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CITE

Unreported Judgment

Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees[2021] ICQ 12President Davis J
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Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees[2021] ICQ 12

INDUSTRIAL COURT OF QUEENSLAND

CITATION:	Workers’ Compensation Regulator v Queensland Nurses and Midwives’ Union of Employees [2021] ICQ 12
PARTIES:	WORKERS’ COMPENSATION REGULATOR (respondent) v QUEENSLAND NURSES AND MIDWIVES’ UNION OF EMPLOYEES (appellant)
FILE NO/S:	C/14/2020
PROCEEDING:	Appeal
DELIVERED ON:	6 August 2021
HEARING DATE:	20 August 2020
MEMBER:	Davis J, President
ORDER/S:	Appeal allowed to the extent of: (a) Setting aside the costs order in WC/2018/137; in lieu ordering: (b) The Workers’ Compensation Regulator pay the Queensland Nurses and Midwives’ Union of Employees’ costs of the hearing before the Queensland Industrial Relations Commission of WC/2018/137. The appeal is otherwise dismissed. There is no order as to costs of the appeal to the Court.
CATCHWORDS:	WORKERS COMPENSATION – LIABILITY FOR COMPENSATION – LIABILITY OF EMPLOYER – where an employee had been employed by the respondent (the Union) – where a worker had taken extended leave – where on return from leave the employer had discussed separation with the worker – where the worker suffered a psychiatric or psychological condition as a result of the discussion – where the Queensland Industrial Relations Commission found that the claim was excluded by s 32(5) of the Workers’ Compensation and Rehabilitation Act 2003 as any loss was caused by reasonable management action reasonably taken – where the Regulator appealed the decision of the QIRC. Industrial Relations Act 2016, s 557 Workers’ Compensation and Rehabilitation Act 2003, s 32, s 561
CASES:	ASIC v Anderson (2018) 134 ACSR 105 , followed Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430, followed Comalco Aluminium Ltd v O'Connor (1995) 61 IR 455, cited Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] 74 ALJR 1348, cited Doomadgee v Clements [2006] 2 Qd R 352, followed Fox v Percy (2003) 214 CLR 118, cited GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266, cited Lee v Lee (2019) 93 ALJR 993, cited Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, followed Prizeman v Q-Comp (2005) 180 QGIG 481, followed Queensland Nurses and Midwives’ Union of Employees v Workers’ Compensation Regulator [2020] QIRC 75, related Queensland Nurses and Midwives’ Union of Employees v Workers’ Compensation Regulator [2020] QIRC 76, related Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, cited Simon Blackwood (Workers’ Compensation Regulator) v Chapman [2016] ICQ 011, followed Simon Blackwood (Workers’ Compensation Regulator) v Mahaffey [2016] ICQ 010, followed Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, followed State Rail Authority of (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306, cited Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, cited Warren v Coombes (1979) 142 CLR 531, cited Workers’ Compensation Regulator v Queensland Nurses and Midwives’ Union of Employees (No 2) [2021] ICQ 13, related
COUNSEL:	CJ Murdoch QC and SP Gray for the appellant M Grant-Taylor QC and PB Rashleigh for the respondent
SOLICITORS:	Workers’ Compensation Regulator, for the appellant Hall Payne Lawyers for the respondent

[1]
The Regulator appeals under s 561 of the Workers’ Compensation and Rehabilitation Act 2003 (the WCR Act) and s 557 of the Industrial Relations Act 2016 against two decisions of the Queensland Industrial Relations Commission (QIRC) which:

allowed an appeal from a decision of the Regulator to accept the worker’s application for compensation;
set aside the decision of the Regulator;
ruled that the worker’s application for compensation was not one for acceptance;
ordered the Regulator to pay the costs of the appeal to the Commission.^[1]

Background

[2]
Ms Margurite Walker was an employee of the Queensland Nurses and Midwives’ Union of Employees (the Union). She held the positions of Director of Member and Specialist Services and Director of Business Services.
[3]
In late 2015, the Union was installing a new computer system. Ms Walker was part of the team within the Union who were commissioning the new system. Other employees of the Union who are relevant to the issues raised on the appeal include Ms Rogers (another manager within the Union), Ms Gett (Manager of the Office), Ms Connor (Finance Manager), Mr Kocevski (IT Manager), Ms Eales (Assistant Secretary to the Union), Ms Newman (Director of Campaigning and Communications) and Ms Broszczak (Employment Relations Manager). The Secretary of the Union was Ms Beth Mohle.
[4]
There is no doubt that the implementation of the new computer system was difficult and caused conflict between the Union’s employees.
[5]
On 10 May 2016, Ms Walker and her supervisor, Ms Mohle, had a Performance Appraisal and Development Plan meeting (the PAD meeting). By this point, Ms Walker was in conflict with Ms Rogers and had lodged a formal complaint about her. As a result of that meeting, a Performance Appraisal and Development Plan Report (the PAD report)^[2] was prepared.
[6]
By June 2016, Ms Walker and Ms Rogers were in such a state of conflict with each other that a formal mediation was planned for 16 June 2016. However, Ms Walker became unwell. She had discussions with Ms Mohle and then went on extended leave.
[7]
Ms Walker was being treated by Dr Aneal Jamal, a consultant psychiatrist. In October 2016, Dr Jamal cleared Ms Walker to return to work.
[8]
On 21 October 2016, another union employee, Ms Broszczak, emailed Ms Walker about her return to work. During that email exchange, Ms Broszczak said “Beth [a reference to Ms Mohle] would of course like to meet with you on your first morning back to work”. That prompted Ms Walker to call Ms Broszczak by telephone and the two women had a conversation.
[9]
During that conversation, Ms Walker asked Ms Broszczak what Ms Mohle wished to speak to her about upon her return to work. Ms Broszczak told Ms Walker that what would be discussed was “to update her on recent events and operational matters”.
[10]
Ms Walker returned to work on 1 November 2016 and participated in a meeting with Ms Mohle. That was a short meeting but in it Ms Mohle raised the prospect of the Union and Ms Walker agreeing on the termination of Ms Walker’s employment. This suggestion apparently came as a shock to Ms Walker.
[11]
Ms Walker’s health relapsed and she again became quite ill.
[12]
Ms Walker then made two claims upon WorkCover. The first was for psychological and psychiatric injury caused by her work up to the time she left on long leave in June 2016 (the first claim). The second concerned psychological and psychiatric injury arising from the meeting of 1 November 2016 (the second claim). Ms Walker’s point in relation to the second claim is that she said that Ms Mohle unexpectedly raised the question of her termination and that led to shock and injury.
[13]
The two claims were ultimately allowed by the Regulator and the Union appealed both to the QIRC.
[14]
An obstacle faced by any worker, such as Ms Walker, claiming compensation for a psychiatric or psychological injury, is s 32 of the Workers’ Compensation and Rehabilitation Act 2003. That relevantly provides as follows:

“32 Meaning of injury

(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. …

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

(a)
reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;

(b)
the worker’s expectation or perception of reasonable management action being taken against the worker;

[15]
It was not in contest that Ms Walker was ill. It was also not in contest that she became ill as a result of occurrences at the workplace. Her injuries, though, were clearly “a psychiatric or, psychological disorder” and therefore, a central issue in each of her claims was whether compensation was excluded by s 32(5) of the WCR Act. That question must be resolved by determining whether the injuries arose out of, or were caused in the course of, “reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment”.^[5]
[16]
The Regulator found that the injuries relevant to both claims were not excluded. The QIRC found that they were. That conclusion was reached after a four day trial where appeals from both claims were heard together. Separate reasons for judgment were delivered.^[6]
[17]
In relation to each appeal, the QIRC ordered the Regulator to pay the Union’s costs “of the appeal”.
[18]
The Regulator appeals against the costs order made in relation to the first claim. The Regulator challenges both the finding that the injury, the subject of the second claim, was excluded by s 32(5) and also challenges the costs order made in relation to the second claim.

