Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. ICQ
  3. 2023
  4. Workers' Compensation Regulator v Carr - [2023] ICQ 1

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Workers' Compensation Regulator v Carr[2023] ICQ 1

Workers' Compensation Regulator v Carr[2023] ICQ 1

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Workers' Compensation Regulator v Carr [2023] ICQ 001

PARTIES:

Workers' Compensation Regulator

(Appellant)

v

Carr, Donna Noreen

(Respondent)

CASE NO.:

C/2022/7

PROCEEDING:

Appeal

DELIVERED ON:

10 January 2023

HEARING DATE:

1 July 2022

MEMBER:

Merrell DP

HEARD AT:

Brisbane

ORDERS:

Pursuant to s 562(1)(c) of the Workers' Compensation and Rehabilitation Act 2003:

  1. (a)
    the decision of the Queensland Industrial Relations Commission in Matter No. WC/2021/4 is set aside; and
  1. (b)
    another decision is substituted, namely, that the review decision of the Appellant is confirmed and that the Respondent pays the Appellant's costs of the hearing before the Queensland Industrial Relations Commission as agreed or assessed.

CATCHWORDS:

WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – APPEAL TO INDUSTRIAL COURT – Respondent appealed to the Queensland Industrial Relations Commission against a review decision of the Appellant which confirmed a decision of WorkCover Queensland not to accept the Respondent's application for workers' compensation for a psychological injury – decision by the Commission that the Respondent's injury did not arise out of, or in the course of, reasonable management action taken in a reasonable way by the Respondent's employer in connection with the Respondent's employment – Appellant appealed the decision to the Court – whether the Industrial Commissioner determined the Respondent's appeal on the basis of the case advanced by the Respondent as contained in the Respondent's statement of facts and contentions – whether there was evidence upon which the Industrial Commissioner could make the decision that stressors 1 and 2 amounted to unreasonable management action – whether the Industrial Commissioner gave adequate reasons for making the decision that the Respondent's injury did not arise out of reasonable management action taken in a reasonable way by the Respondent's employer – whether the Industrial Commissioner used the wrong test in applying s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 – the Industrial Commissioner determined the Respondent's appeal on a basis not contended by the Respondent – decision vitiated by errors of law – decision set aside – another decision substituted, namely, that the Respondent's application for compensation be rejected and that the Respondent pays the Appellant's costs of the hearing before the Commission

LEGISLATION:

Industrial Relations Act 2016, s 429

Workers' Compensation and Rehabilitation Act 2003, s 32, s 561, s 562 and s 563

CASES:

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Ball v State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services) [2019] ICQ 23

Burton v Workers' Compensation Regulator [2022] ICQ 017

Carlton v Simon Blackwood (Workers' Compensation Regulator) [2017] ICQ 001

Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119

Davis v Workers' Compensation Regulator [2020] ICQ 011

Devine Constructions Pty Ltd v Stowe Australia Pty Ltd & Ors [2022] QSC 51

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Lee v Lee & Ors [2019] HCA 28; (2019) 266 CLR 129

Manescu v Baker Hughes Australia Pty Ltd [2022] WASCA 94

Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 39

Nutley v Workers' Compensation Regulator [2019] ICQ 002

Oakey Coal Action Alliance Inc. v New Acland Coal Pty Ltd [2021] HCA 2; (2021) 272 CLR 33

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476

Q-Comp v Rowe [2009] ICQ 32; (2009) 191 QGIG 67

Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1

Simon Blackwood (Workers' Compensation Regulator) v Adams [2015] ICQ 001

Simon Blackwood (Workers' Compensation Regulator) v Mahaffey [2016] ICQ 10

Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54

Workers' Compensation Regulator v Langerak [2020] ICQ 002

Yousif v Workers' Compensation Regulator [2017] ICQ 002

APPEARANCES:

Ms L. Willson of Counsel instructed by Ms A. Schultz of the Appellant.

Mr C. Watters of Counsel instructed by Mr A. Stone of Workplace Law for the Respondent.

Reasons for Decision

Introduction

  1. [1]
    Ms Donna Noreen Carr was employed in the position of Office Manager by SRV Management Pty Ltd, trading as Road Freight Services ('SRV'). On 12 December 2019, Ms Carr lodged an application for workers' compensation with WorkCover Queensland in respect of a psychological injury. That application was rejected. The Workers' Compensation Regulator ('the Regulator') confirmed that rejection ('the review decision'). Ms Carr then appealed the review decision to the Queensland Industrial Relations Commission.[1]
  1. [2]
    SRV is a transport company and operates trucks as part of its business.
  1. [3]
    By the time of final submissions before the Industrial Commissioner, there was no dispute between the parties that:
  • Ms Carr was a worker within the meaning of s 11 of the Workers' Compensation and Rehabilitation Act 2003 ('the Act');[2]
  • Ms Carr sustained a personal injury in the form of the psychiatric condition, namely, anxiety and depression;[3]
  • Ms Carr's injury arose out of her employment with SRV;[4] and
  • Ms Carr's employment with SRV was the major significant contributing factor to her personal injury.[5]
  1. [4]
    As a consequence, the ultimate question that required determination by the Industrial Commissioner was whether Ms Carr's injury was withdrawn from being a compensable injury by the operation of s 32(5)(a) of the Act.
  1. [5]
    By decision delivered on 1 March 2022, the Industrial Commissioner found that Ms Carr's psychological injury did not arise out of, or in the course of, reasonable management action taken in a reasonable way by SRV in connection with Ms Carr's employment.[6] The management action found by the Industrial Commissioner not to be reasonable management action taken in a reasonable way was the workload, work pressure and responsibility on Ms Carr's shoulders over a significant period of time.[7]
  1. [6]
    The Industrial Commissioner ordered that:
  • Ms Carr's appeal be allowed;
  • the review decision of the Regulator be set aside;
  • Ms Carr's application for compensation be accepted; and
  • the Regulator pay Ms Carr's costs of the hearing to be agreed or as determined ('the decision').[8]
  1. [7]
    By application to appeal filed on 16 March 2022, the Regulator appealed against the decision to this Court. The Regulator pursued five grounds of appeal by which it contends the decision is vitiated by errors of law. Relevantly to the Regulator's appeal grounds, s 561(3) of the Act, given s 561(2) of the Act,[9] is to be construed in a way which provides that the appeal is on the grounds of error of law or want of jurisdiction and is determined by a rehearing in the sense that any error of law or want of jurisdiction must be identified on the record below.[10]
  1. [8]
    The grounds of appeal are:
  • the Industrial Commissioner, in considering workload was not reasonable management action, erred in law in considering matters beyond the boundary of the application set by Ms Carr's statement (list) of stressors ('the first ground of appeal');
  • the Industrial Commissioner erred in law in finding that Ms Carr's injury arose out of workload in stressors 1 and 2 when that finding was not open to the Industrial Commissioner because it was not supported by the evidence ('the second ground of appeal');
  • the Industrial Commissioner applied the wrong test in s 32(5) of the Act in considering what Ms Carr's '… injury arose out of' ('the third ground of appeal');
  • the Industrial Commissioner erred in law by failing to give adequate reasons for a finding that workload and work intensity over a lengthy period was not reasonable management action ('the fourth ground of appeal'); and
  • the Industrial Commissioner applied the wrong test in s 32(5) of the Act in considering whether the relevant management action was reasonable and whether Ms Carr's injury was removed (from being compensable) by the operation of the provision in s 32(5) of the Act ('the fifth ground of appeal').
  1. [9]
    The relief sought by the Regulator is:
  • to set the decision aside; and
  • substitute another decision, namely, that Ms Carr's application for compensation be refused and an order that Ms Carr pays the Regulator's costs of the hearing before the Commission.
  1. [10]
    The question for my determination is whether the decision is vitiated by one or more of the errors of law contained in the Regulator's grounds of appeal.
  1. [11]
    For the reasons that follow, the decision should be set aside and another decision substituted being that Ms Carr's application for workers' compensation is rejected and that Ms Carr pays the Regulator's costs of the hearing before the Commission.

Background

  1. [12]
    Ms Carr and the Regulator filed and served statements of facts and contentions in respect of the proceeding before the Commission.

Ms Carr's statement of facts and contentions

  1. [13]
    Because the personal injury suffered by Ms Carr was a psychological injury, she was required to file, with her statement of facts and contentions, a list of stressors. Ms Carr nominated 23 stressors. However, because 14 of those stressors occurred after the date the Industrial Commissioner determined was the date of her injury, being 30 July 2019,[11] the Industrial Commissioner was only required to consider the first eight stressors nominated by her.[12]
  1. [14]
    The decision set out the eight stressors, namely:
  1. [52]
    The events contained in the table below are based closely on the relevant sections of the List of Stressors, supplemented in part by the contents of the Appellant's Statement of Facts and Contentions. Those matters will be considered further in this Decision.

