclusion that the reasonable management action of dealing with the conflict of interest was undertaken in an unreasonable way. 
  1. [267]
    Similarly, I am of the view that it would have been a step too far to require the Department, in reasonably managing the conflict of interest, to go to the expense of providing Mr Davis with his own source of HR advice.  This is because there was no evidence that the Department had previously adopted the practice, in dealing with difficult employee situations, of paying for and providing an employee with his or her own independent HR advice.
  1. [268]
    For these reasons, the failure of the Department to provide Mr Davis with a source of HR advice, other than that of Ms Luck, did not amount to the Department conducting the reasonable management action of dealing with the conflict of interest in an unreasonable way.

The failure by management to comply with the timeframes indicated to Mr Davis and Dr Colson in the meeting on 21 March 2017 for a resolution of the process, and the delay in the return of the signed declaration of interest forms and the management plan

  1. [269]
    The Regulator points to the facts that:
  • Dr Hall indicated at the meeting on 21 March 2017, that he wanted an agreed outcome to the process within two weeks;
  • Mr Davis and Dr Colson provided their signed DIFs to Dr Hall on 4 April 2017;
  • despite complaints and criticisms of management about the delay in the completion of the DIFs from Dr Colson, which Ms Luck confirmed were valid, the 'management plan' part of the DIFs were not forwarded to Dr Colson and Mr Davis until after hours on 30 May 2017;
  • the delay until 30 May 2017 was due to the failure of Mr Fullelove, despite direction being provided to him, to complete, in a timely way, the parts of the management plan response on the DIFs that required his input; and
  • the delay in the management plan being provided to Mr Davis caused him to feel anxious.[345]
  1. [270]
    The Regulator submits that the above evidence supports a conclusion that:
  • the process (concerning the DIFs), as it evolved, was flawed; and
  • the manner in which the process went awry and the delays that were experienced in returning the signed DIFs to Dr Colson and Mr Davis led to a conclusion that the management action was not taken in a reasonable way.[346]
  1. [271]
    The Regulator submits that a further impact on the process was the pressure being brought to bear on Mr Davis, immediately prior to his decompensation (on 5 June 2017), to make a decision as to whether or not to accept an offer from Mr Mike Ashton, General Manager, Plant Biosecurity and Product Integrity, BQ, sent by email to Mr Davis on 2 June 2017, to be hosted on a temporary basis for four months at BQ ('the BQ offer').[347]
  1. [272]
    The State submits that the management plan had to include a proposed resolution of the perceived conflict of interest and following the suggestion made by Dr Colson on 27 March 2017 that the BQ proposal be considered, a process was set in train for a role to be made available to Mr Davis at BQ.
  1. [273]
    The submission then made by the State is that:
  • once Mr Davis provided his CV to Mr Ashton in late April 2017, things then moved relatively quickly, with the position description being provided on 24 May 2017 and the management plan on 30 May 2017;
  • a range of discussions took place between Dr Hall and Mr Ashton during that time as well as between Mr Davis and Mr Ashton; and
  • when looked at in that context, the delay is explained and understandable.[348]
  1. [274]
    The State further submits that:
  • it should not be accepted that the delay caused Mr Davis to feel anxious because:
  1. Mr Davis knew it took a month for him to provide his CV;
  2. Mr Davis knew he was being considered for a role at BQ, and in that regard, had spoken to Mr Ashton on numerous occasions and was provided with a position description on 24 May 2017; and
  3. Mr Davis knew, or ought to have known, that when he received the management plan, he had the opportunity to provide a response or to not agree;
  • it was incorrect to form the view that there was a lack of communication, a lack of consultation, an unreasonable delay on the part of the Department or an inability on the part of Mr Davis to provide his response; and
  • there was no pressure brought to bear on Mr Davis to make a decision to accept the BQ offer of a host placement, and therefore no management action was taken in an unreasonable way because Mr Davis was given seven days, and then a further seven days, to make a decision as to whether to accept the BQ offer of a host placement, in circumstances where Dr Colson suggested the move to BQ and which had been under discussion and consideration for two months.[349]
  1. [275]
    I cannot conclude that these issues amount to the reasonable management action of the Department in dealing with the conflict of interest issue, being taken in an unreasonable way. There are a number of reasons for this.
  1. [276]
    First, at the meeting on 21 March 2017, Dr Hall stated that he expected or would like to have had an agreement as to how the Department (and Dr Colson and Mr Davis) were going to resolve the issue within 14 days.[350] Dr Hall did not say the 14 days was set in stone, rather that it was his aspiration that an agreement be reached within 14 days. In any event, Dr Hall in his email to Dr Colson and Mr Davis sent on 7 April 2017, gave a revised completion time for the issue, and indicated that he hoped to have the matter finalised by mid-May but that he would keep them updated at all stages.[351]
  1. [277]
    Secondly, it is true that Dr Colson and Mr Davis provided their signed DIFs on 4 April 2017[352] and those forms, as completed by management, were not provided to Mr Davis and Dr Colson until 30 May 2017.[353]  By her email sent on 5 May 2017, Dr Colson complained to Dr Hall and Ms Luck that the DIFs had not been completed by management.[354] While considerations about the BQ proposal were running alongside the issue regarding the management completion of the DIFs, on the evidence, the actual reason for the delay in providing the DIFs, completed by management, was because Mr Fullelove did not give his completion of those forms the attention that he was asked to give.[355]
  1. [278]
    However, when considering these issues, all relevant circumstances must be considered in determining whether the reasonable management action, of dealing with the conflict of interest, was undertaken in an unreasonable way.
  1. [279]
    On 27 March 2017, Dr Colson called Dr Hall and suggested that Dr Hall consider that an option to keep Mr Davis in Toowoomba was to transfer him to BQ which would have, from Dr Colson's perspective, resolved the conflict of interest issue.[356] Dr Hall then acted on that suggestion by discussing that proposal with Mr Ashton on 30 March 2017.[357] By email sent to Mr Davis on 30 March 2017, Dr Hall advised that he had had a discussion with Mr Ashton from BQ around possible Toowoomba roles.[358] Following that and upon Mr Davis forwarding his CV to Mr Ashton, Mr Ashton explored with his officers whether BQ could potentially use Mr Davis.[359] Indeed, Mr Davis' evidence was that after he was asked by Ms Luck to send his CV to Mr Ashton, he spoke to Mr Ashton on two occasions.[360]
  1. [280]
    By his email to Mr Davis sent on 22 May 2017, Dr Hall confirmed that BQ could transfer Mr Davis at level as a Biosecurity Officer, TO3, in Toowoomba albeit on a three to four month trial basis for both Mr Davis and BQ management to assess Mr Davis' suitability.[361] When Dr Hall forwarded the completed DIFs to Mr Davis on 30 May 2017, that was done by covering email which indicated that BQ would soon be sending through to Mr Davis a letter of offer about a four month trial at BQ based in Toowoomba, with a start date to be negotiated and with a request that Mr Davis indicated his willingness or otherwise to take up the offer by close of business, 7 June 2017.[362] On 2 June 2017, a letter of offer from Mr Ashton was sent by email to Mr Davis containing the BQ offer.[363]
  1. [281]
    The delay in returning the completed DIF to Mr Davis was not perfect on the part of the Department. However, when considered with what was being actioned at around the same time, namely temporary host placement, at level, to BQ in Toowoomba, that delay did not result in any actual unfairness to Mr Davis. 
  1. [282]
    Similarly, when consideration is given to all the action being taken leading to the BQ offer, the fact that the conflict of interest issue had not been resolved within 14 days of 21 March 2017, or the revised date of mid-May 2017, did not result in any actual unfairness to Mr Davis.

The failure to have a further meeting with Dr Colson and Mr Davis by representatives of HR

