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  • Unreported Judgment

Weiss v Workers' Compensation Regulator

 

[2020] QIRC 111

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Weiss v Workers' Compensation Regulator

[2020] QIRC 111

PARTIES: 

Weiss, Nathan

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2018/195

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

4 August 2020

HEARING DATES:

21 – 24 October 2019

7 February 2020 (Respondent's Submissions)

5 March 2020 (Appellant's Submissions)

30 March 2020 (Respondent's Reply Submissions)

HEARD AT:

Caloundra Magistrates Court

MEMBER:

Knight IC

ORDERS:

  1. The appeal is dismissed.
  1. The decision of the Respondent dated 3 October 2018 is affirmed.
  1. The Appellant is to pay the Respondent's costs of and incidental to this appeal.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION – psychological or psychiatric injury – psychological injury arising out of employment – where appellant claims meeting with manager led to decompensation – whether employment was the major significant contributing factor to the onset of anxiety and depression – whether injury is excluded by virtue of s 32(5) of the Act – appeal dismissed.

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003

CASES:

APPEARANCES:

Blackwood v Mana [2014] ICQ 027

Davis v Blackwood [2014] ICQ 009

Keen v Workers' Rehabilitation and Compensation Corporation (1998) 71 SASR 42

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

Vensa Misevski v Q-COMP (C/2009/29)

Newman v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 182

Pouesi AND Q-COMP (C/2013/4)

Ramsay v Watson (1961) 108 CLR 643

Rucker v Blackwood [2014] ICQ 028

WorkCover Queensland v Buchanan [2000] QIC 255

Wicks v Workers' Compensation Regulator [2018] QIRC 63

Mr N Weiss, representing himself

Mr S Gray, Counsel, directly instructed by the Workers' Compensation Regulator

Reasons for Decision

  1. [1]
    Mr Nathan Weiss has appealed to the Commission against a decision of the Workers' Compensation Regulator to reject his claim for compensation for a psychiatric injury.
  1. [2]
    By way of background, he was working as a venue manager for Australian Leisure and Hospitality ("ALH") at the Villa Noosa Hotel when he was requested to attend a 'catch-up' with his regional operations manager, Mr Dan Drane, at around 9.00am on 25 June 2018.
  1. [3]
    Mr Weiss maintains he was ambushed during the meeting when Mr Drane unfairly accused him of 'stealing time' in circumstances where he was of the view Mr Weiss had taken two 'time off in lieu' ("TOIL") days, without firstly obtaining approval.
  1. [4]
    In the same meeting, Mr Weiss submits Mr Drane unreasonably raised concerns about his performance and that those issues had not previously been raised with him. Approximately five hours after the conclusion of the meeting, Mr Weiss was emailed correspondence requesting his attendance at a formal meeting to address concerns around alleged misconduct and performance issues.
  2. [5]
    Mr Weiss claims the hostile way he was treated, in combination with the unreasonable manner in which Mr Drane raised concerns about his performance and conduct during the meeting, had a such profound impact on his mental health that he visited his GP early the following day whereupon he was diagnosed with anxiety and, later, depression.
  1. [6]
    Central to Mr Weiss' appeal is his contention that the accusations levelled at him by Mr Drane in relation to his use of TOIL, and the way Mr Drane ambushed him with concerns about his performance in the meeting, were both unreasonable and unjustified. Mr Weiss maintains the approach taken by Mr Drane was unduly aggressive and did not conform with ALH's accepted practices insofar as they related to the initiation and conduct of a disciplinary process.
  1. [7]
    The Workers' Compensation Regulator ("the Regulator") argues the meeting on the morning of 25 June 2018 was not intended to be disciplinary in nature and was instead an opportunity for Mr Weiss to explain why he had taken TOIL in circumstances where: (1) Mr Drane was of the understanding Mr Weiss was meant to be working; (2) Mr Drane considered Mr Weiss had not sought prior approval to take TOIL in accordance with the accepted practices; and (3) Mr Weiss had previously been reminded by Mr Drane to follow the correct processes in relation to the approval of TOIL and the taking of leave.
  1. [8]
    The Regulator maintains Mr Weiss was dealt with reasonably during the meeting and, given the way events had unfolded, it was appropriate for Mr Drane to give Mr Weiss an opportunity to explain what had occurred.
  1. [9]
    It is argued that Mr Weiss was not ambushed. Instead, the Regulator contends the performance issues raised with Mr Weiss during his discussion with Mr Drane on 25 June 2018 had been raised earlier in the year during an annual performance review that took place in late May 2018. Further, it is said Mr Drane had previously flagged with Mr Weiss a requirement that he participate in a Performance Improvement Plan ("PIP"), which had subsequently been provided to him in hardcopy.

Issues for Determination

  1. [10]
    There is no dispute Mr Weiss is a worker within the meaning of the s 11 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act"). The parties agree Mr Weiss suffered a personal injury, namely, anxiety and depression, and that his injury arose out of his employment. Therefore, the remaining issues I must decide are:
  1. (i)
    whether Mr Weiss' employment was the major significant contributing factor to the onset of his anxiety and depression; and
  1. (ii)
    if the answer to (i) be yes, whether the injury is not compensable by virtue of it arising out of, or in the course of, reasonable management action taken in a reasonable way by Mr Drane and ALH, in connection with Mr Weiss' employment?
  1. [11]
    An appeal of this type is a hearing de novo. The onus is on Mr Weiss to prove on the balance of probabilities that his employment was the major significant contributing factor in the onset of his anxiety and depression.[1] 
  1. [12]
    In this appeal, where issues around management action have been raised, Mr Weiss must prove his injury is not excluded in accordance with the provisions contained in s 32(5) of the Act.[2]
  1. [13]
    There are several factual disputes in this matter, relating to the content of discussions between Mr Weiss and other staff members of the Villa Noosa Hotel at the relevant time, including Mr Drane who gave evidence during the proceedings. In those circumstances, it is important for the Commission to also have regard to the credibility of those witnesses.

Witnesses

  1. [14]
    In addition to giving evidence himself, Mr Weiss called the following witnesses:
  1. (a)
    Mr Troy Bryett – commenced employment at the Villa Noosa Hotel as the head chef until he ceased his employment in December 2018;
  1. (b)
    Mr Ezra Pyers – a human resources business partner with ALH for approximately six years;
  1. (c)
    Ms Samantha Shigolkov – a venue manager with ALH for 15 years, who resigned in June 2019;
  1. (d)
    Ms Anne Single – a gaming room attendance with ALH, for approximately 11 years;
  1. (e)
    Ms Jodie Forbes – employed with ALH for 12 years, who undertook a variety of roles ranging from casual bar staff through to casual assistant manager. For the relevant period, Ms Forbes was performing duties as a casual assistant manager at the Villa Noosa Hotel, from March 2018;
  1. (f)
    Mr Finbarr Gormley – assistant manager at the Villa Noosa Hotel during the relevant period;
  1. (g)
    Ms Molly Gannon – TAB supervisor at the Villa Noosa Hotel;
  1. (h)
    Dr Ashley White, GP, Noosaville Medical Centre; and
  1. (i)
    Dr Burnett W Kann, Consultant Psychiatrist.
  1. [15]
    The Regulator called Mr Drane to give evidence. At the relevant time, he was engaged as an operations manager for the ALH Group and was responsible for 19 hotels within the ALH portfolio, including the Villa Noosa Hotel.
  2. [16]
    A report prepared by Ms Anne Marie Box, a psychologist, was tendered by consent. She was not called to give evidence by either party to the proceedings.
  1. [17]
    I had the opportunity to listen to and observe the witnesses give their evidence which was helpful in assessing their credibility.
  1. [18]
    I found Mr Weiss to have some credibility issues. Although I do not consider he deliberately attempted to mislead or confuse the Commission, I regularly observed instances where he failed to directly respond to questions during cross-examination. In his evidence, Mr Drane highlighted a similar pattern in his own interactions with Mr Weiss in the workplace when attempting to discuss issues of concern, noting:

… However, some of the responses I was getting – and in Nathan's style, it was to avoid the subject and let's distract it – distract you and talk about how good things are going at the hotel. And I became – I became concerned because of – again, trying to avoid talking about what it is he'd just been exposed on, and head towards all the good things that are going on.[3]

  1. [19]
    I gained a similar impression after observing Mr Weiss give his evidence. For example, in response to several questions during cross-examination which dealt with the processes he did or did not follow when applying for leave or TOIL, at times he did not respond directly and instead answered the question, by essentially providing a response on a related but different issue. On occasion, he would avoid answering the question altogether. 
  1. [20]
    I have therefore approached Mr Weiss' evidence with some caution and have attempted, where possible, to identify supporting evidence from other witnesses before accepting his evidence about certain matters.
  1. [21]
    I found Mr Drane to be a credible witness. He was considered and straightforward when responding to questions. He was not evasive. He did not become angry, dismissive or frustrated despite there being occasions during the proceedings when it was difficult to understand the questions put to him by Mr Weiss during cross-examination. He was also prepared to acknowledge occasions where Mr Weiss had performed well in his employment at the Villa Noosa Hotel.
  1. [22]
    In relation to the other witnesses, I have commented below on their credibility where necessary and relevant.

