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State of Queensland (Queensland Police Service) v Workers' Compensation Regulator & Neville Stretton[2023] ICQ 15

State of Queensland (Queensland Police Service) v Workers' Compensation Regulator & Neville Stretton[2023] ICQ 15

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

State of Queensland (Queensland Police Service) v Workers' Compensation Regulator & Neville Stretton [2023] ICQ 015

PARTIES:

STATE OF QUEENSLAND (QUEENSLAND POLICE SERVICE)

(Appellant)

v

WORKERS' COMPENSATION REGULATOR

(First Respondent)

NEVILLE STRETTON

(Second Respondent)

FILE NO:

C/2021/25

PROCEEDING:

Appeal

DELIVERED ON:

28 June 2023

HEARING DATE:

16 May 2022

MEMBER:

O'Connor VP

ORDER:

Appeal dismissed.

CATCHWORDS:

WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – where the Commission found the second respondent was a worker who suffered a psychiatric or psychological injury and his employment was the major significant contributing factor to the injury – where Commission found investigation into complaint not conducted in a reasonable way – where Commission found second respondent's injury is not excluded by s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 – whether Commission erred in finding information provided by officers in investigation had a significant impact on second respondent's health and was the major significant contributing factor to the development of the injury – whether Commission erred in finding entire investigation conducted unreasonably – appeal dismissed.

LEGISLATION:

Industrial Relations Act 2016, s 556, s 557, s 558, s 559, s 563, s 564, s 565, s 566, s 567

Industrial Relations (Tribunals) Rules 2011, s 553

Workers' Compensation and Rehabilitation Act 2003, s 32, s 556, s 557, s 558, s 559, s 561, s 567

CASES:

Allesch v Maunz (2000) 203 CLR 172

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Bowers v WorkCover Queensland [2002] QIC 18

Burton v Workers' Compensation Regulator [2022] ICQ 017

CFMEU v BHP Coal Pty Ltd (2015) 230 FCR 298

Compass Group Education Hospitality Services Pty Ltd v Commissioner of State Revenue (CSR) (2021) 8 QR 1

Coulton v Holcombe (1986) 162 CLR 1

Davis v Blackwood (Workers' Compensation Regulator) [2014] ICQ 9

Delaney v Q-COMP Review Unit [2005] QIC 11

Fair Work Ombudsman v Eastern Colour Pty Ltd [2016] FCAFC 187

Fox v Percy (2003) 214 CLR 118

Hetmanska v Q-COMP (2006) 183 QGIG 917; [2006] QIC 67

JM v QFG and KG [2000] 1 Qd R 373, 391

Keen v Workers Rehabilitation and Compensation Corp (1998) 71 SASR 42; (1998) 196 LSJS 203

Khan v Workers' Compensation Regulator [2023] ICQ 002

Nutley v The President of the Industrial Court of Queensland & Anor [2019] QSC 16.

Nutley v Workers' Compensation Regulator [2019] ICQ 2.

Purcell v Electricity Commission of New South Wales (1985) 59 ALJR 689

Reid v Workers' Compensation Regulator [2016] QIRC 47

Alex Sabo AND Q-COMP (C2010/46) - Decision http://www.qirc.qld.gov.au

Schlumberger Australia Pty Ltd v Workers' Compensation Regulator [2023] ICQ 007

Simon Blackwood v Mahaffey [2016] ICQ 10

State of Queensland (Queensland Police Service) v Workers' Compensation Regulator & Anor [2021] QIRC 366

Turay v Workers' Compensation Regulator [2023] ICQ 013

Workers' Compensation Regulator v Langerak [2020] ICQ 002

Workers’ Compensation Regulator v Glass (2020) 4 QR 693

Yousif v Workers' Compensation Regulator [2017] ICQ 4

APPEARANCES:

Mr C. Massy, Counsel instructed by Queensland Police Service Legal Unit for the Appellant.

Mr D.L.K. Atkinson, Counsel instructed by Sciacca's Lawyers for the Second Respondent.

Mr G.G. Clark on behalf of the First Respondent.

Reasons for Decision

  1. [1]
    This decision arises from an appeal filed on 17 November 2021 by the State of Queensland (Queensland Police Service) ('QPS') ('the Appellant') against a decision of the Queensland Industrial Relations Commission ('the Commission')[1] given on 27 October 2021 ('the Primary Decision').  In that matter the Appellant appealed a decision of the Workers' Compensation Regulator ('the First Respondent') dated 19 July 2018 to accept an application for compensation by Sergeant Neville Stretton ('the Second Respondent') in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the WCR Act').
  1. [2]
    The Second Respondent claimed he suffered a psychiatric or psychological injury whilst employed by the Appellant at the Runaway Bay Police Station.
  1. [3]
    On 19 November 2021 Directions were issued in this appeal.  On 20 December 2021 the Second Respondent sought to be joined as a party to the appeal as the First Respondent informed him they will not be taking an active role in the appeal.  Further Directions were subsequently issued on 22 December 2021 including the Second Respondent.
  1. [4]
    The Grounds of appeal are as follows:
  1. The Industrial Commissioner erred as a matter of law and/or constructively failed to exercise the Commission's jurisdiction, by finding at [131] of the Primary Decision that the statements of Detective Senior Sergeant Cousins recorded at [122] of the Primary Decision had a significant impact on the second respondent's health and was the major significant contributing factor to the development of the injury because:
  1. a.
    it was not pleaded that the statements recorded at [122] of the Primary Decision were the major significant contributing factor to the second respondent's injury;
  1. b.
    the second respondent did not contend for such a finding; and/or
  1. c.
    the appellant was not given notice of any such finding prior to it be [sic] made.
  1. Further and/ or alternatively, the Industrial Commissioner erred, as a matter of fact, by making the finding at [131] that the statements of Detective Senior Sergeant Cousins recorded at [122] of the Primary Decision had a significant impact on the second respondent's health and was the major significant contributing factor to the development of the injury because:
  1. a.
    there was no medical evidence to support such a finding; and/or
  1. b.
    the second respondent did not nominate that alleged conduct as the cause of his injury in his application for workers' compensation or the Notification and Record of Incident submitted to the appellant.
  1. The Industrial Commissioner erred, as a matter of law, in finding at [129] and [131] that the statements of Detective Senior Sergeant Cousins recorded at [122] of the Primary Decision were such that the entire investigation was conducted unreasonably as the only conclusion available on the facts as found and the law properly understood was a finding that the statements, which:
  1. a.
    did not elicit any answers unfavourable to the second respondent's interests;

and

  1. b.
    were made in one interview conducted as part of an investigation which took place over more than two months and involved the collation of documentary evidence, the conduct of at least nine in person interviews and the preparation of a 28 page report, were no more than a blemish on the process and that the investigation as a whole was reasonable management action undertaken in a reasonable way.
  1. Further and/or alternatively, the Industrial Commissioner erred, as a matter of fact, in finding at [129] and [131] that the statements of Detective Senior Sergeant Cousins recorded at [122] of the Primary Decision were such that the entire investigation was conducted unreasonably when the Industrial Commissioner should have found that the statements, which:
  1. a.
    did not elicit any answers unfavourable to the second respondent's interests;

and

  1. b.
    were made in one interview conducted as part of an investigation which took place over more than two months and involved the collation of documentary evidence, the conduct of at least nine in person interviews and the preparation of a 28 page report, were no more than a blemish on the process and that the investigation as a whole was reasonable management action undertaken in a reasonable way.