  1. [283]
    The Regulator refers to:
  • the audio recording of the meeting on 21 March 2017 when Dr Hall stated that he and Ms Luck would have another meeting (with Mr Davis and Dr Colson) in a couple of weeks' time depending on how things were progressing;
  • Dr Colson's email to Dr Hall on 8 May 2017, specifically noting that a further meeting had not occurred; and
  • that no steps were taken either by Ms Luck or Dr Hall to arrange a further face to face meeting.[364]
  1. [284]
    The Regulator submits it was prudent and necessary that a further face to face meeting with Mr Davis and Dr Colson take place given:
  • Dr Hall originally indicated that there would be a further meeting;
  • the delays in the process;
  • Dr Colson's indication that there was confusion as to what was occurring and what the process was;
  • a full explanation had not been given, in the 21 March meeting, as to what was involved in the process and what rights Dr Colson and Mr Davis had; and
  • that the ultimate proposal was for Mr Davis to be placed with BQ on a host placement for four months, rather than a straight transfer as originally contemplated.[365]
  1. [285]
    The Regulator contends that the failure by Dr Hall and Ms Luck to have a further meeting was a further flaw or deficiency in the process, leading to the conclusion that the management action was not being taken in a reasonable way.[366]
  1. [286]
    The State submits that:
  • there were regular communications between Dr Hall, Ms Luck and Mr Davis and, in particular, the determination that the BQ position would be offered as a trial was clearly explained to Mr Davis by email;
  • if Mr Davis wanted another meeting, he could have asked for one; and
  • the Regulator has not demonstrated how the holding of a further meeting would have altered what had occurred in the case.[367]
  1. [287]
    Again, I cannot conclude that the failure to have a further face to face meeting by Dr Hall and Ms Luck with Dr Colson and Mr Davis amounts to procedural unreasonableness.
  1. [288]
    Ms Luck, following on from Dr Colson's email sent on 8 May 2017, complaining that there had not been a follow-up meeting arranged between HR, her and Mr Davis, stated that it would have been ideal to have another meeting. Ms Luck said she could not recall why another meeting was not arranged.[368]
  1. [289]
    Ms Luck also agreed that the fact of Dr Hall's email advice to Mr Davis on 30 May 2017 - that BQ would soon send through the letter of offer of a four month trial based at Toowoomba - reinforced the benefit of having a further face to face meeting with Dr Colson and Mr Davis.[369]
  1. [290]
    However, the evidence is that following Dr Colson's email to Dr Hall on 8 May 2017, pointing out that there had not been a follow-up meeting, there was significant email and other communication between Dr Hall or Ms Luck, with Mr Davis and/or Dr Colson, about matters leading to an attempt to reach an agreed resolution to resolve the conflict of interest.
  1. [291]
    The significant email and other communication, leading up to 5 June 2017, included:
  • Ms Luck's email to Dr Colson and Mr Davis dated 12 May 2017 that, amongst other things, Dr Hall was actively pursuing the preferred options that had been raised by Mr Davis and Dr Colson about resolving the issue;[370]
  • Dr Hall's email to Mr Davis dated 22 May 2017, in which Dr Hall confirmed that BQ could transfer Mr Davis at level as a Biosecurity Officer, TO3 in Toowoomba on a three to four month trial;[371]
  • Dr Hall's email to Mr Davis dated 23 May 2017, about BQ's enquiry as to whether Mr Davis had any medical restrictions or limitations which also confirmed BQ's acknowledgement that Mr Davis had every Wednesday off;[372]
  • Dr Hall's email to Mr Davis dated 24 May 2017, attaching the position description for the BQ role, which also indicated that Mr Ashton was the best person to contact in the first instance about any questions;[373]
  • Dr Hall's emails to Mr Davis and to Dr Colson dated 30 May 2017, returning the completed DIFs and Dr Hall's management response to the declared conflicts of interest;[374]
  • Mr Davis conversation with Ms Luck dated 1 June 2017 about a range of matters concerning the Department's process in dealing with the conflict of interest to that date, which included his request to have a further meeting with Dr Hall;[375]
  • Mr Davis' email to Ms Luck dated 1 June 2017, thanking her for speaking with him on that day about the current situation and agreeing to facilitate further discussions/consultation, and in which he advised that he would be going on leave on around 16 June 2017; and then Ms Luck's email response;[376]
  • Ms Luck's email to Mr Davis dated 2 June 2017, advising him, amongst other things, that Dr Hall was happy to discuss the management plan and was also open to a training plan to help him succeed; and Mr Davis' email in response setting out, amongst other things, that at that point, he had not received the BQ offer and asking other questions about the BQ proposal;[377] and
  • Mr Davis' email to Ms Luck sent at 9.41 am on 5 June 2017, after he had read the BQ offer, in which he raised the following concerns about the BQ offer, namely:
  1. he had no idea what a 'temporary host placement' was;
  2. the BQ offer said nothing about it being a permanent position;
  3. the position in the BQ offer was expressed to be a full-time position whereas he worked on a part-time basis to support his son;
  4. he stated Dr Hall had changed his mind about transferring him into the position;
  5. he asked why the issue of what the future outcomes would be after the four month period was not discussed in the management plan and stated that he felt as though he was being forced to accept a job offer; and
  6. he stated felt as though he was being pushed into a tenuous position and that he was not being provided with any certainty over his career into the future;[378] and
  • Ms Luck's email response to Mr Davis, sent later on 5 June 2017, in which she stated, amongst other things:
  1. she would draft a training plan to complement the on the job training, she would consult with him and Dr Hall about that once it was prepared however, in the meantime, he should discuss the roles and responsibilities of the position and the on the job training with Mr Jason Haffenden, Operations Manager, Plant Biosecurity and Product Integrity, BQ;
  2. the temporary host placement was a trial period for Mr Davis to undertake the on the job training to be an Inspector under the legislation and to assess his suitability to the position; and that Dr Hall, on 22 May 2017, communicated to Mr Davis that this would be a trial placement, and for that reason Dr Hall had not changed his mind;
  3. the position he was moving to was a permanent position, BQ had been advised that Mr Davis did not work on Wednesdays, that positions are often full-time positions and that employees work on a part-time basis through a parttime agreement;
  4. transferring Mr Davis into the position would not affect his employment security as he would remain a permanent employee; and
  5. she would discuss the timeframe with Dr Hall and come back to Mr Davis and that the management plan was not overdue because the 14 days applies to the final management plan that has been agreed upon to be monitored.[379]
  1. [292]
    I accept that in his conversation with Ms Luck on 1 June 2017, Mr Davis requested a further meeting.  Ideally, a further meeting would have been preferable so that all outstanding issues regarding, or at the very least, the BQ offer, could have been discussed. 
  1. [293]
    However, the communications from Dr Hall and Ms Luck to Mr Davis were reasonably clear and comprehensive, at least to the extent of the information possessed by Dr Hall and Ms Luck, at the time of their communications. 
  1. [294]
    Furthermore, Mr Davis' communications to Ms Luck were clear which enabled her to provide clear responses.
  1. [295]
    The fact a further meeting between Dr Hall, Ms Luck, Dr Colson and Mr Davis did not occur, in light of all the communications that were occurring as outlined above, does not compel the conclusion that the management procedure after the 21 March 2017 meeting was unreasonable.

The failure by management to properly explain the process and the procedure of how the conflict of interest was to be dealt with

  1. [296]
    The Regulator submits that other than the direction to Mr Davis (and Dr Colson) in the 21 March meeting that they were required to sign the DIFs, there:
  • was no advice or instruction about how the process would further unfold;
  • was no discussion about what would happen if no agreement could be reached on the management plan;
  • was no discussion about Mr Davis' rights, if any, if he disputed the management plan; and
  • were no further meetings arranged to ensure that information was provided to Mr Davis and Dr Colson despite that being requested.[380]
  1. [297]
    In particular, the Regulator submitted that the concession by Ms Luck, in crossexamination, that Mr Davis expressed uncertainty in his email to her on 5 June 2017, about future outcomes after the four month period (in the BQ host placement) and whether that was taken into consideration in the management plan, was a further indication that the process had failed.[381]
  1. [298]
    The Regulator then submits that Mr Davis being left in a situation on 2 and 5 June 2017 of:
  • receiving an offer of a host placement, and seeking an explanation as to what that was; and
  • having to ask about what training would be available and what would occur if the host placement had not been successful and what the funding situation was for the position,

              was unacceptable, and should have been addressed prior to those dates which amounted to management action taken in an unreasonable way which gave rise to his decompensation.[382]

  1. [299]
    The State rejects the submissions, contending that:
  • the covering email enclosing the draft management plan, invited Mr Davis to make any changes or comments he wished to make or to include '… as a part of agreeing to the plan,' such that there was a clear invitation to Mr Davis to come back to Dr Hall to discuss any aspects of the management plan;
  • Mr Davis had until 14 June 2017 to respond to the management plan;
  • Mr Davis was told several times that the host placement was to be a four month trial, therefore it is not believable that Mr Davis did not understand what the host placement was and that it had been explained to him by Mr Haffenden;
  • it was legitimate for Mr Davis to ask about training, but there was nothing to suggest he would not have had a response prior to the time that he had to respond to the offer of the BQ host placement; and
  • Mr Davis' concerns were able to be resolved by him making the enquiry and the Department being given the opportunity to provide an answer.[383]
  1. [300]
    In particular, the State submits that it cannot be expected to have a 'crystal ball to preemptively explain every single issue' that Mr Davis might wish to have explained, particularly in the context of frequent and responsive email communications over several months and Mr Davis' ability to make enquiries of Dr Hall, Ms Luck and BQ.  The Department cites as an example, that on 5 June 2017, Ms Luck responded to Mr Davis' earlier email from that day within four hours.[384]
  1. [301]
    Under cross-examination by Mr O'Neill, Ms Luck did make concessions about flaws in the process, namely:
  • there was no indication given to Mr Davis about what his rights were to challenge the management plan;[385]
  • it would have been beneficial to have an additional discussion with Mr Davis, after the 21 March 2007 meeting, to run through the further process and procedures of how the conflict was to be resolved and to give them (Mr Davis and Dr Colson) an opportunity to ask any questions they may have about the process;[386]
  • following the criticism by Dr Colson about the delay in the management completion of the DIFs, it would have been ideal to have another meeting at that stage;[387]
  • Mr Fullelove's delay in completing the management aspect of the DIFs was the reason for the failure to return the DIFs to Dr Colson and Mr Davis in a timely way;[388]
  • in Dr Hall's email to Mr Davis dated 30 May 2017 enclosing the management plan, there was no indication of an ability, on the part of Mr Davis, to dispute the contents of the management plan and not to agree to it;[389]
  • the management completed DIFs were provided very late in the process and at a time when pressure was being brought on Mr Davis to accept the BQ offer;[390]
  • the enquiries about the issues raised by Mr Davis about the BQ proposal, in his email to Ms Luck on 2 June 2017, namely, the identity and contact details of his supervisor, so as to help formulate a detailed training and development plan, could have been made when the BQ proposal was first brought up;[391]and
  • if Mr Davis was left feeling he had to raise concerns about the BQ offer as at 9.41 am on 5 June 2017, then that was an indication the process had failed.[392]
  1. [302]
    I agree that some aspects of the process could have been better.  However, I do not form the view that the deficiencies in the process, as accepted by Ms Luck, meant the whole process of dealing with the conflict of interest issue was undertaken in an unreasonable way.  There are a number of reasons for this.
  1. [303]
    Ideally, it would have been preferable if, in Dr Hall's email to Mr Davis dated 30 May 2017 forwarding the management plan, it set out any procedure for Mr Davis to challenge the management plan.  However, I cannot conclude that that resulted in any unfairness to Mr Davis.  This is because on 25 May 2017, five days before he received the management plan, Mr Davis lodged his grievance with Dr Wood which contained, amongst other things, his grounds for his opposition to what the Department was proposing to resolve the conflict of interest up to that point.  That included the steps being taken by Dr Hall, to that point, about a position in BQ.[393]  Prior to 30 May 2017, Mr Davis at least knew his rights in respect of lodging a grievance against the Department's proposal.
  1. [304]
    In his email to Ms Luck sent on 2 June 2017, Mr Davis enquired as to who his BQ line manager or supervisor would be, asked to be provided with that person's details and for a meeting to be organised to formulate a detailed training and development plan. Mr Davis also stated that he had questions about the trial period, including what would occur if either he or BQ thought him working in the BQ role was unsuitable, as that was not set out in the management plan.[394] In respect of the BQ offer that Mr Davis saw on 5 June 2017, it is true that he had questions about the content of that offer.  From his email of the same date to Ms Luck, those questions were about what was a 'temporary host placement,' his part-time employment, his job security and why the management plan did not take into account what would happen after the four month period.[395]
  1. [305]
    These were all reasonable questions. Ideally, before the BQ offer was made or as part of the BQ offer, Dr Hall or Ms Luck should have informed Mr Davis that he would remain a tenured employee and would remain so even if the host placement in BQ was not successful after four months. Ideally, there should have been some advice about what the process would be if the host placement was not successful. 
  1. [306]
    However, in my view, the standard of management procedure, as pressed by the Regulator in this part of its submissions, was that of perfection.  This aspect of the process did not need to be perfect but reasonable.  In my view, this aspect of the process was reasonable.  There are a number of reasons for this.
  1. [307]
    First, the BQ offer was just that, an offer.  Although this will be discussed further below, objectively, there was no unreasonable pressure being brought to bear on Mr Davis to accept the BQ offer.  Dr Hall, in his email to Mr Davis dated 30 May 2017, did ask Mr Davis to indicate his willingness or otherwise to take up the BQ offer, after it had been received by him, by close of business 7 June 2017.  However, following Mr Davis advising Ms Luck, by email dated 1 June 2017, that he was going on leave for about four weeks on 16 June 2017, Mr Davis was advised that Dr Hall wanted a decision about his willingness or otherwise to take up the BQ role by 14 June 2017.[396] 
  1. [308]
    In his subsequent email to Ms Luck dated 2 June 2017, Mr Davis stated:

I haven't received a (sic) the letter of offer from BQ yet, as per Wayne's last email.