No.

Date

Title

Description

1

November 2018

Meeting request

Ms Carr requested an offsite meeting with Mr Errol Cosgrove and Mr Shane Basile regarding the affects the stress of her job was having on her health.

In the subsequent meeting held on 2 November 2018, Ms Carr raised concerns about sub-standard cash flow, invoicing financial controls payroll, taxation and significant staff shortages and related under resourcing in the financial and administrative work units of the business. Ms Carr also discussed her relationship with SRV in relation to 'Expectation v Performance', 'Effort v Reward' and the affect the stress of her job was having on her health.

2

January 2019 - June 2019

Advising not keeping up nor coping with workload

During this period, Ms Carr verbally and by way of physical demeanour communicated on many occasions to Mr Errol Cosgrove, Mr Shane Basile and Mr Brad Lane she was not keeping up nor coping with her workload.

The plans put in place during the offsite meeting on 2 November 2018 were not being followed.

On 1 April 2019, a one-week onsite business review was conducted by an external accountant, Mr Richard Grumont, who advised Mr Cosgrove that Ms Carr's "responsibility level was unreasonable along with her workload."

In late May 2019, Ms Carr expressed her concerns to Mr Cosgrove and Mr Basile over re-hiring of some staff she considered to have been poor performers.

In June 2019, Ms X was engaged through Hays Recruitment to undertake Accounts Payable data entry.

On 11 June 2019, Ms Y (former employee) was re-hired on a 9 week contract to undertake Accounts Receivable data entry.

3

8 July 2019

Uncommunicated changes made by Mr Errol Cosgrove

Mr Errol Cosgrove made uncommunicated changes to the system of work and engages Ms X in bookkeeping / accounting tasks. Ms X appears to be promoted by Mr Cosgrove and commences issuing directive to administration staff which undermines Ms Carr's senior position to the staff within her team.

Ms Carr starts to feel targeted, intimidated, harassed and bullied which caused her significant angst and stress.

4

17 July 2019

Email regarding concerns about Ms X

Ms Carr sent an email to Mr Errol Cosgrove (cc Mr Shane Basile and Mr Brad Lane) regarding her concerns about the entire shift in the workplace which included direct contact between Mr Cosgrove and Ms X.

5

18 July 2019

Meeting with Mr Errol Cosgrove, Mr Shane Basile and Mrs Melanie Cosgrove

Mr Errol Cosgrove yelled at Ms Carr "Are you coming?" which shocked Ms Carr as he had never yelled at her before. Mrs Melanie Cosgrove was also in attendance at the meeting.

Ms Carr had understood the purpose of the meeting would be to discuss the contents of her email sent the previous day; however general business matters were discussed including the need for an in-house financial person to provide more assistance. Ms Carr tried to voice her views but was ignored and felt she was being talked at rather than talked with.

6

19 July 2019

Meeting with Mr Errol Cosgrove and Mrs Melanie Cosgrove

Mr Errol Cosgrove and Mrs Melanie Cosgrove insisted on Ms Carr attending a meeting with them to discuss the email Ms Carr sent on 17 July 2019. During the meeting Mr Cosgrove verbally agrees that perhaps he did not deal with Ms X change in position correctly. Mrs Cosgrove advised Ms Carr "will need to find a way to work with (Ms X)."

7

23 July 2019 - 26 July 2019

Melbourne Trip

Ms Carr felt compelled to take the trip to Melbourne and attend a work‑related dinner with Ms X. Due to feeling stressed and anxious from the situation she felt forced into, it led to Ms Carr overindulging while drinking alcohol at the work-related dinner.

Ms Carr spent 4 days at the Melbourne office with Ms X, who travelled on the same flight and car from the airport to the office.

8

26 July 2019

Ms X's disclosure

Ms X disclosed to Ms Carr her knowledge of specific content of Ms Carr's email dated 17 July 2019. This made Ms Carr uncomfortable and anxious, as that information should have remained confidential.

The Regulator's statement of facts and contentions

  1. [15]
    In respect of stressor 1, the Regulator:
  • denied that Ms Carr requested an offsite meeting with Mr Errol Cosgrove or Mr Shane Basile to chat about a few things, because it did not occur and, further, that Mr Basile attended the workplace every Tuesday and any meetings or conversations with him could have occurred at that time;[13]
  • admitted there was a meeting between Ms Carr, Mr Cosgrove and Mr Basile on or about 2 November 2018;
  • denied Ms Carr raised concerns regarding substandard cash flow, invoicing, financial controls, payroll, taxation and significant staff shortages and related under resourcing in the financial and administrative work units of the business;
  • denied Ms Carr discussed her relationship with SRV, or the effect the stress of her job was having on her health;
  • stated that it was Mr Cosgrove who asked questions about cash flow, invoicing, financial controls, payroll and taxation to both Ms Carr and to Mr Basile; and
  • further stated that Mr Cosgrove organised for Mr Basile to assist Ms Carr in performing her duties.[14]
  1. [16]
    In respect of stressor 2, the Regulator:
  • denied there was an offsite meeting on 2 November 2018 for the same reasons given in response to stressor 1;
  • did not admit that Ms Carr was not coping with her workload;
  • admitted that the accounting required to be done was not being done by Ms Carr and, as a result, the business was starting to fail through the lack of invoicing, the failure to pay superannuation, payroll tax and other tax obligations, the failure to pay bills and accounts owing, causing credit problems with suppliers, problems with payroll, the failure to manage returnables to suppliers and the failure to manage reconciliations and accounts;
  • from January 2019 to June 2019, it became apparent there were risks for the business and the way it was operating in that Ms Carr had sole access to accounts, accounting software and bank accounts of the business;
  • admitted that on or about 1 April 2019, a review of the business was conducted;
  • denied that Ms Carr's responsibility level was unreasonable along with her workload;
  • contended that:
  1. -
    as a result of the review, it became evident to SRV that the accounting required for the business had not been completed and transparency about the business operations was not present; and
  1. -
    the accounting process was solely within the control of Ms Carr by virtue of her maintaining password access to nearly all systems and that she had access to banking and other authorities;
  • denied that in May 2019 Ms Carr noted her concerns about the reintroduction of staff for any reason and that she did not complain to Mr Cosgrove or Ms Melanie Cosgrove about any staff member at that time;
  • admitted that in about June 2019, Ms Kelly-Anne Bryant was engaged through Hays Recruitment for certain data entry work and that Ms Carr selected Ms Bryant as a suitable candidate for the job; and
  • admitted that Ms Joanne Ciseau, a former employee, was engaged on a nine week contract for certain data entry work.[15]
  1. [17]
    The Regulator responded to each of the other factual claims made by Ms Carr concerning stressors 3 to 8 and ultimately contended that if Ms Carr's personal injury arose out of, or in the course of, her employment with SRV and that her employment was the major significant contributing factor to her injury, her injury arose out of reasonable management action taken in a reasonable way by SRV in connection with her employment.[16]

The submissions made by the parties to the Commission

  1. [18]
    The parties made the final submissions to the Commission in writing.
  1. [19]
    Paragraph 38 of Ms Carr's written submissions provided:
  1.  In summary, it is submitted that:
  • The Appellant's financial disclosures to Ms Cosgrove on 2 November 2018;
  • Lack of response or assistance provided in light of such disclosures;
  • The failed removal of payroll to the Philippines in January 2019;
  • Directing the Appellant to pay a $200k deposit from staff superannuation
  • The April 2019 Corporate Review - not shown or provided to the Appellant;
  • The Appellant being overloaded with the company's fiscal responsibilities (as reported in the aforesaid SRV Corporate Review);
  • The rapid promotion of Ms Bryant from data entry to pseudo finance manager;
  • Meetings with the Cosgroves on 18 & 19 July (and related 17 July email);
  • The limited to no consultation with the Appellant about Ms Bryant's role; and
  • Repeated and continual harassment, undermining and berating by Ms Bryant;

All constitute major significant factors contributing to the Appellant's mental health injury.

