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McMah v Workers' Compensation Regulator[2015] ICQ 9

McMah v Workers' Compensation Regulator[2015] ICQ 9

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

McMah v Blackwood & BHP Billiton Coal Pty Ltd [2015] ICQ 009

PARTIES:

PAUL ANTONY DOUGLAS McMAH

(appellant)

v

SIMON BLACKWOOD (WORKERS’ COMPENSATION REGULATOR)

(first respondent)

BHP BILLITON COAL PTY LTD

(second respondent)

CASE NO/S:

C/2014/7

PROCEEDING:

Appeal

DELIVERED ON:

24 March 2015

HEARING DATE:

18 August 2014

MEMBER:

Martin J, President

ORDER/S:

Appeal dismissed.

CATCHWORDS:

WORKERS’ COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – NATURE AND SCOPE OF APPEAL AND REVIEW – where the appellant worked on a seven-day roster – where because of his religious beliefs he could no longer work on the Sabbath – where his supervisor required that he take annual leave when rostered on the Sabbath – where the appellant suffered from a psychiatric injury as a result of discovering he would not have sufficient annual leave days – where the appellant was, subsequent to his injury, transitioned to a different role with a five day roster – where the Deputy President found that the appellant’s injury was  not compensable as the employer’s actions constituted reasonable management action taken in a reasonable way under s 32(5) of the Workers’ Compensation and Rehabilitation Act 2003 – whether the employer’s actions constituted discrimination under the Anti-Discrimination Act 1991 – whether action constituting discrimination can be reasonable management action – whether the Deputy President provided inadequate reasons – whether the Deputy President took into account particular factual findings in error

Anti-Discrimination Act 1991, s 11, s 15

Workers’ Compensation and Rehabilitation Act 2003, s 32, s 34, s 561

Workplace Health and Safety Act 1995

CASES:

Curd v Q-COMP (2008) 188 QGIG 37

MacDonald v Q-COMP (C/2009/59) 9 June 2010 – Decision

Qld Independent Education Union of Employees v Local Govt Association of Qld Ltd [2015] ICQ 003

WorkCover Queensland v Kehl (2002) 170 QGIG 93

APPEARANCES:

S McLennan instructed by Taylors Solicitors for the appellant

S Gray directly instructed by the Workers’ Compensation Regulator

P Cullinane instructed by HWL Ebsworth for the second respondent

  1. [1]
    On 1 March 2012, Mr McMah lodged a workers’ compensation claim in respect of a psychiatric injury (‘stress’) he claimed to have suffered on 19 January 2012. His claim was investigated and rejected by BHP Queensland Worker’s Compensation (the Insurer) and by Q-COMP (now the Regulator) on review. Mr McMah’s appeal to the Commission was dismissed on the basis that s 32(5) of the Workers’ Compensation and Rehabilitation Act 2003 (‘the Act’)[1] applied, excluding the personal injury suffered by the appellant from the Act’s definition of ‘injury”.

Background

  1. [2]
    The appellant worked for BHP Billiton Coal Pty Ltd at the Peak Downs mine as a diesel fitter in the mobile maintenance workshop. He worked on what is called a ‘seven day roster’ consisting of two days on, two nights on, two days off, two days on, two nights on, six days off. In about September 2011, Mr McMah re-connected with his biblical faith and commenced attending a Seventh-Day Adventist church. His religious beliefs required that he not work on the Sabbath which, for that religion, was from sundown on Friday to sundown on Saturday. In order to have enough time to return from the mine site to his home and to prepare meals for the Sabbath, Mr McMah needed to leave around midday on Friday. The time varied according to the time of year.
  1. [3]
    In November 2011, Mr McMah was stood down from his position for an unrelated disciplinary matter. When he returned, on 19 January 2012, he met with the mobile plant superintendent, Mr Morgan, who advised him that he was to take annual leave if he was rostered to work on the Sabbath. Mr McMah calculated that the amount of leave he would be required to take across the year would exceed his annual leave days. Mr McMah also had discussions on the topic with people from BHP’s human resources department, Joanne Pearce and Jodie Dubois They did not get back to the appellant with regard to his concerns before his “injury”. In another discussion with Mr Morgan he was told he could not take the Saturdays off as leave without pay. These work events constitute the management action Mr McMah has identified as being a stressor which caused his psychiatric harm. In his workers’ compensation claim he identified a period of time during which his injury occurred. It commenced on 19 January 2012 with his symptoms becoming apparent on 7 February 2012.
  1. [4]
    On 8 March 2012 a new role was created for Mr McMah which allowed him to work from Monday to midday Friday.