I don't know who my BQ line manager or supervisor would be.  Can you provide their contact details, perhaps set up a meeting to help formulate a detailed training and development plan?  I don't think it should be up to me to facilitate this.

The mere fact I'm still discussing this shows a level of willingness to investigate the BQ option, at this stage.  I still have some questions about the trial period?  What if either me or BQ management think working in the role is unsuitable or not working out, where to then?  None of that is outlined in the management plan.

Regarding leave, I've waited weeks for Wayne just to get back to me with his management plan, around 5-6 weeks overdue, which I only read on Wednesday this week.  Now he's placing rather short deadlines on this, and I do not appreciate being pressured to hastily wrap this up before I go away.  It's not my fault he has dragged this out, and my long planned overseas holiday is now imminent.

I'm also being asked to agree to dramatically change my career path after 19 years in Crop Protection, and I don't think taking time to consider my future with the Department is unreasonable.

Thanks for your understanding when we spoke about this last.[397]

  1. [309]
    The BQ offer was made to Mr Davis by Mr Ashton on 2 June 2017.
  1. [310]
    Dr Hall setting a date for Mr Davis, to indicate whether or not he would accept the BQ offer, was not, of itself, unreasonable.  BQ was one of four major groups within the Department, along with Agriculture, Fisheries and Forestry and Corporate.  ASQ, of which Dr Hall was Executive Director, was in the Agriculture group.[398] Thus, in taking steps to ultimately organise to have the BQ offer made to Mr Davis by Mr Ashton, Dr Hall sought and received the assistance of Mr Ashton.  In those circumstances, given another senior manager in another part of the Department was involved, it was not unreasonable for a deadline to be set.  The facts were that Mr Davis did not see the BQ offer until the morning of 5 June 2017.  A response date of 14 June 2017 was set because of Mr Davis' leave commencing on 14 June 2017.  A response time of 10 days, in my view, is not unreasonable. 
  1. [311]
    After he was advised of the revised date to indicate his acceptance or otherwise of the BQ offer, Mr Davis indicated to Ms Luck that he was still willing to investigate a position at BQ.  This indicates that Mr Davis knew that he could either accept or not accept the BQ offer when it was received by him.
  1. [312]
    Secondly, from a practical point of view, in any offer of employment or transfer, there may always be questions the offeree may have that were not expressly dealt with by the offeror.  As set out above, Mr Davis knew he was able to, and did raise, his concerns about what was being organised for him at BQ prior to the BQ offer being made to him and after the BQ offer was made. Mr Davis did that directly with Ms Luck on 2 June 2017 and on the morning of 5 June 2017.[399] Ms Luck responded to most of his concerns in her email to Mr Davis later on 5 June 2017,[400] which he read after he had been to visit his general practitioner on that morning but before he left work that day.[401] Further, the BQ offer contained Mr Haffenden's contact details including his mobile telephone number.[402] The evidence is that after he received the BQ offer, Mr Davis rang Mr Haffenden to discuss what a 'host placement' meant.[403] 
  1. [313]
    For these reasons, in my view, this aspect of the management action taken by the Department was undertaken in a reasonable way.

That unreasonable pressure was brought to bear on Mr Davis to provide a response to the offer of a transfer to BQ particularly in light of the other management failures

  1. [314]
    The Regulator refers to, in general, three broad forms of undue pressure being placed upon Mr Davis.
  1. [315]
    First, the Regulator contends that, at the meeting on 21 March 2017, having regard to the relevant history, Dr Hall expected Mr Davis, within two weeks of the issue being raised with him, to agree to a transfer of his employment away from the area he worked in for 19 years, away from the geographic location he had worked in and at a potential significant cost to Mr Davis' career, which can only be viewed as undue pressure being placed on Mr Davis.[404]
  1. [316]
    The Regulator submits that despite Dr Hall and Ms Luck having knowledge, from earlier conversations and emails, that the process was already causing Mr Davis such stress that he had to consult the Employee Assistance Service, they did not modify the management action.[405]
  1. [317]
    Secondly, following Mr Davis (and Dr Colson) providing the signed DFIs within the extended timeframe, by 4 April 2017, pressure is then exerted by Dr Hall on Mr Davis to provide a copy of his CV to Mr Ashton.  The Regulator makes the concession that Mr Davis was not cooperative with Dr Hall regarding the provision of his CV, but submits that needs to be viewed in circumstances where Mr Davis had already indicated he was stressed, he was distrustful of Dr Hall and Dr Hall's motives, and that Dr Hall was threatening to move him.[406]
  1. [318]
    Thirdly, the Regulator contends that during the latter part of May 2017, Dr Hall placed pressure on Mr Davis by indicating dates when he could commence at BQ, despite there not being an agreed management plan in place and despite Mr Davis not having received an offer from BQ; and that when Mr Davis did receive the offer from BQ, Dr Hall and Ms Luck placed further pressure on him to provide a response indicating whether or not he would take up the offer and refused Mr Davis' request to be able to consider his position over his upcoming leave.[407]
  1. [319]
    The State contends the Regulator's submissions are misconceived in that there was an abundance of time between 5 June and 14 June 2017 for Mr Davis' outstanding enquiries to be addressed in order for him to provide a considered response to the BQ temporary placement offer.[408] 
  1. [320]
    The State submits that the matter had been going for a long time, and even if there was fault on both sides, that did not mean that it was not appropriate, if not reasonable, for the matter to be brought to a conclusion in respect of whether or not Mr Davis was prepared to go to BQ as proposed; including enabling arrangements to be put in place in respect of planning and so on, whilst Mr Davis was away on leave, allowing him to commence on his return from leave.[409]
  1. [321]
    I accept the State's submissions.  There are a number of reasons for this.
  1. [322]
    First, I fully accept that Mr Davis being asked to move from a position that he had held for a considerable number of years would be distressing for him. However, it was reasonable for the Department to deal with the conflict of interest and asking Mr Davis to consider moving from that position was not, of itself, unreasonable.  This is what was discussed by Dr Hall with Mr Davis at the meeting on 21 March 2017.  It was not unreasonable for Dr Hall to set the timeline of two weeks to reach agreement with Mr Davis about how the conflict of interest issue would be resolved. However, for the reasons given above, that two week timeframe was not absolute, and in fact was later revised to mid-May 2017.[410]
  1. [323]
    Secondly, the BQ proposal was in fact made by Dr Colson to Dr Hall on 27 March 2017.[411]  Following that proposal being raised with Dr Hall, Dr Hall took active steps with Mr Ashton to investigate whether a position at BQ could be viable.  To do that, BQ requested a copy of Mr Davis' CV.[412] The practical effect was that Dr Hall was unable to take the BQ proposal any further unless he had a response from BQ. BQ, in turn, needed a copy of Mr Davis' CV to assess if there was an opportunity for him at BQ.  For these reasons, it was not an unreasonable procedure for Dr Hall to require Mr Davis to provide his CV, and when Mr Davis did not initially do that, it was not unreasonable for Dr Hall to chase Mr Davis up about the provision of his CV.
  1. [324]
    Finally, for the reasons given above,[413] no unreasonable pressure was being brought to bear on Mr Davis to accept the BQ offer.  It was not unreasonable to require Mr Davis to give his response to the BQ offer before he went on leave.  The period of 10 days to either accept or reject the BQ offer was not unreasonable, particularly given that Mr Davis was in email communication with Ms Luck about the questions he had about the BQ offer as it pertained to the management plan. 

The management action referred to by the State

The requirement for Mr Davis to sign a declaration of interest form was reasonable management action taken reasonably

  1. [325]
    Dr Colson, as the Director of CPS, managed the virology/diagnostic team within CPS,[414] and her role was to lead and direct HR, financial and physical resources, provide direction in relation to work and research activities for the CPS including by leading, managing and motivating staff.[415]
  1. [326]
    The State submitted that:
  • because Mr Davis worked in CPS, decisions Dr Colson made involving the virology/diagnostic team may be perceived by others to be influenced by Mr Davis' relationship with her;[416]
  • the decisions Dr Colson was capable of making included the allocation of work on research projects within CPS[417] and thus, decisions she made had the potential to impact on Mr Davis' professional career development, in terms of work allocation and resource allocation;[418]
  • there was at least a risk of a perception that Dr Colson could be influenced in decisions that she made in respect of the virology/diagnostic team because Mr Davis and Dr Colson have a relationship, have shared financial interests and shared parental interests, and if a decision Dr Colson made advantages Mr Davis, it could also advantage her;[419] and
  • Mr Davis accepted that because of Dr Colson's role, her responsibility and her capacity to make particular decisions, that was a situation where there was at least the potential that there would be a perceived conflict of interest which had to be managed and, in respect of which, he accepted there was a requirement that it needed to be disclosed through a formal process of submitting a DIF.[420]
  1. [327]
    The State claims that the requirement by Dr Hall that Mr Davis sign and return the DIF was reasonable management action taken in a reasonable way for reasons that:
  • the requirement was consistent with the obligations on public service employees under s 186 of the PS Act and principal 1.2 of the Code of Conduct for the Queensland Public Service ('the Code') to disclose a conflict of interest arising from a personal relationship and enabled formal management of the conflict of interest;[421]
  • the DIF Mr Davis was required to sign is a standard form used by the Department and none of the information required is inappropriate or in any way onerous;[422]
  • seven days to complete and return the DIF was not unreasonable and, in any event, the Department agreed for Mr Davis to take additional time to complete and return the DIF;[423]
  • in April 2017, Dr Hall caused an investigation as to which, if any, other couples within ASQ may need to complete DIFs, and therefore it was not a case of Mr Davis being singled out and that action then commenced to have identified couples complete DIFs and, where necessary, management plans were put into place.[424]
  1. [328]
    Section 186 of the PS Act provides:

186 Conflicts of interest

  1. (1)
    If a public service employee, other than a chief executive, has an interest that conflicts or may conflict with the discharge of the employee’s duties, the employee-
  1. (a)
    must disclose the nature of the interest and conflict to the employee’s chief executive as soon as practicable after the relevant facts come to the employee’s knowledge; and
  1. (b)
    must not take action or further action relating to a matter that is, or may be, affected by the conflict unless authorised by the chief executive.
  1. (2)
    The chief executive of a department may direct a public service employee employed in the department to resolve a conflict or possible conflict between an interest of the employee and the employee’s duties.
  1. (3)
    For the interpretation of a reference to an interest or a conflict of interest, see section 65(4).
  1. [329]
    Section 1.2 of the Code provides:

1.2  Manage conflicts of interest

A conflict of interest involves a conflict between our duty, as public service employees, to serve the public interest and our personal interests. The conflict may arise from a range of factors including our personal relationships, our employment outside the public service, our membership of special interest groups, or our ownership of shares, companies, or property.