  1. [20]
    The 'April 2019 Corporate Review' ('the external review') referred to in Ms Carr's submissions became Exhibit 16 and was a document tendered by consent. It was the report of a review of the finance structure of SRV undertaken between 1 and 5 April 2019 by an external accountant, Mr Richard Grumont.[17] The Industrial Commissioner found that the report stated Ms Carr was 'stretched' and that the report suggested further personal resources were required to fill the current scope of her responsibilities.[18]
  1. [21]
    Ms Carr, in her submissions, then addressed the issues that she stated did not amount to reasonable management action taken in a reasonable way in connection with her employment.
  1. [22]
    Relevantly, in respect of stressor 1, Ms Carr submitted that:
  • her evidence was that at the meeting in Mr Basile's office on 2 November 2018, she raised a number of financial control concerns, including cash flow, payroll, invoicing and under-resourcing of the finance and administration team; and
  • Mr Cosgrove had no recollection of such a meeting ever having taken place and that demonstrated unreasonable management action taken in an unreasonable way, not only because no management action was taken to correct, address or respond to Ms Carr's concerns, but further because Mr Cosgrove was so disinterested that he could not even recall the meeting, being a meeting during which his finance and administrative manager told him that she was not coping and that she needed help.[19]
  1. [23]
    In relation to stressor 2, Ms Carr submitted that:
  • in January 2019, some assistance or support was provided by Mr Cosgrove to Ms Carr by removing the burden of payroll from her responsibilities and sending it offshore;
  • that action occurred despite the protests and warnings by Ms Carr that such an approach would not work; and
  • this stressor constituted unreasonable management action taken in an unreasonable way because such action was to benefit Mr Cosgrove, not Ms Carr, because Mr Cosgrove was responsible for payroll and that management action failed and had to be brought back in-house.[20]
  1. [24]
    In respect of stressor 1, the Regulator submitted to the Commission that:
  • Ms Carr opened her case by submitting that while there were significant issues, including issues around cash flow and non-payment of taxation and superannuation and other matters, nothing was done in respect of what Ms Carr submitted was a cry for help and that, into 2019, that situation deteriorated;
  • in respect of the meeting in November 2018, where Ms Carr gave evidence that she raised a number of her concerns dealing with spending, bills and juggling cash flow, her complaint appeared to be that there was no action plan or anything advised to her and no formal outcome arose from that meeting;
  • Ms Carr did not give any evidence about the effects of the stress her job was having on her health;
  • the fact that there was no formal outcome or action plan as a result of that meeting at that time was reasonable management action in that Mr Cosgrove was entitled to spend his company's money in any manner he saw fit; and
  • there was no basis for Ms Carr to assert that no action was taken to correct, address or respond to her concerns because:
  1. -
    she did not raise concerns regarding the effects of the stress her job was having on her health;
  1. -
    the business did, in the ensuing months, a number of acts to try to address the financial issues raised including attempting to remove the burden of payroll by organising an offshore arrangement, finding a temporary employee to assist, conducting an independent review of the business and taking steps to engage with Ms Carr about relinquishing her exclusive access to SRV's authorities; and
  1. -
    the failure, or otherwise, of the step to move payroll offshore was not unreasonable by the mere fact it was bought back in-house.[21]
  1. [25]
    In respect of stressor 2, the Regulator submitted:
  • Ms Carr's complaint was:
  1. -
    in respect of the changes that were proposed to be made by Mr Cosgrove and Ms Cosgrove after the start of 2019, that the company used a very manual process involving processing the paperwork, invoicing the load, receiving money for the load which, in turn, then pays wages, expenses and the bills, and they did not understand the process;
  1. -
    they were trying to steamroll her and were trying to push those changes through too quickly;
  1. -
    she had to find a way to try to deal with those changes;
  1. -
    it was obvious she was not keeping up with the cashflow expenses because her co-workers asked her if she was alright; and
  1. -
    she did not have the words to tell a co-worker what was going on;
  • apart from the above, Ms Carr did not provide any evidence that she had communicated, in any way, to Mr Cosgrove that she was not keeping up or coping with her workload;
  • Mr Cosgrove completely denied that Ms Carr was not coping with her workload; and
  • the fact that Mr Cosgrove instituted change was reasonable management action.[22]

The decision

  1. [26]
    In a comprehensive and well-structured decision, the Industrial Commissioner found that:
  • stressors 1 to 8 each involved management action;[23]
  • Ms Carr's injury arose out of management action in connection with Ms Carr's employment;[24] and
  • stressors 3,[25] 4,[26] 5,[27] 6,[28] 7[29] and 8[30] all amounted to reasonable management action taken in a reasonable way in connection with Ms Carr's employment.
  1. [27]
    In respect of stressor 1, the Industrial Commissioner found that, for the reasons given in paragraphs [91] to [97] of the decision:
  • the employer's response constituted reasonable management action taken in a reasonable way; and
  • however, on consideration of the external review, Ms Carr's workload and work intensity over a lengthy period, which lead to Ms Carr raising those matters with SRV, did not constitute reasonable management action taken in a reasonable way.[31]
  1. [28]
    In respect of particulars provided in respect of stressor 2, the Industrial Commissioner found that:
  • Mr Cosgrove and Ms Cosgrove were being responsive to the matters raised by Ms Carr in the 2 November 2018 meeting and that their actions were reasonable;[32]
  • Ms Carr's complaint that plans put in place during the offsite meeting on 2 November 2018 were not being followed was not born out on the evidence;[33]
  • in respect of the conduct of an on-site business review, the failure to provide the report to Ms Carr was not, in itself, unreasonable management action;[34]
  • it was reasonable management action to recruit additional staff in May and June 2019;[35] and
  • for the reasons given by the Industrial Commissioner,[36] the workload, work pressure and responsibility on Ms Carr's shoulders over a significant period was not reasonable management action.[37]
  1. [29]
    As a consequence, the Industrial Commissioner found that Ms Carr's psychological disorder did not arise out of, or in the course of, reasonable management action taken in a reasonable way by SRV in connection with Ms Carr's employment.[38]

The first ground of appeal

  1. [30]
    In its written submissions to this Court, the Regulator contends that:[39]
  • the Industrial Commissioner's finding that the workload was not reasonable management action is in error because the stressors, as stated in Ms Carr's statement of facts and contentions, did not call on the Commission to consider the issue of workload for Stressors 1 and 2;
  • stressors 1 and 2 concerned the perceived lack of management response to Ms Carr's complaints; and
  • the Commission was unable to consider workload because it fell outside the scope of the appeal to the Commission, citing, as authority for that proposition, Simon Blackwood (Workers' Compensation Regulator) v Adams,[40] Simon Blackwood (Workers' Compensation Regulator) v Mahaffey ('Mahaffey'),[41] Carlton v Blackwood,[42] Yousif v Workers' Compensation Regulator[43] and Workers' Compensation Regulator v Langerak.[44]
  1. [31]
    In oral submissions,[45] Ms Wilson, who appeared on behalf of the Regulator:
  • referred to Ms Carr's opening to the Commission, where no mention was made about workload, but where specific reference was made to 'significant issues', including around cash flow and non-payment of taxation, superannuation and other matters, that nothing was done in respect of Ms Carr's cry for help, and that into 2019 that situation deteriorated;[46]
  • referred to Ms Carr's evidence in chief about stressors 1[47] and 2[48] which, the Regulator submitted, was not about her workload; and
  • submitted there was no medical evidence that tended to prove a causal connection between Ms Carr's workload and her personal injury.
  1. [32]
    In her written submissions to this Court, Ms Carr submitted that it was wrong to submit that the Industrial Commissioner's findings about stressors 1 and 2 were outside the scope of the inquiry before the Commission. This was because:
  • in respect of stressor 1, the particulars included: 'The affect the stress of her job was having on her health' which is a clear reference to her workload and related adverse impact;
  • in respect of stressor 2, the particulars specifically include 'workload';
  • the issue of Ms Carr's 'workload' not only forms part of the enquiry, because it was nominated by her as being raised with SRV, but also because an independent consultant, engaged by SRV to conduct a review, told SRV that '… Ms Carr's responsibility level was unreasonable along with her workload.'
  • by reference to paragraph [98] of the decision, the Industrial Commissioner identified and drew an inherent connection between stressors 1 and 2, thereby making the enquiry and evidence concerning Ms Carr's workload as proper and within scope; and
  • given the evidence of Mr Grumont, it was open and proper for the Commission to find that the workload and level of responsibility being carried by Ms Carr was a direct result of unreasonable management action carried out in an unreasonable manner.[49]
  1. [33]
    Before this Court, Mr Watters, who appeared on behalf of Ms Carr, when asked if in Ms Carr's final submissions to the Industrial Commissioner, the express submission was made that the management action of the workload Ms Carr was given had a causal connection with her injury, his response was that was certainly the 'tenor' of the submissions.[50]
  1. [34]
    I am unable to accept Ms Carr's submissions about this ground.
  1. [35]
    This ground concerns the role played by the parties' statements of facts and contentions filed and served in appeals to the Commission, against review decisions of the Regulator, made under ch 13, pt 3, div 1 of the Act. In Workers' Compensation Regulator v Langerak,[51] Martin J, President relevantly stated:

[72] The appellant’s submission is compelling. It was not appropriate for the Commissioner to go beyond the statement of facts and contentions by identifying further stressors or causes of the appellant’s injury that did not form part of the respondent’s case.