Orders sought

  1. [5]
    The Appellant seeks the decision of the Commission made on 27 October 2021 be set aside; that the appeal be allowed, and the First Respondent's decision of 19 July 2018 be set aside; and that the Second Respondent pay the Appellant's costs of and incidental to this appeal and proceeding WC/2018/150.

The right to appeal

  1. [6]
    The Appellant's primary position is that the right to appeal is granted by s 561 of the WCR Act.  The nature of the right granted is a rehearing on the record.  Therefore, there is no restriction on the type of error that the Appellant may identify.
  1. [7]
    There is no dispute that the appeal brought to this Court by the Appellant as a party aggrieved by the Commission's decision was expressly brought pursuant to s 561 of the WCR Act.  That section provides:

561Appeal to industrial court

  1. (1)
    A party aggrieved by the industrial magistrate's or the industrial commission's decision may appeal to the industrial court.
  1. (2)
    The Industrial Relations Act 2016 applies to the appeal.
  1. (3)
    The appeal is by way of rehearing on the evidence and proceedings before the industrial magistrate or the industrial commission, unless the court orders additional evidence be heard.
  1. (4)
    The court's decision is final.
  1. [8]
    Section 557(1) and (2) of the Industrial Relations Act 2016 ('the IR Act') identifies the grounds upon which an appeal by an aggrieved person may be made from a decision of the Commission.

557 Appeal from commission

  1. (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 -
  1. (a)
    error of law; or
  1. (b)
    excess, or want, of jurisdiction.
  1. (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 -
  1. (a)
    error of law; or
  1. (b)
    excess, or want, of jurisdiction.
  1. [9]
    In Nutley v Workers' Compensation Regulator[2] and Nutley v The President of the Industrial Court of Queensland & Anor[3] it was held that an appeal is available under s 557(1) of the IR Act as of right on the ground of error of law or excess or want of jurisdiction.  Under s 557(2), an appeal may be brought on a ground other than those grounds with the court's leave.
  1. [10]
    In Nutley v Workers' Compensation Regulator, it was held:
  1. [9]
    Section 561 (2) of the Act applies the relevant provisions of the Industrial Relations Act 2016 to an appeal of this kind.  An aggrieved party may appeal a decision of the Commission on the grounds of error of law or excess, or want, of jurisdiction, but may only appeal on a question of fact where leave has been given.  Leave was not sought and so the appellant may not argue any ground which relies upon an alleged error of fact.
  1. [10]
    The case advanced for the appellant seems to have been based upon a misapprehension about the nature of the appeal.  Mr Myers, who appeared for the appellant, submitted that the appeal was an appeal by way of rehearing and, thus, the court "is required to look at the evidence that was given below to form a determination whether the finding of the deputy president is capable of being supported."  That is, with respect, incorrect.  While s 561(3) of the Act provides that the appeal is by way of rehearing such an appeal is subject to the provisions of the Industrial Relations Act 2016 (IR Act).  Section 557 of the IR Act sets out the grounds upon which an appeal may be made.  It does not allow an appellant to undertake a general review of the case to see if the decision can be supported.  It is for the appellant to demonstrate that there has been an error of law or that there has been a finding or determination in excess of jurisdiction or, with leave, an error of fact.[4]
  1. [11]
    Further, in Nutley v The President of the Industrial Court of Queensland & Anor it was held:
  1. [23]
    The applicant's case for judicial review is founded on the proposition that there is an inconsistency between s 561(3) of the WCR Act and ss 557(1) and (2) of the IR Act.  If there is such an inconsistency, the applicant contends that the WCR Act provisions, being more specific to the particular appeal, ought to have applied and excluded the operation of the IR Act provisions to the extent of the inconsistency; so that, the applicant contends, his Honour was mistaken as to his jurisdiction in applying s 557(2) of the IR Act to exclude the applicant's challenge to the Deputy President's findings of fact.

…

  1. [26]
    It follows that it is possible for both the relevant provisions in ss 561(2) and (3) of the WCR Act and those in ss 557(1) and (2) of the IR Act to operate consistently with each other, because the description of an appeal as "by way of rehearing" is not inconsistent with the application of the IR Act to the appeal, and the specification of the available grounds of appeal as of right and by leave.  The WCR Act provisions prescribe the nature of the appeal in terms of the material that is to be considered by the Industrial Court and the manner in which the Industrial Court is to approach the decision below.  The IR Act provisions specify the grounds of appeal that are available to an appellant undertaking such an appeal - both as of right and with leave.[5]
  1. [12]
    In Burton v Workers' Compensation Regulator[6] Davis J was called upon to determine an appeal by a worker from a decision of the Commission to confirm a decision of the Regulator to deny compensation under the WCR Act.  In Burton, it was held that an appeal from the Commission under s 561 of the WCR Act, s 561(2) of that Act and ss 557 and 567 of the IR Act operated to limit the appeal to grounds of error of law or excess or want of jurisdiction.  His Honour found:
  1. [16]
    There is a potential tension between s 561(3) of the Workers' Compensation Act and s 557 of the IR Act.  Usually an appeal 'by way of rehearing' contemplates the appeal court making its own assessment of the evidence and drawing its own inferences, but acknowledging the advantage of the court or tribunal at first instance in hearing the witnesses give their evidence.  An appeal based only on an error of law or excess or want of jurisdiction is a narrower appeal in that error must be shown upon the factual findings made below or some error of law must be shown in the fact finding below.