Grounds of appeal

  1. [5]
    There are three grounds of appeal:

The Commissioner erred:

  1. (a)
    in concluding that BHP’s management action was reasonable management action taken in a reasonable way pursuant to section 32(5) as the management action constituted discrimination as defined by the Anti-Discrimination Act 1991;
  2. (b)
    by providing inadequate reasons as to whether BHP’s management action constituted such discrimination and, if so, whether this was taken into account when deciding whether the action accorded with s 32(5);
  3. (c)
    by making the following findings when assessing the reasonableness of BHP’s management action:
  1. (i)
    finding the appellant specifically sought a five-day, week-day roster;
  2. (ii)
    failing to consider the appellant’s requests for, and the availability of, alternative accommodations of the appellant’s religious beliefs other than a change to a five-day, week-day roster;
  3. (iii)
    finding that the appellant did not seek any accommodation for his religious beliefs before 11 November 2011;
  4. (iv)
    finding that it was only the appellant’s perception, not the reality, that BHP did not wish to accommodate his religious beliefs;
  5. (v)
    taking into account management action taken subsequent to the appellant sustaining his psychological/psychiatric injury.

Finding of Discrimination

  1. [6]
    The appellant submits that the management action taken by BHP was unlawful under s 11 of the Anti-Discrimination Act 1991 (‘AD Act’) and, being unlawful, could not be reasonable action under s 32(5) of the Act.
  1. [7]
    Section 32 of the Act provides:

“32   Meaning of injury

  1. (1)
    An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
  2. (2)
    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;
  2. (b)
    The worker’s expectation or perception of reasonable management action being taken against the worker;

…”

  1. [8]
    The relevant sections of the AD Act are as follows:

“9   Discrimination of certain types prohibited

The Act prohibits the following types of discrimination –

  1. (a)
    direct discrimination;
  2. (b)
    indirect discrimination.

…

11   Meaning of indirect discrimination

  1. (1)
    Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term –
  1. (a)
    with which a person with an attribute does not or is not able to comply; and
  1. (b)
    with which a higher proportion of people without the attribute comply or are able to comply; and
  1. (c)
    that is not reasonable.
  1. (2)
    Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example –
  1. (a)
    the consequences of failure to comply with the term; and
  1. (b)
    the cost of alternative terms; and
  1. (c)
    the financial circumstances of the person who imposes or proposes to impose, the term.
  1. (3)
    It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.
  1. (4)
    In this section –

term includes condition, requirement or practice, whether or not written.”

  1. [9]
    The appellant identified the relevant term imposed by BHP as being:

“in order for him to continue working all of the shifts in the ‘7 day roster’ as a fitter in the Maintenance Department he had to work those shifts which fell on Saturdays.”

  1. [10]
    The relevant ‘attribute’ was identified as the appellant’s religious belief that he cannot work on the Sabbath. Religious belief is a defined attribute in section 7(i) of the AD Act.
  1. [11]
    It is clear that a person with that attribute would not be able to fulfil the requirements of the term, while a higher proportion of people without the attribute are able to comply.
  1. [12]
    The term must, however, also be unreasonable, having regard to the consequences of failure to comply, the cost of alternative terms and the financial circumstances of the person who imposes the term.
  1. [13]
    Was the term unreasonable? The imposition of the term must be viewed in its context. It was a short-term measure, which was to be in place until a solution could be found – the five-day week-day roster in a different role. This roster accommodated Mr McMah’s religious beliefs, including his need to depart work at midday on Friday in order to return home and prepare for the Sabbath before sunset. The consequences of Mr McMah’s inability to work the seven day roster was that he was required to take annual leave for those periods until a new role could be found.
  1. [14]
    The Deputy President accepted the evidence of Mr Morgan “that the workload of the maintenance unit requires a seven-day roster arrangement”. An alternative roster working the same role was not available.
  1. [15]
    There was no evidence before the Commission of the financial circumstances of the company. It can be accepted that, for BHP, the rearrangement of one person’s roster would not be a cost of great consequence.
  1. [16]
    The test for reasonableness under the AD Act differs from the test under section 32(5) of the Act. This means, according to the appellant, that the Commission was first required to determine whether the requirement that Mr McMah use his annual leave to avoid working on the Sabbath as a short-term measure constituted discrimination. Then, as a second step, that determination should be taken into account as a factor relevant to concluding whether that management action was reasonable and taken in a reasonable way.
  1. [17]
    The appellant went further and submitted that a finding that there was discrimination would outweigh any other factors the Commission might consider. The appellant relied upon Commissioner Fisher’s statement in Curd v Q-COMP[2], that:

“Discriminatory treatment cannot constitute reasonable management action.”

  1. [18]
    In the case of MacDonald v Q-COMP,[3] Hall P rejected the submission that management action which is unlawful (in that case a potential contravention of the Workplace Health and Safety Act 1995) cannot also be ‘reasonable management action taken in a reasonable way’. President Hall went on to find that ‘to adopt that submission would be to limit the statutory language and to limit the exclusionary effect of s 32(5)(a) of the Act’.[4] In this case, the Commission relied on MacDonald and found, similarly to Hall P, that evidence of conduct which may constitute a breach of the AD Act does not, of itself, inexorably lead to a conclusion of unreasonableness. A potential finding of discrimination under the AD Act does not fetter the operation of s 32(5)(a) in the same way that a potential finding under the Workplace Health and Safety Act 1995 does not fetter the operation of section 32(5)(a).
  1. [19]
    However, relevant to the decision of Hall P in MacDonald was that the requirements of the Workplace Health and Safety Act 1995 do not leave room for reasonableness as a consideration. They are strict in their operation. By contrast, a finding of indirect discrimination requires a determination that the term imposed was not reasonable.
  1. [20]
    The respondent submits that provisions of the AD Act also have strict application, with the exception of determining whether or not a term is reasonable under s 11. But, the determination of reasonableness is a requirement of s 11 of the AD Act and cannot be arbitrarily excluded. What can be said is that the AD Act restricts the factors taken into account when determining whether the imposition of the term was reasonable, while a consideration under s 32(5) of the Act is not so fettered. Therefore, a determination under the AD Act does not automatically lead to a determination that management action cannot be reasonable or taken in a reasonable way pursuant to s 32(5).
  1. [21]
    Whether or not management action is reasonable and taken in a reasonable way will turn on the facts of each case. As Hall P said in WorkCover Queensland v Kehl[5], ‘reasonable’ should be treated as ‘reasonable in all the circumstances’[6]. A finding of discrimination will not, in every case, necessarily lead to a finding that the management action was unreasonable. 
  1. [22]
    Though there was evidence before the Commission that could lead to the conclusion that the management action constituted discrimination as defined by the AD Act, such a conclusion would not restrict the Commission’s discretion to find that the management action was reasonable pursuant to s 32(5).
  1. [23]
    There was evidence which supported the Deputy President finding that BHP requiring the appellant to take annual leave as a short-term requirement constituted reasonable management action taken in a reasonable way. The Deputy President did not err in reaching this conclusion.

Adequacy of reasons

  1. [24]
    The principles guiding the adequacy and nature of reasons are well known. They were most recently set out in Qld Independent Education Union of Employees v Local Govt Association of Qld Ltd[7]:

“[14] A Tribunal need not set out reasons for every step which has led to a decision but it must record the steps which were taken to arrive at the result (Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666).

[15] The extent of the reasons which are required to be given will depend upon the circumstances and the context of the case. Generally, reasons should deal with the substantial points which have been raised, including findings on material questions of fact. The reasons should refer to any evidence or other material upon which those findings are based and provide an intelligible explanation of the process of reasoning that is led from the evidence to the findings and from the findings to the ultimate conclusion. Some explanations should be given if the evidence tendered or the submissions made by a party have been rejected (Police Federation of Australia v Nixon [2011] FCAFC 161 at [67]). The reasons must set out the steps that were taken by the Tribunal to arrive at the decision. This allows the parties who have been unsuccessful to determine whether they have a basis for appeal (Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386).