[73] In Yousif v Workers’ Compensation Regulator it was held that:

“[15] It is consistent with the requirements of s 531 for a party in an appeal under the Act to set out its case by way of a Statement of Facts and Contentions. It alerts the other party to the case it will have to deal with and it identifies the issues which exist which, in turn, allow for a confinement of the matters in dispute. An appeal under the Act is not the time for a broad ranging inquiry into an unlimited number of complaints or grievances. The time and resources of the Commission are constrained and it is necessary for those constraints to be acknowledged in this way. Subject always to the Commission’s power to allow appropriate amendments (so that s 531 may be observed) a party will be bound by its Statement of Facts and Contentions and may not lead evidence which is not relevant to the identified issues.”

[74] While that passage concerns the conduct of parties it is nevertheless pertinent to the consideration by the Commission of evidence and issues which lie outside the scope of a claimant’s case. Here, the Commissioner’s approach failed to alert the appellant to a matter which was critical to the outcome of the respondent’s claim and deprived the appellant of the opportunity to address that matter at all stages of the proceedings.

[75] The Commissioner considered a stressor which was not characterised by the respondent as a cause of her injury and treated it as a reason for finding that the management action taken by the employer was neither reasonable nor taken in a reasonable way. The Commissioner erred in doing so.[52]

  1. [36]
    The Industrial Commissioner, in respect of stressors 1 and 2, accurately reproduced in the table contained in paragraph [52] of the decision, a description of each stressor identified in Ms Carr's list of stressors which included, from the body of Ms Carr's statement of facts and contentions, the relevant facts in respect of stressors 1 and 2.
  1. [37]
    In respect of stressor 1, Ms Carr, in November 2018, requested a meeting with representatives of the management of SRV about the effects the stress of her job was having on her health. It was then contended that a meeting was held on 2 November 2018 where Ms Carr raised particular issues about the financial management of SRV. While Ms Carr contended that she requested an off-site meeting regarding the effects the stress of the job was having on her health, it was not expressly and clearly contended by Ms Carr that the unreasonable management action of the imposition of the workload she had, up to that time, had a causal connection with her personal injury of anxiety and depression.
  1. [38]
    The response provided by the Regulator, in its statement of facts and contentions, addressed whether or not Ms Carr requested the meeting and dealt with what was discussed at the meeting on 2 November 2018.
  1. [39]
    In respect of stressor 2, the stressor identified by Ms Carr was that between January 2019 and June 2019, verbally and by way of her physical demeanour, she had communicated on many occasions to Mr Cosgrove, Mr Basile and Mr Lane. that she was not keeping up or coping with her workload and that the plans put in place during the meeting on 2 November 2018 were not being followed. A particular of that stressor was the findings by Mr Grumont following his review in early April 2019, and Ms Carr's expressed concern to the management of SRV over the rehiring of some staff Ms Carr considered to be poor performers. The facts contended go on to refer to the engagement of Ms X to undertake Accounts Payable data entry work and the engagement of Ms Y, a former employee, to undertake, on a nine week contract, Accounts Receivable data entry work.
  1. [40]
    However, it was not expressly contended by Ms Carr that the workload she had between January 2019 and June 2019 was unreasonable management action that had a causal connection with her personal injury of anxiety and depression. Ms Carr's case was that it was the unreasonable management of SRV, by not putting in place appropriate measures to deal with her inability to cope with her workload, following Ms Carr bringing that matter to the attention of the management of SRV, that had a causal connection with her personal injury.
  1. [41]
    The Regulator, in its statement of facts and contentions, responded to those facts as contended by Ms Carr. The Regulator, at paragraph 9(b) of its response, did deny that Ms Carr's responsibility level was unreasonable along with her workload. However, that was in direct response to paragraph 1(d) of Ms Carr's statement of facts and contentions, which referred to Mr Grumont's business review which Ms Carr contended resulted in Mr Cosgrove receiving advice that her '… responsibility level was unreasonable along with her workload.'
  1. [42]
    In addition, the case argued by Ms Carr in her final submissions was not one where she contended that the management action, that had a causal connection with her personal injury, was the unreasonable management action of the workload and responsibility she was given in her position. Paragraph 38 of Ms Carr's final written submissions (reproduced earlier in these reasons) do not make that claim and paragraphs 40 and 41 (summarised earlier in these reasons) do not make that claim.
  1. [43]
    Furthermore, the history given by Ms Carr to Dr John Chalk, Psychiatrist, which was referred to in his report dated 29 February 2020,[53] was that while Ms Carr's difficulties in the workplace had occurred over a period of time, they appeared to have begun when a temporary worker, 'Kelly', came to work for SRV. Dr Chalk reported that Ms Carr stated that when Kelly came to work at SRV, it ultimately led to some confusion over roles and expectations, such that Kelly would stand over Ms Carr and give her (Ms Carr) instructions. In his report, Dr Chalk, when recounting the history given to him by Ms Carr, further stated:

Ms Carr reported that she had been the manager of the administrative section over a lengthy period of time and it would appear that Kelly's role was far from clear and that over time she "would stand over me and give me instructions". Indeed, it became apparent to Ms Carr that Kelly was "no longer under my direction", which was very different from other staff. As I understand it, these difficulties had been emerging over a period of time and Ms Carr became increasingly distressed. Kelly arrived on the scene in June 2019 and Ms Carr went off work in October of that year. She seems to have gone off on a combination of sick leave and, ultimately, annual leave entitlements which were apparently very substantial. She reported that, by July of 2019, she was not coping. She had seen her general practitioner and then a psychologist. These difficulties occurred against the background where apparently a number of people left the workplace and that two people in her area were not replaced and this seems to have placed everyone under the pump.

However, whilst those difficulties were as noted, it would appear that the interaction with Kelly, who was not following directions and not completely [sic] tasks, and the lack of support that she received from Errol in all this, was the crux of the matter. She felt that she was "shot down if I tried to have a discussion" and "I didn't understand the relationship between Kelly and Errol".

  1. [44]
    The management action the Industrial Commissioner found was unreasonable and that had a causal connection with Ms Carr's personal injury, was that described in paragraphs [98], [126], [134] and [137] of the decision, namely, Ms Carr's workload, work intensity or work pressure and the responsibility on Ms Carr's shoulders over a lengthy or significant period of time.
  1. [45]
    However, there was no clear and express contention by Ms Carr that her workload, work intensity or work pressure and the responsibility on her shoulders over a lengthy or significant period of time was unreasonable management action that had a causal connection with her personal injury. That was not a case the Regulator came to meet. That is to say, that was not a clearly articulated case by Ms Carr, in respect of stressors 1 and 2, as referred to in her statement of facts and contentions.
  1. [46]
    It was the case that Ms Carr's statement of facts and contentions alleged that she had raised with her employer '… the affect the stress of her job was having on her health', that it alleged Ms Carr had communicated to management representatives that '… she was not keeping up nor coping with her workload' and that it also reproduced a sentence from the external review, namely, that Ms Carr's '… responsibility level was unreasonable along with her workload.' [54] However, the mention of those matters was in the context where the alleged management action, said to be unreasonable and which was said to have a causal connection with Ms Carr's injury, was the failure of management to act, or to appropriately act, to remedy the alleged workload issues raised by Ms Carr in November 2018. That is a different case to the one decided by the Industrial Commissioner, namely that Ms Carr's workload, work intensity, work pressure and the responsibility on her shoulders over a significant period of time, was unreasonable management action that had a causal connection with her injury.[55]
  1. [47]
    In a court governed by them, pleadings are not only directed to the other party, they have another important audience, namely, the court. As such, they must be drawn so as to allow the tribunal of fact to know what the case is about, and to know, before the trial starts, the real issues that remain in dispute and that must be resolved.[56] The statements of facts and contentions ordered by the Commission to be filed and served have a similar function, although they are not subject to the detailed rules contained in the Uniform Civil Procedure Rules 1999.
  1. [48]
    A court established by legislation, as is the case with the Commission,[57] means that any jurisdiction conferred on it is necessarily conditioned by the requirement that it observes procedural fairness in the exercise of that jurisdiction.[58] In respect of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.[59]
  1. [49]
    These issues were recently summarised by the Western Australian Industrial Appeal Court[60] in Manescu v Baker Hughes Australia Pty Ltd[61] which involved an appeal from a decision of the Western Australian Industrial Relations Commission. The Full Court stated:
  1. 33
    A power conferred by statute is to be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power.
  1. 34
    The principles of procedural fairness require that a party be given an opportunity to present their case and be heard (the hearing rule).
  1. 35
    The requirements of procedural fairness are not fixed or immutable. Procedural fairness is directed to avoid practical injustice, and what is necessary to avoid practical injustice will depend upon the particular circumstances.
  1. 36
    The hearing rule requires a decision-maker to provide a party to proceedings a reasonable opportunity of presenting his or her case. A breach will give rise to practical injustice where the breach results in the denial of an opportunity to make submissions, and that denial is material to the decision made by the decision-maker.
  1. 37
    Cases have acknowledged that the content of procedural fairness is affected by the 'nature' of the 'decision' of which review is sought.[62]
  1. [50]
    In addition, in a case where a party has not had a chance to present evidence or make submissions:
  1. 33
    There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of “reasonable conjecture” is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive “story” of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, “reasonable conjecture” does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of “reasonable conjecture”, correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.[63]
  1. [51]
    A denial of natural justice amounts to jurisdictional error which is an error of law.[64]
  1. [52]
    To the extent the Industrial Commissioner decided, having regard to stressors 1 and 2, that Ms Carr's personal injury arose out of unreasonable management action, the Industrial Commissioner decided the case on the basis of a contention not advanced by Ms Carr. That process failed to alert the Regulator to a matter which was critical to the outcome of Ms Carr's appeal and deprived the Regulator of the opportunity to address that matter at all stages of the proceeding.
  1. [53]
    That approach amounted to an error of law.
  1. [54]
    The first ground of appeal is made out.