The issues on appeal against the orders made on the second claim

[19]
The Regulator raised five grounds of appeal from the Industrial Commissioner’s decision. Ground 5 concerns the costs order. I have dealt with that, together with the Regulator’s appeal against the costs order in relation to the first claim, in a separate judgment.^[7] The other four grounds are raised in challenge against the finding in the QIRC that the injury the subject of the second claim was caused by reasonable management action or by management action taken in an reasonable way.
[20]
The four grounds of appeal are:

“1. The Industrial Commissioner erred in law by applying an onus of proof which required the worker, Ms Margurite Walker (Ms Walker), who was not a party to the appeal lodged by an employer pursuant to s 549 of the Workers’ Compensation and Rehabilitation Act (WCR Act) to identify the management action which caused the injury and establish that the management action was unreasonable.

The Industrial Commissioner erred in law in making findings of fact which were not supported by the evidence.

[Certain specific findings are identified in the notice of appeal]

In the alternative, and with the leave of the Industrial Court, the Industrial Commissioner acted contrary to the weight of the evidence or took into account irrelevant considerations or failed to take into account relevant evidence when making the following findings.

[The notice of appeal then sets out the same findings as are challenged by ground 2]

The Industrial Commissioner erred in his interpretation and application of s 32(5)(a) of the WCR Act when he determined that Ms Walker’s injury was not caused by unreasonable management action or management action taken in an unreasonable way.”

[21]
The Industrial Commissioner directed himself in these terms:

“[22] The appeal is conducted as a hearing de novo and involves a fresh trial of Ms Walker’s claim for compensation. It is for Ms Walker to establish how she sustained her injury and that the injury satisfies the statutory association with her employment. In circumstances where the association between the injury and the employment has been conceded, and where the injury is a psychological injury, the appeal turns on whether the injury was caused by management action which was not reasonable or not taken in a reasonable way. It is for Ms Walker to identify the management action which caused the injury and establish that the management action was unreasonable.”

[22]
It was properly conceded by the Union that this was a misdirection and that the error which is the subject of appeal, ground 1, is established. The Union bore the onus of proving that the management action was reasonable and was reasonably taken. That, in itself though, will not carry the appeal. It raises the question of whether the misdirection affected the result.
[23]
While the four grounds of appeal are separately put, the submissions advanced by Mr Murdoch QC, who appeared with Mr Gray for the Regulator, showed that the grounds are interrelated. Mr Murdoch relies upon the alleged errors of fact particularised in grounds 2 and 3 as demonstrating:
1. (a)
  that the Industrial Commissioner’s reversal of the onus (ground 1) affected the Commissioner’s decision. In particular, he submitted that there was a focus on what Ms Walker and her treating psychiatrist, Dr Jamal, knew and did. That, he submitted, showed that the Industrial Commissioner concentrated on Ms Walker’s actions rather than on the true issue, namely whether the management action taken by the Union was reasonable and was reasonably taken. As already observed, they were issues upon which the Union bore the onus of proof;
2. (b)
  that the Industrial Commissioner had applied the test in s 32(5)(a) of the WCR Act incorrectly (ground 4).
[24]
Mr Murdoch QC also maintained grounds 2 and 3 as separate grounds.
[25]
Mr Grant-Taylor QC, who appeared with Mr Rashleigh for the Union, accepted that regard could be had to the evidential issues identified in grounds 2 and 3 in determining:
1. (a)
  whether the Industrial Commissioner’s error in directing himself as to the onus of proof affected the result of his decision (ground 1); and
2. (b)
  whether the Industrial Commissioner properly applied the test in s 32(5) of the WCR Act (ground 4).
[26]
Mr Grant-Taylor submitted that the alleged factual errors are not errors. Secondly, he submitted that the findings do not demonstrate that the reversal of the onus of proof had any impact on the outcome. He also submitted that there was no misapplication of s 32(5) of the WCR Act. He submitted that the injury was said by the Regulator to have been occasioned by the shock of the revelation of things at the second meeting in November 2016. That, he says, raises an issue as to whether it was reasonable for Ms Mohle to confront Ms Walker at the meeting of 1 November 2016 with the prospect of termination of her employment. That, Mr Grant-Taylor submitted, inevitably raises issues as to what Ms Walker knew and what she had done prior to entering the meeting on 1 November 2016.
[27]
It follows then that, regardless of the fact that the scope of the appeal is limited to errors of law or excess of jurisdiction,^[8] it is necessary to consider the complaints about the factual findings before turning to consideration of the other issues. However, before going to those issues, it is necessary to make some observations about the way in which interpretation of the Industrial Commissioner’s reasons should be approached. This is necessary because of the way the Regulator has argued the appeal.

Approach to interpretation of the reasons of the QIRC

[28]
The purposes of delivery of reasons for a decision have been explored in many cases. In the often cited judgment of Meagher JA in Beale v Government Insurance Office of New South Wales^[9] the content of a proper set of reasons was described:

“… there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.

Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. The obvious extension of the principle in North Sydney Council is that, where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824. Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance: Rajski v Bainton (Court of Appeal, 6 September 1991, unreported). Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferrably logical as well.”^[10]

[29]
As to the function of reasons, they include an explanation of the case such that it can be seen that no injustice has been inflicted, and expressing reasoning for consideration by any appellate court.^[11]
[30]
Importantly for present purposes, reasons “are not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”.^[12]
[31]
As will be seen, the Regulator’s appeal involves what, in my view, is often an overly analytical and critical approach to particular statements in the Industrial Commissioner’s reasons.

The factual matters

(a) Ms Walker’s being advised that a meeting to be conducted on 1 November 2016 dealing with “recent events” and “operational matters” could allude to any of the “serious unresolved issues which had implications for Ms Walker’s ongoing employment” - paragraph 56 of the decision

[32]
Paragraph 56 of the Industrial Commissioner’s reasons is:

“[56] Firstly, when Ms Broszczac said that the meeting would deal with ‘recent events’ and ‘operational matters’, she was not, in my view, excluding anything from the conversation to take place. To the contrary, the term ‘operational matters’ could allude to any of the serious unresolved issues which had implications for Ms Walker’s ongoing employment.”