As public service employees we may also experience conflicts of interest between our public service ethics and our professional codes of ethics (for example as health care professionals or as lawyers), or with our personal beliefs or opinions.

Having a conflict of interest is not unusual and it is not wrongdoing in itself. However failing to disclose and manage the conflict appropriately is likely to be wrongdoing.

As public service employees we are committed to demonstrating our impartiality and integrity in fulfilling our responsibilities and as such we will:

  1. (a)
    always disclose a personal interest that could, now or in the future, be seen as influencing the performance of our duties. This will be done in accordance with our agency policies and procedures
  2. (b)
    actively participate with our agency in developing and implementing resolution strategies for any conflict of interest, and
  3. (c)
    ensure that any conflict of interest is resolved in the public interest.
  1. [330]
    Exhibit 1, document 3 is a copy of a Directive entitled 'Declaration of Interests - Public Service Employees (other than departmental Chief Executives)' - No. 3/10 issued by the chief executive of the Public Service Commission ('the Declaration of Interests Directive').  Sub-section 5.1.2 of that Directive provides that when a public service employee is directed by a chief executive to provide a Declaration of Interests, the principle that applies is that employees subject to the policy are responsible for disclosing their interests that may have a bearing, or be perceived to have a bearing, on their ability to properly and impartially discharge the duties of the office.
  1. [331]
    At the material time, both Dr Colson and Mr Davis were public service employees. As such they were subject to the PS Act, the Code and the Declaration of Interests Directive.
  1. [332]
    Dr Colson's evidence was that Mr Davis began working in the area, in respect of which she was 'Science Leader,' from October 2005.[425]
  1. [333]
    Dr Hall commenced as Executive Director of ASQ in December 2015 and his evidence was that in December 2016, Ms Smith and Ms Luck stated to him that there had been a work performance management workshop held in Toowoomba and that departmental staff had raised that there were issues in terms of how the reporting relationship between Dr Colson and Mr Davis was perceived by staff, '… with the potential that behaviours were not being appropriately managed - or performance not being appropriately managed.'[426]
  1. [334]
    As referred to above, while Dr Hall's evidence was that he knew from late December 2015 or early 2016 that Dr Colson was managing the group in which her husband sat, he did not take any action until December 2016 because he was not aware of the seriousness of the nature of the conflict of interest.[427]
  1. [335]
    Dr Hall was not the architect of the fact that Dr Colson had managerial responsibility for Mr Davis.  In my view, it was reasonable for Dr Hall, as Executive Director of ASQ, upon him understanding the nature of the perceived conflict of interest following the information he received from Ms Smith and Ms Luck, to take steps to try to manage the perceived conflict of interest.
  1. [336]
    The DIFs used by the Department are in evidence.[428] Part A of the DIF:
  • provides that where it is identified that an actual, perceived or potential conflict of interest may exist, employees must make a declaration to their manager, where possible, prior to or within 14 days of engaging in the interest;
  • requires employees to:
  1. indicate if they are making a new declaration or amending an existing declaration and to identify the type and category of the conflict of interest, namely, whether it is actual, perceived or potential and whether the conflict of interest involves a financial interest or non-financial interest; and
  2. provide a description of the interest under consideration and to also complete a Public Service Commission Declaration of Interest Form;
  • requires the manager or supervisor to:
  1. complete the form by providing any further background and/or details obtained through discussion with the employee;
  2. identify the type and category of the conflict of interest as assessed by the manager; and
  3. suggest a management strategy; and
  • requires the person identified as the 'Delegate', after investigating the declaration including the information provided by the employee and the manager, to determine whether a conflict of interest does or does not exist, and where it does exist, to determine the type and category of the conflict of interest.
  1. [337]
    Part B of the DIF is headed 'Management plan' and sets out the strategy and actions to be implemented by management to resolve the conflict of interest as declared by the employee.
  1. [338]
    On 9 March 2017, Ms Luck first contacted Mr Davis by phone about the perceived conflict of interest and indicated that she and Dr Hall wanted to meet with him and Dr Colson.[429]  That meeting did take place on 21 March 2017.  Exhibit 7 is the audio recording of that meeting.  The recording of that meeting was not played in court.  As I have indicated earlier, I have listened to that audio recording. 
  1. [339]
    During that meeting, Dr Hall indicated to both Mr Davis and Dr Colson that he required each of them to complete Part A of the DIF.
  1. [340]
    In my view, having regard to what Dr Hall said to Mr Davis and Dr Colson at the meeting on 21 March 2017, by that time, Dr Hall had already determined that there was a perceived conflict of interest.  This is because Dr Hall made it clear, in that meeting, that the Department was obligated under the Code to resolve the situation.
  1. [341]
    As referred to earlier, the Regulator concedes it was reasonable management action for the Department to try and address the perceived conflict of interest that had arisen from the relationship between Mr Davis and Dr Colson.  In my view, having regard to s 186 of the PS Act and section 1.2 of the Code, the concession made by the Regulator was properly made.
  1. [342]
    The direction by Dr Hall for Mr Davis and Dr Colson to complete the DIFs was contemplated by the Declaration of Interests Directive.  In my view, the completion of the DIFs by Mr Davis (and Dr Colson) and the completion of the remaining parts of the DIF by their manager and by the delegate, and the completion of the Management plan referred to in the DIF, was part of the process of resolving the conflict of interest.  For these reasons, the requirement that Mr Davis complete and sign the DIF was reasonable management action.
  1. [343]
    Having listened to the audio recording of the meeting of 21 March 2017, I am of the view that the direction given by Dr Hall for Mr Davis (and Dr Colson) to complete the DIF was undertaken in a reasonable way.  Indeed, throughout that meeting, Dr Hall's approach remained calm and reasonable.  Further, in Dr Hall's follow up email sent to Mr Davis and Dr Colson on 27 March 2017, he again, in a very reasonable and professional manner, stated that he required them to complete the DIF within 7 days.[430]
  1. [344]
    The Regulator did not seem to contend there was no causal connection between the requirement for Mr Davis to complete the DIF and his personal injury.
  1. [345]
    In any event, having regard to Dr Nielsen's evidence that the obligation to change roles and the surrounding events caused Mr Davis' injury, I find that the direction that Mr Davis complete the DIF had a causal connection with his injury.

The proposal to transfer Mr Davis to a position outside of CPS was reasonable management action taken reasonably

  1. [346]
    The State contends that the proposal for Mr Davis to transfer to a position outside of CPS was reasonable because:
  • the perceived conflict of interest existed (as admitted by the Regulator);
  • the State could transfer or redeploy public service employees within the Department pursuant to s 133(1) of the PS Act;
  • due to Dr Colson's seniority and the limited available transfer options for her, the State's preference was to transfer Mr Davis, which was not unreasonable;
  • Mr Davis was consulted throughout the process;
  • the Gatton proposal put forward by the State was its operationally preferred option, however it was prepared to consider other strategies that Mr Davis (and Dr Colson) might suggest if it sufficiently resolved the conflict of interest issue;
  • the restructure proposal put forward by Dr Colson was considered by the State not to be operationally suitable and did not sufficiently resolve the conflict of interest because it shifted the problem by having Mr Davis report to one of Dr Colson's peers; and
  • the State agreed to the BQ proposal, put forward by Dr Colson on Mr Davis' behalf, because it was operationally suitable and would sufficiently resolve the conflict of interest.[431]
  1. [347]
    The State further contends that the BQ proposal was reasonable because:
  • it was proposed by Dr Colson;
  • it was located in Toowoomba;
  • it was to a position at level;
  • it was a meaningful role based on Dr Davis' skill set as outlined in his CV;
  • Mr Davis had worked for BQ previously;
  • it was not proposed that Mr Davis could not continue his flexible working arrangements;
  • it was a four month trial period to allow Mr Davis and BQ to assess Mr Davis' suitability for the role and was to include an induction and training program to assist Mr Davis to succeed in the position;
  • if the role was not suitable to either party, then other arrangements would be considered;
  • if successful it would resolve the conflict of interest; and
  • Mr Davis was not concerned that he would not succeed if he went to BQ.[432]
  1. [348]
    Finally, the State contends that it acted reasonably in respect of the BQ proposal because the State:
  • advised Mr Davis within 16 business days of receipt of his CV that BQ would accept him at level as a Biosecurity Officer in Toowoomba, on a three to four month trial basis, for both Mr Davis and BQ to assess his suitability;
  • provided Mr Davis with the position description for the BQ position within 18 business days of receipt of his CV;
  • provided Mr Davis with the letter of offer for the BQ position within 22 business days of receipt of his CV;
  • allowed Mr Davis seven days to indicate his willingness or otherwise to take the BQ offer, which was subsequently extended by a further seven days at Mr Davis' request; and
  • responded promptly to Mr Davis' queries and provided opportunities for him to discuss the proposal with relevant officers, such that the State submits that a very high level of personal consultation and support was provided to Mr Davis.[433]

Mr Davis' injury arose out of or in the course of reasonable management action taken in a reasonable way in connection with his employment