The second ground of appeal

  1. [55]
    The Regulator submitted that the finding that Ms Carr's injury 'arose out of' the workload with respect to stressors 1 and 2 was not open on the evidence because there was no medical evidence to make such a finding.
  1. [56]
    Ms Carr submits that the evidence, upon which such a finding of fact was made, was the evidence of Dr Chalk, where, in his report, he opined that:

It would certainly appear that Ms Carr felt increasingly harassed and marginalised in the workplace and at least, from her own account, there does not seem to have been any clear discussion of any change or delineation in duties.

Whilst it would appear that work has been the only factor of significance leading to the development of her condition, in these circumstances, the issue of management action and the reasonableness or otherwise of that emerges.[65]

  1. [57]
    Ms Carr further submitted that because injuries may occur over time, matters leading up to when an injury is sustained may be considered relevant to the causation of that injury.
  1. [58]
    There are a number of matters relevant to this ground. First, an error of law will occur where there was no evidence to support a finding of fact relevant to a decision.[66] However, there is no error of law in simply making a wrong finding of fact.[67] Further, while a qualified medical practitioner may, as an expert, express an opinion as to the nature and cause or probable cause of an injury, it is for the tribunal to weigh and determine the probabilities, and in doing so, the tribunal may be assisted by the medical evidence; however, that task is for the tribunal not the witnesses and the tribunal must ask itself whether, on the whole of the evidence, it is satisfied on the balance of probabilities of the fact.[68]
  1. [59]
    I have, earlier in these reasons, summarised the evidence from Ms Carr and Dr Chalk. There was no specific evidence given by Ms Carr that she decompensated due to her workload, work intensity or work pressure and the responsibility on her shoulders over a lengthy or significant period of time. Dr Chalk did not opine that such matters had a causal connection with Ms Carr's personal injury. The part of Dr Chalk's report, to which Ms Carr referred the Court in respect of this ground, was not about the volume or intensity of Ms Carr's workload, but was about the issues expressed by Ms Carr about 'Kelly'.
  1. [60]
    No general medical practitioner was called to give evidence on Ms Carr's behalf. Ms Carr's medical records from Our Medical Home Gold Coast medical practice were tendered by consent.[69] Those records start from Ms Carr's consultation with Dr Peter Gold on 30 July 2019, which was found to be the date of Ms Carr's injury. There was no evidence contained in those records that tended to prove that Ms Carr's workload had a causal connection with her personal injury.
  1. [61]
    The report by Mr Grumont (Exhibit 16) does state that in respect of the management of debtors, Ms Carr was being stretched and not able to manage the process within the debtor team. However, that is not evidence that tended to prove Ms Carr's workload, over a period of time, had a causal connection with her personal injury.
  1. [62]
    The second ground of appeal is made out.

The third ground of appeal

  1. [63]
    This ground is that the Industrial Commissioner applied the wrong test in the application of s 32(5) of the Act. Section 32(5) of the Act relevantly provides:
  1. (5)
    Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances-
  1. (a)
    reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;
  1. [64]
    The Regulator points to paragraph [64] of the decision where the Industrial Commissioner stated:

"Arising in the course of"

  1. [64]
    It has been said that "It has generally been accepted that these words do not require a causative element but a temporal one…".[70]
  1. [65]
    That paragraph was in the part of the decision dealing with the question of whether Ms Carr's psychological injury arose out of, or in the course of, reasonable management action taken in a reasonable way by Ms Carr's employer in connection with Ms Carr's employment.[71]
  1. [66]
    The Regulator submitted:
  1. There was no dispute that Ms Carr did suffer an injury in the course of employment, however this is not the threshold test for this matter.
  1. The critical issue here concerns the absence of medical evidence demonstrating that there were any stressors causative of her injury prior to the arrival of the temporary worker in June 2019 or by July 2019.
  1. The correct proposition of law was provided in the decision at [71]: "The phrase "arising out of' involves a causal or consequential relationship between the management action and the injury, but does not require a direct or proximate relationship."
  1. There must be some evidence to make a finding that Ms Carr's injury arose out of the matters provided by Stressors 1 and 2. The Commissioner's decision does not identify the evidence that supports a finding that the appellant's injury arose out of these issues.
  1. The Commissioner applied the wrong test in s 32(5) in considering what the appellant's injury 'arose out of'.
  1. [67]
    This ground of appeal, as contained in the Regulator's application to appeal, is not consistent with the submissions the Regulator made about this ground. As best as I understand the Regulator's written submissions about this ground, the actual contention is that there was no evidence that supported the finding that the unreasonable management action of Ms Carr's workload, work intensity, work pressure and the responsibility on her shoulders over a significant period of time, had a causal connection with her personal injury. These were the management actions the Industrial Commissioner found, in respect of Stressors 1 and 2, that were unreasonable and which had a causal connection with Ms Carr's injury. That is to say, the case developed by the Regulator in its submissions was not that the wrong test was applied, but that there was no evidence upon which the impugned findings could be made. Further, this seems to be the basis upon which Ms Carr dealt with this ground in her written submissions.[72]
  1. [68]
    In a practical sense, the error alleged by the Regulator in its submissions in respect of this ground is the same error as alleged in the second ground of appeal.
  1. [69]
    For the same reasons given in the second ground of appeal, the third ground of appeal, as developed by the Regulator in its submissions, is made out.

The fourth ground of appeal

  1. [70]
    The Regulator submits:
  • the Industrial Commissioner failed to give adequate reasons for the findings that workload and work intensity over a lengthy period was not reasonable management action in that the reasons for that conclusion are not borne out in the decision; and
  • the reference to an '… external review' relates to Exhibit 16 which does not make the findings as alleged in stressor 2 and, when read as a whole, does not provide a foundation for such a finding.[73]
  1. [71]
    Ms Carr submits that substantial reasoning appears throughout the decision.[74]
  1. [72]
    The relevant principles about the adequacy of reasons given by a tribunal, such as the Commission, were summarised by Martin J, President, in Ball v State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services),[75] namely:

Adequacy of reasons

  1. [15]
    I have, in other decisions, set out the principles relating to the requirement for reasons to be given which are adequate in the circumstances. Decisions of tribunals do not attract the same degree of scrutiny as those of the ordinary civil courts. But the general principles still apply even though they may not be enforced with the same degree of rigour. I will repeat some of them which are particularly relevant in this case:
  1. (a)
    the content and detail of reasons will vary according to the nature of the jurisdiction which the court or tribunal is exercising and of the particular matter the subject of the decision,
  1. (b)
    one reason for the obligation to provide adequate reasons is so that an appellate court can discharge its statutory duty on an appeal from the decision and so that the parties can understand the basis for the decision for purposes including the exercise of any right to appeal,
  1. (c)
    a tribunal member will ordinarily be expected to expose his or her reasoning on points which are critical to the contest between the parties - this applies both to evidence and to argument,
  1. (d)
    where a party relies on relevant and cogent evidence which is rejected by the tribunal, then the tribunal should provide a reasoned explanation for the rejection of that evidence, and
  1. (e)
    where parties advance conflicting evidence on a matter significant to the outcome, both sets of evidence should be referred to and reasons provided for the preference of the tribunal of one set of evidence to the other.
  1. [16]
    Of particular relevance to this case is the observation by Nettle J in DL v R where he said:

“… in providing reasons, the judge is required to make apparent the steps he or she has taken in reaching the conclusion expressed, for reasons are not intelligible if they leave the reader to speculate as to which of a number of possible paths of reasoning the judge may have taken to that conclusion. Failure sufficiently to expose the path of reasoning is therefore an error of law.”[76]

  1. [73]
    The relevant findings are at paragraphs [98], [126], [134] and [137], namely:
  1. [98]
    For those reasons, I consider the employer's response outlined in nominated stressor 1 constitute "reasonable management action taken in a reasonable way." However, my consideration of the external review contained in the section below explains that such workload and work intensity over a lengthy period, leading to Ms Carr raising the matter with her employer, does not constitute reasonable management action taken in a reasonable way.