…

  1. [18]
    Section 567(1) refers to an 'appeal by way of rehearing on the record' and s 567(2) provides for leave to be given to adduce further evidence.  Reading ss 557 and 567 together, it is clear that the term, 'by way of re-hearing' is not to be used in its usual sense.  The appeal is on the grounds of error of law or want of jurisdiction and that is determined by 're-hearing' in the sense that without leave, any error of law or want of jurisdiction must be identified on the record below.  Section 561(3) of the Workers' Compensation Act should be similarly construed.
  1. [19]
    Section 557(2) of the IR Act provides for an appeal on grounds other than error of law or excess or want of jurisdiction, but only by leave.  That leave may only be granted in limited circumstances.  No application for leave has been made here.[7]
  1. [13]
    In Schlumberger Australia Pty Ltd v Workers' Compensation Regulator[8] the Appellant, brought an appeal under s 556 of the IR Act against a decision of an industrial magistrate the effect of which was to classify the Appellant's business for the purposes of the calculation of premiums payable under the WCR Act.  Although the respondent initially sought to rely on Burton to similarly restrict the appeal, it conceded that as s 557 governs appeals from the industrial magistrate, Burton had no application.  Nevertheless, Davis J made the following observations in respect of the operation of s 561 of the WCR Act:
  1. [31]
    At some stage, the principles established in Burton (a decision of mine) may have to be revisited.  In deciding Burton, I was not referred to some relevant legislative history.  Section 561 of the WCR Act was amended in 2011 by s 66 of the Electrical Safety and Other Legislation Amendment Act 2011.  The Electrical Safety and Other Legislation Amendment Bill 2011 was accompanied by an Explanatory Memorandum.  Clause 66 of the Bill at that point expressly limited appeals under the WCR Act to grounds of error of law or jurisdiction.  The Explanatory Memorandum confirmed that intention.  The Bill was then amended to remove that limitation.  The explanatory note for the amendments to the Bill suggests that the intention of the clause as amended was not to limit the grounds of appeal to errors of law or jurisdiction.
  1. [32]
    The object of statutory construction is to discern the meaning of the words actually appearing in the legislation by reference to relevant context which includes legislative history.  Whether consideration of the history of the amendment to s 561 leads to a construction different to that held in Burton is a matter for consideration on another day.[9]
  1. [14]
    In Turay v Workers' Compensation Regulator[10] Davis J had the opportunity to revisit a series of decisions where it was held that by operation of s 561 of the WCR Act and s 557 of the IR Act an Appellant is only entitled as of right to raise grounds of appeal of error of law or excess or want of jurisdiction.  Following a comprehensive analysis of the statutory history and the case law, his Honour held:
  1. [74]
    In Nutley,[11] the exercise undertaken was to construe the relevant provisions of the WCR Act consistently with the relevant provisions of the 2016 IR Act.  However, it is the WCR Act which creates the right of appeal, not s 557 of the 2016 IR Act.[12]  By providing for a separate avenue of appeal, the legislature differentiated between appeals under the WCR Act from other appeals brought under the 2016 IR Act.  Logically then, there will be differences.  If differences were not intended, then there was no point in having any appeal provision in the WCR Act.  It would be sufficient to allow the 2016 IR Act provisions to operate and provide an avenue of appeal.
  1. [75]
    As explained in Glass,[13] the structure is that the WCR Act creates the right of appeal from decisions of the QIRC made under the WCR Act and then picks up the 2016 IR Act which provides the procedural provisions.  Therefore, the construction task is not to attempt to construe all the provisions of the two Acts consistently with each other but to identify the provisions of the WCR Act which provide the right of appeal.  Those provisions may well be consistent with the 2016 IR Act provisions but, if not, will prevail to the extent of any inconsistency.  This is a product of the legislative scheme rather than of application of the doctrine of generalia specialibus non derogant which only applies where there are inconsistent provisions which cannot be reconciled as a matter of ordinary interpretation.[14]
  1. [76]
    Section 557 of the 2016 IR Act gives a right of appeal generally from decisions of the QIRC.  It does not provide an appeal against decisions made by the QIRC under the WCR Act.  Section 561 of the WCR Act does that.  None of the provisions of Division 2 of Part 6 of Chapter 11[15] applies to appeals under the WCR Act.  In particular:
  1. 1.
    Section 556 of the 2016 IR Act:  Section 561(1) of the WCR Act provides an avenue of appeal from the Industrial Magistrates Court or the QIRC to this Court in relation to decisions made under the WCR Act.  Section 556 of the 2016 IR Act must only concern other appeals.
  1. 2.
    Section 557 of the 2016 IR Act:  As already observed, s 561(1) of the WCR Act provides the avenue of appeal from the QIRC, not s 557 of the 2016 IR Act which provides for other appeals from the QIRC.
  1. 3.
    Section 558 of the 2016 IR Act:  Section 562 of the WCR Act provides the powers of this Court upon an appeal from the QIRC on matters under the WCR Act.  Section 558 of the 2016 IR Act vests powers on this Court in relation to other appeals from the QIRC. Section 559 of the 2016 IR Act:  Section 559 of the 2016 IR Act has no application to appeals against decisions under the WCR Act because an appeal from the QIRC in a case under the WCR Act is an appeal under s 561 of the WCR Act, not s 557 of the IR Act.  Therefore, no "appeal" is made under s 557.[16]
  1. [77]
    Division 5 of Part 6 of Chapter 11[17] of the 2016 IR Act does apply, at least in part, to appeals under the WCR Act:
  1. 1.
    Section 563 of the 2016 IR Act:  Section 563 of the 2016 IR Act is the definitions section.  This Court, being the court to which an appeal lies under s 561 of the WCR Act, is included in the definition of "industrial tribunal" in s 563 of the 2016 IR Act.
  1. 2.
    Section 564 of the 2016 IR Act:  Section 564 of the 2016 IR Act limits the time for appeal.  Nothing in s 561 of the WCR Act speaks of a time limit for an appeal.  There is no reason why s 564 would not apply to appeals under the WCR Act.  This is confirmed by the extrinsic material to the Electrical Safety Amendment Act.[18]
  1. 3.
    Section 565 of the 2016 IR Act:  Section 565 of the 2016 IR Act only applies to appeals under ss 554, 557 or 560 of the IR Act.  An appeal against the QIRC's decision under the WCR Act is an appeal under s 561 of the WCR Act.[19]
  1. 4.
    Section 566 of the 2016 IR Act:  Section 566 of the 2016 IR Act concerns stays of judgments pending appeal.  It is clearly intended that s 566 applies generally to appeals under the WCR Act.  Section 566(2) specifically accepts some appeals from its operation.
  1. 5.
    Section 567 of the 2016 IR Act:  Section 567 of the 2016 IR Act provides the "nature of appeal".  Section 561 of the WCR Act specifically provides for the nature of an appeal under the WCR Act and therefore, at least to the extent of any inconsistency, s 561 would prevail over s 567.  However, s 561 of the WCR Act and s 567 of the 2016 IR Act are equivalents.
  1. [78]
    Therefore, on a proper construction of s 561 of the WCR Act, Division 1 of Part 6 of Chapter 11 of the 2016 IR Act does not apply to appeals brought under s 561 of the WCR Act.  The purpose of s 557 of the 2016 IR Act is to grant a right of appeal.  With appeals under the WCR Act, the right of appeal is bestowed by s 561 of the WCR Act.  Section 561(2) of the WCR Act operates so as to apply the provisions of Division 5 of Chapter 11 of the 2016 IR Act to appeals launched under s 561(1) of the WCR Act.
  1. [79]
    For those reasons, I decline to follow Nutley v President, Industrial Court,[20] Burton v Workers' Compensation Regulator,[21] Khan v Workers' Compensation Regulator.[22]  Section 557 of the 2016 IR Act does not define the grounds of appeal available to an appellant from a decision of the QIRC under the WCR Act.[23]
  1. [15]
    I respectfully agree with what Davis J said in Turay v Workers' Compensation Regulator,[24] that it is s 561 of the WCR Act which grants the right of appeal.
  1. [16]
    Section 561(3) of the WCR Act provides that the appeal is by way of rehearing on the record, unless further evidence is admitted.
  1. [17]
    The nature of an appeal by way of rehearing was described by the High Court of Australia in Allesch v Maunz[25]in the following way:
  1. [23]
    For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. …[26]
  1. [18]
    In Fox v Percy,[27] Gleeson CJ, Gummow and Kirby JJ said:
  1. [22]
    … The 'rehearing' does not involve a completely fresh hearing by the appellate court of all the evidence.  That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.
  1. [23]
    … On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'.  On the other, it must, of necessity, observe the 'natural limitations' that exist in a case of any appellate court proceeding wholly or substantially on the record.  These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. …[28]
  1. [19]
    However, as was pointed out in Coulton v Holcombe:[29]