[33]
Mr Murdoch QC submitted that this finding was in error as:
1. (a)
  the “serious unresolved issues” are not identified by the Industrial Commissioner;
2. (b)
  there were no “unresolved issues” because:
  1. the mediation which was scheduled to occur between Ms Walker and Ms Rogers had long since been abandoned;
  2. Dr Jamal’s report recorded that Ms Walker was prepared to work with Ms Rogers with whom she said she had no issues;
3. (c)
  Ms Walker had no reason to think that termination of her employment would be discussed because when she went on leave the prospect of mediation suggested a continuation of her employment.
[34]
There were clearly “serious unresolved issues” in the workplace concerning Ms Walker by the time she went on leave in July. There was no need for the Industrial Commissioner to precisely define them. The installation of the new computer system caused tension within the team.^[13] Ms Walker was in obvious conflict with Ms Rogers. She was also in conflict with other employees, Ms Gett, Ms Connor and Mr Kocevski.
[35]
Ms Gett said:^[14]
1. (a)
  Ms Walker yelled at staff;
2. (b)
  Ms Walker was unpredictable.
[36]
Ms Connor said:^[15]
1. (a)
  Ms Walker was prone to “outbursts”;
2. (b)
  these outbursts had “a profound effect on staff”;
3. (c)
  Ms Walker was unpredictable and erratic;
4. (d)
  Ms Walker acted irrationally;
5. (e)
  Ms Walker belittled and humiliated staff;
6. (f)
  staff members have left for home distressed after incidents with Ms Walker;
7. (g)
  Ms Walker was combative when confronted by Ms Connor as to her aggression towards staff.
[37]
Mr Kocevski said:^[16]
1. (a)
  Ms Walker did not listen to other members of the team;
2. (b)
  she was complaining about team members to staff beyond the team;
3. (c)
  Ms Walker was, in Mr Kocevski’s eyes, unfairly critical of team members on a number of topics.
[38]
The extent of the friction apparently caused by Ms Walker is summed up by Mr Kocevski’s exasperated statement that:

“Finally I just would like to add, I just need some advice on how to handle a person like this, as I have never come across someone like this before.”

[39]
Ms Walker was a participant in this conflict. She must have known there were issues.
[40]
As previously observed, Dr Jamal advised that Ms Walker was fit to return to work. This advice took the form of a letter, probably signed on 11 October 2016.^[17] Doctor Jamal had been asked a series of questions about Ms Walker’s health. Question 5, and Dr Jamal’s answer, was in these terms:

“5. The QNU is concerned not to expose Margurite to risk in the workplace. Given the seniority of her role, it is an inherent requirement that the director, business services work closely with many team leaders and supervisors across the organisation. This includes the growth and recruitment team leader^[18] whom she recently submitted an internal complaint about and whom she alleges was the partial cause of her recent psychological condition. In your medical opinion, would this continued communication with the growth and recruitment team leader exacerbate Margurite’s medical condition?

Ms Margurite Walker today in consultation assured me that she had no issues with the growth and recruitment team leader currently. She stated that she could confidently manage that situation within the workplace environment. I cannot make an objective comment further to this as I have not witnessed that workplace issue.”

[41]
Doctor Jamal’s report went no further than to record that Ms Walker considered that she had no issues with Ms Rogers. He, understandably, said nothing about any issues which Ms Rogers may have had with Ms Walker and says nothing about the other employees or the obviously bitter conflict that had arisen in relation to the implementation of the new computer program.
[42]
The Industrial Commissioner was faced with a body of evidence showing that Ms Walker had been in dispute with other employees. There were clearly serious questions raised as to Ms Walker’s behaviour in the workplace. She had gone on leave before the mediation process was undertaken. It is, with respect, obvious that the return of Ms Walker to the workplace would not resolve those issues. Ms Broszczak’s reference to “recent events” also obviously referred to the events of conflict before Ms Walker’s departure on leave.
[43]
Mr Murdoch QC’s point, though, was that even if there were “unresolved issues”, Ms Broszczak did not place Ms Walker on notice that there may be discussion with Ms Mohle about her employment being terminated.
[44]
As earlier observed, Ms Eales is the assistant secretary of the Union. She and Ms Broszczak had a meeting with Ms Walker around 18 May 2016. Ms Eales gave evidence before the Industrial Commissioner as:

“All right. Now, did Ms Walker make any suggestions about what would satisfy her, with respect to her continued employment?---She said that she would be happy to step down as a director and, like, just take a lesser role and that was when I made the remark about, sort of, abdicating responsibility. That that wasn’t a viable option. And she said that it would - we would just need to get the numbers right or come to an agreement on the numbers for a separation.”^[19]

And later:

“And did you continue to speak to Ms Mohle as time went on, remembering that she came back at the end of April and this is happening in the middle of May?---I mean, we talked about the mediation. So because I had been dealing with it all up till then, we had the discussion about that - that I should take on - continue to lead, sort of, up to that point and take that meeting with Margurite and with Julie Broszcazak, as well - was recording that meeting. So then, we obviously had the - the - I told her what the outcome of that meeting was, that Margurite had rejected it and was looking for a separation figure to be offered.”^[20]

[45]
Ms Mohle gave evidence of a conversation with Ms Walker on 25 May 2016. By this point, Ms Mohle had spoken to Ms Broszczak about her conversation with Ms Walker on 18 May 2016. As to the conversation between Ms Mohl and Ms Walker on 25 May 2016, Ms Mohle said:

“All right?---So on the 25th of May she had been off on leave for a few days up - and her first day of work, I think, was the 25th of May, from memory. I just popped into her office to actually inquire as to how she was because she’d been off on - on sick leave. It was just a short meeting because I had to get to a meeting at Parliament House. It was only - I only had about 10 or 15 minutes to actually have that meeting. I was just popping in to see how she was. She was - at that meeting she expressed, like, considerable opposition to - to - to mediation. That’s what she was really focused on, and she raised with me at that time the potential for a mutual separation. I said that I was happy to have a further conversation with her about that, but I couldn’t do it at that time because I was - I had a taxi about to arrive downstairs to take me to Parliament House and that I’d arrange for my PA, Merryn, to make an appointment for us to have that discussion. I was happy to - to have that discussion with her at a later date.

Did you - did you do anything about - to direct Ms Walker in respect of the mediation?---Yes, at that particular meeting she requested that all future communication about this process were put to her in writing, and I said I was happy to do that. And so the next day - from memory, the 26th of May - we sent correspondence to Ms Walker advising her that we - that we would be - we - we had proposed to undertake mediation and what that process would be. From memory, the name of the psychologist - psychological firm was Guidelight Psychologists - we were going to be using, and they’d actually just outlined, you know, the process for that that we intended to undertake. That’s - that’s from memory that that was the date.”^[21]

[46]
Ms Walker was cross-examined about her raising the issue of separation before she was sent on leave in June 2016. She denied that had been raised. The QIRC specifically found that there was a discussion with Ms Walker about mutual separation before she went on leave in June 2016.^[22] That finding was made on the Industrial Commissioner’s assessment of the credibility and reliability of the witnesses. An interference with factual findings based on an assessment of a witness’s creditability or reliability will only occur where the findings are “glaringly improbable” or “contrary to compelling inferences”.^[23] There is nothing to suggest any reason why the Industrial Commissioner could not have preferred (as he did) the evidence of Ms Mohle and Ms Broszczak over that of Ms Walker.
[47]
The legal issue in the case is not about what Ms Walker knew before the meeting of 1 November 2016. Rather, the issue is whether the management action in discussing possible separation or performance management with Ms Walker was reasonable management action reasonably taken.
[48]
The finding by the QIRC which is presently under attack is to the effect that Ms Broszczak placed Ms Walker on notice of the matters that were discussed on 1 November 2016 so that there was no ambush. To that extent, the finding was open and was properly made. In particular:

Ms Walker had, in June 2016, gone on extended sick leave as a result of workplace issues including, expressing it neutrally, conflict with other staff members;
those issues had not been resolved by the time Ms Walker went on leave and Ms Walker had discussed with both Ms Broszczak and Ms Mohle the possibility of the resolution of those issues being by separation;
Ms Broszczak told Ms Walker that what was to be discussed in the 1 November meeting were “recent events” and “operational matters” which, taken objectively, must have been a reference to the conflict and possible separation of Ms Walker from the Union’s employment.