  1. [349]
    Both parties agree that it was reasonable management action for the Department to try and address the perceived conflict of interest that arose from the relationship between Dr Colson and Mr Davis.
  1. [350]
    Both the Regulator and the State have marshalled up the evidence to make their respective claims that Mr Davis' injury either did not or did arise out of reasonable management action taken in a reasonable way in connection with his employment.
  1. [351]
    Apart from the response by the Department to Mr Davis' grievance made on 25 May 2017, I have concluded that the management actions, impugned by the Regulator, were reasonable management actions taken in a reasonable way.
  1. [352]
    Having regard to the close connection between the management actions, taken by Dr Hall and Ms Luck in respect of dealing with the conflict of interest between March and June 2017, in my view, in determining whether Mr Davis' injury arose out of or in the course of reasonable management action taken in a reasonable way in connection with his employment, I am entitled to take a global view of the management actions that have a causal connection with Mr Davis' injury.
  1. [353]
    I have made my conclusions as to whether the management action impugned by the Regulator, and whether the management action endorsed by the State, was reasonable management action and whether it was taken in a reasonable way in connection with Mr Davis' employment.
  1. [354]
    For the reasons given in these reasons for decision, the reasonable management action taken in a reasonable way in connection with Mr Davis' employment consisted of:
  • the way Dr Hall and Ms Luck conducted the meeting with Mr Davis and Dr Colson on 21 March 2017;[434]
  • the action of Dr Hall in requiring Mr Davis to sign the DIF;[435]
  • Dr Hall's rejection of the management realignment proposal and the restructure proposal;[436] and
  • the manner by which the Department put the BQ proposal to Mr Davis and required his response to that proposal.[437]
  1. [355]
    The above management action had a causal connection with Mr Davis' psychiatric and psychological injury.
  1. [356]
    The reality was that the above management action was reasonable management action taken in a reasonable way in connection with Mr Davis' employment.  As is evident from Mr Davis' responses to Dr Hall and Ms Luck during the 21 March 2017 meeting, and as is evident in Mr Davis' grievance (discussed in more detail below), Mr Davis perceived these management actions to be bullying, victimisation and discrimination by Dr Hall and Ms Luck.  While I consider that the Department's response to Mr Davis' grievance was not undertaken in a reasonable manner, my judgement is that Mr Davis' personal injury arose out of or in the course of the above mentioned reasonable management action that was taken in a reasonable way in connection with his employment. The Department's response to his grievance was not specifically identified by Mr Davis as a source of his anxiety. In my view, on the evidence, the management actions that had a causal connection with Ms Davis' anxiety were those he perceived as bullying, victimisation and discrimination that were referred to in his grievance.
  1. [357]
    For these reasons, the State has discharged its onus.  Mr Davis' injury is withdrawn from being a compensable injury because, on the balance of probabilities, Mr Davis' injury arose out of or in the course of reasonable management action taken in a reasonable way in connection with his employment.

Did Dr Davis' injury arise out of or in the course of Mr Davis' perception of reasonable management action being taken against him?

  1. [358]
    If I am wrong about the application of s 32(5)(a) of the Act to Mr Davis' personal injury, I will consider whether s 32(5)(b) of the Act applies to Mr Davis' injury.
  1. [359]
    As referred to earlier, s 32(5)(b) of the Act has operation when a psychiatric or psychological disorder arises out of or in the course of the worker’s expectation or perception of reasonable management action actually taken against the worker.

The State's submissions

  1. [360]
    The State submits that:
  • all the steps taken by the Department to resolve the conflict of interest arising from the reporting arrangements between Mr Davis and Dr Colson was reasonable management action taken reasonably;
  • it denies Mr Davis was bullied at any stage and submits that he was actively encouraged, supported, consulted and kept informed throughout the process implemented by management, including through communications from Dr Hall and Ms Luck and the capacity to discuss the BQ proposal with Mr Ashton;
  • the bullying and victimisation allegations are based on Mr Davis' misconception of the process, which is evident from his misperception throughout the process, that he was targeted and singled out as part of an attack on the relationship between himself and Dr Colson; and
  • Mr Davis' misperceptions as to objectively non-existent bullying and harassment caused him to decompensate.[438]

The Regulator's contentions and submissions

  1. [361]
    The Regulator did not make any detailed submissions in relation to this submission by the State, although clearly, as is referred to earlier in these reasons, the Regulator submits that there was unreasonable management action taken against Mr Davis such that s 32(5)(a) and (b) of the Act are not enlivened.[439]

What is the evidence about Mr Davis' perception of the management action taken against him?

  1. [362]
    On 9 March 2017, Ms Luck first contacted Mr Davis by phone about the perceived conflict of interest and about Dr Hall and her meeting with him and Dr Colson.[440]
  1. [363]
    The evidence is, from that point on, that Mr Davis was of the view he was being harassed and bullied by the management action of wanting to deal with the perceived conflict of interest concerning him and Dr Colson.
  1. [364]
    That evidence is:
  • Mr Davis' statements to Dr Hall in a telephone conversation on or about 10 March 2017;
  • Mr Davis' email to Ms Luck sent on 14 March 2017;
  • Mr Davis' statements to Dr Hall in the meeting of 21 March 2017; and
  • the content of the written grievance Mr Davis made to the Director-General on 25 May 2017.

Mr Davis' statements to Dr Hall on 10 March 2017

  1. [365]
    There was evidence about a return telephone call made by Dr Hall to Mr Davis on 10 March 2017.  Dr Hall had a clear recollection of that conversation.  Dr Hall stated that Mr Davis expressed to him that he was very upset about the telephone call from Ms Luck, that there had been three or four attempts to resolve the issue over the last 10 years, it kept coming up, it was having an impact on him and his family, he believed it was having an impact on his career and that he believed he was being bullied.[441]
  1. [366]
    Mr Davis was cross-examined about this telephone conversation.  Mr Davis' evidence was that there was a telephone call made by Dr Hall to him but he did not have a clear recollection of that telephone call.[442]  I accept Dr Hall's clearer and more precise evidence about the content of his conversation with Mr Davis on 10 March 2017.

Mr Davis' email to Ms Luck sent on 14 March 2017

  1. [367]
    In his email to Ms Luck sent on 14 March 2017, Mr Davis stated, amongst other things, that the conflict of interest issue raised by her felt '… like another undue attempt to harass and bully me, through inappropriate focus on my marital status with Emma.'[443]

Mr Davis' statements to Dr Hall in the meeting on 21 March 2017

  1. [368]
    On a number of occasions in the course of the meeting that took place on 21 March 2017, Mr Davis clearly expressed his view that the identification of the perceived conflict of interest by Dr Hall and the proposed action to be taken to resolve that conflict of interest involved him being bullied, harassed and the subject of unlawful discrimination.
  1. [369]
    In the course of that meeting, Mr Davis stated to Dr Hall and Ms Luck, amongst other things, that:
  • his and Dr Colson's situation had come under scrutiny, it was unfair scrutiny, there were other people in the same situation as him and Dr Colson who were not being focused upon and it was a fine line between managing a conflict of interest and discrimination on marital status;[444]
  • he could give Dr Hall plenty of instances where being Dr Colson's partner had given him a career penalty and that this was going to be another one;[445]
  • it had been tried before and he had taken a career penalty;[446]
  • he felt like he was being picked on again, it was being given entertainment by management again, it was going to put him to financial and career detriment and he was not going to stand for it anymore;[447]
  • this was the fourth time the issue had been raised by management, in a harassing way, that it had caused him detriment in his career and with the history, this was just another one and in the present case, it has escalated because he now had to leave the unit;[448]
  • he had been involved in a traffic accident, and when he came back it was handled very poorly because at the time he was given no support from HR to recover from the accident;[449]
  • the information, to be put in the DIFs by Mr Davis and Dr Colson, would be used as ammunition against them and that he and Dr Colson had been hassled by Ms Luck to come down to 'crack a walnut with a sledgehammer';[450]
  • he was perceiving harassment from what Dr Hall was saying, he was not going to put up with it any more, he had been very compliant about this in the past and he was not going to comply with it now;[451]
  • it spoke volumes that Mr Fullelove was not at the meeting and he thought that this was just a process that had been put in place to 'pound' him and Dr Colson;[452]
  • he was Dr Colson's 'Achilles heel' when it comes to her career and that when people want to 'throw stones' at Dr Colson, they raise the conflict of interest issue and management gives it oxygen and entertains it;[453]
  • Dr Hall and Ms Luck were not trying to find a solution, they were trying to railroad him and Dr Colson and that they had only picked on Mr Davis and Dr Colson and no one else in the Department;[454] and
  • this was the final harassment and the final last ditch attempt to 'smash' him and Dr Colson.[455]

The content of the written grievance Mr Davis made to the Director-General on 25 May 2017

  1. [370]
    By email sent on 25 May 2017, Mr Davis lodged the formal grievance, with Dr Beth Woods, Director-General of the Department.[456]  The content of that grievance by Mr Davis and the Department's response to the grievance are referred to earlier in these reasons.
  1. [371]
    However, it is clear from the content of his grievance that, from Mr Davis' perspective, he considered that Dr Hall's actions towards him, up to that point in time, constituted bullying and harassment.
  1. [372]
    It seems to me that Mr Davis incorrectly perceived the reasonable management action taken by Dr Hall during and following the 21 March 2017 meeting to be bullying, victimisation and unlawful discrimination.
  1. [373]
    In my view, Mr Davis' perception, in part, arose from other management action and interactions he had with management in the past.  It may well have been the case that Mr Davis had been treated unfairly by the Department in the past.  It is also open to conclude, on the evidence, that the conflict of interest that existed in respect of Dr Colson having managerial responsibility for Mr Davis should have been resolved many years before March 2017.  However, even in those circumstances, Dr Hall was still required, upon it being brought to his attention, to deal with the conflict of interest.
  1. [374]
    The fact that the conflict of interest should have been resolved before it came to Dr Hall's attention does not render Dr Hall's management action taken against Mr Davis, upon him becoming aware of the conflict of interest, as unreasonable. 

Was the management action being taken against Mr Davis reasonable?

  1. [375]
    There was reasonable management action taken against Mr Davis which he did perceive as being bullying, victimisation and unlawful discrimination.
  1. [376]
    That action was:
  • the requirement for Mr Davis to complete Part A of the DIF and submit that to Mr Fullelove within seven days;[457]
  • the requirement that Mr Davis provide his CV to Mr Ashton;[458] and
  • the requirement that Mr Davis respond to the BQ offer.[459]
  1. [377]
    For the reasons given earlier:
  • it was reasonable management action to require Mr Davis to complete part A of the DIF;[460] and
  • it was reasonable management action to require Mr Davis to provide his CV to Mr Ashton.[461]
  1. [378]
    It was also reasonable to require Mr Davis to respond to the BQ offer.  The BQ proposal was raised by Dr Colson on 27 March 2017 as a way to resolve the conflict of interest issue, but where Mr Davis could remain working in Toowoomba.  The BQ proposal was part of the draft management plan to deal with the conflict of interest.  As is referred to earlier in these reasons for decision[462] upon Dr Hall being informed of the potential that the conflict of interest issue could be resolved by Mr Davis moving to BQ, he engaged directly with Mr Ashton about whether there were possible roles for Mr Davis at BQ. That contact resulted in the BQ offer.  It was reasonable management action to require Mr Davis to respond to that offer.
  1. [379]
    As is evident in his grievance, Mr Davis erroneously perceived these reasonable management actions being taken against him as being instances of him being bullied.[463]

Is there a causal connection between Mr Davis' perception of the reasonable management action being taken against him and his injury?