Background and events prior to 25 June 2018 meeting

  1. [23]
    As best I understand, part of Mr Weiss' argument in this appeal is that Mr Drane had previously condoned processes that he or his assistant managers had followed when applying for or accessing accrued leave or TOIL; therefore, Mr Drane's response to the TOIL incident during their meeting on 25 June 2018 was disproportionate and unreasonable.
  1. [24]
    Separately, Mr Weiss asserts the performance matters raised by Mr Drane during their catch-up had not previously been discussed with him. He maintains this resulted in considerable distress for him in circumstances where he considered both he and the Villa Noosa Hotel were performing well.
  1. [25]
    Mr Weiss denies being told he would be required to participate in a PIP; or that Mr Drane mentioned the plan during their performance discussions. 
  1. [26]
    Given Mr Weiss' assertions and their relevance to the question of whether Mr Drane's actions on the morning of 25 June 2018 were reasonable, it is therefore also necessary to consider:
  1. (a)
    the respective roles and responsibilities held by both Mr Weiss and Mr Drane;
  1. (b)
    the accepted ALH policies and practices associated with the taking of leave and approval of TOIL, along with Mr Weiss' understanding of the practices;
  1. (c)
    the nature and content of a 2018 performance feedback meeting and any other interaction between Mr Drane and Mr Weiss related to his performance in late May 2018;
  1. (d)
    the steps taken to communicate and implement a PIP for Mr Weiss following the May 2018 performance feedback meeting;
  1. (e)
    whether Mr Weiss applied for his TOIL on the weekend of 22 June 2018, in accordance with the accepted ALH policies and practices;
  1. (f)
    when did Mr Drane become aware Mr Weiss had taken time off without approval; and
  1. (g)
    what occurred in the meeting between Mr Weiss and Mr Drane on the morning of 25 June 2018?
  1. [27]
    Throughout the issues listed below I have considered the evidence and made findings of fact where relevant.
  1. (a)
    What were the roles and responsibilities of Mr Weiss and Mr Drane at the relevant time?
  1. [28]
    Mr Weiss commenced his employment as a venue manager with ALH in February 2015 at the Villa Noosa Hotel, which is located on the Sunshine Coast. As best I understand, the Villa Noosa Hotel is a flagship venue in the ALH portfolio. Although he was responsible for the overall operation of the Villa Noosa Hotel as the venue manager, Mr Weiss told the Commission he structured his management team so that they were responsible for individual areas with the venue.
  1. [29]
    By way of example, he explained how he established a system where a single manager would generally be responsible for TimeTEQ and payroll related issues, such as uploading rosters and leave approvals. Other managers were responsible for areas such as accommodation or food.
  1. [30]
    Mr Weiss told the Commission he undertook a lot of his work in a nook located in the sports bar of the hotel, where he would set up his laptop. He explained he generally took Thursday and Sunday as his rostered days off.
  1. [31]
    He would meet with Mr Drane on a semi-regular basis, generally on a Friday morning, however his evidence was there would be periods where they would not meet for weeks at a time.

Mr Drane

  1. [32]
    Mr Drane was engaged as an operations manager for ALH in or around 2012. The position required him to supervise a portfolio of 19 hotels within a geographical region, predominantly covering the Sunshine Coast and Wide Bay areas.
  1. [33]
    He was responsible for providing support and guidance to the venue managers within his portfolio by regularly meeting and engaging with them. Mr Drane would email his group of venue managers, providing updates on financial, compliance and human resource related topics and outcomes.
  1. [34]
    Mr Drane was responsible for ensuring the venues were profitable and that compliance standards were being met. From what I can gather, it was important that he, in conjunction with venue managers, achieved outcomes in the areas of profitability, safety, human resources and compliance.
  1. [35]
    When it came to prioritising his time, Mr Drane explained his approach was to focus more attention on managers or venues that he considered were not performing to their full potential.
  1. [36]
    Prior to taking on the role of operations manager, Mr Drane also worked as a venue manager for the ALH Group, overseeing the operation of hotels throughout South East Queensland and the Sunshine Coast. Mr Drane was the venue manager for the Villa Noosa Hotel for a couple of years in 2009.
  1. (b)
    What were the ALH policies and practices associated with the taking of leave and approval of TOIL in the relevant period? What was Mr Weiss' understanding of the practices?
  1. [37]
    The ALH Group, including the Villa Noosa Hotel, utilised an electronic payroll and rostering system called 'TimeTEQ' through which managers were required to upload rosters, capture hours worked by staff and approve electronic requests for certain types of leave. Venue managers were allocated individual 'logon' codes which they used to access the TimeTEQ system. 
  1. [38]
    Mr Weiss' evidence is that he was not overly proficient in the use of TimeTEQ and would nominate assistant managers at his venue to undertake tasks within the system. Mr Drane's evidence is that he had offered TimeTEQ training to Mr Weiss.
  1. [39]
    Venue managers were responsible for ensuring weekly rosters were uploaded into TimeTEQ, published and then displayed in hard copy form for staff to view within the hotel. It was not uncommon for assistant managers to undertake rostering tasks associated with TimeTEQ.
  1. [40]
    Venue managers were authorised to approve leave applications for all staff within the hotel other than themselves. It was a requirement for leave requests for venue managers to be authorised by an operations manager. 
  1. [41]
    Mr Drane's evidence was that it was necessary for Mr Weiss to seek approval directly from him whenever he wanted to take leave. Mr Drane explained that, as a basic courtesy and where practical, his preference was to receive an email from a venue manager advising they planned to submit a request for leave. Venue managers were required to enter their leave requests electronically into TimeTEQ.
  1. [42]
    The requirement for a venue manager to notify their manager to take leave and complete a leave request is reflected in correspondence sent to Mr Weiss on 26 June 2018, where sections of the policy are reproduced in the following terms:[4]

Leave Policy

Notification of Leave

Employees should notify their manager of their desire or need to take leave as soon as it is practicable. At least four weeks' notice should be given for planned leave. The time at which the planned leave is requested will be agreed with the manager/team leader.