…

  1. [126]
    Foundationally, I consider the imposition of an unattainable level of workload and work intensity on a worker, in the absence of adequate support and resources to the job, to be unreasonable management action.

…

  1. [134]
    I do not consider foisting that amount of workload, work pressure and responsibility on Ms Carr over a significant period to be "reasonable" management action.

…

  1. [137]
    For the reasons explained above, I do not consider the workload, work pressure and responsibility on Ms Carr's shoulders over a significant period to be "reasonable" management action.
  1. [74]
    The first time in the decision, where reference is made to Ms Carr's workload and work intensity over a lengthy period not constituting reasonable management action taken in a reasonable way, is at paragraph [98] and the evidence upon which the Industrial Commissioner came to that view was the external review.
  1. [75]
    Then, in paragraphs [117] to [134], the Industrial Commissioner gave consideration to evidence of and about the external review. The Industrial Commissioner, at paragraph [118], referred to the statements in the external review report that Ms Carr was 'stretched' and that it suggested further personnel resources were required to fulfil the current scope of Ms Carr's responsibilities.
  1. [76]
    The Industrial Commissioner then referred to Mr Cosgrove's evidence that the review was commissioned because it was suggested to him, by his financial broker, that it was probably about time to look at an in-house accountant, although he denied the review was conducted in response to Ms Carr's claims that she was not coping.[77] The Industrial Commissioner then, at paragraphs [122] to [125], referred to:
  • Ms Carr's submissions that the content of the report supported her claim that what was occurring in the workplace was the major significant contributing factor to her injury;
  • the history recorded by Dr Chalk in his report, namely, where Ms Carr described:
  1. -
    having had difficulties in the workplace over a period of time; and
  1. -
    that the difficulties occurred against a background where apparently a number of people had left the workplace and that two people in Ms Carr's area were not replaced which seemed to have '… placed everyone under the pump';
  • the external review, which noted that a couple of roles were vacant due to staff departures and with a couple of other roles being occupied by those being trained to take over the process; and
  • Dr Chalk's opinion that Ms Carr's interaction with another employee who was not following directions and not completing tasks, and the lack of support Ms Carr received from Mr Cosgrove, was the crux of the matter.
  1. [77]
    Following reference to those matters, the Industrial Commissioner then made the finding referred to in paragraph [126].
  1. [78]
    Next, the Industrial Commissioner referred to the evidence of Mr and Mrs Cosgrove, including:
  • Mr Cosgrove's evidence that he accepted that Ms Carr's responsibility in his $25,000,000 business was that of office manager in charge of finances including banking, Accounts Receivable, Accounts Payable, superannuation, taxation, operations accounts and funds controller, trusts and properties; and his further evidence that he went in every day and oversaw the goings-on in the business; and
  • Mrs Cosgrove's evidence that Ms Carr's role was highly significant to the company with extensive responsibilities.[78]
  1. [79]
    After referring to that evidence, the Commissioner then stated, immediately before the penultimate conclusion in paragraph [134]:
  1. [132]
    It came to pass that Mr Cosgrove's expectation that Ms Carr continue to do more with less was not sustainable indefinitely.
  1. [133]
    In my view, the scene was set for the onset of Ms Carr's psychological injury that occurred "over a period of time".
  1. [80]
    It was then that the Industrial Commissioner referred to, in paragraph [137] of the decision, the ultimate conclusion about workload, work pressure and the responsibility on Ms Carr's shoulders over a significant period of time not being reasonable management action.
  1. [81]
    It seems to me that, having regard to this reasoning, the Industrial Commissioner adequately explained how the ultimate conclusion, referred to in paragraph [137], was reached. While, for the reasons given above, that was not the case the Regulator came to meet, the reasoning exposed the Industrial Commissioner's conclusion about how Ms Carr's workload and work intensity, over a lengthy period of time, was not reasonable management action. That aspect of the Industrial Commissioner's reasons was adequate and discloses no error of law.
  1. [82]
    The fourth ground of appeal is not made out.

The fifth ground of appeal

  1. [83]
    The Regulator submits that the Industrial Commissioner's finding that Ms Carr's injury arose out of management action that was not reasonable cannot stand in the face of the Industrial Commissioner's findings that stressors 3 to 8 amounted to reasonable management action taken in a reasonable way by SRV in connection with Ms Carr's employment.
  1. [84]
    The Regulator further submits, having regard to the decision in Mahaffey,[79] that the Industrial Commissioner applied the wrong test in considering whether the relevant management action was reasonable and whether the injury was removed by the operation of s 32(5) of the Act.
  1. [85]
    In Mahaffey, Martin J, President relevantly stated:

[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.

  1. [86]
    This issue was also addressed by President Hall in Q-Comp v Rowe[80] where his Honour stated:

It is the effect of the decision in Q-COMP v Hohn, ibid, that a claimant may succeed though some of the operative events or stressors arise out of or occur in the course of reasonable management action taken in a reasonable way. However, "may" cannot be read as "must": nor may the passage be read as asserting that an Appeal Body is at liberty to allow a claimant to succeed where at least one stressor does not "… arise or occur in the course of reasonable management action taken in a reasonable way". In all such cases, the Appeal Tribunal will be required to embark upon the enquiry whether the psychological/psychiatric injury arose out of or in the course of reasonable management action taken in a reasonable way. Here, that very enquiry was undertaken. The outcome was adverse to Mr Rowe. It follows that Mr Rowe does not have a recognisable claim.[81]

  1. [87]
    In the decision, under the heading of 'Conclusion', the Industrial Commissioner decided:
  1. [249]
    It is accepted that Ms Carr's work was the major significant contributing factor to her psychological injury.
  1. [250]
    This Decision turns on whether or not the management action taken was 'reasonable' and taken in a 'reasonable way'.
  1. [251]
    This was not a case where Ms Carr was subjected to management action applied to correct any real or perceived performance or conduct deficiency - and an injury thence resulted. No "management action" was taken against Ms Carr of the type provided in the examples of s 32(5) above. Mr Cosgrove did not exercise, or indicate any intention to exercise, any of the suite of typical management actions such as transfer, demotion, initiation of a discipline process, redeployment, retrenchment or dismissal. Nor did Mr Cosgrove exercise, or indicate any intention to exercise, any decision against Ms Carr not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment. This appeal was simply not that type of matter.
  1. [252]
    Following the expression of Ms Carr's work concerns including the impact it was having on her, in November 2018, Mr Cosgrove responded by initiating a series of strategies in 2019. Some of those alleviated matters, others appeared to compound them.
  1. [253]
    By April 2019, an internal review commissioned by Mr Cosgrove had concluded. That review contained a series of recommendations, including a broad observation that Ms Carr had too many responsibilities and not enough staff. Some of that needed to be shifted from her shoulders.
  1. [254]
    Other staff were employed as a result. Ms X was one of the new hires and she quickly gained Mr Cosgrove's trust and confidence. Ms X's rapid elevation and the special considerations afforded to her were a source of irritation for Ms Carr.
  1. [255]
    Such chronicle of harboured hurts was recounted to Dr Chalk, who opined that the difficulties with Ms X and lack of support from Mr Cosgrove appeared to be the "crux of the matter". Dr Chalk stated that Ms Carr's psychological condition had developed "in the setting of difficulties in the workplace that had arisen over a period of time", whereby such difficulties "…occurred against a background where apparently a number of people left the workplace and that two people in her area were not replaced and this seems to have placed everyone under the pump."
  1. [256]
    I have not found that Ms Carr's various complaints about her interactions with, or about, Ms X constituted management action that was either unreasonable or taken in an unreasonable way.
  1. [257]
    However, I do consider the imposition of an unattainable level of workload and work intensity on Ms Carr, in the absence of adequate personnel support and resources to the job, to be unreasonable management action. That is what occurred in this case. It is on that basis that Ms Carr's appeal must succeed.
  1. [258]
    For the reasons above, I have found that "reasonable management action taken in a reasonable way" was not a factor causative of Ms Carr's injury - and thus the injury remains one that is compensable under s 32 of the Act.
  1. [88]
    It is not readily apparent from the decision how the Industrial Commissioner, having made the findings about there being reasonable management action taken in respect of stressors 1 to 8 as expressly contended by Ms Carr, came to the conclusion that s 32(5)(a) of the Act was not enlivened having regard to the findings about unreasonable management action, insofar as the Industrial Commissioner otherwise found that stressors 1 and 2 involved unreasonable management action.
  1. [89]
    In oral submissions, Mr Watters submitted that the weighing up of the reasonable and unreasonable management action was implicit in the Commissioner's findings about the unreasonable management action involving stressors 1 and 2, insofar as the Industrial Commissioner found there was unreasonable management action involved in those two stressors.[82]
  1. [90]
    I am unable to accept Ms Carr's submission that such an inquiry was undertaken in the present case.
  1. [91]
    Paragraphs [249] to [258] of the reasons for decision do not disclose where the matters found to amount to unreasonable management action were weighed with those found in the decision to be reasonable management action, such that s 32(5)(a) of the Act had no application. I cannot accept Ms Carr's submission that such a process is implicit in the findings made about the matters said to amount to reasonable management action.
  1. [92]
    In any event, for the reasons given earlier, the basis upon which the Industrial Commissioner found that Ms Carr's injury arose out of unreasonable management action was not one contended by Ms Carr.
  1. [93]
    The fifth ground of appeal is made out.