  1. [380]
    On 29 March 2017, when Mr Davis first sought medical treatment in respect of the anxiety from which he was suffering, he expressed the view to his general practitioner that the cause of his anxiety was workplace bullying.[464]  Mr Davis expressed a similar view in subsequent consultations with his general practitioner[465] and then in subsequent sessions with his clinical psychologist.[466] Mr Davis' evidence-in-chief was that when he went to see his general practitioner on 5 June 2017, he told his doctor he felt bullied and that he could not cope with the stress.[467]
  1. [381]
    Dr Nielsen's report tends to prove that the cause of Mr Davis' injury was the obligation for him to change roles and the surrounding events and interactions.  As was the case when I considered the application of s 32(5)(a) of the Act, I accept that the management actions taken after the identification by Dr Hall of the conflict of interest, and the subsequent actions taken by Dr Hall, had a causal connection with Mr Davis' injury.  Those actions included the management actions taken against Mr Davis that I have referred to above, namely, the requirement that he complete the DIF, the requirement that he provide his CV to Mr Ashton and the requirement that he respond to the BQ offer.  Objectively, these were reasonable management actions taken against Mr Davis.  Mr Davis perceived them to be something they were not, namely Dr Hall's bullying of him.  In my view, these actions were taken by Dr Hall to deal with the conflict of interest issues that came to his attention.
  1. [382]
    For these reasons, even if I am incorrect about the application of s 32(5)(a) of the Act, Mr Davis' injury is withdrawn from being a compensable injury by the application of s 32(5)(b) of the Act.

Conclusion

  1. [383]
    I am critical of the Department for not dealing, in a determinative manner, with the conflict of interest created by Dr Colson having managerial responsibility for Mr Davis, prior to December 2016.
  1. [384]
    Dr Colson became the Science Leader, later called Director, of CPS in 2005.  It is reasonable to conclude that it would have been apparent that the conflict of interest emerged from at least 2005.
  1. [385]
    That lack of action, and other grievances that Mr Davis had with the Department, contributed to his flawed perception of the management action taken by Dr Hall, from March 2017, to deal with the conflict of interest.  Mr Davis' erroneous perception of the action taken by Dr Hall was clearly brought into focus in his response to Dr Hall in the meeting on 21 March 2017 and in his written grievance to Dr Woods and Mr Letts dated 25 May 2017.
  1. [386]
    However, the fact that the Department did not take any determinative action, to deal with the conflict of interest involving Mr Davis and Dr Colson, did not immunise Dr Hall from his obligation to deal with that conflict of interest when it was brought to his attention.
  1. [387]
    The fact that Dr Hall came to a preliminary view early on in his deliberations, that the restructure proposal and the management realignment proposal (which would have kept Mr Davis in the CFSG) was not his optimal resolution of the issue, does not lead to a conclusion that he failed to give proper consideration to them.  On the evidence, fair and reasonable consideration was given by Dr Hall to those proposals.
  1. [388]
    In this appeal, the onus was on the State to prove, on the balance of probabilities, that Mr Davis did not suffer an injury within the meaning of s 32 of the Act. The State has discharged the onus on it.
  1. [389]
    For the reasons given above, Mr Davis' personal injury of anxiety and depression arose out of or in the course of reasonable management action taken in a reasonable way in connection with his employment.  If I am wrong about that, then, for the reasons given above, Mr Davis' anxiety and depression arose out of or in the course of his perception of reasonable management action taken by Dr Hall against him.
  1. [390]
    For these alternative reasons, I allow the appeal.
  1. [391]
    Pursuant to s 558(1)(c) of the Act, the decision appealed against is set aside and another decision is substituted, namely, that Mr Davis did not suffer an injury within the meaning of the Act.
  1. [392]
    The Regulator must pay State of Queensland's costs of the appeal.

Footnotes

[1] Exhibit 1, docs. 119 and 144.

[2] The submissions of the State of Queensland filed on 27 August 2019 ('the State's submissions'), para. 209.

[3] The submissions of the Workers' Compensation Regulator filed on 6 August 2019 ('the Regulator's submissions'), para. 66 and the State's submissions, paras. 9 and 209.

[4] The Regulator's submissions, paras. 64-65 and the State's submissions, para. 209(c).

[5] Exhibit 1, docs. 144, 145, 146, 147, 148, 151, 153, 154, 156, 157, 159, 162 and 164.

[6] Blackwood v Mana [2014] ICQ 027, [23] (Martin J, President).

[7] The statement of facts and contentions filed by the State on 6 June 2018 ('the State's contentions'), paras. 30-38.

[8] The statement of facts and contentions filed by the Regulator on 20 July 2018 ('the Regulator's contentions'), under the heading 'Contentions', paras. 1-5.

[9] The State's submissions, para. 210 and the Regulator's submissions, para. 357.

[10] Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031, [24]-[27] (Martin J, President).

[11] Ibid [37]-[39] (Martin J, President).

[12] State of Queensland (Queensland Health) v Q-COMP and Beverly Coyne [2003] ICQ 9; (2003) 172 QGIG 1447, 1448 (Hall P).

[13] State of Queensland v Q-COMP [2010] ICQ 6, [21] (Hall P).

[14] Simon Blackwood (Workers’ Compensation Regulator) v Chapman [2016] ICQ 011, [23] (Martin J, President).

[15] Simon Blackwood (Workers’ Compensation Regulator) v Mahaffey [2016] ICQ 010, [53] (Martin J, President).

[16] Ibid [56] (Martin J, President).

[17] Davis v Blackwood [2014] ICQ 009, [47] (Martin J, President).

[18] Sabo v Q-COMP [2010] ICQ 47, [21] (Hall P).

[19] Lawton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 99, [65] (Deputy President O'Connor) ('Lawton') citing Keen v Workers' Rehabilitation and Compensation Corporation [1998] SASC 7056; (1998) 71 SASR 42, 47-48 (Lander J).

[20] Delaney v Q-COMP Review Unit [2005] QIC 11; (2005) 178 QGIG 197, 197 (President Hall) ('Delany').

[21] Q-COMP v Hohn [2008] QIC 56; (2008) 187 QGIG 139, 146 (President Hall).

[22] Lawton (n 19) [68] (Deputy President O'Connor).

[23] WorkCover Queensland v Kehl [2002] ICQ 23; (2002) 170 QGIG 93, 94 (President Hall).

[24] Prizeman v Q-COMP [2005] ICQ 53; (2005) 180 QGIG 481, 481 (President Hall).

[25] Waugh v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 028, [41] (Martin J, President).

[26] Ibid [42].

[27] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 027, [15] (Martin J, President) ('Hardy').

[28] Delaney (n 20), 198 (Hall P) and Hardy (n 27), [15] (Martin J, President).

[29] Wyllie v Q-COMP [2009] ICQ 9; (2009) 190 QGIG 233, 235 (President Hall) ('Wyllie').

[30]Misevski v Q-COMP [2009] ICQ 2, [30] (President Hall).

[31] Wyllie (n 29), 235.

[32] [1955] CanLII 162 (ON SC); (1956) OR 437 ('Canadian Electric').

[33] Canadian Electric (n 32), 443 (Wells J).

[34] [2007] QIRC 75; (2007) 185 QGIG 383.

[35] Ibid, [106].

[36] Read v Workers' Compensation Regulator [2017] QIRC 072, [9] ('Read').

[37] Macquarie Dictionary (7th ed, 2017) 'manage' (def 4).

[38] Ibid, 'management' (def 1).

[39] Acts Interpretation Act 1954, s 14(3).

[40] Avis v Workcover Queensland [2000] 67 QIC; (2000) 165 QGIG 788, (788) (President Hall).

[41] Ivey v Workcover Queensland [1999] 65 QIC; (1999) 162 QGIG 392, (392) (President Hall).

[42] Versace v Braun [2005] QIC 18; (2005) QGIG 315, 316 (Hall P) and Exide Australia Pty Ltd v WorkCover Queensland [2002] QIC 24; (2002) 170 QGIG 95, 95 (Hall P).

[43] Read (n 36), [8]-[10], Allwood v Workers' Compensation Regulator [2017] QIRC 088, [58]-[68], Haack v Workers' Compensation Regulator [2017] QIRC 115, [44]-[46] and Gilmour v Workers' Compensation Regulator [2019] QIRC 022, [78]-[79].

[44] The State's contentions, para. 29.

[45] The Regulator's submissions, para. 78.

[46] The State's contentions, paras. 32-33.

[47] The State's contentions, paras. 34-36.

[48] The State's contentions, paras. 37-38.

[49] The State's submissions, para. 213.

[50] The State's submissions, para. 214.

[51] The State's submissions, para. 215.

[52] The State's submissions, paras. 216-237.

[53] The State's submissions, paras. 238-240.

[54] The State's submissions, paras. 241-244.

[55] The State's submissions, paras. 245-343.

[56] The Regulator's contentions, under the heading 'Contentions', page 3, para. 4.

[57] T 4-29, l 31 to T 4-30, l 30.

[58] The Regulator's submissions, para. 79.

[59] The Regulator's submissions, para. 80.

[60] The Regulator's submissions, paras. 81-97.

[61] The Regulator's submissions, paras. 98-129.

[62] The Regulator's submissions, paras. 130-147.

[63] The Regulator's submissions, paras. 148-177.

[64] The Regulator's submissions, paras. 181-187.

[65] The Regulator's submissions, paras. 188-193.

[66] The Regulator's submissions, paras. 194-203.

[67] The Regulator's submissions, paras. 204-205.

[68] The Regulator's submissions, paras. 206-235.

[69] The Regulator's submissions, paras. 236-258.

[70] The Regulator's submissions, paras. 259-271.

[71] The Regulator's submissions, paras. 272-294.

[72] The Regulator's submissions, paras. 295-301.

[73] The Regulator's submissions, paras. 302-326.

[74] The Regulator's submissions, paras. 327-333.

[75] The Regulator's submissions, paras. 334-341.

[76] The Regulator's submissions, paras. 342-355.

[77] Paragraphs [74]-[79] of these reasons for decision.

[78] Paragraphs [93]-[100] of these reasons for decision.

[79] The Regulator's submission, para.129.

[80] The State's submission, para. 256.

[81] Paragraphs [112]-[119] of these reasons for decision.

[82] The Regulator's submissions, para. 73 and the State's submissions, para. 211.

[83] The State's submissions, paras. 248-255.

[84] The State's submissions, paras. 256-257.

[85] The State's submissions, paras. 258-267.

[86] The Regulator's submissions, paras. 81-97,

[87] The State's submissions, paras. 252-255.

[88] [2007] ICQ 31; (2007) 185 QGIG 269 ('Parker').