To apply for leave, employees need to fill in a Leave Application Form and have their manager/team leader approve it. The manager/team leader is responsible for ensuring the leave application forms are completed…

  1. [43]
    In terms of the approval process for venue managers requesting leave, Mr Drane explained that when he logged into TimeTEQ he would be given access to a screen which listed individual leave requests submitted by each venue manager, including Mr Weiss.
  1. [44]
    Mr Drane was required to access the TimeTEQ system and, where appropriate, approve leave requests for venue managers. He explained he had no issues with an employee accessing accrued leave but held an expectation he would be notified before the manager took leave.
  1. [45]
    According to Mr Drane, TimeTEQ also gave him the capacity to review and assess approved leave requests within the relevant venue for assistant managers and other key staff, before agreeing to a leave request from a venue manager. His evidence was that ALH's policy required him to ensure there was always an appropriately qualified manager working within the venue.
  1. [46]
    In terms of his remuneration, Mr Weiss received an annualised salary which was said to be in recognition of his role and additional reasonable hours undertaken at the Villa Noosa Hotel. Although he did not receive overtime, whenever Mr Weiss worked on a public holiday, he (and other venue managers) would receive a day off in in lieu (otherwise known as a substitute day).
  1. [47]
    Mr Drane explained that in the period immediately after a public holiday had fallen, he would generally access TimeTEQ and authorise the allocation of a TOIL day to venue managers where they had been rostered to work on the public holiday. The TOIL day could then be taken as leave by a venue manager at a later time, provided the request was approved by Mr Drane. 
  1. [48]
    A request from a venue manager to access accrued TOIL as a leave day was essentially treated in a similar manner to an application for leave. According to Mr Drane, on occasions where Mr Weiss wanted to take a TOIL day as a leave, he was required to enter the request into the TimeTEQ system. Mr Drane would then approve the request.
  1. [49]
    As best I understand it, just like annual leave, TOIL days which were taken as leave by venue managers would then be reflected in the published roster and deducted from their existing TOIL accruals within the TimeTEQ system. Mr Drane explained this was important because it ensured that accurate TOIL and leave balances were being retained for venue managers and that ALH was not incurring additional costs for unapproved leave.
  1. [50]
    Mr Drane's evidence was that during Mr Weiss' induction he would have had a discussion with him about the TOIL and leave practices. He was of the view he would not have moved forward with the induction until he was satisfied Mr Weiss understood the process. His instructions in respect of how to make a request for leave were, according to Mr Drane, provided verbally at the commencement of Mr Weiss' employment.
  1. [51]
    Although Mr Weiss claimed during the proceedings he had not learnt how to properly use the TimeTEQ system, it became clear during cross-examination that he was aware the system recorded employees' attendance at work, along with hours of work, annual leave balances and sick leave. He was also aware rosters were required to be uploaded into the TimeTEQ system.
  1. [52]
    Mr Weiss acknowledged he was aware of the requirement for his leave requests to be formally approved through the TimeTEQ system by Mr Drane.
  1. [53]
    He conceded that while working as a venue manager at the Villa Noosa Hotel, he received email correspondence from Mr Drane on several occasions where the process for requesting and taking leave had been explained or reinforced.[5] For example, in an ALH update distributed to venue managers on 12 May 2016, Mr Drane noted:

Toil and annual leave - another reminder that all venue manager TOIL and annual leave must be put through TimeTEQ as a leave request for myself to approve. Assistant managers are not entitled to approve the taking of TOIL or AL for venue managers.

  1. [54]
    Mr Weiss tendered into evidence an email exchange that occurred between Mr Jonathan Lister-Smith (an assistant manager) and Mr Drane on 15 February 2017 where Mr Lister-Smith requested a period of leave for, and on behalf of, Mr Weiss. In a response to both Mr Lister-Smith and Mr Weiss, Mr Drane noted that "Nathan will need to put in a leave request through TimeTEQ please".
  1. [55]
    Mr Drane told the Commission he considered it was important to include Mr Weiss on the reply email in circumstances where he had "asked numerous times for it to be put into TimeTEQ correctly so that it could be approved and done the way it has been instructed to be – done".[6]
  1. [56]
    Several of the witnesses who were called to give evidence during the proceedings were aware of the requirement for Mr Weiss to seek approval to take leave or utilise accrued TOILS.  They were also aware of the challenges that arose where a request for leave was in the TimeTEQ system but had not been approved, including Ms Shigolkov who observed:

Well you can't actually roster, if it hasn't been approved. You - you can't schedule an unapproved leave request.[7]

Unexplained absences and failure to clock on and off

  1. [57]
    Although not directly related to the process of applying for and taking annual leave or TOIL, Mr Drane's evidence is that prior to the TOIL event on the weekend of 22 June 2018, it had been necessary for him to engage with Mr Weiss about his time and attendance within the business.
  1. [58]
    Mr Drane explained that an annual audit had identified several irregularities including a failure by Mr Weiss and several assistant managers to clock on and off in TimeTEQ, with no explanations being recorded.
  1. [59]
    According to Mr Drane, the auditor raised concerns with him about unexplained absences within the Villa Noosa Hotel. He explained that during the conversation, it was suggested he raise the issue directly with Mr Weiss. Mr Drane confirmed he raised the concerns identified by the auditor during Mr Weiss' performance feedback session.
  1. [60]
    Although Mr Weiss maintains he did not view any written comments, it is the case that a summary included by Mr Drane on the back of an annual performance feedback document referenced the audit findings around the use of TimeTEQ and the importance of logging attendance.[8] Likewise, in an email to Mr Weiss dated 31 May 2018, Mr Drane wrote:

Can you also, as a basic courtesy, please let me know when you plan on leaving the venue or finishing early in future.[9]