… To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large.  It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial.  If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. …[30]

The hearing and decision below

  1. [20]
    On 4 May 2016 the Second Respondent emailed supervisors to the effect he suspected Senior Constable Barnes, an officer at his station was misusing either illicit or prescription drugs.  The matter was referred to Ethical Standards Command of the QPS where it was investigated and found to be unsubstantiated.
  1. [21]
    On 15 June 2016 Senior Constable Barnes made a complaint against the Second Respondent alleging workplace bullying towards her and that the email of 4 May 2016 was malicious.
  1. [22]
    The Appellant commenced investigating the complaint which was given two separate internal matters numbers CSS2016/00740 concerning the email of 4 May 2016 ('the First Matter') and CSS2016/01000 relating to the bullying allegation ('the Second Matter').
  1. [23]
    The investigation into the First Matter commenced on 4 August 2016 when the Second Respondent was interviewed by Detective Senior Sergeant Cousins ('DSS Cousins').  The Appellant submits during that interview the misstatements outlined at [122] of the Primary Decision were made.
  1. [24]
    On 4 September 2016 DSS Cousins finalised his investigation into the First Matter and concluded in his report that the evidence was capable of establishing the allegation.[31]
  1. [25]
    On 19 January 2017 DSS Cousins interviewed the Second Respondent in relation to the Second Matter.[32]  At the conclusion the Second Respondent was informed that the First Matter would likely be referred to an Assistant Commissioner for consideration.
  1. [26]
    In May 2017 the Second Respondent attended a doctor for the first time in respect of the injury.  On 30 May 2017 the Second Respondent submitted an Internal Incident Notification in relation to the alleged injury.  On 4 June 2017 he submitted a workers' compensation application.
  1. [27]
    On 26 June 2017 DSS Cousins prepared a report into the Second Matter and concluded the evidence was capable of establishing the allegations of workplace bullying.
  1. [28]
    On 17 October 2017 Assistant Commissioner Codd decided after reviewing the investigation reports into the First and Second Matters that the Second Respondent should be subject to a disciplinary hearing.
  1. [29]
    The disciplinary hearing determined on 20 May 2019 that the allegation concerning the First Matter was not substantiated and the allegations in relation to the Second Matter were substantiated.  The Second Respondent was subsequently disciplined in respect of the substantiated matter.
  1. [30]
    The application for workers' compensation was accepted on 21 February 2018.  On 22 May 2018 the Appellant sought a review of that decision, and the First Respondent confirmed the decision on 19 July 2018.  On 21 August 2018 the Appellant filed an appeal against the First Respondent's decision to confirm the claim for workers' compensation.
  2. [31]
    The parties agreed that the Second Respondent was a worker within the meaning of the WCR Act at the time he sustained his personal injury and that his injury was of a psychiatric or psychological nature, best described as "anxiety disorder".  Before the Commissioner, the Appellant accepted that the injury arose out of or in the course of the Second Respondent's employment and the employment was the major significant contributing factor to his injury.
  1. [32]
    The only issues in dispute were:
  1. (a)
    whether the Second Respondent's injury had been caused by the investigation into the First and Second Matters cumulatively, as alleged by the Appellant, or whether the injury had been caused by the investigation into the First Matter only, as alleged by the Second Respondent; and
  1. (b)
    whether the investigations into either the First Matter or the First and Second Matters were reasonable management action taken in a reasonable way.
  1. [33]
    In the Primary Decision at [129] the Commissioner found the misrepresentations could not be described as a 'mere blemish' and that Assistant Commissioner Codd's evidence confirmed the misrepresentations related to a matter of fairness. 
  1. [34]
    At [132] the Commissioner found that the decision to interview the Second Respondent was reasonable management action, it was not taken in a reasonable way as a consequence of the misrepresentation of evidence to the Second Respondent.  The Commissioner found that the misrepresentation was not reasonable; had a significant impact on the Second Respondent's health; and was the major significant contributing factor to the development of his injury.
  1. [35]
    In her decision, the Commissioner assessed the Appellant's evidence that ultimately informed her decision.  This is perhaps most evident in the following parts of her reasons:
  1. [128]
    The Appellant submits that the transcripts of the interview were provided with his report as attachments, the report was reviewed internally within ESC and the description of the answers given did not affect AC Codd's decision that the matter should proceed to a disciplinary hearing.  The Appellant submits that the Second Respondent did not make any concessions as a consequence of the alleged misrepresentation, and this was not a case where an inculpatory answer was extracted by way of an unfair question.  The Appellant submits that any misstatements about what other officers had witnessed in terms of SC Barnes' behaviour could not rationally influence the answer that the Second Respondent gave about why he did not include matters that he knew about in his email.
  1. [129]
    The relevant issue is not whether the Second Respondent's subsequent responses in the interview were compromised as a result of the misrepresentation, it is whether the investigation was conducted in a reasonable way.  It is clear that the evidence provided by the other officers was misrepresented to the Second Respondent, as confirmed in AC Codd's evidence that it was 'not an accurate reflection of the interviews with those officers. That's certainly the case'.  I am not persuaded that the misrepresentation of evidence to the Second Respondent can be dismissed as a 'mere blemish' as per the consideration in Kuenstner v Workers' Compensation Regulator, with the evidence of AC Codd also confirming that this matter related to questions of fairness.
  1. [130]
    The Second Respondent gave the following evidence of his reaction after being interviewed by Detective Cousins:

I felt that I had been left out to dry by these other officers, that there was no support.  Then I was thinking that perhaps they submitted under pressure to his questioning and denied it. I was totally flabbergasted when I walked out of there as to why these other officers had actually given me this information.   Then when it actually came down to a record of interview with Mr Cousins, apparently, they didn't say - didn't back up what they had previously told me… it's basically my word against their word.  And I thought the information I supplied was correct and the versions they supplied me was correct.  And here I am being told they now aren't backing up my version.

  1. [131]
    The misrepresentation of the evidence of the other officers to the Second Respondent was not reasonable.  This had a significant impact on the Second Respondent's health and was the major significant contributing factor to the development of his injury.
  1. [132]
    Although the decision to interview the Second Respondent constitutes reasonable management action, this action was not taken in a reasonable way as a consequence of the misrepresentation of evidence to the Second Respondent.
  1. [36]
    The Appellant appeals from the findings at [129], [131] and [132] in the Primary Decision.

Ground 1 - the Appellant was not given notice of the finding at [131]

  1. [37]
    This ground is based on the finding by the Commissioner at [131] that the misstatements of DSS Cousins as recorded at [122] of the Primary Decision had a significant impact on the Second Respondent's health and was the major significant contributing factor to the development of the injury.  The Appellant submits the finding is an error of law because it was never part of the Second Respondent's case[33] nor did the Second Respondent contend for such a finding.  Moreover, the Appellant was not given notice of any such finding prior to it being made.
  2. [38]
    The Second Respondent relied upon the misstatements recorded in [122] to ground the submission that the investigation was not undertaken reasonably.  The Commissioner concluded:
  1. [122]
    Detective Cousins' statement to the Second Respondent that 'no one identified that she had a drug look' and that 'you appear to be the only one' does not accurately represent the information provided by the officers in the interviews.
  1. [39]
    The Appellant submits that the purpose of pleadings is well established, and it is to give clear notice to the opposing party of the case they must meet.[34]  These principles are relevant in the following proceedings where in Yousif v Workers' Compensation Regulator,[35] Martin J held:

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.[36]

  1. [40]
    Further, in Workers' Compensation Regulator v Langerak,[37] Martin J considered how the Commission should approach stressors which had not been pleaded.  In Langerak, the Commissioner considered a stressor which was not characterised by the worker 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. In doing so, the Commissioner erred.  His Honour observed:

In reply, the appellant submits that while there may have been evidence of bullying in the workplace, the particular stressor that the Commissioner found was that there was a failure by management to act upon the respondent's allegations of bullying, and that was never a feature of her case.