What relief should be ordered?

  1. [94]
    For the reasons given, the decision is affected by errors of law. These errors of law affect the correctness of the decision.
  1. [95]
    The Regulator submits that errors having been found, the Court is to conduct a real review. The relief sought by the Regulator, in the conduct of such a review, is based on the fact that errors of law have been made. [83]
  1. [96]
    In Fox v Percy,[84] Gleeson CJ, Gummow and Kirby JJ relevantly held:
  1. 25
    Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect". In Warren v Coombes, the majority of this Court reiterated the rule that:

"[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it."

As this Court there said, that approach was "not only sound in law, but beneficial in … operation".[85]

  1. [97]
    Further, upon an appeal by way of rehearing, an appellate court, having found error, should, if it can, resolve the issue in order to spare the parties and the community the economic and emotional costs of a re-trial.[86]
  1. [98]
    The Industrial Commissioner found that the management action the subject of stressors 1 and 2 and the particulars of those stressors, as contended by Ms Carr, amounted to reasonable management action.[87] Additionally, even though it was not expressly addressed in the decision, I find that the decision to conduct the external review in April 2019, (one of the particulars of stressor 2) was reasonable management action taken in a reasonable way by SRV in connection with Ms Carr's employment. The evidence of Mr Cosgrove was that the external review was commissioned because of advice he received from his financial broker and not because of any earlier advice from Ms Carr that she was not coping.[88] On any objective view of that evidence, the decision to conduct the external review involved reasonable management action.
  1. [99]
    The findings made by the Industrial Commissioner of unreasonable management action (workload, work intensity, work pressure and responsibility), in respect of stressors 1 and 2, concerned a case not contended by Ms Carr and was in error.
  1. [100]
    The findings made by the Industrial Commissioner were that stressors 1 to 8, as nominated by Ms Carr, all involved reasonable management action taken in a reasonable way by SRV in connection with Ms Carr's employment. Before the Industrial Commissioner,[89] and before this Court,[90] the Regulator accepted that the management action, as contended by Ms Carr in stressors 1 to 8, had a causal connection with Ms Carr's personal injury. As a consequence, on my consideration of the case, the only result can be that Ms Carr's injury is withdrawn as being a compensable injury by the operation of s 32(5)(a) of the Act.

Conclusion

  1. [101]
    For the reasons given, the decision was vitiated by errors of law.
  1. [102]
    On my review of the evidence, the result is that pursuant to s 562(1)(c) of the Act, the decision should be set aside and another decision substituted, namely, that the review decision is confirmed and that Ms Carr pays the Regulator's costs of the hearing before the Commission as agreed or assessed.
  1. [103]
    The Regulator submits that there is no basis for an order for costs of its appeal to this Court. That submission is clearly correct.[91]

Orders

  1. [104]
    I make the following orders:

Pursuant to s 562(1)(c) of the Workers' Compensation and Rehabilitation Act 2003:

  1. (a)
    the decision of the Queensland Industrial Relations Commission in Matter No. WC/2021/4 is set aside; and
  1. (b)
    another decision is substituted, namely, that the review decision of the Appellant is confirmed and that the Respondent pays the Appellant's costs of the hearing before the Queensland Industrial Relations Commission as agreed or assessed.

I certify that the preceding [104] paragraphs are a true copy of the Reasons for Decision of Deputy President Merrell.

J.W. MERRELL,

Deputy President:

....................................

(Signature)

10 January 2023

Footnotes

[1] Carr v Workers' Compensation Regulator [2022] QIRC 059, [1]-[10] ('Carr').

[2] Ibid [15].

[3] Ibid [15].

[4] Ibid [49].

[5] Ibid.

[6] Carr (n 1) [17].

[7] Ibid [137].

[8] Ibid [259].

[9] Which provides that the Industrial Relations Act 2016 applies to the appeal.

[10] Nutley v Workers' Compensation Regulator [2019] ICQ 022, [10] (Martin J, President) and Burton v Workers' Compensation Regulator [2022] ICQ 017, [18] (Davis J, President).

[11] Carr (n 1), [25]-[45]. The Regulator did not challenge the finding made by the Commission that Ms Carr's personal injury occurred on 30 July 2019.

[12] There was no dispute that the ninth stressor nominated by Ms Carr was not a matter that could have had a causal connection with her injury.

[13] The Regulator's statement of facts and contentions filed on 30 April 2021 ('the Regulator's contentions'), para. 5.

[14] The Regulator's contentions, para. 6.

[15] The Regulator's contentions, paras. 7-12.

[16] The Regulator's contentions, paras. 13-20 and para 2 under the heading 'Contentions.'

[17] Carr (n 1) [117].

[18] Carr (n 1) [118].

[19] Ms Carr's written submissions to the Queensland Industrial Relations Commission filed on 10 November 2021 ('Ms Carr's trial submissions'), para. 40.

[20] Ms Carr's trial submissions, para. 41.

[21] The Regulator's written submissions to the Queensland Industrial Relations Commission filed on 14 December 2021 ('the Regulator's trial submissions'), paras. 28-35.

[22] The Regulator's trial submissions, paras. 37-47.

[23] Carr (n 1) [72].

[24] Ibid [73].

[25] Ibid [139]-[152].

[26] Ibid [153]-[165].

[27] Ibid [166]-[190].

[28] Ibid [191]-[198].

[29] Ibid [199]-[215].

[30] Ibid [216]-[231].

[31] Ibid [98].

[32] Ibid [103]-[110].

[33] Ibid [111]-[116].

[34] Carr (n 1) [119].

[35] Ibid [135]-[136].

[36] Ibid [126]-[134].

[37] Ibid [98] and [137].

[38] Ibid [17] and [251]-[257].

[39] The Regulator's written submissions to the Industrial Court of Queensland filed on 21 April 2022 ('the Regulator's submissions'), paras. 10-11.

[40] [2015] ICQ 001, [16]-[20] (Martin J, President).

[41] [2016] ICQ 010 ('Mahaffey'), [35] (Martin J, President).

[42] [2017] ICQ 001, [10]-[18] (Martin J, President).

[43] [2017] ICQ 004, [10]-[15] (Martin J, President).

[44] [2020] ICQ 002 ('Langerak'), [72]-[75] (Martin J, President).

[45] T 1-6, l 40 to T 1-18, l 31 (Court).

[46] T 1-12, ll 4-7 (Commission).

[47] T 1-23, l 39 to T 1-24, l 4 (Commission).

[48] T 1-27, ll 18-48 (Commission).

[49] Ms Carr's written submissions to the Industrial Court of Queensland filed on 26 May 2022 ('Ms Carr's submissions'), paras. 12-17.

[50] T 1-31, ll 10-11 (Court).

[51] Langerak (n 44).

[52] Citations omitted.

[53] Exhibit 2, document 4.

[54] Ms Carr's statement of facts and contentions filed on 26 March 2021, paras. 1b, 1c and 1d.

[55] Carr (n 1) [98].

[56] Devine Constructions Pty Ltd v Stowe Australia Pty Ltd & Ors [2022] QSC 51, [13] (Applegarth J).

[57] Industrial Relations Act 2016 s 429.

[58] Oakey Coal Action Alliance Inc. v New Acland Coal Pty Ltd [2021] HCA 2; (2021) 272 CLR 33, [47] (Kiefel CJ, Bell, Gageler and Keane JJ).

[59] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1, [38] (Gleeson CJ) and Minister for Immigration v WZARH [2015] HCA 40; (2015) 256 CLR 326, [36] (Kiefel, Bell and Keane JJ) and [57] (Gageler and Gordon JJ).