Conclusions

  1. [61]
    On the evidence of both Mr Drane, Mr Weiss and Ms Shigolkov, it is clear the TimeTEQ system would not allow an electronic roster to be uploaded and published until all outstanding annual leave and TOIL requests were approved by an operations manager such as Mr Drane.
  1. [62]
    I accept it was not possible, nor permissible, for an assistant manager to approve leave or TOIL requests for a venue manager through TimeTEQ. 
  2. [63]
    I am satisfied that the established practice for venue managers such as Mr Weiss, who wished to utilise accrued TOIL days as leave, was to lodge an electronic request via TimeTEQ to the designated operations manager ahead of the proposed time for taking leave.
  1. [64]
    Although Mr Drane explained he would, on occasion, make allowances for a venue manager who made a genuine mistake, I accept it was generally impermissible for managers such as Mr Weiss to take leave or utilise their accrued TOIL without seeking permission in advance.
  1. [65]
    Mr Weiss was at pains during the proceedings to highlight a position that other venue managers within Mr Drane's portfolio had taken leave in a manner which was not in accordance with ALH leave policies and practices; and that he had therefore been singled out and treated less favourably for the same practice, during his meeting with Mr Drane on the morning of 25 June 2018. 
  1. [66]
    Although I accept it is plausible that some venue managers may not have always followed the desired process, I am not persuaded, having regard to the evidence before the Commission, that Mr Drane was aware of those transgressions, nor is it open to me to make a finding that Mr Drane regularly condoned a departure from the accepted standards for venue managers, other than Mr Weiss.
  1. [67]
    I consider it likely Mr Weiss, on occasion, allowed assistant managers to utilise his log in details to submit an electronic request for leave (on his behalf) through the TimeTEQ system. I also accept there may have been occasions where Mr Weiss relied on assistant managers as a conduit between himself and Mr Drane, when applying for leave or when seeking to access accrued TOIL days as leave. 
  1. [68]
    It is clear Mr Weiss was advised and aware of the requirement to lodge a request for leave through TimeTEQ. I am satisfied he knew of the requirement for Mr Drane to approve his use of annual leave and TOIL. I accept that on occasion it had been necessary for Mr Drane to remind Mr Weiss about the process he needed to follow when taking leave and TOIL. 
  1. [69]
    I am also satisfied Mr Weiss was aware of the challenges that could arise with rostering and publishing a roster, where a pending request for leave or TOIL had not been actioned.
  1. [70]
    After considering the materials provided to the Commission in respect of the Villa Noosa Hotel's audit outcome and Mr Drane's evidence in relation to the auditor's concerns about unexplained absences, I accept Mr Weiss was made aware of ALH's requirements that he and other staff within the Villa Noosa Hotel accurately log their attendance at work. In the same period, Mr Drane requested to be notified when Mr Weiss was going to be absent from the Villa Noosa Hotel when he was otherwise meant to be working.
  1. (c)
     What discussions did Mr Drane and Mr Weiss have in relation to his performance?
  1. [71]
    Mr Drane was required to provide each venue manager within his portfolio with feedback about their performance on an annual basis.
  1. [72]
    As best I can tell, at some point before late May 2018, Mr Weiss, ahead of his annual performance  feedback meeting, was requested to undertake a self-assessment in relation to his performance and to identify areas for improvement or development insofar as it related to the operation of the venue and his individual performance.
  1. [73]
    Separately, as part of the process, Mr Drane undertook his own assessment of Mr Weiss, with both parties appearing to nominate a rating against nominated categories of performance.
  1. [74]
    Mr Weiss' annual performance feedback document[10]  for 2018 contains five pages. The first three pages of the document incorporate headings such as 'Service', 'People, 'Results' and 'Standards'. Against those headings, aside from 'People', Mr Weiss allocated himself a 'high performance' for 2018.
  1. [75]
    Against the heading of 'People', Mr Weiss self-nominated a rating of 'effective performance', which falls just below 'high performance'.
  1. [76]
    Mr Drane, on the other hand, appeared to hold a different view about Mr Weiss' performance for 2018, nominating a rating of 'effective performance' in the areas of Service and Results; an 'unsatisfactory performance' rating against 'People'; and a 'performance improvement required' for the heading of 'Standards'. 
  1. [77]
    In respect of the 'Overall Rating' at the conclusion of the feedback document, Mr Weiss assessed himself as being in the 'high performance' category, whereas Mr Drane nominated 'performance improvement required' – a far lower rating.
  1. [78]
    Mr Drane's evidence is that he went into the performance feedback session with Mr Weiss holding a view it would probably be necessary for Mr Weis to participate in a PIP, subject to the outcome of their discussions. He was not sure of the exact date of the annual performance discussions, but Mr Drane considered that he may have drafted the PIP ahead of the meeting.
  1. [79]
    Certainly, having regard to the version histories, it seems clear the annual performance review document was developed on 28 May 2018,[11] whereas the PIP was created on 25 May 2018. As best I understand, the annual performance meeting was held in late May or early June 2018.
  1. [80]
    Mr Weiss' evidence in chief was that he had viewed the performance feedback document during the annual feedback session, but that the summary comments authored by Mr Drane on the final page (which included reference to Mr Weiss' participation in a PIP) were not recorded on the document at the time of their discussions. Mr Weiss' evidence is that he did not see the summary comments until after he decompensated on 25 June 2018. 
  1. [81]
    Given Mr Drane's evidence that he preferred to hold feedback discussions with his venue managers before preparing the written summary, I accept Mr Weiss more than likely did not view the summary comments on or before the annual performance feedback meeting.
  2. [82]
    I have reproduced Mr Drane's written comments from the annual performance review below:
  • while the business will marginally exceed LY result, the gaming business has not grown. Food has improved slightly and bars on the back of good touring acts has been better. Accommodation has declined slightly, as have the standards;
  • Nathan has had high turnover of assistant managers and finds himself again with only two AMs and is borrowing a casual manager from Alex Heads Hotel. There is no attempt to recruit and develop managers at this venue in the past twelve months. Nathan requires immediate and comprehensive improvement on recruitment of quality AMs, development of new and existing managers and the ongoing retention of said managers;
  • Nathan spends the majority of his rostered shifts in the sports bar and needs to spend time in the other areas, namely the Bistro, Functions, Accommodation and Gaming to apply time and business planning to grow these departments. The gaming business has not grown at market levels and struggles to exceed last years turnover while the sunshine coast market grows at near 9%;
  • a recent internal audit has identified little clocking of shifts and some unexplained absenteeism in attendance. A performance plan will be drafted to assist Nathan in improving this and to adhere to policy regarding time in attendance;
  • Revinate restaurant score is over 4 however it is not a strong indication of the service standards given that your average reviews per week is often only two reviews;
  • accommodation Revinate score is well below the expected standard at 3.68 with the main areas of improvement indicated as cleaning standards and general repairs and maintenance; and
  • lost time injuries have been high due to one individual long-term injured worker with slow progress.
  1. [83]
    Mr Weiss' recollection of the specific issues which were raised with him during his annual performance review included concerns about his inability to develop and retain assistant managers at the Villa Noosa Hotel. Mr Weiss told the Commission he disagreed with Mr Drane about this issue during the meeting and provided Mr Drane with, in his view, a reasonable explanation as to why several assistant managers were no longer working at the hotel. 
  1. [84]
    According to Mr Weiss, he was also reminded during their discussions to ensure that all managers used TimeTEQ to accurately record their attendances. He specifically recalled that the first thing he did after his annual review was to speak to the assistant managers at the Villa Noosa Hotel and remind them to properly clock on and off.
  1. [85]
    Mr Drane's recollection of the annual review discussions is somewhat different. He recalled explaining to Mr Weiss that he considered the Villa Noosa Hotel was not performing to its full potential. Although he said he focused the discussion on areas of the business that needed to be improved, he was particularly concerned about the high turnover of assistant managers.
  1. [86]
    Mr Drane considered Mr Weiss needed to be more hands on and involved in all areas of the business. He believed some of the problems within the hotel had arisen due to a lack a leadership on the part of Mr Weiss.
  1. [87]
    Mr Drane expressed concerns that Mr Weiss was spending the majority of his rostered shifts in the sports bar and, in respect of the unexplained absences identified by the auditor, he recalled reminding Mr Weiss that he needed to "be here when it mattered as the business relied on him to be there and to show leadership".[12]
  1. [88]
    Although Mr Weiss acknowledged Mr Drane raised concerns about the turnover of managers at the Villa Noosa Hotel, he denied being given any feedback about spending most of his shifts in the sports bar.
  1. [89]
    In cross-examination, Mr Weiss acknowledged Mr Drane spoke to him about the gaming side of the hotel not growing at market levels but recalled disagreeing and highlighting current levels of gaming revenue. He acknowledged discussing the audit results and Mr Drane's concerns about clocking on and off but denied any discussions between them about unexplained absences.
  1. [90]
    Mr Weiss was adamant Mr Drane did not raised any concerns in respect of the restaurant and accommodation score. 
  1. [91]
    Despite initially giving evidence that Mr Drane had covered only a few key issues in the feedback meeting, which included the audit results and managers not clocking on and off, he was able to recall that at one stage in their discussions Mr Drane suggested Mr Weiss should consider moving on from the venue. Mr Drane denies he made the comment.