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.

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.

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.[38]

  1. [41]
    The Appellant submits the Court's approach in this matter is consistent with the Full Court in Fair Work Ombudsman v Eastern Colour Pty Ltd.[39]  The Commission's departure from the case as contended by the Second Respondent meant the Appellant was not given any opportunity to make submissions or cross-examine about the contention that the misstatements recorded at [122] were the major significant contributing factor to the development of the Second Respondent's injury.
  1. [42]
    Here, it cannot be argued that the Appellant was not alerted to a matter which was critical to the outcome of the Second Respondent's claim and deprived the Appellant of the opportunity to address that matter during the proceedings.
  1. [43]
    It is accepted by the Appellant that the Second Respondent relied upon the misstatements recorded in [122] to ground the submission that the investigation was not undertaken reasonably.[40]  However, what is argued by the Appellant is that this is a different point to the contention that the misstatements were the primary stressor which caused the injury.
  1. [44]
    It was always the Second Respondent's case that the injury arose out of the investigation involving the First Matter only.
  1. [45]
    In the Statement of Facts and Contentions it was pleaded that the investigation leading to the decision to proceed to a disciplinary hearing was not conducted competently or impartially.[41]
  1. [46]
    Mr Atkinson KC in opening the Second Respondent's case said the following:

He will also say that he was taken aback most of all to hear that although he had given the names of other officers who might corroborate, Detective Cousins said that none of them had given him any support whatsoever.

He will say that after that interview in August 2016 he found himself unravelling. He couldn't sleep, he ruminated, he second guessed all his decisions. He became paranoid about who he should talk to and why he should talk to them. He found himself having trouble engaging properly with his wife and generally worrying about what was to become of his career. He was conscious that an accusation that he might have used the disciplinary service – the disciplinary proceeding for the purpose of harming a fellow officer was extremely serious and could affect his career advancement and indeed could involve some very serious disciplinary action.[42]

…

He will say that, as I say, his emotional and physical condition declined seriously. All of the issues that I have spoken about from August 26th were there but they were stronger and harsher and certainly he was ruminating and not concentrating, staring at the ceiling, wondering if he would be marched out. He tried to explain to his wife what the matter was about. She said, "You're obviously not telling me something. There's something missing from the story". But he showed her the brief and she understood then but he really couldn't explain to anyone why reporting this matter to the police service resulted in him being charged. And he was very conscious that being charged would result in his demotion – or could result in his demotion if he was found guilty.[43]

  1. [47]
    The Second Respondent in his written submissions before the Commission set out the following:
  1. 78.
    There is a further issue. It is maintained for the QPS, in effect, that there are other factors which might be the cause of the anxiety experienced by Sgt Stretton. Specifically, the QPS maintains that it might have been caused by the second charge, or at least the whole of the charges. It is submitted that this contention simply does not fit the evidence viewed as a whole. In that regard it is noted that:
  1. (a)
    The evidence of Sgt Stretton was that he appreciated at an early point in relation to the First Matter that it would be extremely serious to be charged with behaving dishonestly against a fellow police member by using the disciplinary system in bad faith;
  1. (b)
    In particular, he was gutted on 4 August 2016 when he was told that his version of events had not been corroborated by any other officers (see above; T4-21);
  1. (c)
    He explained that, after that interview, he found himself arguing with his wife, having sleepless nights, waking up early and staring at the ceiling, wondering how he might have done things differently, not concentrating at work, becoming fatigued and crying;
  1. (d)
    He testified that he was extremely shocked and anxious when he realised in the course of the interview that he was being very forcefully accused of this matter;
  1. (e)
    He gave evidence that from August 2016 (when the interview occurred) he was ruminating, having difficulty sleeping, scratching his skin and questioning himself;[44]
  1. [48]
    Moreover, the Appellant had the opportunity to respond to those submissions and indeed did respond to the submissions.[45]
  1. [49]
    In reply submissions, the Appellant said:
  1. 57.
    At [78], the second respondent identifies the evidence which supports a contention that his injury was caused by the investigation into the email of 4 May 2016.  The evidence relied upon is largely uncorroborated oral evidence of the second respondent.  For the reasons identified in the primary submissions, that evidence should not be accepted because the second respondent was not a credible witness.
  1. [50]
    This ground of appeal was advanced on the basis that it was effectively a procedural fairness ground.  For the reasons advanced above, I do not accept that the Appellant was not alerted to a matter which was critical to the outcome of the Second Respondent's claim, nor do I accept that they were deprived of the opportunity to address that matter during the proceedings. 
  1. [51]
    This ground fails.

Ground 2 - the evidence did not support the finding in [131]

  1. [52]
    The Appellant submits that appeal ground 2 raises an error of fact.  This ground is related to the first.
  1. [53]
    At [131] the Commission found that a misstatement during the interview of the Second Respondent was the major significant contributing factor to the development of his injury. 
  1. [54]
    It was submitted by the Appellant that the medical evidence summarised at [24] to [27] of the Primary Decision does not reveal any indication that it was the misstatements recorded at [122] which caused the Second Respondent's injury.
  1. [55]
    Paragraph [131] should be understood in the light of the following paragraphs of the Commissioner's reasons:
  1. [30]
    The Queensland Police Service Notification and Record of Incident[46] submitted by the Second Respondent reflected the details provided in the application for compensation.  The context outlined involved the email matter and the subsequent investigation into this QP466 incident.  Although the Appellant submits that the cause of stress was stated to be the 'whole occurrence of being investigated' it is clear that in context, the stressor was the investigation in relation to the email matter.  The document states:

…

On 16 March 2017 I had a conversation with Superintendent HANLON at the Runaway Bay Police Station.  I asked Superintendent HANLON as to what was happening with the misconduct allegation from the ESC investigator.  HANLON Informed me that the matter was to be put before the AC for determination and it was 'imminent' that I was going to be served with misconduct paperwork.  I informed HANLON that this whole occurrence of being investigated was causing me considerable stress and anxiety.  This left me with no doubt that the ESC investigator and HANLON had no idea that my disclosure was registered in the registered [sic] of disclosures under the PIDA.  I then informed HANLON of my status under the PIDA and what I was experiencing was in fact a reprisal under section 39 of the PIDA…[47]