(b) There was no evidence to the effect that any of the unresolved issues had disappeared with the effluxion of time and it would have been strange had Ms Walker not expected, on her return to work, that Ms Mohle would want to canvass some, if not all, of these matters - paragraph [57] of the decision

[49]
The finding at paragraph [57] of the QIRC’s reasons dovetails with the finding at [56]. Paragraph [56] concerns the objective interpretation of Ms Broszczack’s statement to Ms Walker. Paragraph [57] largely concerns Ms Walker’s interpretation of that statement.
[50]
A central issue in the case was the relationship between Ms Rogers and Ms Walker. As already observed, Dr Jamal, Ms Walker’s treating psychiatrist, provided a report for the Union, concerning Ms Walker’s health.^[24] In that report, as already observed, Dr Jamal stated that Ms Walker “had no issues with the growth and recruitment leader currently”. That is a reference to Ms Rogers.
[51]
That is evidence from which it can be inferred that at that time Ms Walker’s grievance with Ms Rogers had settled. That says nothing though about Ms Rogers’ grievance with Ms Walker.
[52]
As to Ms Walker’s relationship with Ms Mohle, she was asked in examination in chief:

“And what do you remember you saying to Ms Mohle during the course of that meeting?---I asked her whether she supported Sandra’s views on the process going forward. Because - - -

Sorry, I’ll just - I’ll get you to restrict it to just simply what you said to Ms Mohle. You asked her whether she supported Sandra’s views?‑‑‑Yes.

And what was Beth’s response?---Yes.

She did. Okay. Now - - -?---And I, sorry - - -

Yes?---And I asked if I could have that in writing.

All right. And why did you want to have that in writing?---By that time I was feeling very intimidated.

Okay?---And I just felt that I needed to.

All right. Was there any discussion during that meeting about your continued employment with the union?---No. Though Beth and I agreed that we probably needed to - we needed to have a chat about our relationship.

Well you then - and so the - that discussion finished with Beth?---Yes.

You then received the letter from the union dated the 26th of May 2016 which is exhibit 16 and might Ms Walker see exhibits 16 and 17 at the same time?---Yes.

So this is the letter you received from the union confirming what had been - the decision that had been conveyed to you from as early as the 12th of May 2016.^[25] You then responded saying that you were happy to comply with the direction. Why did you respond in those terms?---Well, I was very fearful that if I didn’t I was going to lose my job.

All right. You then - you didn’t participate in the mediation?---No.

Why didn’t you participate in the mediation?---I continued to become unwell.

Yes?---And got very unwell.”^[26]

And:

“Okay. You commented to Ms Mohle that perhaps your relationship with her had broken down; do you remember that?---Yes.

And that she should negotiate a separation package with you?---No.

See, is that where you remember having raised the separation issue?---No - no. But our relationship had broken down, and as I’d said in my previous sentence, we - I would like some time, when things settled down, for us to try and sort things out.

You - - -?---I had worked with her for four years and had a very good relationship.”^[27]

[53]
The Regulator also points to the denial by Ms Walker that there were discussions in June about a possible separation. The Regulator attacks the finding that there was talk of separation. The Regulator submits that there is evidence of a resolution of issues, at least those between Ms Walker and Ms Rogers and Ms Walker and Ms Mohle.
[54]
The Industrial Commissioner referred to Ms Walker’s evidence about her relationship with Ms Mohle at paragraph [39] of the decision. He referred to Dr Jamal’s evidence at paragraph [21], in particular [21](e).
[55]
The Industrial Commissioner made specific findings that in June Ms Walker had discussed the possibility of a separation. That possibility had not been discussed further between June and November. Against that background, the fact that Ms Rogers had not withdrawn her grievance and the fact that there had been no reconciliation of issues between Ms Walker and Ms Mohle, it is hardly surprising that the Industrial Commissioner made the finding that he did at paragraph [57]:

“[57] Secondly, I accept Ms Broszczac’s evidence that it was not for her to specifically inform Ms Walker that the meeting would include a mutual separation proposal. It was not Ms Broszczac’s responsibility to remind Ms Walker of the pressing matters which needed to be discussed on her return and which may have had some bearing on her employment relationship. There was no evidence to the effect that any of the unresolved issues had disappeared with the effluxion of time and in my view it would have been strange had Ms Walker not expected, on her return to work, that Ms Mohle would want to canvass some, if not all, of these matters.”

2(c): As Ms Walker was afforded ten days’ notice of the 1 November 2016 meeting, she had ample opportunity to seek professional advice or more information in relation to the meeting - paragraphs [58] and [77] of the decision

[56]
The point taken by the Regulator is that Ms Broszczak’s description of the meeting was, as the Industrial Commission found, hardly “fulsome or exhaustive”. Therefore, it is submitted, it is illogical for the Industrial Commissioner to then rely on the fact that Ms Walker had 10 days to seek advice or information. The submission is that she was not in a position to seek advice or information if she did not know the point of the meeting.
[57]
Paragraph [58] of the judgment is in these terms:

“[58] Thirdly, whatever interpretation was placed on the information conveyed by Ms Broszczac, it is relevant that Ms Walker was afforded ten days notice of the 1 November 2016 meeting, and that she had ample opportunity to seek professional advice or more information in relation to the meeting. There was also nothing preventing Ms Walker, or her representative, from making direct contact with Ms Mohle to clarify matters of concerns, particularly in circumstances where Ms Broszczac’s brief description of meeting could hardly be considered fulsome or exhaustive.”

[58]
Paragraph [77] of the judgment is:

“[77] It is relevant that Ms Mohle did take steps to mitigate any stress or anxiety. Firstly, the meeting was not scheduled until Ms Walker had recovered from her illness and was fit for work. Secondly, the meeting was scheduled ten days out and gave Ms Walker ample time to get advice or representation. Thirdly, she limited the scope and duration of the meeting by electing not to introduce general performance concerns nor to apprise Ms Walker of the complaints made by her subordinates. Rather, she directly and candidly told Ms Walker of her view on the relationship, proposed a separation on mutually acceptable terms, and allowed time for the offer to be considered.”

[59]
It must be remembered that the issue is whether the management action (here holding the meeting of 1 November) was reasonable and was action reasonably taken. Paragraphs [58] and [77] simply observe that there was a 10 day window for Ms Walker to make inquiries and seek advice. That observation is made against the obvious alternative which was to call a meeting without notice.
[60]
In my view, the finding as far as it goes is obviously correct.

2(d): As at 1 November 2016, Ms Walker’s ongoing employment was still contingent on the unresolved issues being resolved to Ms Mohle’s satisfaction either subject to conditions or not. The unexpected presentation of complaints by three of Ms Walker’s key subordinates left Ms Walker’s prospects of continuing employment precariously placed, if not untenable - paragraph [70] of the decision

[61]
The point taken here is that there was no evidence (so it was submitted) that Ms Walker’s “prospect of continuing employment [was] precariously placed, if not untenable …”. This is because Ms Mohle had not made any determination about the complaints that had been levelled against Ms Walker and neither did the Industrial Commissioner.
[62]
Paragraph [70] in which the passage complained about appears is:

“[70] When Ms Walker commenced sick leave on 13 June 2016, she left unresolved a number of issues which had raised questions about whether her employment relationship with the QNMU would survive. While she had been medically cleared to return to work on 1 November 2016, her ongoing employment was still contingent on the unresolved issues being resolved to Ms Mohle’s satisfaction either subject to conditions or not. The unexpected presentation of complaints by three of Ms Walker’s key subordinates left Ms Walker’s prospects of continuing employment precariously placed, if not untenable.”