Conclusions

  1. [92]
    Although Mr Weiss is claiming the major stressor in the onset of his psychological injury was the meeting with Mr Drane on the morning of 25 June 2018, an assessment of the performance issues discussed with him prior to that meeting is essential in this matter, due to his claims that he was ambushed when Mr Drane raised concerns about his performance for the first time.
  1. [93]
    Mr Weiss suggested during the proceedings there was something untoward about the preparation of the PIP and the summary areas of the annual performance review document. Having regard to his comments during the proceedings and written submissions, my understanding is that Mr Weiss is suggesting both documents were amended or altered, after the 25 June 2018 meeting, such that they would better align with Mr Drane and ALH's version of events relating to when the performance concerns were first raised.
  1. [94]
    Having regard to the materials before the Commission including the version histories of the documents, I am not persuaded Mr Drane or any other person at ALH acted inappropriately in the creation or amendment of the documents. Both documents were created in late May 2018, well before the catch-up meeting in late June 2018. The documents were accessed after the meeting on 25 June 2018 but there is no evidence before the Commission to suggest they were amended or varied such that the content would better support Mr Drane's account of their interaction. 
  1. [95]
    Mr Weiss initially gave evidence that the matters discussed between he and Mr Drane during the feedback session were relatively narrow in scope. That is, his recollection was that the audit results and the need for better timekeeping through the TimeTEQ system were the main issues that were raised by Mr Drane. He was adamant he did not view Mr Drane's summary comments in the final pages of the annual performance document.
  1. [96]
    Even if I were to accept Mr Weiss did not view the comments,[13] I consider his initial evidence about the narrow nature of their discussions somewhat at odds with Mr Drane's assessment in the performance feedback document itself, particularly in circumstances where Mr Weiss was awarded the lowest possible mark against the heading of 'People' and the second lowest result on the scale against the heading of 'Standards'.
  1. [97]
    The 'People' heading in the annual performance feedback document related to a venue manager's capacity to lead the management team, including recruitment and training. The 'Standards' heading related to capability and performance in the areas of leadership and compliance, including the achievement of successful outcomes in audits, cash handling, and employment matters.
  1. [98]
    At a minimum, I am satisfied Mr Weiss was aware of Mr Drane's assessment and the reasons for it, even if he did not receive or sight a copy of the summary comments that were included in the document on the completion of the annual review.
  1. [99]
    Mr Drane explained the purpose of the PIP was to put in place strategies to assist Mr Weiss improve his performance. It seems that hitting his own key performance indicators was also contingent on his group of venue managers and venues performing at a high standard. 
  1. [100]
    Despite playing down the extent of his discussions with Mr Drane during the annual review, Mr Weiss made a point in his evidence in chief of stating Mr Drane suggested he 'move on' during the annual meeting. Although the comment is denied, it is difficult to align Mr Weiss' evidence with the argument that he was unaware Mr Drane held concerns about his performance and/or had not communicated those concerns during the annual review.
  1. [101]
    Having reviewed the materials before the Commission, I am satisfied Mr Drane raised concerns with Mr Weiss, either during the performance feedback meeting and/or in the wake of the audit findings, in the following areas:
  • gaming revenue not reaching its full potential;
  • the need for improvement in the recruitment, development and retention of assistant managers;
  • the importance of Mr Weiss and other managers properly recording their attendance at the hotel in the TimeTEQ system;
  • the requirement for Mr Weiss to advise Mr Drane when he was leaving the Villa Noosa Hotel or finishing his shift early; and
  • cash control issues.
  1. [102]
    On balance, I consider it more likely than not that Mr Drane also spoke to Mr Weiss about leadership and the importance of his being present in the venue before their catch up on 25 June 2018. Such an approach is consistent with Mr Drane's evidence of having received feedback from an auditor in late May 2018 in respect of Mr Weiss' unexplained absences.
  1. [103]
    One of the other reasons I consider the content and nature of the discussions between Mr Weiss and Mr Drane were broader than that suggested by Mr Weiss in his initial evidence to the Commission is, in part, due to the commentary contained in six A4 pages of Mr Weiss' 2018 diary, covering the dates of Monday, 25 June 2018 through to Saturday, 30 June 2018.
  1. [104]
    Although Mr Weiss initially gave evidence that he wrote the notes in the immediate aftermath of the catch-up between him and Mr Drane on 25 June 2018, and they were reflective of their conversation on that day, he acknowledged during cross-examination that there "might have been… some things" he had included about previous discussions in the notes, commenting, "anything that was in my head I was writing down from that – that encounter with Dan Drane that morning."[14]
  1. [105]
    Mr Weiss' discussions with Mr Drane on the morning of 25 June 2018 were held over a brief 15-minute timeframe, yet the notes in his diary are quite extensive and cover a multitude of topics, which include but are not limited to:
  • Mr Weiss taking TOIL over the weekend, without seeking approval beforehand;
  • the Villa Noosa Hotel not advancing like the rest of the state;
  • the retention and development of assistant managers;
  • concerns about the growth in bar and gaming revenue;
  • Mr Weiss not being present when it counted; and
  • Mr Weiss operating the venue from the sports bar.
  1. [106]
    Having regard to Mr Weiss' diary notes, I do not accept the six full pages of topics and content contained within the notes could possibly have been all covered during the 25 June 2018 meeting, particularly given Mr Weiss' evidence that Mr Drane did not respond to many of his comments.
  1. [107]
    Several of the comments in the diary notes also align with details recorded in the 2018 performance feedback document prepared by Mr Drane which suggests that even if Mr Weiss did not view Mr Drane's final review comments, he was aware of them.
  1. [108]
    I note Ms Shigolkov also gave evidence of a conversation with Mr Weiss where she recalled his raising concerns with her about being 'picked on' by Mr Drane in the lead up to the meeting of the 25 June 2018. In my view, this evidence further supports a conclusion that Mr Weiss was aware Mr Drane was not happy with his performance and had raised concerns on an earlier occasion.
  1. [109]
    Although I consider it possible Mr Drane may not have communicated every comment within the performance feedback document in the exact manner it is recorded , I accept his evidence that he verbally raised many of the issues that are listed during the annual performance review document in late May/early June 2018.
  1. (d)
    What, if any, steps were taken by Mr Drane to communicate and implement a PIP for Mr Weiss following the performance feedback meeting?
  1. [110]
    Mr Drane's summary comments within the performance feedback document include a reference to the development of a PIP in the following context:

A recent internal audit has identified little clocking of shifts and some unexplained absenteeism in attendance. A performance plan will be drafted to assist Nathan in improving this and to adhere to policy regarding Time in attendance.

  1. [111]
    Mr Drane explained to the Commission he was of the view that one of the reasons why the Villa Noosa Hotel was not reaching its full potential was a lack of leadership and presence by Mr Weiss. His preference was that Mr Weiss become more engaged and involved with all areas of the venue.
  1. [112]
    Mr Drane's evidence is that during the performance feedback meeting he discussed the objective of the PIP. He considered it was his role to assist Mr Weiss to do better in the areas he had identified as requiring improvement.
  1. [113]
    Mr Drane told the Commission he handed a hard copy of the PIP to Mr Weiss during a subsequent visit to the Villa Noosa Hotel. He was unable to remember the exact date, but he recalled requesting Mr Weiss read the document and come back to him with any issues or questions. His evidence was that he told Mr Weiss they would catch up regularly to discuss his progress. He recalled Mr Weiss took the document from him while they were standing in the hotel office, placing it in a red-coloured tray on his desk.[15] The details of that account were not challenged by Mr Weiss during cross-examination.
  1. [114]
    Mr Weiss denies ever sighting a copy of the PIP. He also maintains Mr Drane did not speak to him about a PIP at any stage. 

Conclusions

  1. [115]
    Although I accept it is possible Mr Weiss technically did not view the contents of the performance plan, in circumstances where he may well have placed the document in a tray in his office, I am not persuaded Mr Drane did not speak to Mr Weiss about the PIP or the need for improvement, particularly given there is a reference to the PIP in the performance feedback document summary (albeit mostly tied to the issue of timekeeping and attendance within the hotel).
  2. [116]
    Mr Drane allocated ratings of 'unsatisfactory performance' and 'performance improvement required' against two significant measures of performance for Mr Weiss in mid-late May 2018. Having done that, I accept his evidence that it was incumbent on him and indeed part of his role to assist Mr Weiss improve those areas of his performance. I am satisfied Mr Drane took steps to communicate his concerns to Mr Weiss, either in person or by email in the latter part of May and June 2018.
  1. (e)
    Did Mr Weiss apply for his TOIL in accordance with the accepted ALH policy and practices ahead of taking TOIL days?
  1. [117]
    It is not in contention Mr Weiss took two days off from work from Friday, 22 June 2018 to attend a weekend of golfing and drinking with his friends. During the proceedings Mr Weiss characterised those days as TOIL days.
  1. [118]
    Although he maintained throughout the proceedings that Mr Drane's approach when raising concerns about his taking time off was unreasonable, during cross-examination Mr Weiss acknowledged he did not apply to access his accrued TOIL in accordance with the accepted practices. In particular, he conceded he did not submit a request to Mr Drane to access his TOIL before taking time off over the weekend.
  1. [119]
    On Mr Weiss' account, he became aware his TOIL had not been approved on the Thursday evening before Mr Drane attended the hotel the following morning. On realising that his TOIL was not approved, he maintains he immediately took steps to rectify the issue by contacting Ms Forbes, a casual assistant manager who was working at the Villa Noosa Hotel over the weekend.