[60] Buss, Murphy and Smith JJ.

[61] [2022] WASCA 94.

[62] Citations omitted.

[63] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398 (Kiefel CJ, Keane and Gleeson JJ). Citations omitted.

[64] Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476, [45] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ) and Davis v Workers' Compensation Regulator [2020] ICQ 011, [15] (Martin J, President).

[65] Exhibit 2, document 2, page 8 of 9.

[66] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 355-356 (Mason CJ).

[67] Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54, 77 (Brennan J).

[68] Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642, 645 (Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ).

[69] Exhibit 2, document 2.

[70] Citation omitted.

[71] Carr (n 1) [55]-[73].

[72] Ms Carr's submissions, para. 23.

[73] The Regulator's submissions, paras. 36-37.

[74] Ms Carr's submissions, para. 24.

[75] [2019] ICQ 23.

[76] Citations omitted.

[77] Carr (n 1) [120]-[121].

[78] Carr (n 1) [128]-[131].

[79] Mahaffey (n 41).

[80] [2009] ICQ 32; (2009) 191 QGIG 67.

[81] Ibid 71-72.

[82] T 1-43, l 15 to T 1-44, l 8.

[83] Citing Lee v Lee [2019] HCA 28; (2019) 266 CLR 129, [55] (Bell, Gageler, Nettle and Edelman JJ).

[84] [2003] HCA 22; (2003) 214 CLR 118.

[85] Citations omitted.

[86] Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119, [182] (Bell CJ, Gleeson and Brereton JJA).

[87] Carr (n 1) [91]-[98] (Stressor 1) and [103]-[110], [111]-116], [117]-[119], [135]-[138] (Stressor 2).

[88] Carr (n 1) [120]-[121].

[89] The Regulator's trial submissions, paras. 111-117.

[90] The Regulator's submissions, para. 43.

[91] Having regard to the Workers' Compensation and Rehabilitation Act 2003, s 563(1).

Close

Editorial Notes

  • Published Case Name:

    Workers' Compensation Regulator v Carr

  • Shortened Case Name:

    Workers' Compensation Regulator v Carr

  • MNC:

    [2023] ICQ 1

  • Court:

    ICQ

  • Judge(s):

    Merrell DP

  • Date:

    10 Jan 2023

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
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
2 citations
Jump To
Cite 1 - (1990) 170 CLR 321
Cite 2 - (1990) 170 CLR 321
Australian Broadcasting Tribunal v Bond (1990) HCA 33
2 citations
Jump To
Cite 1 - (1990) HCA 33
Cite 2 - (1990) HCA 33
Ball v State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services) [2019] ICQ 23
2 citations
Jump To
Cite 1 - [2019] ICQ 23
Cite 2 - [2019] ICQ 23
Belal Yousif v Workers' Compensation Regulator [2017] ICQ 4
1 citation
Jump To
Cite 1 - [2017] ICQ 4
Bird v Plaintiffs A, B, C and D [2022] NSWCA 119
2 citations
Jump To
Cite 1 - [2022] NSWCA 119
Cite 2 - [2022] NSWCA 119
Burton v Workers' Compensation Regulator [2022] ICQ 17
2 citations
Jump To
Cite 1 - [2022] ICQ 17
Cite 2 - [2022] ICQ 17
Carlton v Workers' Compensation Regulator [2017] ICQ 1
2 citations
Jump To
Cite 1 - [2017] ICQ 1
Cite 2 - [2017] ICQ 1
Carr v Workers' Compensation Regulator [2022] QIRC 59
3 citations
Jump To
Cite 1 - [2022] QIRC 59
Cite 2 - [2022] QIRC 59
Cite 3 - [2022] QIRC 59
Davis v Workers' Compensation Regulator [2020] ICQ 11
2 citations
Jump To
Cite 1 - [2020] ICQ 11
Cite 2 - [2020] ICQ 11
Devine Constructions Pty Ltd v Stowe Australia Pty Ltd [2022] QSC 51
2 citations
Jump To
Cite 1 - [2022] QSC 51
Cite 2 - [2022] QSC 51
Fox v Percy (2003) 214 CLR 118
2 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Fox v Percy (2003) HCA 22
2 citations
Jump To
Cite 1 - (2003) HCA 22
Cite 2 - (2003) HCA 22
Lee v Lee [2019] HCA 28
2 citations
Jump To
Cite 1 - [2019] HCA 28
Cite 2 - [2019] HCA 28
Lee v Lee (2019) 266 CLR 129
2 citations
Jump To
Cite 1 - (2019) 266 CLR 129
Cite 2 - (2019) 266 CLR 129
Local Government Association of Queensland Ltd v Queensland Services Industrial Union of Employees [2017] ICQ 2
1 citation
Jump To
Cite 1 - [2017] ICQ 2
Manescu v Baker Hughes Australia Pty Ltd [2022] WASCA 94
2 citations
Jump To
Cite 1 - [2022] WASCA 94
Cite 2 - [2022] WASCA 94
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326
1 citation
Jump To
Cite 1 - (2015) 256 CLR 326
Minister for Immigration and Border Protection v WZARH [2015] HCA 40
1 citation
Jump To
Cite 1 - [2015] HCA 40
Minister for Immigration and Multicultural Affairs, Re; Ex parte Lam (2003) 214 CLR 1
2 citations
Jump To
Cite 1 - (2003) 214 CLR 1
Cite 2 - (2003) 214 CLR 1
Nathanson v Minister for Home Affairs [2022] HCA 26
2 citations
Jump To
Cite 1 - [2022] HCA 26
Cite 2 - [2022] HCA 26
Nathanson v Minister for Home Affairs (2022) 403 ALR 39
1 citation
Jump To
Cite 1 - (2022) 403 ALR 39
Nathanson v Minister for Home Affairs (2022) 403 ALR 398
1 citation
Jump To
Cite 1 - (2022) 403 ALR 398
Nutley v Workers' Compensation Regulator [2019] ICQ 2
1 citation
Jump To
Cite 1 - [2019] ICQ 2
Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2
2 citations
Jump To
Cite 1 - [2021] HCA 2
Cite 2 - [2021] HCA 2
Oakey Coal Action Alliance Inc. v New Acland Coal Pty Ltd (2021) 272 CLR 33
2 citations
Jump To
Cite 1 - (2021) 272 CLR 33
Cite 2 - (2021) 272 CLR 33
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
2 citations
Jump To
Cite 1 - (2003) 211 CLR 476
Cite 2 - (2003) 211 CLR 476
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
2 citations
Jump To
Cite 1 - [2003] HCA 2
Cite 2 - [2003] HCA 2
Q-COMP v Rowe [2009] ICQ 32
2 citations
Jump To
Cite 1 - [2009] ICQ 32
Cite 2 - [2009] ICQ 32
Q-COMP v Rowe (2009) 191 QGIG 67
2 citations
Jump To
Cite 1 - (2009) 191 QGIG 67
Cite 2 - (2009) 191 QGIG 67
Ramsay v Watso [1961] HCA 65
2 citations
Jump To
Cite 1 - [1961] HCA 65
Cite 2 - [1961] HCA 65
Ramsay v Watson (1961) 108 CLR 642
2 citations
Jump To
Cite 1 - (1961) 108 CLR 642
Cite 2 - (1961) 108 CLR 642
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6
2 citations
Jump To
Cite 1 - [2003] HCA 6
Cite 2 - [2003] HCA 6
Royce v State of Queensland (Department of Justice and Attorney-General) (No 2) [2019] ICQ 22
1 citation
Jump To
Cite 1 - [2019] ICQ 22
Waterford v The Commonwealth (1987) 163 CLR 54
2 citations
Jump To
Cite 1 - (1987) 163 CLR 54
Cite 2 - (1987) 163 CLR 54
Waterford v The Commonwealth [1987] HCA 25
2 citations
Jump To
Cite 1 - [1987] HCA 25
Cite 2 - [1987] HCA 25
Workers' Compensation Regulator v Adams [2015] ICQ 1
2 citations
Jump To
Cite 1 - [2015] ICQ 1
Cite 2 - [2015] ICQ 1
Workers' Compensation Regulator v Langerak [2020] ICQ 2
2 citations
Jump To
Cite 1 - [2020] ICQ 2
Cite 2 - [2020] ICQ 2
Workers' Compensation Regulator v Mahaffey [2016] ICQ 10
2 citations
Jump To
Cite 1 - [2016] ICQ 10
Cite 2 - [2016] ICQ 10

Cases Citing

Case NameFull CitationFrequency
Kevesther Pty Ltd v Workers' Compensation Regulator [2024] QIRC 1953 citations
Queensland Police Union of Employees v HS First Inc. [2023] QIRC 302 citations
Robertson v McDonald's Australia Limited (No. 6) [2023] QIRC 932 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.