[63]
The reference to “three of Ms Walker’s key subordinates” is obviously a reference to Ms Gett, Ms Connor and Mr Kocevski.
[64]
Therefore, as at 1 November 2016:

there was an active complaint against Ms Walker by Ms Rogers;
Ms Gett had complained about Ms Walker;
Ms Connor had complained about Ms Walker;
Ms Kocevski had complained about Ms Walker;
the relationship between Ms Walker and Ms Mohle was difficult at best;
as found by the Industrial Commissioner, Ms Walker herself, prior to her departure on sick leave in June, had raised the issue of her separation from the Union.

[65]
In those circumstances, the finding that the prospect of Ms Walker’s continued employment was precarious is, in my view, solidly based.

2(e): Ms Walker should have anticipated that she would have to negotiate some difficult issues with Ms Mohle on her return to work on 1 November 2016 - paragraph [76] of the decision

[66]
The submission by the Regulator is that the Industrial Commissioner does not identify the “difficult issues” referred to. The passage to which objection is taken is part of paragraph [76] of the judgement. It provides:

“[76] On the available evidence, it was open to the QNMU to conclude prior to the 1 November 2016 meeting that, while the meeting may be a cause of stress for Ms Walker, it was a reasonable expectation that Ms Walker would have the capacity to deal with any stress that might arise:

Ms Walker had been off work since 13 June 2016 and out of hospital since 1 July 2016, and had benefited from a long recovery period;

On 6 October 2016, Dr Jamal supported a return to work on a full time basis with very limited restrictions. On the same date, Ms Walker reported to Dr Jamal that she was able to resume her role of Director of Business Services;

On 6 October 2016, Ms Walker assured Dr Jamal that she had no issues with Ms Rogers and said that she could confidently manage that situation;

In circumstances where Ms Walker knew that her relationship with Ms Mohle had broken down and where she knew that Ms Mohle held significant performance concerns, it was not unreasonable to expect that Ms Walker should have anticipated that she would have to navigate some difficult issues with Ms Mohle on her return to work.”

[67]
It is just not useful, with respect, to extract words from a judgment and critically examine them out of context. What is under consideration is a set of reasons for judgment, not a contract or a statute. The Industrial Commissioner had, in the judgment, referred to numerous “difficult issues”. They include Ms Roger’s complaint,^[28] the issues with Ms Gett, Ms Connor and Mr Zakowski.^[29] Ms Walker, on any view, had taken extended leave as a result of stress and injury caused by conflict at work.
[68]
It was also submitted on behalf of the Regulator that Ms Walker had no reason to think that Ms Mohle would raise a potential separation or performance management proposal. However, as earlier observed, the Industrial Commissioner found that Ms Walker had raised possible separation as an issue in June. Once that is accepted, the finding made in paragraph [76] is clearly open.

2(f): As at 1 November 2016, Ms Walker had recovered from her illness - paragraph [77] of the decision

[69]
The complaint is that Dr Jamal said in his report that Ms Walker was suffering from a major depressive disorder. Therefore, it is submitted she had not “recovered”.
[70]
This is another example of the appellant taking statements in the judgment out of context. Paragraph [77] of the QIRC’s judgment in its entirety is set out earlier at paragraph [58] of these reasons.
[71]
Again, the focus is upon the reasonableness of the management action and its implementation. Paragraph [77] lists a number of ways in which Ms Mohle had taken steps to “mitigate any stress or anxiety” for Ms Walker. The point being made by the Industrial Commissioner is that the meeting was not scheduled in June. It was scheduled when Ms Walker “had recovered from her illness and was fit for work”.
[72]
Dr Jamal in his report,^[30] said this:

“1. What is the nature of Margurite’s medical condition?

Margurite Walker is currently suffering with a major depressive disorder which has been successfully treated completing an outpatient CBT course as well as continuing on antidepressant therapy.

Is Margurite able to perform the duties in the attached position description without risk to her?

Today on interview Margurite Walker assured me that she will be able to operate in her current capacity as director of business services without any major/acute risk to her mental health. Objectively on symptom review Margurite has improved markedly so, she describes no had abnormalities in terms of her mood, sleep, appetite or attention and concentration.”

[73]
It is fair, in context, for the Industrial Commissioner to conclude that Ms Walker “had recovered from her illness and was fit for work”.

2(g): Ms Mohle limited the scope of the meeting by electing not to introduce general performance concerns - paragraph [77] of the decision

[74]
This also concerns the findings at paragraph [77]. The Regulator submits that performance issues were raised. By the term “electing not to introduce general performance concerns”, the Industrial Commissioner is not meaning to convey that performance concerns were not raised at all. He meant that the particular performance issues were not discussed and gone into.
[75]
Ms Mohle in her evidence, said this:

“Did you have a conversation with her when she arrived?---Yes. I had a short 10 minute conversation. The conversation was of the nature just to say that I wanted to have a very highly confidential without prejudice conversation with Ms Walker and that she shouldn’t discuss it with anybody else. That she - it was just a one-on-one conversation between her and me. I wanted to do that because Ms Walker is a senior executive member of staff - - -

Yes?--- - - - and I thought that it’s appropriate to have a one-on-one conversation with her. I could, you know - and it was to actually talk about what she had first flagged with me, which was mutual separation.

All right?---I wanted to ascertain whether that was still what she wanted to do because she had - had suggested that. Because I had very much formed the view that it was in everybody’s best interest for that to occur.”

[76]
The meeting was followed up with an email from Ms Mohle which set out what was discussed at the meeting:^[31]

“The purpose of this meeting was to advise you that I have significant concerns including that our relationship is not functional and has deteriorated overtime. I feel that there has been a breakdown in trust and confidence and am of the view that there exists significant performance issues. These have been outlined to you previously, including in your Performance and Appraisal meeting earlier this year.”

[77]
It is obvious that Ms Mohle did not discuss the details of performance issues. She just referred Ms Walker to the performance and appraisal meeting earlier in the year.

2(h): As at 1 November 2016, Ms Walker’s relationship with Ms Rogers remained in disrepair - paragraph [84] of the decision

[78]
The point taken by the Regulator is that, in Dr Jamal’s report the relationship with Ms Rogers had been repaired.
[79]
Paragraph [84] of the judgment below is in these terms:

“[84] The starting point is to accept that there is a strong evidential foundation supporting the reasonableness of Ms Mohle’s conclusion that the employment relationship had failed or was not tenable, and Ms Mohle’s decision that a mutual separation should be negotiated. When Ms Walker commenced sick leave on 13 June 2016, her relationship with Ms Mohle was experiencing significant difficulty and Ms Walker had accepted that the relationship had broken down; performance concerns held by Ms Mohle had remained unresolved; Ms Mohle had expressed her disappointment that Ms Walker had been unable to independently resolve her differences with Ms Rogers; and processes put in place to try to resolve Ms Walker’s conflict with Ms Rogers had not commenced and the relationship remained in disrepair.”