  1. [31]
    I note the Second Respondent's evidence that he was 'gutted' on 4 August 2016 when he was told that his version of the lead up to the email matter had not been corroborated by any other officers[48] and that after the interview, he found himself arguing with his wife, having sleepless nights, waking up early and staring at the ceiling, wondering how he might have done things differently, not concentrating at work, becoming fatigued and crying.[49] The Second Respondent gave evidence that following the interview he was ruminating, having difficulty sleeping, scratching his skin and questioning himself.[50]  The Second Respondent also gave evidence that whilst the broader investigation concerned workplace bullying and this caused him some embarrassment, there was no issue about a severe sentence and it was not really a source of stress.[51]
  1. [32]
    The Second Respondent gave evidence that he appreciated at an early point in relation to the investigation into the email matter that it would be extremely serious to be charged with behaving dishonestly against a fellow police member by using the disciplinary system in bad faith.[52]  The Second Respondent states that at the conclusion of the second interview, Detective Cousins told him that he would be charged with misconduct over the email matter and that the charge would be going to the AC.[53]  Detective Cousins agreed that he may have told the Second Respondent in January 2017, at the end of the interview, that he was being referred to the AC because by that time, decisions to that effect had been made.[54]  Detective Cousins agreed that by telling the Second Respondent the rank of the prescribed officer, he was effectively leaving demotion as an option.[55]
  1. [33]
    After consideration of the application for compensation, the Queensland Police Service Notification and Record of Incident, the WorkCover Communications Report notes, the medical evidence and the evidence of the Second Respondent and Detective Cousins, I am satisfied that the investigation into the email matter was the stressor which resulted in the Second Respondent's injury.  The evidence does not indicate that the investigation into the other matter with respect to SC Barnes' allegations of bullying and harassment contributed to the Second Respondent's injury in any significant manner.
  1. [56]
    What is argued by the Second Respondent is that, for the purposes of s 32(1) of the WCR Act the Appellant admitted that the Second Respondent's "employment is the major significant contributing factor".  The secondary issue and indeed the only question before the Commission was whether for the purposes of s 32(5)(a) of the WCR Act, a disorder arose out of or in the course of reasonable management action taken in a reasonable way.  That is the issue that was addressed by the Commission.[56]
  1. [57]
    As the following extract from the transcript demonstrates, the Second Respondent described how he was affected by the misrepresentation.

And in terms of the information about what was available to the QPS, did Detective Senior Sergeant Cousins let you know that the information had been corroborated or he had done anything about that?---In relation to the information that I provided that was given to me by other officers, I was informed during that record of interview that he had interviewed those officers and they had supplied versions that are different to the version that I supplied during my record of interview and on the QP466. Yes. That raised an extreme concern for me that these officers had information yet here I have Senior Sergeant Cousins telling me that these officers hadn't supported me - hadn't supported the versions that they had previously supplied me.

And was that the five from the email - just those five or was there other officers in 5 that category too?---Just those five.

All right?---Just those five.

All right. And the nature of the allegation, did you understand what it was?---Certainly did. Once I got into the interview, probably about five to 10 minutes, I realised that the allegation was that I had used – used the disciplinary process of a drug test to basically cause another officer a bit of distress.

And within the QPS, can you say whether or not, to your knowledge, that was a charge that was serious?---It's extremely serious. I took it as extremely serious. When I - - -

Why is that?---Sorry?

Why?---Because it has professional as well as financial ramifications for an officer is that charge was actually found to be proved against me.

Why do you say that?---Because there is potential for – if the charge was proven, that I would be demoted from sergeant possibly even down to senior constable.

Now, in terms of what you said before, the lack of support apparently from other officers - - -?---Yes.

- - - is that important?---It's extremely important. I felt that I had been left out to dry by these other officers, that there was no support. Then I was thinking as to perhaps they submitted, under pressure, to his questioning and then denied it. I was, yes, totally flabbergasted when I walked out of there as to why these other officers had actually given me this information. Then when it actually came down to a record of interview with Mr Cousins, apparently they didn't say – didn't back up what they had previously told me.

And what possible consequences could that have to your ability to defend the charge?---Serious consequences because it's basically my word against their word. And I thought the information that I had supplied was correct and the versions that they supplied me was correct. And here I am being told that they now aren't backing up by version.

Now, that interview was in August 2016?---Yes.

Tell us, sergeant, how did it affect you physically afterwards?---I walked out of there – and this is where it commenced. It was always on my mind as to what's going to happen, why these officers hadn't supported me by basically telling the truth in their - in their versions.  I went home, told my wife as to what had gone on.  There was a bit of - over the weeks there was - I wouldn't say arguing but there was conversations between my wife and I as to why the Queensland Police Service is going so hard on me for reporting the 466, there has to be something more to it.  I had extreme difficulties trying to convince my wife that there wasn't anything more to this.  I had sleepless nights.  I would often wake up early morning, midnight and just stare at the ceiling and think "what if I had done something a little bit different, what if I had written something a little bit different, I wouldn't be in this position, what if I had just shut my mouth up and said nothing" and that went on for months and months and months.  It was affecting my sleep, affecting my home life.  I wasn't concentrating at work.  I would often come home totally exhausted even though I had only been sitting in a chair in front of a computer all day.  And I would fall asleep because of a lack of sleep from the night before. I hate to admit it but sometimes I had a bit of a cry to myself in private as to - just total frustration as to why I'm in this position.  Yes.[57]

  1. [58]
    As was observed by Martin J in Workers' Compensation Regulator v Langerak:[58]

The ultimate question under s 32(5)(a) is whether the injury, not any one stressor, arose out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with the worker's employment.  The determination made in respect of s 32(5)(a) is one made by weighing reasonable management action against other employment factors in light of the whole of the evidence.[59]

  1. [59]
    If there is evidence, no error of law occurs simply because the Commission prefers one version to another.  That is the Commission's function.  Even if the evidence is strongly one way an appellate court may not intervene simply because it reaches a different conclusion.[60]
  1. [60]
    Pincus JA in JM v QFG and KG[61] observed that:

It appears to me that a factual conclusion cannot be treated as infected by legal error unless it is clear, beyond serious argument, that it is wrong.  That this [appeal] court merely disagrees with a factual view ... does not show that a decision based upon it is legally erroneous.[62]

  1. [61]
    For the above reasons I do not accept the Appellant's submission that the Commission erred as a matter of fact in finding that the misstatements recorded at [122] of the Primary Decision was the major contributing factor to the Second Respondent's injury.
  1. [62]
    There is no discernible error in the Commissioner's reasons for making her findings.  The Commissioner took an orthodox approach to the consideration of the factual issues before her.  She otherwise directed herself correctly on the law.  There is no identified error.