[16] It must be understood, though that the principles set out above do not mean that reasons for decision have to be lengthy or elaborate. A distinction has always been drawn between courts and tribunals. Just as it is not necessary for a judge to make an express finding in respect of every fact leading to, or relevant to, his or her final conclusion of fact, it is not necessary that the judge reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271). The fact that reasons of the Commission might be brief is not necessarily a flaw. Courts conducting reviews or appeals from tribunals have been repeatedly enjoined by the High Court to avoid overly pernickety examination of the reasons. The focus of attention is on the substance of the decision and whether it has addressed the ‘real issue’ presented by the contest between the parties (Roncevich v Repatriation Commission (2005) 222 CLR 115 at [64]).” (emphasis added)

  1. [25]
    In the decision below, the Deputy President did not make a positive finding as to whether or not the AD Act was breached, rendering BHP’s conduct unlawful. The Deputy President came to the view that such a breach would not be determinative of whether or not section 32(5) of the Act applied:

“[41] The submission of the appellant is, in short, that discriminatory treatment – namely indirect discrimination under the Anti-Discrimination Act 1991 – cannot constitute reasonable management action. Like MacDonald, this case did not involve a proceeding under another piece of legislation and, like MacDonald, there was no positive finding. The most that can be submitted by the appellant is that there is evidence which might amount to a breach of the Anti-Discrimination Act 1991. It does not, in my view, necessarily follow that evidence of conduct which may constitute a breach of the Anti-Discrimination Act 1991 would, of itself, lead to a conclusion of unreasonableness. It is but one of a number of factors which may be taken in account when considering whether or not the management action was reasonable and taken in a reasonable way.” (emphasis added)

  1. [26]
    The respondent submits that a finding that no specific term was imposed in respect of the seven day roster was implied in the judgment, as BHP accommodated the appellant’s request that he not be required to work on the Sabbath by changing his employment to a five-day week-day roster. Given no new term was imposed, the respondent submits that a further implication can be drawn that the Deputy President found that BHP had not contravened the AD Act.
  1. [27]
    Although there is merit in those submissions, the Deputy President clearly stated that ‘this case did not involve a proceeding under another piece of legislation and, like MacDonald, there was no positive finding’. A finding cannot, therefore, be implied. This may be explained by the acceptance of the appellant that a ‘breach’ of the AD Act could not be determined as this would imply a finding made by a tribunal proceeding under that Act. Instead, the appellant sought a finding that the term imposed would contravene the AD Act.
  1. [28]
    While not being sufficient to satisfy the burden of proof, the evidence relevant to a determination under the AD Act remained relevant to considering whether or not the management action was reasonable under s 32(5) of the Act. It is evident that the Deputy President considered the evidence that would have been relevant to such a finding, and took that evidence into account when determining whether or not the management action was reasonable and taken in a reasonable way.
  1. [29]
    The reasons below were adequate and do not demonstrate an error of law.

Findings of fact

  1. [30]
    The third ground of appeal sets out five considerations the Deputy President is said to have erroneously relied upon to assess the reasonableness of BHP’s management action.
  1. [31]
    The first finding is that the appellant specifically sought a five day, week day roster. This can be drawn from the decision at paragraph [33]:

“Counsel for the appellant submitted that ‘as a result of the new roster, the appellant’s remuneration was reduced from approximately $113,000 to approximately $85,000’. I do not accept the submission that BHP has treated the appellant unfavourably by acceding to his request to give him a five-day roster. On the appellant’s own evidence, he specifically sought a five-day roster.”

  1. [32]
    The appellant accepts that he sought a position which would only require him to work five days, however he presses the contention that this request was only made once all other options for altering his roster had been denied by Mr Morgan, his supervisor. Given that the appellant accepts that he did seek a five-day roster at some point, it cannot be readily determined that such a finding was in error. Although, on the evidence, the appellant had also identified other options on an informal basis, his central requirement was to not work on Saturdays. In the most formal version of his request made on 19 January 2012, he specifically asked to be put on a supervisors’ course, to be transferred to the field crew or the preparation plant, or to work as a planner. Each of these positions has a Monday to Friday roster. It was open to the Deputy President to find that the Mr McMah had specifically requested a five day roster.
  1. [33]
    This finding was made in answer to the submission in relation to unfavourable treatment. Before the Commission, the appellant contended that he had been treated unfavourably in connection with work – s 15 of the AD Act. This point was not pressed on appeal. The change in his remuneration occurred subsequent to any stressors identified in the proceedings below and was not causally connected with his injury or relevant to a determination of whether the requirement that the appellant take annual leave while a solution was being reached was reasonable. Even if the finding was in error, it was a finding that was not relevant to the Deputy President’s overall determination of reasonableness under s 35(2) of the Act.
  1. [34]
    The second purported error is a failure to consider the appellant’s requests for, and the availability of, alternative accommodations of the appellant’s religious beliefs other than a change to a five day, week day roster. This is connected to the third purported error, a finding that the appellant did not seek any accommodation for his religious beliefs before 11 November 2011. In paragraph [34] of the decision, the Deputy President states:

“The evidence suggests that the appellant did not seek any accommodation for his religious beliefs prior to being stood down on 11 November 2011. Whilst the appellant had some brief conversations with his supervisor concerning his religious beliefs, none of these were done in a formal context. It was not until 19 January 2012 that a formal request for a change of roster considered [sic].”

  1. [35]
    On the evidence before the Commission, there were three occasions when the appellant mentioned that he would not be working Saturdays before the formal meeting on 19 January 2012. He commenced taking annual leave on Saturdays from September 2011. Mr McMah first mentioned his reason for doing this to Ian Harris, the maintenance superintendent in September or October 2011 when he ran into him in the workshop. He asked if it was possible to move into another area or another roster. The appellant did not raise the matter in writing or by telephone and did not follow it up with Mr Harris after the meeting. Although it may have been brought to Mr Harris’ attention, it was done so in an informal way.
  1. [36]
    In evidence in chief the appellant stated that he then spoke to Mr Morgan in October and mentioned that he was willing to work other days in lieu and briefly discussed finding alternative positions where he would not have to work on the Sabbath. Mr Morgan told him that time in lieu was not an option and he had to work his roster. Mr McMah stated that he spoke to Mr Brewster and Mr Morgan on occasions before 11 November 2011. However, he could not recall how many conversations he had with them nor their content. The highest the appellant put it in cross-examination was that he believed he had asked Mr Morgan about whether there was work available that did not require him to be rostered on Saturdays.
  1. [37]
    Mr McMah’s evidence is that he did not approach any human resources staff at the time. This was purportedly because the company’s policy was to first raise matters internally and then, if there is no resolution, to take the matter to human resources. This is reflected in the dispute resolution process set out in the enterprise bargaining agreement at clause 31. If the matter remains unresolved, it is to be committed in writing and referred to the relevant Department Manager. However, the evidence of Mr Morgan was that he did not consider his conversations with Mr McMah to amount to the raising of a dispute. Mr McMah did not commit his complaint in writing at any time prior to his injury.
  1. [38]
    There was a meeting with human resources staff on 18 November 2011, however this meeting focused on the disciplinary action for which Mr McMah was then suspended. On his evidence, the appellant did not know if his request for not working on the Sabbath was dealt with in that interview and at that point was unsure whether he would continue to be employed by BHP.
  1. [39]
    The finding was not that the appellant did not tell his supervisor about his need to not work on the Sabbath until 19 January 2012, it was that none of the earlier conversations took place in a formal context. Further, the Deputy President found that:

“[37] The appellant’s evidence of his conversations regarding a change of roster in the period prior to being stood down was unimpressive. It lacked detail and, as was revealed in cross-examination, it was to some extent inconsistent with a previous statement he had given.”

  1. [40]
    The Deputy President clearly considered the appellant’s evidence of ‘brief conversations’ and determined that the only time an accommodation was truly sought in a way in which it would be reasonable to expect a response was on 19 January 2012.
  1. [41]
    It was open for the Deputy President to find that the formal request for accommodation was made on 19 January 2012, particularly in circumstances where, unlike an appellate court, he was in a position to take into account the witness’s demeanour.
  1. [42]
    The appellant submits that he requested alternative accommodations other than a five-day, week-day roster and that these alternatives were not considered by the Deputy President. It is not clear whether any other kind of roster change could have reasonably been made to accommodate the appellant’s requirements to not work from Friday midday to after sunset on Saturday. The Deputy President set out at paragraph [32]:

“I accept the evidence of Mr Morgan that the workload of the maintenance unit requires a seven-day roster arrangement to deal with an appropriate mix of 60% maintenance work and 40% repairing breakdowns. I further accept his evidence that, logistically, a request for a change in roster ‘involves quite a bit of work’.”