[80]
Dr Jamal’s report, as relevantly set out at paragraph [40] of these reasons, expresses the view that Ms Walker can manage her relationship with Ms Rogers:
[81]
However, there had been no mediation between Ms Walker and Ms Rogers. Ms Rogers had an active grievance against Ms Walker. The fact that Dr Jamal reported that Ms Walker had no issues with Ms Rogers “currently” and that she was confident that she “could manage that situation” herself, hardly contradicts a finding that the relationship between Ms Walker and Ms Rogers “remained in disrepair”.

2(i): That as none of the employment stressors that had contributed to Ms Walker’s injury had been resolved prior to her hospitalisation on 13 June 2016, there must have been some awareness between Ms Walker and Dr Jamal that it was probable that unresolved employment issues would be raised upon her resumption of employment on 1 November 2016 - paragraph [89] of the decision

[82]
The Regulator again points to Dr Jamal’s report to the effect that Ms Walker could handle the relationship with Ms Rogers, which the Regulator says is the only stressor which could be being referred to.
[83]
Paragraph [89] of the judgment is in these terms:

“[89] It is relevant to observe in the first instance that Dr Jamal, as Ms Walker’s treating psychiatrist, would have been familiar with the causes of Ms Walker’s illness, and knew that those causes were employment related. Both Dr Jamal and Ms Walker should have known that none of the employment stressors that had contributed to her injury had been resolved prior to Ms Walker’s hospitalisation on 13 June 2016. It followed that there must have been some awareness between Ms Walker and Dr Jamal that it was probable that unresolved employment issues would be raised upon Ms Walker’s resumption of employment. In some respect, the QNMU had put them on notice of these matters when they specifically sought advice about Ms Walker’s current relationship with Ms Rogers.”

[84]
The Industrial Commissioner refers to “employment stressors”, ie plural. Given the whole of the judgment, it is clear that the Industrial Commissioner must be referring to at least the dispute with Ms Rogers and the unsettled relationship with Ms Mohle and probably other conflict. However, the Regulator refers to the decision of the QIRC made on the first complaint^[32] and submits that the stressors present in June were limited only though to those involving Ms Rogers.^[33]
[85]
It is then submitted by the Regulator that the dispute with Ms Rogers was finalised by November. It is further submitted that the report of Dr Jamal is a standard report going to fitness for work and there is no basis to draw a conclusion that Dr Jamal and Ms Walker would have known that unresolved employment issues would be raised upon her return to work.
[86]
It is unnecessary to determine whether the reference in paragraph [89] of the judgment to “employment stressors” was a reference confined to the dispute with Ms Rogers. The Regulator’s submissions are largely contradicted by the express words of Dr Jamal’s report.
[87]
In the passage of the report which is set out at paragraph [40] of these reasons, Dr Jamal is, for the reasons I then gave at [80] and [81], clearly not opining that the conflict with Ms Rogers was finalised; quite the contrary.
[88]
There is an ongoing issue between Ms Walker and Ms Rogers. Dr Jamal knows of this. It must have occurred to Dr Jamal and Ms Walker that at least that issue would be raised at some point by the Union with its employee Ms Walker when she returned to work. The alternative is to assume that the Union would simply allow that work-related issue to fester. I would not draw that inference and I would not draw the inference that Ms Walker and Dr Jamal would think that.

2(j): When both Dr Jamal and Ms Walker committed to a safe return to work on or about 6 October 2016, they were doing so in the knowledge that employment related stressors that caused Ms Walker’s injury remained, and would have to be confronted, probably sooner rather than later on her resumption of work - paragraph [90] of the decision

[89]
The Regulator submits that the stressors referred to were confined to the issues with Ms Rogers. They were not the stressors, it is submitted, which Ms Walker confronted on resumption of her work. There were other matters raised by Ms Mohle. They include, of course, the question of separation.
[90]
It is necessary to consider paragraph [90] in its entirety. It provides:

“[90] It follows that when both Dr Jamal and Ms Walker committed to a safe return to work on or about 6 October 2016, they were doing so in the knowledge that employment related stressors that caused her injury remained, and would have to be confronted, probably sooner rather than later on her resumption of work. It was therefore unlikely that Ms Walker was naïve to the possibility that topics might be introduced into the 1 November 2016 meeting which could be stressful and unsettling.” (emphasis added)

[91]
The important sentence, and the one which exposes the Industrial Commissioner’s thinking most clearly, is the last sentence of that paragraph.
[92]
When the judgment is read as a whole, it can be seen that the Industrial Commissioner took the view that Ms Walker was in dispute with Ms Rogers, had a difficult relationship with Ms Mohle and was in dispute with others,^[34] and had discussed the question of separation with Ms Mohle. It is against that background and those findings that the Industrial Commissioner made the finding he did in the last sentence of paragraph [90]. That was clearly open.

Consideration of the grounds of appeal

Grounds 2 and 3

[93]
I have analysed and dismissed the complaints of the Regulator as to the factual findings made by the Industrial Commissioner. I find that the findings were supported by the evidence and therefore did not constitute an error of law (ground 2).
[94]
Sections 557 and 565 of the IR Act provide as follows:

“557 Appeal from commission

(1)
The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of—

(a)
error of law; or

(b)
excess, or want, of jurisdiction.

(2)
Also, the Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court, with the court’s leave, on a ground other than—

(a)
error of law; or

(b)
excess, or want, of jurisdiction.

(3)
However, subsections (1) and (2) do not apply to the Minister or another person aggrieved by a determination of the full bench under chapter 4, part 3, division 2.

(4)
If a person may appeal a decision of the commission under both subsections (1) and (2), the person may only appeal against the decision with the court’s leave on a ground mentioned in subsection (2).

(5)
In this section—

commission means the commission, other than the full bench constituted by the president and 2 or more other members.”

[95]
Therefore, for the purposes of appeal ground 3, leave is required to challenge a finding of fact made by the Industrial Commissioner where the finding does not constitute an error of law or want of jurisdiction. In practical terms, to challenge a finding of fact, leave may only be given where the Court is satisfied “it is in the public interest to do so”.^[35]
[96]
It is unnecessary to consider whether leave ought be granted to allow the Regulator to argue ground 3. It is well-recognised that where an appeal is not limited to errors of law or want of jurisdiction, but the appeal court is to proceed by way of rehearing, an appeal will still fail unless error is demonstrated.^[36] While, on an appeal of the nature of a rehearing, the appeal court draws its own inferences and assesses the facts itself,^[37] the appeal court must recognise the advantage enjoyed by the court at first instance in seeing the witnesses and hearing them give their evidence. As already observed, factual findings based on an assessment of a witness’s credibility or reliability will only be set aside where the findings are “glaringly improbable” or “contrary to compelling inferences”.^[38]
[97]
Here, the Industrial Commissioner enjoyed that advantage and made findings based on his assessment of the witnesses, in particular Ms Mohle and Ms Walker. One critical finding was that Ms Walker raised the question of separation with Ms Mohle before she went on leave in June 2016. I can see no basis to set aside that finding and can see no basis upon which I would disagree with the Industrial Commissioner’s findings based on credit and reliability of the witnesses.
[98]
As is evident from my analysis of the factual issues raised in ground 2 of the appeal, I not only find that there was an evidentiary basis upon which the findings could be made, but I agree with the findings. Ground 3 is not established.