Conclusions 

  1. [120]
    Ms Forbes was unable to recall Mr Weiss' phone call, however the emails provided to the Commission, at the very least, support the position that Mr Weiss took steps to try and have his TOIL approved, albeit through an assistant manager after Mr Drane discovered he was absent from the Villa Noosa Hotel.
  1. [121]
    Irrespective of the reason why the TOIL was not approved, it is clear Mr Weiss did not obtain permission to take time off before departing Noosa.
  1. [122]
    As best I understand it, Mr Weiss attributes his failure to apply for TOIL to Mr Gormley, another assistant manager, who he claims let him down by failing to upload a set of rosters that had, according to Mr Weiss, been handed to Mr Gormley on 8 June 2018.  Mr Weiss maintains Mr Gormley also failed to seek the necessary approvals for Mr Weiss to access and utilise his TOIL days.
  1. [123]
    In his evidence to the Commission, Mr Weiss noted:

… one job that Finbar had to do was just upload the rosters into TimeTEQ and request the two TOIL days to be approved so then once Dan Drane approves those, that uploads into TimeTEQ, then he can upload the rosters that have been uploaded into TimeTEQ into the staff Facebook page.[16]

  1. [124]
    Mr Gormley, who was called to give evidence by Mr Weiss, denied being handed four weeks of rosters or being directed to update or upload TOILS and rosters into TimeTEQ.[17] He was adamant during the proceedings that he had limited expertise using the TimeTEQ system.
  1. [125]
    I prefer Mr Gormley's account. During the relevant period there was a high degree of turnover in assistant managers at the Villa Noosa Hotel due to resignations and illness. It is entirely plausible that Mr Gormley was not provided with the rosters or any instructions given the turnover in staff at the time. 
  1. [126]
    Even if I were to reject Mr Gormley's account and accept Mr Weiss' explanation, it is not entirely clear on the evidence from Mr Weiss as to how Mr Gormley was meant to go about applying for Mr Weiss' leave in circumstances where assistant managers were prevented from approving annual leave for venue managers within TimeTEQ. 
  1. [127]
    Mr Drane considered that one way around the prohibition on assistant managers applying for or approving leave, was for a venue manager to provide their personal login details to an assistant manager, who would then submit an electronic request to Mr Drane to approve the use of TOIL days or leave. Presumably, Mr Drane would be none the wiser because the request would have been submitted into TimeTEQ via the login details of the venue manager.
  1. [128]
    It is not entirely clear on the evidence as to whether this was a practice that was being regularly adopted at the Villa Noosa Hotel, but it seems that this might be the case in circumstances where Mr Weiss' evidence is that he struggled to use the TimeTEQ system, yet requests for leave had successfully been entered into the system and approved in the past.
  1. [129]
    In any event, in the days leading up to the weekend of 22 June 2018, I am satisfied neither Mr Weiss nor any other manager on his behalf sought or obtained approval for him to take his accrued TOIL as leave in accordance with the accepted practices. 
  1. [130]
    Irrespective of whether the fault lay with Mr Gormley in that he failed to follow through with instructions to seek approval on Mr Weiss' behalf (which was not an acceptable practice in any event), or whether Mr Weiss deliberately took time off without seeking approval from Mr Drane, the end result is that he departed Noosa and drove up the coast for his golfing weekend, without formal approval to take time off, in circumstances where he had previously been advised and reminded about the need to apply for TOIL in accordance with the accepted practice.    
  1. (f)
    When did Mr Drane become aware Mr Weiss had taken time off without approval?
  1. [131]
    Mr Drane's evidence is he arrived at the Villa Noosa Hotel around 9.00 am on Friday, 22 June 2018 for one of his standard catch-up meetings with Mr Weiss. Upon entering the hotel, he was advised by an assistant manager, Ms Tania Powell, that Mr Weiss had taken time off from Thursday to Sunday and would be returning to work the following Monday.
  1. [132]
    According to Mr Drane, he was unaware Mr Weiss was not going to be present at the hotel. He thought Mr Weiss was meant to be working. He recalled Ms Powell stating that there had been other occasions where she had told Mr Weiss that he had not applied for TOIL in the appropriate way. 
  1. [133]
    Separately, Mr Weiss' evidence is that he discovered the hotel rosters had not been posted the night before Mr Drane arrived at the hotel. He told the Commission he took steps to speak to Ms Forbes over the phone that evening, requesting she log onto TimeTEQ. According to Mr Weiss, Ms Forbes told him she was not at the Villa Noosa Hotel, but she would sort out the issue the following day.
  1. [134]
    Ms Forbes was unable to recall Mr Weiss calling her, however she did receive an email from Mr Weiss at 9.34 am on Friday, 22 June 2018 in which he wrote:[18]

Hey mate

Do you think you should email Dan to see if he can approve those toils for today and tomorrow or have you put them in timeteq a different way.

Just about to head up coast

Nathan

  1. [135]
    Ms Forbes replied four minutes later advising Mr Weiss that she would have to email Mr Drane in circumstances where assistant managers were not allowed to approve leave for venue managers. Seven minutes later, Mr Weiss responded:[19]

I forgot if we need to ask Dan prior to asking for toil days or just holidays so if you can that'd be great

He hadn't put in any of my toils I think for all public holidays worked this year…

  1. [136]
    Approximately 45 minutes after Mr Drane visited the hotel and became aware of Mr Weiss' absence, he received an email from Ms Forbes requesting approval for Mr Weiss to access his TOIL days, noting:[20]

Nathan is taking TOIL days for today and tomorrow and we were wondering if you could please approve them in TimeTEQ for us? Please let me know what we need to do on 11ur end.

  1. [137]
    Mr Drane's evidence to the Commission, having received the email, was that he recalled thinking:

…he's been caught out here and he should know that assistant managers can't approve their TimeTEQ and that's why she's rung me – or emailed me to do it because she knows she can't do it.[21]

  1. (g)
    What occurred in the meeting between Mr Weiss and Mr Drane on the morning of 25 June 2018?
  1. [138]
    Mr Weiss' evidence is that he received a text message from Mr Drane early Monday morning advising he was going to drop into the Villa Noosa Hotel for a catch-up meeting. About half an hour later, Mr Drane arrived at the venue. They both sat down in the gaming room when, according to Mr Weiss, he was accused of stealing hours from the business, with Mr Drane saying something along the lines of:

… you stole, you fraudulently approved your toils in the system, you've taken days off, you haven't disclosed this to me.[22]

  1. [139]
    According to Mr Weiss, he attempted to provide Mr Drane with an explanation which included comments about how many hours he had been working and that he had been let down by his assistant manager, for the reasons set out earlier in this decision. He considered his explanations were rejected by Mr Drane, who then insisted Mr Weiss must perform his rostered hours as part of his employment contract, irrespective of how many extra hours he may have undertaken.
  1. [140]
    In the same meeting, Mr Weiss' evidence was that Mr Drane raised multiple performance issues, which had not been brought to his attention before, including concerns about a downturn in the gaming revenue and certain staff not wanting to work at the hotel, except for the fact that they had an interest in living in the Noosa area. Later in his evidence, he recalled Mr Drane telling him he was the worst manager in the portfolio and was underperforming in all areas.
  1. [141]
    According to Mr Weiss, he rejected Mr Drane's assertions during their discussions. He recalled highlighting the current gaming levels within the hotel and providing an explanation as to why various managers had left. He highlighted other areas in which he had done well and raised concerns about being held to account for a decline in gaming revenue which, in his view, had come about due to a direction from Mr Drane rather than his own poor performance. 
  1. [142]
    His evidence was that Mr Drane did not respond to his comments and the meeting lasted for approximately 20 minutes.
  1. [143]
    Mr Drane's evidence in relation to what transpired during their meeting was somewhat different. He explained that his intention going into the meeting was to give Mr Weiss an opportunity to explain why he had been absent from the business. This account is consistent with the evidence of Mr Pyers, a human resources business partner at ALH, who Mr Drane had contacted prior to the meeting to discuss his approach.  
  1. [144]
    Mr Drane told the Commission he commenced the discussions by asking Mr Weiss why he was not working at the venue in accordance with the roster. His recollection of the discussions was that Mr Weiss responded by asking why Mr Drane had not approved his leave.
  1. [145]
    According to Mr Drane, he asked Mr Weiss about his understanding of the process for applying for TOIL and leave and clarified whether he understood how it all worked. He reminded Mr Weiss it was not the first time the process had not been followed. Certainly, that Mr Weiss had previously been reminded of the leave approval process is consistent with an email provided to the Commission dated 16 February 2017, in which Mr Drane requested that Mr Weiss submit an emailed request for leave through TimeTEQ.[23]
  1. [146]
    When asked about his tone and approach during their discussions, Mr Drane explained he was not an aggressive person and that he spoke to Mr Weiss in a voice similar to the way he was giving his evidence, which I observed to be measured and at a normal volume during the proceedings.  
  1. [147]
    Although Mr Drane denied accusing Mr Weiss of stealing time, he said he tried to explain to Mr Weiss that his actions could be perceived as an employee intentionally stealing time. While he did not intend for the meeting to move onto other topics of discussion relating to Mr Weiss' performance, he said:

… it wasn't my intention to bring most of those things up in that conversation. However, some of the responses I was getting – and in Nathan's style, it was to avoid the subject and let's distract it…head towards all the good things that are going on. And I felt it important to bring up the – you know – look, there is a performance plan in place. My concerns are around a – a number of things and I believe it all comes back to – to leadership and not being here when you need to be… here when it matters.[24]

Conclusions

  1. [148]
    I am satisfied the duration of the meeting between Mr Weiss and Mr Drane on Monday, 25 June 2018 was approximately 15 to 20 minutes.
  1. [149]
    Against a backdrop where an auditor approximately four weeks earlier had flagged concerns in respect of Mr Weiss' attendance at the hotel and in circumstances where the process for applying for leave had previously been raised with Mr Weiss, I consider it was reasonable for Mr Drane to arrange a meeting on the Monday morning with Mr Weiss to give him an opportunity to explain why he was absent from work without approval.
  1. [150]
    I accept Mr Drane commenced the discussions by asking Mr Weiss why he was not present at the hotel on a rostered day and had seemingly taken days off without his approval. Likewise, I am satisfied he attempted to highlight how Mr Weiss' actions in failing to have his TOIL approved could be perceived by others as 'stealing time'. Given the circumstances, I do not consider the comment to be unreasonable.
  1. [151]
    Although I am satisfied Mr Drane intended to give Mr Weiss an opportunity to respond to his queries, it is relatively clear he considered, going into the meeting, that Mr Weiss had some continuing issues in respect of his time and attendance at the Villa Noosa Hotel that would more than likely be escalated at the conclusion of their discussions. 
  1. [152]
    Having regard to Mr Drane's demeanour during the proceedings and his own evidence about the meeting, I am not persuaded that he spoke to Mr Weiss in an aggressive manner.
  1. [153]
    Mr Drane explained that Mr Weiss struggled to accept constructive feedback, often moving the conversation onto other topics and areas. I observed this during the proceedings myself.
  1. [154]
    Mr Weis initially struggled to concede he had not applied for the TOIL days in the correct way. He was also, on occasion, quick to attribute blame elsewhere and did not appear to appreciate that even if it was the case the one of his staff had let him down, the responsibility to ensure his request for TOIL days was approved in the proper manner ultimately rested with him as the venue manager.
  1. [155]
    Mr Drane conceded the conversation between himself and Mr Weiss digressed into other areas in relation to Mr Weiss' performance. As was Mr Weiss' style, I am satisfied he more than likely attempted to highlight areas in which he considered he was doing well, no doubt in an attempt to highlight the positive aspects of his performance and move the discussions away from uncomfortable topics related to his failings in terms of the leave issue.
  1. [156]
    Certainly, the better approach would have been for Mr Drane to avoid being drawn into a discussion about other performance matters. It is relevant to remember, however, that when determining whether action taken by management is reasonable or taken in a reasonable way, managers and supervisors are not always perfect.[25]
  1. [157]
    Faced with an employee who struggled to accept feedback, had seemingly disregarded earlier reminders about how to apply for leave,  and who could be difficult to reach when attempting to highlight areas for improvement, one can appreciate how a degree of frustration and directness may have entered into Mr Drane's interactions with Mr Weiss by the time of their catch up on the morning of 25 June 2018.

Was Mr Weiss' employment the major significant contributing factor in the onset of his anxiety and depression?

  1. [158]
    In determining whether Mr Weiss' employment was the major significant contributing factor in the onset of his anxiety and depression, the Commission may be assisted by the medical evidence. In the end, though, having regard to the whole of the evidence, I must be satisfied on the balance of probabilities that employment is the probable cause of the injury.[26]
  1. [159]
    Where the Commission is unable to verify the facts or if there is some question as to whether the circumstances or events complained of by Mr Weiss to his treating doctors or specialists have been accurately reported, then it follows their evidence may be of less value.
  1. [160]
    Mr Weiss' GP was of the opinion Mr Weiss was suffering from anxiety and depression.
  1. [161]
    In correspondence prepared by Dr White, dated 13 March 2018, he sets out Mr Weiss' account as to what occurred in the meeting with Mr Drane, noting:[27]

… At that consultation, he stated that he had been the manager of the Noosa Villa Hotel for 3 years. He stated that during this time he had brought in record results. He stated that the day before presenting to me, he received a negative operations review. Mr Weiss stated he had discussions with his boss and that the boss wrote a report that was factually incorrect. Mr Weiss described this report as a letter of allegation or a formal warning. He stated that this was his first written warning ever.

  1. [162]
    In his evidence to the Commission, Dr White stated that Mr Weiss had told him he had been accused of stealing time by his boss in circumstances where the time off had not been recorded properly. He recalled Mr Weiss told him his employer had not been prepared to consider his side of the story.
  1. [163]
    In a report dated 15 October 2018, Dr Burnett Kann, a consultant psychiatrist noted:[28]

…Nathan relied on junior managers to upload his hours. The trigger for recent anxiety was after Nathan had two days off work for personal reasons with a new section manager not recording this time off. It was then that his line manager alleged I took the days off fraudulently. After this alleged behavior his immediate manager "roundly criticized me … 15 minutes of intense hostility". The following day (26 June 2018) Nathan attended work as usual though "it felt like I was going to have a heart attack" representing his initial panic attack. He ceased work soon after.

  1. [164]
    Dr Kann was of the opinion that Mr Weiss suffered initially from an adjustment disorder which had developed into a depressive order over time in circumstances where he had become consumed by his workers' compensation claim. He considered the rejection of his claim during the review process may well have accounted for the worsening of his symptoms.[29] He was unaware of any other non-work factors that contributed to the onset of Mr Weiss' symptoms, noting, "different people will respond differently to such review processes, or meetings or perceived inadequacy in uploading their – their times".[30] 
  1. [165]
    In a further report dated 20 February 2019, Dr Kann expressed the opinion:[31]

Apart from work-related factors, I have not identified other circumstances which make contribution to the diagnosed Major Depressive Episode. A prominent perpetuating factor for his symptoms and diagnosed condition is a protracted claim for acknowledgement and compensation from his employer.

  1. [166]
    In his evidence to the Commission, Dr Kann said that Mr Weiss had described a meeting that was:

intense and what he saw as a hostile meeting that roundly criticised him for not having his time in lieu recorded. And that was sort of the call, the trigger, for it, for his emotional response.[32]

  1. [167]
    While Ms Box did not give evidence during the appeal, an undated report she prepared was tendered by consent.[33] In that report, she recorded the relevant history as:

…Nathan told me he felt shocked when his manager, Mr Dan Drane, delivered the interview that was highly critical of his work performance. Nathan said that he felt ambushed, bullied and unfairly criticised. He had been given no indication that he might have asked for a support person to be at the interview due to allegations that were being verbally presented to him from Dan Drane. He left the meeting extremely distressed and shaken.

  1. [168]
    Where an employee is unable to prove that the events which are claimed to have caused their injury occurred in the circumstances as described and as relied on by medical practitioners, a finding that employment is the major significant contributing factor is generally not available to the Commission.[34]
  1. [169]
    In this appeal, there are elements within the accounts provided by Mr Weiss to his treating practitioners which are not, in my view, entirely accurate. This is more so due to what Mr Weiss did not include in his description to his specialist and GP about the meeting with Mr Drane, rather than what he reported.
  1. [170]
    For example, both doctors had a very limited understanding (if any) of prior discussions between Mr Drane and Mr Weiss about his performance. Likewise, they were unaware of the practices associated with the approval of leave and the events leading up to the 25 June 2018 meeting, where Mr Weiss had previously been reminded about the process for obtaining approval for TOIL and leave.
  1. [171]
    Having regard to the verbal evidence of Dr Kann and Dr White during the proceedings, I am satisfied Mr Weiss, notwithstanding the way in which he may have presented the events, did advise both doctors about the basic issues covered in the meeting with Mr Drane on the morning of 25 June 2018 insofar as the discussions related to his failure to properly apply for his TOIL, along with Mr Drane's comments about elements of Mr Weiss' performance.  
  1. [172]
    Dr Kann highlighted that a patient's interpretation or perception of events can play a role in how they may respond to a performance meeting or a claim about, for example, their inadequacy when it comes to properly recording their time and attendance.[35]
  1. [173]
    It does appear Mr Weiss outwardly continued to hold the view he was performing very well in most areas of his role ahead of the 25 June 2018 meeting, notwithstanding Mr Drane had previously identified areas for improvement.    
  1. [174]
    Dr Kann's evidence was that he understood Mr Weiss considered Mr Drane's response to the TOIL issues to be exaggerated and unnecessary, particularly in circumstances where Mr Weiss was of the opinion he was a good employee and had ensured the Villa Noosa Hotel was profitable.[36]
  1. [175]
    Having regard to Dr Kann's evidence about the varying reactions of patients where workplace performance issues are identified, I am of the view that Mr Weiss' lack of insight about concerns previously raised by Mr Drane in conjunction with his inflated views about his own performance, resulted in a situation where he became genuinely distressed as a result of his meeting with Mr Drane on 25 June 2018.
  1. [176]
    In the absence of any other evidence pointing to other contributing factors, I am satisfied the meeting, and therefore Mr Weiss' employment, was the major significant contributing factor in the onset of his initial anxiety and diagnosed injury.  