  1. [43]
    The Deputy President accepted that Mr McMah’s position at the time required a seven-day roster. While other potential accommodations raised by the appellant were not directly dealt with, it is clear that the Deputy President accepted that it was reasonable for BHP to deal with the appellant’s requirement to not work on the Sabbath through a transfer of position, rather than alternative roster changes within the applicant’s position.
  1. [44]
    Even if the Deputy President had found that the appellant had specifically requested to work time in lieu, his acceptance of Mr Morgan’s evidence suggests it would not have altered the outcome.
  1. [45]
    The enterprise bargaining agreement sets out, at clause 17.6.5: ‘An individual employee, with the agreement of the company, may substitute the day the employee is to take off for another day’. On cross-examination of a human resources representative, Ms Dubois, it was accepted that the potential for rostered days off under the enterprise bargaining agreement was different from time in lieu.
  1. [46]
    If it is accepted that a seven-day roster arrangement is required, management action in rejecting a time in lieu arrangement which would change with the hours of the sun across the course of a year would be reasonable.
  1. [47]
    The fourth finding said to have been made in error is found within paragraph [39]:

“There was some evidence from the appellant that he took the view that Mr Morgan did not wish to accommodate his request for a change in roster. In considering the question of an employee’s perceptions, Hall P in WorkCover Queensland v Hehl ((2002) 170 QGIG 93) said that ‘reasonable’ should be treated as meaning ‘reasonable in all the circumstances of the case’. It is thus the reality of the employer’s conduct and not the employee’s perception of it which must be taken into account.” (citations omitted)

  1. [48]
    The appellant submits that the Deputy President erred in finding that it was only the appellant’s perception, not the reality, that the second respondent did not wish to accommodate his religious beliefs.
  1. [49]
    In cross-examination, Mr McMah admitted that he was happy to have been ultimately changed to a roster which accommodated his need to not work on the Sabbath and to leave at midday on Fridays. He also agreed that Mr Morgan, his supervisor, was looking into options on 19 January 2012 and that he would have to take annual leave until an outcome was found. However, he also perceived that the roster was not specifically created for him and believed that it had existed the entire time he had been required to take annual leave on the Sabbath. This is contrary to other evidence before the Commission, in particular that of Ms Pearce, a senior human resources advisor. She stated that ‘because there’s no roles in the main workshop on five day roster, we actually created a role for him … I’ve never seen that done previously for when an employee has requested to change roster’. It is also contrary to the evidence accepted by the Deputy President that ‘the workload of the maintenance unit requires a seven-day roster arrangement’. It was open for the Deputy President to find that Mr McMah’s perception of the actions of BHP’s employees did not reflect reality.
  1. [50]
    The final purported error is that the Deputy President took into account management action taken subsequent to the appellant sustaining his psychological/psychiatric injury.
  1. [51]
    At paragraph [31] the Deputy President stated:

“[31] An arrangement was made on 8 March 2012 which allowed the appellant to work a five-day roster and thereby avoid working on the Sabbath. The evidence, which I accept, is that BHP specifically created a position for the appellant – something which, according to Ms Pearce, had not been done in her 17 years with the company. The roster required the appellant to work 9:00am to 5:00pm, Monday to Friday, however, after a request from the appellant an arrangement was made whereby he could start on Friday at 6:30pm and finish work at 2:30pm to allow him to reach home before sunset to prepare for the Sabbath. A further request was made by the appellant to change his hours on another day to suit his personal requirements, which was also accommodated.”

  1. [52]
    The appellant’s application for compensation sets out that his injury occurred over a period of time from 19 January 2012 and that he first noticed symptoms of the injury on 7 February 2012. The statement of stressors filed in the matter below sets out the following work events where particularised:

No

Date

Event/Short Description

2

Sept. 2011

Mr Ian Harris required Appellant to take annual leave days so that Appellant could observe the Sabbath and his religious beliefs and Mr Harris did not consider or discuss any other options.

3

Sept. 2011 onwards

Employer’s management aware of Appellant’s ongoing concerns with regard to observing the Sabbath and failed to take action to address those concerns.

  1.  