Ground 1

[99]
As previously observed, it is common ground that the Industrial Commissioner erred when he directed himself that Ms Walker bore an onus to prove that the injury occurred as a result of management action which was either unreasonable or unreasonably taken.
[100]
However, that error has not affected the outcome. Nowhere does the Industrial Commissioner say in the judgment that the Union’s appeal succeeds because the Regulator or Ms Walker has failed to establish some fact or some conclusion.
[101]
In the judgment, the Industrial Commissioner makes a series of positive findings. In other words, he is positively convinced of the existence of the facts that he is considering. He then drew a series of positive conclusions^[39] before ultimately concluding:

“[102] While Ms Mohle was direct in communicating her wish that a mutual separation be negotiated, she avoided any particular criticism of Ms Walker’s conduct or behaviour, kept the discussion brief, and made it clear to Ms Walker that she did not want a response to her proposal there and then. The meeting was conducted in a business-like manner and was transactional in nature. Ms Walker was given two options and it was for her to consider which option she preferred.

[103] There was nothing inherently unreasonable in either option being advanced in the meeting. The mutual separation option had been canvassed previously, but irrespective of that consideration, the facts supported Ms Mohle’s conclusion at least to the extent that it was in her interests, and the QNMU’s interests, for a mutual separation to be negotiated. If the mutual separation option were not accepted, Ms Mohle was simply stating the inevitable when she told Ms Walker that performance management activities would be commenced. Performance management was inevitable because it was never the case, in my view, that the pre-existing issues of concern to Ms Mohle would have evaporated with the effluxion of time, or in some other way assumed insignificance, because Ms Walker had been absent from work for some months suffering from a major depressive disorder.”

[102]
Any doubt that the judgment might have been affected by the admitted error in relation to who bore the onus of proof is emphatically answered in paragraph [104], which is in these terms:

“[104] The evidence in the proceedings supports a balance of probabilities finding that Ms Walker’s injury was not caused by unreasonable management action or by management action taken in an unreasonable way.”

[103]
The Industrial Commissioner ultimately has made a positive finding that it is more likely than not that Ms Walker’s injuries were not caused by unreasonable management action or by management action taken in an unreasonable way.
[104]
Ground 1 is not established.

Ground 4

[105]
The submission by the Regulator is that the Industrial Commissioner concentrated his attention on what Ms Walker knew and what she would have expected rather than ask the real question which was whether the management action was reasonable and whether it was taken in a reasonable way.
[106]
Section 32(5)(a) of the WCR Act is straightforward enough. In Simon Blackwood (Workers’ Compensation Regulator) v Chapman,^[40] President Martin said this:

“[23] In order that s 32(5)(a) can apply three things must be shown: (a) that there was reasonable management action, and (b) that it was taken in a reasonable way, and (c) that the ‘action’ gave rise to the disorder.

[24] If any one of those can be shown not to have taken place then the subsection does not apply. Without a causal link, the subsection does not apply. Or, if there was reasonable management action, but it was taken in an unreasonable way, then the subsection does not apply. It follows, of course, that in the unlikely event that unreasonable management action is taken in a reasonable way, then the subsection will, likewise, not apply.”

[107]
More generally, in Simon Blackwood (Workers’ Compensation Regulator) v Mahaffey,^[41] President Martin explained:

“[57] The difficulties in construing s 32(5) support the conclusion that more than one interpretation of s 32 is available and that, therefore, the beneficial interpretation approach should be applied. In the cases decided in this Court any attempt to provide some type of formula or application of dominant cause has been rejected. Section 32 must be applied in the light of the evidence accepted by the Commission. If, after considering all the relevant evidence and weighing up the factors which were accepted as having given rise to the personal injury, the Commission forms the conclusion that any of the conduct referred to in s 32(5) does not, on balance, displace the evidence in favour of the worker then a finding in the worker’s favour must follow.”

[108]
There are no doubts about these principles. In Prizeman v Q-Comp,^[42] it was observed that what is critical is the objective assessment of the reasonableness of the action and the way it was taken, not the employee’s perception of reasonableness.
[109]
However, the principles do not exclude the possibility that in a particular case, the knowledge or expectation of the employee will be relevant to the determination of the correct legal issue posed by s 32(5)(a). This is such a case.
[110]
The Regulator’s case was, in effect, that Ms Walker had been ambushed by Ms Mohle raising issues in the 1 November 2016 meeting concerning Ms Walker’s potential separation or performance management. That led to the injury. The whole notion of an ambush raises questions of what Ms Walker knew and expected.
[111]
It is inevitable that in assessing whether raising the issues in the meeting was reasonable management action reasonably taken, the QIRC had to consider issues, including:

Ms Walker’s knowledge of things relevant to the meeting;
Ms Walker’s expectations for the meeting;
Ms Mohle’s understanding of Ms Walker’s knowledge and expectations.

[112]
The Industrial Commissioner appreciated this. He made careful findings, for instance, about Ms Walker raising the issue of separation in June. That was an important relevant forensic issue. If Ms Walker raised the issue of separation in June 2016 with Ms Mohle, that fact bore directly on the question of whether it was reasonable for Ms Mohle to raise the question of separation in November without placing Ms Walker specifically on notice that she intended to do so.
[113]
The Industrial Commissioner did not confine himself to consideration only of Ms Walker’s knowledge and expectations in the 1 November 2016 meeting. He referred to many other things, including the investigation, by Ms Mohle, prior to the 1 November meeting of the state of Ms Walker’s medical condition.
[114]
The Industrial Commissioner has, in my view, directed himself to the correct question posed by s 32(5)(a) of the WCR Act. That is made clear, in my view, upon the whole of the judgment, but in particular paragraphs [3], [4], [23], [26], [77] and [97]-[104].

Conclusions

[115]
None of grounds of appeal 1, 2, 3 and 4 have been made out.
[116]
As I explain in Workers’ Compensation Regulator v Queensland Nurses and Midwives’ Union of Employees (No 2),^[43] the Industrial Commissioner erred in making the order for costs in the terms which he did.
[117]
It is ordered:

Appeal allowed to the extent of:

(a)
Setting aside the costs order in WC/2018/137; in lieu ordering:

(b)
The Workers’ Compensation Regulator pay the Queensland Nurses and Midwives’ Union of Employees’ costs of the hearing before the Queensland Industrial Relations Commission of WC/2018/137.

The appeal is otherwise dismissed.
There is no order as to costs of the appeal to the Court.

Footnotes

[1]Queensland Nurses and Midwives’ Union of Employees v Workers’ Compensation Regulator [2020] QIRC 75 and Queensland Nurses and Midwives’ Union of Employees v Workers’ Compensation Regulator [2020] QIRC 76.

[2]Exhibit 24.

[3]‘Injury” is defined in a non-exhaustive way in s 32(3).

[4]Legislative examples omitted.

[5]Section 32(5)(a); emphasis added.

[6]Queensland Nurses and Midwives’ Union of Employees v Workers’ Compensation Regulator [2020] QIRC 75 (the first claim) and Queensland Nurses and Midwives’ Union of Employees v Workers’ Compensation Regulator [2020] QIRC 76.

[7]Workers’ Compensation Regulator v Queensland Nurses and Midwives’ Union of Employees [2021] ICQ 13.

[8]Unless leave is granted under s 577(2) of the Industrial Relations Act 2016.

[9](1997) 48 NSWLR 430. And see generally ASIC v Anderson (2018) 134 ACSR 105 at [39]-[44] and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281.

[10]At 443-444.

[11]Beale at 441-442.

[12]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, followed in Doomadgee v Clements [2006] 2 Qd R 352 at [30].