[89] The submissions in reply of the Regulator filed on 3 September 2019 ('the Regulator's reply'), paras. 17-19.

[90] Parker (n 88), 270 (President Hall).

[91] Ibid.

[92] Ibid, 272.

[93] T 7-21, l 9 to T 7-22, l 34.

[94] Exhibit 1, doc. 4.

[95] T 2-74, ll 1-2.

[96] T 1-15, ll 34-35 and T 2-74, ll 45-48 .

[97] T 2-74, ll 39-43.

[98] T 2-73, ll 5-6.

[99] T 6-78, ll 17-25.

[100] Exhibit 1, doc. 8.

[101] T 1-14, ll 37-45.

[102] T 1-29, ll 10-14.

[103] T 1-15, ll 34-35.

[104] Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 643, 645 (Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ).

[105] It is reasonable to assume this is a reference to Mr Fullelove.

[106] It is reasonable to assume this is a reference to Dr Hall.

[107] Exhibit 1, doc. 162, para. [4]

[108] Exhibit 1, doc. 162, paras. [46]-[50].

[109] Exhibit 1, doc. 162, para. [60].

[110] In Parker, the management action that was found to have the causal connection with the claimant's injury commenced on 9 July 2003.  The claimant suffered her injury on 26 August 2003: Parker (n 88), 271-272 (President Hall).

[111] The Regulator's submissions, paras. 98-110 and paras. 116-120.

[112] The Regulator's submissions, para. 126.

[113] The Regulator's submissions, para. 128.

[114] The State's submissions, paras. 256-257.

[115] T 1-15, ll 24-28.

[116] Exhibit 1, doc. 8.

[117] Exhibit 1, doc. 8.

[118] Exhibit 1, doc. 10.

[119] Exhibit 1, doc. 10.

[120] T 2-75, ll 14-25.

[121] T 2-75, ll 31-35.

[122] T 1-17, ll 14-15.

[123] T 1-32, ll 12-15.

[124] Exhibit 1, doc. 14.

[125] Exhibit 1, doc. 14.

[126] T 1-34, ll 17-22.

[127] T 1-34, ll 29-47.

[128] Exhibit 1, doc. 15.

[129] The Regulator's submissions, para. 142.

[130] The Regulator's submissions, para. 144.

[131] The State's submissions, para. 259.

[132] The State's submissions, paras. 261-267.

[133] Exhibit 1, doc. 162, para. [60].

[134] T 1-42, ll 38-39.

[135] T 1-44, ll 26-38.

[136] T 2-76, ll 13-20.

[137] T 2-85, l 40 to T 2-86, l 2.

[138] T 1-45, ll1-23.

[139] T 2-7, ll 21-33.

[140] T 1-45, l 25 to T 1-46, l 38.

[141] T 1-47, l 35 to T 1-48, l 2.

[142] The Regulator's submissions, paras. 140-141.

[143] T 2-11, ll 4-14.

[144] The Regulator's submissions, para. 141.

[145] [1959] HCA 8; (1959] 101 CLR 298 ('Dunkel').

[146] The Regulator's submissions, para. 141.

[147] T 7-6, ll 40-44.

[148] T 7-6, l 44 to T 7-7, l 14.

[149] The State's submissions, para. 71, relying on the decision of Kitto J in Dunkel (n 145), 308.

[150] [2010] HCA 11; (2011) 243 CLR 361 ('Kuhl').

[151] Ibid [63] (Heydon, Crennan and Bell JJ).

[152] Manly Council v Byrne [2004] NSWCA 123, [54] (Campbell J, with Beazley JA at [1] and Pearlman AJA at [2] agreeing).

[153] Ibid [55] (Campbell J, with Beazley JA at [1] and Pearlman AJA at [2] agreeing).

[154] Paragraphs [194]-[199] of these reasons for decision.

[155] Exhibit 1, doc. 25, sixth to eighth pages.

[156] The Regulator's submissions, para. 14 and the State's submissions, paras. 10-13.

[157] Exhibit 1, doc. 162, para. [60].

[158] Ibid.

[159] The Regulator's submissions, para. 155.

[160] The Regulator's submissions, paras. 156-157.

[161] The Regulator's submissions, paras. 158-160.

[162] The Regulator's submissions, paras. 165-167.

[163] The Regulator's submissions, paras. 171-172.

[164] The Regulator's submissions, para. 173.

[165] The Regulator's submissions, para. 174.

[166] The Regulator's submissions, paras. 175.

[167] T 7-7, l 44 to T 7-8, l 5.

[168] T 7-8, ll 7-10.

[169] T 7-8, ll 21-24.

[170] T 7-8, ll 43-46.

[171] T 7-10, l 43 to T 7-11, l 5.

[172] T 7-11, ll 25-36.

[173] T 7-12, ll 27-41.

[174] T 7-12, l 43 to T 7-13, l 3 and Exhibit 1, doc. 23, first page.

[175] T 7-13, ll 12-21.

[176] T 7-13, ll 23-47.

[177] T 7-14, l 16 to T 7-15, ll 25.

[178] The State's submissions, para. 270.

[179] The State's submissions, paras. 271-273.

[180] The State's submissions, para. 274.

[181] The State's submissions, paras. 276-277.

[182] The State's submissions, paras. 280-282.

[183] The State's submissions, para. 283.

[184] The State's submissions, para. 284.

[185] T 7-24, l 40 to T 7-25, l 2.

[186] T 7-25, ll 4-30.

[187] T 7-25, l 32 to T 7-26, l 3.

[188] T 7-26, ll 5-15.

[189] T 7-26, ll 17-43.

[190] T 7-26, l 45 to T 7-27, l 40.

[191] Paragraphs [183]-[199] of these reasons.

[192] The Regulator's submissions, para. 172.

[193] The Regulator's submissions, para. 152.

[194] Exhibit 1, doc. 17.

[195] T 1-46, ll 1-16.

[196] T 1-47, ll 1-16.

[197] T 2-26, ll 13-38.

[198] T 3-68, ll 23-25.

[199] T 3-68, ll 38-47.

[200] Exhibit 1, doc. 23, third and fourth pages.

[201] Exhibit 1, doc. 23, first page.

[202] Exhibit 1, doc. 24.

[203] T 1-47, l 44 to T 1-48, l 2.

[204] T 3-71, ll 1-34.

[205] T 3-71, l 40 to T 3-72, l 6.

[206] The Regulator's submission, para. 174.

[207] T 2-40, ll 20-25.

[208] Keating v Morris & Ors; Leck v Morris and Ors [2005] QSC 243, [50] (Moynihan J).

[209] T 1-62, ll 11-19.

[210] T 1-61, l 30 to T 1-62 l 2 (Dr Hall) and T 3-13, ll 8-14 (Dr Williams).

[211] T 2-8, l 43 to T 2-9, l 4.

[212] Paragraphs [205]-[219] of these reasons for decision.

[213] Paragraphs [279]-[280] of these reasons for decision.

[214] The Regulator's submissions, paras. 178-187.

[215] The State's submissions, paras. 292-293.

[216] T 4-28, ll 11-14.

[217] T 4-29, l 32 to T 4-30, l 34.

[218] T 4-28, ll 16-22.

[219] T 4-30, l 45 to T 4-32, l 23.

[220] Exhibit 7 at 03:40-03:48.

[221] T 2-61, ll 13-40.

[222] T 2-61, ll 33-34. In re-examination, Dr Hall said the Director-General had the power to transfer (T 2-65, ll 10‑14).

[223] T 2-72, ll 44-45.

[224] The Regulator's submissions, paras. 178-180.

[225] MWJ v R [2005] HCA 74; (2005) 222 ALR 436, [38] (Gummow, Kirby and Callinan JJ) ('MWJ').

[226] Food and Beverage Australia Ltd v Andrews [2017] VSCA 258, [171] (Redlich JA, Santamaria and McLeish JJA).

[227] MWJ (n 225), [39] (Gummow, Kirby and Callinan JJ).

[228] Bale v Mills [2011] NSWCA 226; (2011) 81 NSWLR 498, [78]-[79] (Allsop P, Giles JA and Tobias AJA).

[229] The Regulator's submissions, paras. 189-193.

[230] The State's submissions, para. 295.

[231] Exhibit 6.

[232] Exhibit 7, 50:41- 51:16.

[233] Exhibit 1, doc. 15.

[234] The Regulator's submissions, para. 192.

[235] T 2-36, ll 37-46.

[236] T 2-36, ll 11-19.

[237] The Regulator's submissions, paras. 194-203.

[238] T 7-5, ll 15-25.

[239] T 7-5, ll 29-31.

[240] T 7-5, l 42 to T 7-6, l 2.

[241] T 2-19, l 46 to T 2-20, l 5.

[242] T 2-20, ll 10-23.

[243] T 2-21, ll 15-19.

[244] T 2-21, ll 18-23.

[245] T 2-21, ll 29-31.

[246] T 2-21, ll 31-34.

[247] Exhibit 1, doc. 23, fourth page.

[248] T 2-28, l 26 to T 2-29, l 1.

[249] T 4-36, ll 21-27.

[250] T 4-36, ll 29-34.

[251] T 2-30, ll 1-4.

[252] The State's submissions, paras. 296-297.

[253] Paragraphs [194]-[199] of these reasons for decision.

[254] The Regulator's submissions, paras. 204-205.

[255] Exhibit 7, 40:09-40:20.

[256] Exhibit 7, 40:21-40:24.

[257] Exhibit 7, 40:26-40:30.

[258] Exhibit 1, doc. 17.

[259] Exhibit 1, doc. 24.

[260] The State's submissions, para. 298.

[261] Kuhl (n 150), [70]-[72] (Heydon, Crennan and Bell JJ) and State of New South Wales v Hunt [2014] NSWCA 47; (2014) 86 NSWLR 226, [38]-[39] (Leeming JA, with Barrett JA at [1] and Tobias AJA at [75] agreeing).

[262] The Regulator's submissions, para. 211.

[263] The Regulator's submissions, paras. 212-225.

[264] The Regulator's submissions, para. 226.

[265] The Regulator's submissions, paras. 227-230.

[266] The Regulator's submissions, paras. 231-235.

[267] The State's submissions, paras. 299-300.

[268] The State's submissions, para. 301.

[269] The State's submissions, paras. 302-303.

[270] T 3-81, ll 33-35 (Ms Luck).

[271] Exhibit 1, doc. 34.

[272] The Regulator's submissions, para. 218.

[273] Exhibit 1, doc. 38.

[274] Exhibit 1, docs. 45, 46 and 46A.

[275] Exhibit 1, doc. 46.

[276] T 2-45, ll 39-45.

[277] T 2-46, ll 14-20.

[278] T 2-91, ll 27-34.