19/01/2012

The issue of observance of the Sabbath was raising in discussion between Appellant and Superintendent Mr Gary Morgan, at which time Mr Morgan confirmed that the Appellant would have to take annual leave if he wanted to have time off work to observe the Sabbath and no consideration was given to any other options, or the Appellant’s concerns, when he knew or ought to have known that there were not enough annual leave days to cover the Saturdays (Sabbath).

5

Between 19/01/2012 & 01/02/2012

Appellant’s concerns with regards to the Sabbath and observance of his religious beliefs was raised with Mrs Joanne Pearce and Ms Jodie Dubois, and they were requested to consider a change of roster for the Appellant. They did not get back to the Appellant with regard to his concerns or requests prior to the onset of his injuries.

6

01/02/2012

Appellant had discussion with Mr Gary Morgan about not being able to work on Saturdays due to his religious beliefs and enquired as to whether he could take them as leave without pay, but Mr Morgan advised that he could not do so.

  1. [53]
    These stressors can be considered in the context of a long-term solution having been found subsequent to the appellant’s injury. Although the stressors said to give rise to the injury occurred at a time when BHP had not determined an outcome for the appellant’s requirement to not work Saturdays, the reasonableness of requiring the appellant to take annual leave can be considered in light of the fact that a long-term solution which accommodated the appellant was found.
  1. [54]
    The Deputy President found that only ‘brief conversations’ were had prior to 19 January 2012. The appellant accepted that in the meeting with Mr Morgan on 19 January 2012, his employer was looking for options to accommodate him. Although it is accepted that the short-term requirement that the appellant take annual leave led to his decompensation, it was open for the Deputy President to take into account the broader context of this requirement, being that a long-term solution was found.
  1. [55]
    The evidence before the Deputy President was that the appellant did not make any of the supervisors or human resources staff to whom he spoke aware that his annual leave days were running out – a factor which substantially weighed upon his mind at the time of calculating his leave. This concern was not brought to their attention. The time taken to find an alternative and the requirement that he take annual leave were not unreasonable.

Conclusion

  1. [56]
    The appellant has not demonstrated any error.
  1. [57]
    The appeal is dismissed.

Footnotes

[1]The relevant version of the Act is Reprint 6.

[2](2008) 188 QGIG 37 at 40.

[3](C/2009/59) 9 June 2010 – Decision

[4]Ibid at 5.

[5]WorkCover Queensland v Kehl (2002) 170 QGIG 93.

[6]Ibid at 94.

[7][2015] ICQ 003.

Close

Editorial Notes

  • Published Case Name:

    Paul Antony Douglas McMah v Simon Blackwood (Workers' Compensation Regulator) and BHP Billiton Coal Pty Ltd

  • Shortened Case Name:

    McMah v Workers' Compensation Regulator

  • MNC:

    [2015] ICQ 9

  • Court:

    ICQ

  • Judge(s):

    Martin P

  • Date:

    24 Mar 2015

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Curd v Q-COMP (2008) 188 QGIG 37
2 citations
Jump To
Cite 1 - (2008) 188 QGIG 37
Cite 2 - (2008) 188 QGIG 37
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378
1 citation
Jump To
Cite 1 - (1983) 3 NSWLR 378
Police Federation of Australia v Nixon [2011] FCAFC 161
1 citation
Jump To
Cite 1 - [2011] FCAFC 161
Public Service Board of NSW v Osmond (1986) 159 CLR 656
1 citation
Jump To
Cite 1 - (1986) 159 CLR 656
Queensland Independent Education Union of Employees v Local Government Association of Queensland Ltd [2015] ICQ 3
2 citations
Jump To
Cite 1 - [2015] ICQ 3
Cite 2 - [2015] ICQ 3
Roncevich v Repatriation Commission (2005) 222 CLR 115
1 citation
Jump To
Cite 1 - (2005) 222 CLR 115
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
1 citation
Jump To
Cite 1 - (1987) 10 NSWLR 247
WorkCover Queensland v Kehl (2002) 170 QGIG 93
4 citations
Jump To
Cite 1 - (2002) 170 QGIG 93
Cite 2 - (2002) 170 QGIG 93
Cite 3 - (2002) 170 QGIG 93
Cite 4 - (2002) 170 QGIG 93

Cases Citing

Case NameFull CitationFrequency
Etherington v Anglo Coal (Capcoal Management) Pty Ltd [2019] ICQ 42 citations
1

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