[13]Exhibit 24.

[14]Exhibit 2.

[15]Exhibit 3.

[16]Exhibit 4.

[17]The first page of the letter bears the date 6 October 2016 and the second page bears the date 11 October 2016.

[18]A reference to Ms Rogers.

[19]QIRC Transcript 1-69, ll 5-15.

[20]QIRC Transcript 1-69, ll 30-40.

[21]T 3-23 ll 1-25.

[22]Queensland Nurses and Midwives’ Union of Employees v Workers’ Compensation Regulator [2020] QIRC 76 at [42].

[23]Fox v Percy (2003) 214 CLR 118 at [25] and Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at [43] and Lee v Lee (2019) 93 ALJR 993 at [55].

[24]Exhibit 20.

[25]That the dispute with Ms Rogers should go to mediation.

[26]T 4-18 ll 5-40.

[27]T 4-40 ll 35-45.

[28]Queensland Nurses and Midwives’ Union of Employees v Workers’ Compensation Regulator [2020] QIRC 76 at [11].

[29]At [46].

[30]Exhibit 20.

[31]Exhibit 26.

[32]Queensland Nurses and Midwives’ Union of Employees v Workers’ Compensation Regulator [2020] QIRC 75.

[33]Queensland Nurses and Midwives’ Union of Employees v Workers’ Compensation Regulator [2020] QIRC 75 at [4].

[34]Connor, Gett and Kocevski.

[35]GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266; Comalco Aluminium Ltd v O'Connor (1995) 61 IR 455.

[36]Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 and Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] 74 ALJR 1348.

[37]Warren v Coombes (1979) 142 CLR 531 and State Rail Authority of (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306.

[38]Fox v Percy (2003) 214 CLR 118 at [25], Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at [43] and Lee v Lee (2019) 93 ALJR 993 at [55].

[39]Paragraphs [84]-[101].

[40][2016] ICQ 011.

[41][2016] ICQ 010.

[42](2005) 180 QGIG 481.

[43][2021] ICQ 13.

Editorial Notes

Published Case Name:
Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees
Shortened Case Name:
Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees
MNC:
[2021] ICQ 12
Court:
ICQ
Judge(s):
President Davis J
Date:
06 Aug 2021

Appeal Status

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

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
ASIC v Anderson	(2018) 134 ACSR 105	2 citations Jump To Cite 1 - (2018) 134 ACSR 105 Cite 2 - (2018) 134 ACSR 105
Beale v Government Insurance Officer of New South Wales (NSW)	View on:NSWLR(1997) 48 NSWLR 430	4 citations Jump To Cite 1 - (1997) 48 NSWLR 430 Cite 2 - (1997) 48 NSWLR 430 Cite 3 - (1997) 48 NSWLR 430 Cite 4 - (1997) 48 NSWLR 430
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission	(2000) 74 ALJR 1348	2 citations Jump To Cite 1 - (2000) 74 ALJR 1348 Cite 2 - (2000) 74 ALJR 1348
Comalco Aluminium Ltd v O'Connor	(1995) 61 IR 455	2 citations Jump To Cite 1 - (1995) 61 IR 455 Cite 2 - (1995) 61 IR 455
Doomadgee v Deputy State Coroner Clements	[2006] 2 Qd R 352; [2005] QSC 357	2 citations Jump To Cite 1 - [2006] 2 Qd R 352 Cite 2 - [2006] 2 Qd R 352
Fox v Percy	View on:JADE(2003) 214 CLR 118	3 citations Jump To Cite 1 - (2003) 214 CLR 118 Cite 2 - (2003) 214 CLR 118 Cite 3 - (2003) 214 CLR 118
GlaxoSmithKline Australia Pty Ltd v Makin	(2010) 197 IR 266	2 citations Jump To Cite 1 - (2010) 197 IR 266 Cite 2 - (2010) 197 IR 266
Lee v Lee	(2019) 93 ALJR 993	3 citations Jump To Cite 1 - (2019) 93 ALJR 993 Cite 2 - (2019) 93 ALJR 993 Cite 3 - (2019) 93 ALJR 993
Minister for Immigration and Ethnic Affairs v Wu Shan Liang	View on:JADE(1996) 185 CLR 259	2 citations Jump To Cite 1 - (1996) 185 CLR 259 Cite 2 - (1996) 185 CLR 259
North Sydney Council v Ligon 302 Pty Ltd	(1995) 87 LGERA 435	1 citation Jump To Cite 1 - (1995) 87 LGERA 435
Prizeman v Q-Comp	(2005) 180 QGIG 481	2 citations Jump To Cite 1 - (2005) 180 QGIG 481 Cite 2 - (2005) 180 QGIG 481
Queensland Nurses and Midwives' Union of Employees v Workers' Compensation Regulator	[2020] QIRC 75	5 citations Jump To Cite 1 - [2020] QIRC 75 Cite 2 - [2020] QIRC 75 Cite 3 - [2020] QIRC 75 Cite 4 - [2020] QIRC 75 Cite 5 - [2020] QIRC 75
Queensland Nurses and Midwives' Union of Employees v Workers' Compensation Regulator	[2020] QIRC 76	5 citations Jump To Cite 1 - [2020] QIRC 76 Cite 2 - [2020] QIRC 76 Cite 3 - [2020] QIRC 76 Cite 4 - [2020] QIRC 76 Cite 5 - [2020] QIRC 76
Robinson Helicopter Co Inc v McDermott	(2016) 90 ALJR 679	3 citations Jump To Cite 1 - (2016) 90 ALJR 679 Cite 2 - (2016) 90 ALJR 679 Cite 3 - (2016) 90 ALJR 679
Selvanayagam v University of the West Indies	View on:ICLRUK(1983) 1 WLR 585	1 citation Jump To Cite 1 - (1983) 1 WLR 585
Selvanayagam v University of the West Indies	(1983) 1 All ER 824	1 citation Jump To Cite 1 - (1983) 1 All ER 824
Soulemezis v Dudley (Holdings) Pty Ltd	View on:NSWLR(1987) 10 NSWLR 247	2 citations Jump To Cite 1 - (1987) 10 NSWLR 247 Cite 2 - (1987) 10 NSWLR 247
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq)	(1999) 73 ALJR 306	2 citations Jump To Cite 1 - (1999) 73 ALJR 306 Cite 2 - (1999) 73 ALJR 306
Turnbull v New South Wales Medical Board	View on:NSWLR(1976) 2 NSWLR 281	2 citations Jump To Cite 1 - (1976) 2 NSWLR 281 Cite 2 - (1976) 2 NSWLR 281
Warren v Coombes	View on:JADE(1979) 142 CLR 531	2 citations Jump To Cite 1 - (1979) 142 CLR 531 Cite 2 - (1979) 142 CLR 531
Workers' Compensation Regulator v Chapman	[2016] ICQ 11	2 citations Jump To Cite 1 - [2016] ICQ 11 Cite 2 - [2016] ICQ 11
Workers' Compensation Regulator v Mahaffey	[2016] ICQ 10	2 citations Jump To Cite 1 - [2016] ICQ 10 Cite 2 - [2016] ICQ 10
Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2)	[2021] ICQ 13	3 citations Jump To Cite 1 - [2021] ICQ 13 Cite 2 - [2021] ICQ 13 Cite 3 - [2021] ICQ 13

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2)	[2021] ICQ 13	2 citations

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Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees[2021] ICQ 12