[279] Exhibit 1, doc. 45.

[280] Exhibit 7, 47:13-47:48.

[281] Exhibit 1, doc. 46.

[282] Exhibit 1, doc. 56.

[283] T 2-77, ll 36-44.

[284] Referred to in para. [162] of these reasons for decision.

[285] The Regulator's submissions, para. 227-228.

[286] Referred to in para. [162] of these reasons for decision.

[287] T 3-9, ll 28-33.

[288] T 3-9, ll 35-40.

[289] The Regulator's submissions, paras. 236-242.

[290] The Regulator's submissions, para. 245.

[291] The Regulator's submissions, para. 248.

[292] The Regulator's submissions, paras. 249-258.

[293] The State's submissions, paras. 304-308.

[294] Exhibit 7, 12:40-12:54.

[295] Exhibit 7, 12:58-13:16.

[296] Exhibit 7, 22:23-22:33.

[297] Exhibit 7, 24:05-24:25.

[298] Exhibit 1, doc. 40, first page.

[299] Exhibit 1, doc. 41, first page.

[300] T 1-57, ll 35-42.

[301] Exhibit 1, doc. 67.

[302] T 1-67, ll 4-10.

[303] Exhibit 1, docs. 140 and 141.

[304] T 1-68, ll 6-9.

[305] T 1-68, l 31 to T 1-69, l 24.

[306] Exhibit 1, doc. 140.

[307] Exhibit 1, doc. 102.

[308] The Regulator's submissions, paras. 262-271.

[309] The State's submissions, para. 309.

[310] The State's submissions, para. 310.

[311] Yousif v Workers' Compensation Regulator [2017] ICQ 004, [13] (Martin J, President).

[312] Ibid [15].

[313] Ibid [13].

[314] Betfair Pty Ltd v Racing New South Wales [2010] FCAFC 133; (2010) 189 FCR 356, [51] (Keane CJ and Lander and Buchanan JJ).

[315] T 2-59, ll 36-44.

[316] T 2-60, ll 7-9.

[317] T 2-60, ll 11-15.

[318] T 2-60, ll 23-32.

[319] T 4-64, l 15 to T 4-65, l 15.

[320] Exhibit 1, doc. 102.

[321] T 4-66, ll 8-31.

[322] Exhibit 1, doc. 102.

[323] The Regulator's submissions, paras. 272-294.

[324] The State's submissions, para. 311.

[325] The State's submissions, para. 312.

[326] The State's submissions, para. 313.

[327] T 2-24, l 38 to T 2-25, l 1.

[328] T 3-44, ll 6-10.

[329] T 2-33, ll 40-45.

[330] Exhibit 1, doc. 24.

[331] T 3-75, ll 29-30.

[332] T 3-68, ll 4-8.

[333] T 3-68, ll 10-21.

[334] T 3-76, l 32.

[335] T 3-77, ll 8-13.

[336] Exhibit 1, doc. 29.

[337] Exhibit 7, 49:40-50:31.

[338] Exhibit 1, doc. 40.

[339] The Regulator's submissions, para. 295.

[340] The Regulator's submissions, para. 297.

[341] The Regulator's submissions, paras. 298-301 and T 7-15, l 38 to T 7-16, l 14.

[342] The State's submissions, paras. 314-317.

[343] T 7-28, ll 16-28.

[344] Public Service Act 2008, s 26(1)(c).

[345] The Regulator's submissions, paras. 302-323.

[346] The Regulator's submissions, paras. 325-326.

[347] The Regulator's submissions, para. 324.

[348] The State's submissions, paras. 318-323.

[349] The State's submissions, paras. 324-326.

[350] Exhibit 7, 2:46-3:38.

[351] Exhibit 1, doc. 58.

[352] Exhibit 1, docs. 54 and 55.

[353] Exhibit 1, docs. 106 and 107.

[354] Exhibit 1, doc. 76.

[355] T 3-8, ll 8-41 (Mr Fullelove) and T 4-12, ll 12-15 (Ms Luck)

[356] T 6-94, ll 10-39.

[357] T 2-47, ll 10-12.

[358] Exhibit 1, doc. 48.

[359] Exhibit 1, docs. 78, 82, 85, 87, 89 and 91.

[360] T 4-58, ll 33-41.

[361] Exhibit 1, doc. 90.

[362] Exhibit 1, doc. 107.

[363] Exhibit 1, doc. 119. Mr Davis' evidence was that he did not see the email containing the BQ offer until he returned work on Monday, 5 June 2017 (T 4-71, ll 46-47).

[364] The Regulator's submissions, paras. 327-329.

[365] The Regulator's submissions, para. 332.

[366] The Regulator's submissions, para. 333.

[367] The State's submissions, paras. 329-331.

[368] T 4-11, ll 15-27.

[369] T 4-14, ll 30-37.

[370] Exhibit 1, doc. 83.

[371] Exhibit 1, doc. 90.

[372] Exhibit 1, doc. 93.

[373] Exhibit 1, doc. 101.

[374] Exhibit 1, docs. 106 and 107.

[375] Exhibit 1, docs. 110 and 111.

[376] Exhibit 1, docs. 113 and 114.

[377] Exhibit 1, docs. 117 and 118.

[378] Exhibit 1, doc. 120.

[379] Exhibit 1, doc. 122.  Mr Davis' evidence was that he saw this email from Ms Luck after he had left work on 5 June 2017 to attend upon his medical practitioner (T 4-76, ll 1-2).  Mr Davis' evidence was that he did not respond to that email because he could not handle the situation anymore and that he had had enough by that point and he acted on his doctor's advice to leave (T 4-76, ll 9-12).

[380] The Regulator's submissions, paras. 335-338.

[381] The Regulator's submissions, para. 339.

[382] The Regulator's submissions, paras. 340-341.

[383] The State's submissions, paras. 332-340.

[384] The State's submissions, para. 341.

[385] T 4-4, ll 37-46.

[386] T 4-8, ll 32-39.

[387] T 4-11, ll 18-23.

[388] T 4-12, ll 12-15.

[389] T 4-15, ll 38-45.

[390] T 4-16, ll 18-23.

[391] T 4-22, ll 12-19.

[392] T 4-24, ll 12-14.

[393] Exhibit 1, doc. 102, second page, sixth and ninth paragraph.

[394] Exhibit 1, doc. 118.

[395] Exhibit 1, doc. 120.

[396] Exhibit 1, doc. 117.

[397] Exhibit 1, doc. 118.

[398] T 1-58, ll 33-38.

[399] Exhibit 1, doc. 120.

[400] Exhibit 1, doc. 123.

[401] T 4-75, l 45 to T 4-76, l 12.

[402] Exhibit 1, doc. 119, third page.

[403] Exhibit 1, doc. 121.

[404] The Regulator's submissions, paras. 342-346.

[405] The Regulator's submissions, para. 347.

[406] The Regulator's submissions, paras. 350-351.

[407] The Regulator's submissions, paras. 353-355.

[408] The State's submissions, para. 342.

[409] The State's submissions, para. 343.

[410] Paragraph [276] of these reasons for decision.

[411] T 1-58, ll 23-31.

[412] T 1-60, ll 39-43.

[413] Paragraphs [306]-[310] of these reasons for decision.

[414] The State's submissions, para. 221.

[415] The State's submissions, para. 223.

[416] The State's submissions, para. 225.

[417] The State's submissions, para. 226.

[418] The State's submissions, para. 227.

[419] The State's submissions, paras 228 and 229.

[420] The State's submissions, para. 231.

[421] The State's submissions, para. 234(a).

[422] The State's submissions, para. 234(b).

[423] The State's submissions, para. 234(c).

[424] The State's submissions, para. 236.

[425] T 6-42, ll 10-15.

[426] T 1-45, ll 1-17.

[427] T 2-7, ll 21-32.

[428] Exhibit 1, docs. 54 and 55.

[429] T 4-40, l 44 to T 4-41, l 11 and Exhibit 1, doc. 29, page 2.

[430] Exhibit 1, doc. 40.

[431] The State's submissions, para. 238.

[432] The State's submissions, para. 239.

[433] The State's submissions, para. 240.

[434] Paragraphs [155]-[204] of these reasons for decision.

[435] Paragraphs [325]-[343] of these reasons for decision.

[436] Paragraphs [162]-[163] and [205]-[219] of these reasons for decision.

[437] Paragraphs [276]-[281] and [322]-[324] of these reasons for decision.

[438] The State's submissions, paras. 241-244.

[439] The Regulator's submissions, paras. 356-357.

[440] T 4-40, l 44 to T 4-41, l 11 and Exhibit 1, doc. 29, page 2.

[441] T 1-50, ll 14-35.

[442] T 5-34, ll 1-33.

[443] Exhibit 1, doc. 29, page 1.

[444] Exhibit 7, 9:38-10:03.

[445] Exhibit 7, 11:25-11:32.

[446] Exhibit 7, 11:44-11:48.

[447] Exhibit 7, 11:50-12:04.

[448] Exhibit 7, 15:10-15:30.

[449] Exhibit 7, 16:05-16:23.

[450] Exhibit 7, 17:46-18:01.

[451] Exhibit 7, 18:22-18:34.

[452] Exhibit 7, 35:40-35:53.

[453] Exhibit 7, 35:54-36:19.

[454] Exhibit 7, 37:33-37:40.

[455] Exhibit 7, 52:43-52:53.

[456] Exhibit 1, doc. 102.

[457] Exhibit 7, 02:50-02:59.

[458] Exhibit 1, docs. 48, 59 and 60.

[459] Exhibit 1, docs. 117.

[460] Paragraphs [325]-[343] of these reasons for decision.

[461] Paragraph [323] of these reasons for decision.

[462] Paragraphs [279]-[280] of these reasons for decision.

[463] Exhibit 1, doc. 102, third paragraph, second page (in relation to the requirement that he complete the DIF), Exhibit 1, doc. 102, sixth paragraph, second page (in relation to the requirement that he provide his CV) and Exhibit 1, doc. 102, last paragraph, second page and the first three paragraphs on the third page (in relation to the requirement he respond to the BQ offer).

[464] Exhibit 1, doc. 143, first page.

[465] Exhibit 1, docs. 142, 143 third page, 144, 145, 146, 147, 148, 153, 154, 156, 157 and 159.

[466] Exhibit 1, docs. 152 and 160.

[467] T 4-74, l 45 to T 4-75, l 2.

Close

Editorial Notes

  • Published Case Name:

    State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator

  • Shortened Case Name:

    State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator

  • MNC:

    [2020] QIRC 97

  • Court:

    QIRC

  • Judge(s):

    Member Merrell DP

  • Date:

    30 Jun 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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