Did Mr Weiss' anxiety and depression arise out of, or in the course of, reasonable management action taken in a reasonable way by Mr Drane and ALH in connection with his employment.

  1. [177]
    Section 32(5) of the Act sets out examples of actions that may be considered reasonable management action taken in a reasonable way. They include, but are not limited to:
  • action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker; and
  • 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. [178]
    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 better approach is to assess the management action which was taken by Mr Drane and determine whether it was reasonable and whether it was taken in a reasonable way. 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.[37]
  1. [179]
    Whether the management action taken by Mr Drane is reasonable and whether such action was taken in a reasonable way is an inquiry of fact to be determined objectively.[38]
  1. [180]
    Importantly, 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.[39]
  1. [181]
    Given Mr Weiss' unapproved absence from the Villa Noosa Hotel on Friday, 22 June 2018, I consider it was open to Mr Drane to take the time to give Mr Weiss an opportunity to explain why he did not apply for TOIL in the accepted manner.
  1. [182]
    Mr Weiss maintains he was ambushed during the meeting when Mr Drane unfairly accused him of 'stealing time'.
  1. [183]
    I am not convinced Mr Drane framed his comments in the manner described by Mr Weiss and instead prefer Mr Drane's account. Having accepted Mr Drane's version of events, I do not think it was unreasonable for him to highlight his concerns during the meeting on 25 June 2018 about how a failure to obtain the requisite approval to take TOIL may be perceived by others as 'stealing time'.
  1. [184]
    Mr Weiss claims Mr Drane was hostile and aggressive during their discussions. For the reasons set out earlier, I do not accept Mr Drane conducted himself in the manner portrayed by Mr Weiss. While I consider it plausible Mr Drane may have adopted a more direct approach in their discussions, I am not satisfied he conducted himself in an overly hostile or aggressive manner.  
  1. [185]
    In the same meeting, Mr Weiss submits Mr Drane unreasonably raised concerns about his performance in circumstances where they had not been raised beforehand. As best I can tell, he also held the opinion the concerns raised by Mr Drane were baseless and unjustified.
  1. [186]
    There is insufficient evidence before the Commission that would allow me to arrive at a conclusion that the performance concerns touched on by Mr Drane during their meeting of 25 June 2018 were unjustified or baseless.
  1. [187]
    For reasons set out earlier in this decision, I am also not persuaded the meeting on 25 June 2018 was the first occasion on which Mr Drane attempted to raise concerns with Mr Weiss about his performance.
  1. [188]
    Even if I were to be wrong about that, in circumstances where I have accepted Mr Drane's evidence that Mr Weiss would become defensive and deflect issues of concern by highlighting other areas, where he considered he was performing well, one can understand why Mr Drane might have reverted to his performance concerns in his attempts to counter Mr Weiss' arguments and convince him that all was not well. Although it is not an ideal approach, I am not persuaded it could be characterised as unreasonable management action given the circumstances.  
  1. [189]
    Mr Weiss also maintains the approach taken by Mr Drane did not conform with ALH's accepted practices insofar as they related to the initiation and conduct of a disciplinary process.
  1. [190]
    I agree with the Regulator's argument that the 'managing performance' document,[40] which sets out the accepted practices, was irrelevant at this point in the process in circumstances where I have accepted Mr Drane organised the meeting on 25 June 2018 to give Mr Weiss an opportunity to explain why he had taken time off without approval and where a disciplinary process had not yet formally commenced.
  1. [191]
    It is true that at the conclusion of their meeting, Mr Drane organised for a letter to be drafted by Mr Pyers, the purpose of which was to invite Mr Weiss to participate in a formal meeting where it was proposed several conduct and performance issues would be discussed, including Mr Weiss' failure to apply for TOIL in the proper way. Clearly, Mr Drane determined it was necessary to escalate his concerns after considering Mr Weiss' responses.
  1. [192]
    However, that disciplinary meeting, the conduct of which would have fallen under the 'managing performance' document, did not go ahead because Mr Weiss visited his GP the following day and did not return to the Villa Noosa Hotel.   
  1. [193]
    On its own, and without the benefit of Mr Drane's evidence and an understanding of the events that led to the 25 June 2018 meeting as well as the context within which Mr Drane's comments about Mr Weiss' performance were made, the Commission may well have arrived at a conclusion that his actions were disproportionate or unreasonable.  
  1. [194]
    However, given my earlier conclusions in respect of how the meeting unfolded, and having regard to previous reminders to Mr Weiss about how to apply for TOIL, as well as his earlier interactions with Mr Drane in respect of performance matters, I consider the conduct of Mr Drane during the meeting, along with his reasons for organising it, to be reasonable management action taken in a reasonable way.
  1. [195]
    In those circumstances, Mr Weiss' injury is withdrawn from being a compensable injury by operation of s 32(5)(a) of the Act.

Orders

  1. [196]
    I make the following Orders:
  1. The appeal is dismissed.
  1. The decision of the Respondent dated 3 October 2018 is affirmed.
  1. The Appellant is to pay the Respondent's costs of and incidental to this appeal.

Footnotes

[1] Worker' Compensation and Rehabilitation Act 2003 s 32.

[2] Blackwood v Mana [2014] ICQ 027; Rucker v Blackwood [2014] ICQ 028.

[3] T4-55, ll 19 – 24.

[4] Exhibit 10.

[5] Exhibits 5, 6 and 17.

[6] T4-29, ll 28 – 35.

[7] T3-4, ll 20 – 25.

[8] Exhibit 9.

[9] Exhibit 8.

[10] Exhibit 9.

[11] Exhibit 7.

[12] T4-34, ll 40 – 50.

[13] See above [82].

[14] T2-29, ll 30 – 45.

[15] T4-65, ll 5 – 10.

[16] T1-15, ll 5 – 10.

[17] T3-43, ll 1 – 5.

[18] Exhibit 10.

[19] Ibid.

[20] Exhibit 3.

[21] T4-50, ll 43 – 45.

[22] T1-14, ll 20 -22.

[23] Exhibit 1.

[24] T4-55, ll 15 – 30.

[25] Vensa Misevksi v Q-COMP (C/2009/29) [27].

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

[27] Exhibit 14.

[28] Exhibit 11.

[29] T2-36, ll 30 – 35.

[30] T2-38, ll 1 – 8.

[31] Exhibit 13.

[32] T2-33, ll 32 – 35.

[33] Exhibit 15.

[34] WorkCover Queensland v Buchanan (2000) 165 QGIG 124; Vensa Misevksi v Q-COMP (C/2009/29); Newman v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 182; Wicks v Workers' Compensation Regulator [2018] QIRC 63.

[35] T2-38, ll 5 – 8.

[36] T2-33, ll 20 – 25.

[37] Davis v Blackwood [2014] ICQ 009 [47].

[38] Keen v Workers' Rehabilitation and Compensation Corporation (1998) 71 SASR 42, 47-48 (Lander J).

[39] Lawton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 99 [68].

[40] Exhibit 4.

Close

Editorial Notes

  • Published Case Name:

    Nathan Weiss v Workers' Compensation Regulator

  • Shortened Case Name:

    Weiss v Workers' Compensation Regulator

  • MNC:

    [2020] QIRC 111

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    04 Aug 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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