Grounds 3 and 4 - the management action was taken in a reasonable way

  1. [63]
    In the Primary Decision the Commission found at [129] and [132] that the misstatements recorded at [122] revealed the investigation into the First Matter was not taken in a reasonable way.  The Appellant submits they were blemishes on an otherwise reasonable action. 
  1. [64]
    The Appellant submits that these findings involve an error of law as there was no evidence to justify such findings or alternatively the findings constitute errors of fact.  Underpinning these grounds of appeal is the proposition that the misstatement did not elicit any answers unfavourable to the Second Respondent and were made in the context of a complex and lengthy investigation. 
  1. [65]
    It is well accepted that reasonable management action does not have to be taken in a perfect way or without blemishes.[63]  However, management action is either reasonable or unreasonable.  There is no intermediate action.[64]  The question is whether the action was reasonable in all the circumstances.[65]
  1. [66]
    The correct approach to s 32 of the WCR Act was considered by Martin J in Simon Blackwood v Mahaffey.[66]  The task of the Commission is to determine whether or not employment was the major significant contributing factor to the injury.  When that is done the claim will usually be one for acceptance.  However, pursuant to s 32(5) of the WCR Act the claim might be excluded if there is "a psychiatric or psychology disorder arising out of, or in the course of, ... reasonable management action taken in a reasonable way by the employer in connection with the worker's employment".
  1. [67]
    The Commission found that it was the email investigation which was the stressor resulting in his injuries[67] and not the negative workplace behaviour enquiry as submitted by the Appellant.
  1. [68]
    The Commissioner concluded:
  1. [135]
    After carefully reviewing the evidence, I am not satisfied that the investigation was conducted in a reasonable way.  Whilst I note that an investigation may be imperfect without being considered unreasonable, the misrepresentation of evidence to the Second Respondent was a significant failure and could not constitute management action taken in a reasonable way.
  1. [69]
    In response to the Appellant's claim that the investigation was conducted reasonably, the Second Respondent submits the Commission found the investigation and the interview of 4 August 2016 were not conducted reasonably.  The evidence reveals this finding was justified and that the Appellant bears the onus of proof for the purpose of the appeal, and it could not discharge the onus.
  1. [70]
    In referring to the findings from paragraph [84] of the Primary Decision, the Second Respondent submits DSS Cousins' evidence was untrue.  At paragraph [85] the Commission said:
  1. [85]
    This testimony is not supported by the record of interviews with the officers, with SC Burke confirming she had spoken with the Second Respondent and SC House confirming that she had a discussion about the drugs issue.  SC House did not state the name of the person she discussed the matter with, but in the context of the interview subject it would seem most likely that it was the Second Respondent.  Detective Cousins did not ask SC House who she had discussed the issue with to determine if she had in fact spoken with the Second Respondent:

House: I thought she was on drugs myself.

Cousins: Yeah. that's fine.

House: I had a discussion about that.

Cousins: Listen to the questions and just try and stick to the scope.

  1. [71]
    The Second Respondent submits there were a number of "blemishes" in the investigation and in particular the summaries of evidence provided by DSS Cousins were rather narrow[68] and he appeared to cross-examine rather than ask the type of questions expected in an investigation.[69]
  2. [72]
    Under the heading, "[d]id the Appellant misrepresent evidence to the Second Respondent", the Second Respondent submitted in the course of the first interview, DSS Cousins told the Second Respondent that he had interviewed the five officers nominated and "[n]o one identified that she had a drug look ...  You, you appear to be the only one".[70]
  3. [73]
    The Commission after considering the records of interview found the officers interviewed had clearly given some corroboration to the Second Respondent's allegations[71] and at paragraph [129] stated, "[i]t is clear that the evidence provided by the other officers was misrepresented to the Second Respondent".
  4. [74]
    The Commission did not accept that the misrepresentation of evidence was 'no more than a blemish'.
  1. [75]
    DSS Cousins clearly misrepresented the evidence; the Second Respondent was not aware until after the second interview that he had in fact been supported; and the misrepresentation was significant and impacted his health.
  1. [76]
    What is argued by the Appellant is that the misstatements by DSS Cousins did not prejudice the Second Respondent as no concessions or admissions were elicited because of the misstatements.  The Commission at [129] rejected the submission that the absence of any prejudice in respect of the answers given was irrelevant.
  1. [77]
    The evidence of AC Codd made it clear he did not consider the interview was conducted appropriately and it would have a significant effect on a police officer.  In all the circumstances, the Commission found that the interview did not amount to reasonable management action.
  1. [78]
    The evidence of AC Codd in respect of this matter is as follows:

So when Detective Cousins says:

Now, in relation to my interviews with Julie Hauss, Emma Manshie, Ashley Duck, Kim Skinner, Louise Bourke, no one identified that she had a drug problem - drug look.

And then later he says:

You appeared to be the only one.

That's not fair?---That's not an accurate reflection of the interviews with those officers.  That's certainly the case.

It's not a process that you would want to see happen to a civilian, let alone one of your members?-

--It's not something I would like to see to happen to anybody.

No.  It's not good practice?---No.

And can I suggest this to you, that one of the reasons it's not good practice is that if you're a member and you're being investigated and you'd nominated five other members of the police service who might corroborate your concerns, to find out from a Detective Senior Sergeant that they had given you no corroboration, at all, it would heighten your sense of isolation?

It certainly would have an impact, and I think it would raise, in my mind, and through my experience, questions about then, the value and validity of any subsequent answers based on that statement.  I guess if I was thinking in another world that if somebody then went on to answer questions which were of material value, say, for a criminal matter, they were done so on the basis of an inaccuracy initiating that, I think, that would call into question the validity of that subsequent material.

As a legal matter? --- If it was in - if it was in the criminal sphere, that's for sure.  I know there's some degree of greater latitude when you're talking about discipline in administrative matters, but certainly not the case of fairness - procedural fairness and accuracy.[72] (emphasis added)

  1. [79]
    In Davis v Blackwood (Workers' Compensation Regulator)[73] Martin J said the following in relation to s 32(5)(a) of the WCR Act:

The task of the Commission when applying s 32(5) does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances. There may be any number of actions or combinations of actions which would satisfy s 32(5). The proper task is to assess the management action which was taken and determine whether it was reasonable and whether it was taken in a reasonable way. Sometimes, that may involve consideration of what else might have been done but that will only be relevant to whether what was done was, in fact, reasonable.[74]

  1. [80]
    Whether the management action is reasonable is a matter of fact.  Whether the management action was taken in a reasonable way by the employer would depend upon the management action, the facts and circumstances giving rise to the requirement for the management action, the way in which the management action impacts upon the worker and the circumstances in which the management action was implemented and any other matters relevant to determining whether the management action was taken in a reasonable way by the employer.[75]
  1. [81]
    It was accepted by the Appellant that work was the major significant contributing factor to the injury.  The only remaining issue before the Commission was whether or not the disorder had occurred during a particular action and the Appellant focused on the broader investigation.  Should a finding be made that the conduct was not reasonable, the carve out did not apply.  It was irrelevant to the Commission to determine whether the unreasonableness was the dominant cause of the disorder.
  1. [82]
    The Appellant submits where the investigation into the First Matter lasted approximately two and a-half months; involved the gathering of a substantial number of documents; involved taking of statements by email; conducting of at least nine in person interviews; and comprised a 28-page report could not possibly lead to a conclusion the entire investigation was not reasonable management action taken in a reasonable way.
  1. [83]
    On the Appellant's case, the question was, in the context of a lengthy and complicated investigation, a mistake by the investigator which, as is apparent from his evidence at trial, would appear to be an honestly, but wrongly, held view about what the effect of the evidence given in the investigation is, means that the entire investigation was not reasonably conducted.
  1. [84]
    It does not mean that when considering s 32(5)(a) of the WCR Act one must look at the management action as a series of related actions to assess whether or not reasonable management action has been taken in a reasonable way in connection with the worker's employment.  There may be one significant aspect of the management action taken which cannot be described as reasonable or reasonably taken or both.  If that event was a significant contributor to the worker's suffering a psychological or psychiatric injury and arose out of or in the course of the worker's employment, then unless there was something else, that is sufficient for the worker to succeed.
  1. [85]
    Following an extensive review of the authorities, Martin J in Blackwood v Mahaffey[76] wrote the following:

The history of the consideration given to s 32 (and its predecessor) is consistent with the application of the principle cited in Bird v The Commonwealth, namely, "where two constructions of a Workers' Compensation Act are possible that which is favourable to the worker should be preferred".  The construction favoured by this Court has been that a worker can suffer a compensable injury even if reasonable management action has had some causative effect.[77] (citation omitted)

  1. [86]
    His Honour went on to observe:

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 a 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 workers favour must follow.[78]

  1. [87]
    The Commissioner took a different view of the evidence.  The Commissioner did not accept, for the reasons given, that the interview was conducted in a reasonable way.  She was entitled to do that on the evidence before her.
  1. [88]
    In Sabo v Q Comp,[79] Hall P said the following:

In the absence of argument, I do not accept that the exercise of determining whether a managerial decision is "reasonable" and "taken in a reasonable way" is so like an exercise of discretion that an appellant seeking to reverse the decision by a tribunal of first instance, should be required to meet the standard set by the principles in House v The King at 505 per Dixon, Evatt and McTiernan JJ; compare Macauslane v Fisher Paykel Finance Pty Ltd (a "reasonable notice" case).  However, the exercise of assessing "reasonableness" for the purposes of s 32(5)(a) of the Act, is evaluative as well as judgmental.  There is room for difference of opinion.  The judicial officer dealing with the matter at first instance should be allowed a matter of latitude; compare IOOF Building Society Pty Ltd v Foxeden Pty Ltd at 554 to 556 a "reasonable notice" case. (citations omitted)

  1. [89]
    The arguments advanced by the Appellant instead of demonstrating that the Commission did not proceed according to law, have instead sought to re-agitate the merits of the case.
  1. [90]
    These grounds fail.

Orders

  1. [91]
    I make the following order:

The Appeal is dismissed.

Footnotes

[1]State of Queensland (Queensland Police Service) v Workers' Compensation Regulator & Anor [2021] QIRC 366.

[2][2019] ICQ 2.

[3][2019] QSC 16.

[4][2019] ICQ 2.

[5][2019] QSC 167.

[6][2022] ICQ 017 (Burton).

[7][2022] ICQ 017.

[8][2023] ICQ 007.

[9]Ibid.

[10]Turay v Workers’ Compensation Regulator [2023] ICQ 013.

[11]Nutley v President, Industrial Court (2019) 1 QR 354.

[12]Workers’ Compensation Regulator v Glass (2020) 4 QR 693 and Hetmanska v Q-COMP (2006) 183 QGIG 917; [2006] QIC 67.

[13]Workers' Compensation Regulator v Glass (2020) 4 QR 693.

[14]Purcell v Electricity Commission of New South Wales (1985) 59 ALJR 689, 692 and see also generally Compass Group Education Hospitality Services Pty Ltd v Commissioner of State Revenue (CSR) (2021) 8 QR 1.

[15]All of which appear in paragraph [28] of these reasons.

[16]Industrial Relations Act 2016, s 559.

[17]All of which appear in paragraph [30] of these reasons.

[18]Which appears at paragraph [61] of these reasons.

[19]Workers’ Compensation Regulator v Glass (2020) 4 QR 693.

[20](2019) 1 QR 354.

[21][2022] ICQ 017.

[22][2023] ICQ 002.

[23]Turay v Workers’ Compensation Regulator [2023] ICQ 013.

[24][2023] ICQ 013.

[25](2000) 203 CLR 172.

[26](2000) 203 CLR 172.

[27](2003) 214 CLR 118.

[28]Ibid.

[29](1986) 162 CLR 1.

[30]Ibid, 7.

[31]WC/2018/150 - Exhibit 2 - Report of Detective Senior Sergeant Cousins, 4 September 2016.

[32]WC/2018/150 - Exhibit 3 - Transcript of Interview between DSS Cousins and Second Respondent, 19 January 2017.

[33]Primary Decision, pp 6-8.

[34]CFMEU v BHP Coal Pty Ltd (2015) 230 FCR 298, [59]-[63].

[35]Yousif v Workers' Compensation Regulator [2017] ICQ 4, [15].

[36]Yousif v Workers' Compensation Regulator [2017] ICQ 4, [15].

[37][2020] ICQ 002, (Langerak).

[38][2020] ICQ 002, [71]-[74].

[39][2016] FCAFC 187, [91], [94].

[40]TR1-36, LL31-36.

[41]Amended Appendix B to the Statement of Facts and Contentions filed by the Second Respondent on 5 August 2020.

[42]TR4-6, LL25-37.

[43]TR4-7, LL25-34.

[44]Second Respondent's Submissions filed 9 March 2021.

[45]Appellant’s Submissions in reply filed 24 March 2021, [57].

[46]Exhibit 25.

[47]Ibid, page 4.

[48]TR4-21.

[49]TR4-22, LL5-15.

[50]TR4-23, L15.

[51]TR4-23, LL15-18.

[52]TR4-136, L38.

[53]TR4-22, L40.

[54]TR2-30, L30.

[55]TR1-134, L15.

[56]Primary Decision, [129], [133]-[135].

[57]TR4-20, L41-TR4-22, L16.

[58][2020] ICQ 2.

[59]Workers' Compensation Regulator v Langerak [2020] ICQ 2.

[60]Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 151 per Kirby P.

[61][2000] 1 Qd R 373, 391.

[62]Ibid.

[63]Bowers v WorkCover Queensland [2002] QIC 18; Delaney v Q-COMP Review Unit [2005] QIC 11.

[64]Keen v Workers Rehabilitation and Compensation Corp (1998) 71 SASR, p 57.

[65]Reid v Workers' Compensation Regulator [2016] QIRC 47, [185].

[66][2016] ICQ 10, [56].

[67]Primary Decision, [33].

[68]Primary Decision, [109]-[112].

[69]Primary Decision, [90].

[70]Primary Decision, [118].

[71]Primary Decision, [119]-[125].

[72]TR3-29, LL30-45.

[73][2014] ICQ 9, [47].

[74]Davis v Blackwood (Workers' Compensation Regulator) [2014] ICQ 9, [47].

[75] Keen v Workers Rehabilitation and Compensation Corp (1998) 71 SASR 42, 47-48; (1998) 196 LSJS 203, Lander J.

[76][2016] ICQ 10.

[77]Ibid, [54].

[78]Blackwood v Mahaffey [2016] ICQ 10, [57].

[79]Alex Sabo AND Q-COMP (C2010/46) - Decision http://www.qirc.qld.gov.au, [21].

Close

Editorial Notes

  • Published Case Name:

    State of Queensland (Queensland Police Service) v Workers' Compensation Regulator & Neville Stretton

  • Shortened Case Name:

    State of Queensland (Queensland Police Service) v Workers' Compensation Regulator & Neville Stretton

  • MNC:

    [2023] ICQ 15

  • Court:

    ICQ

  • Judge(s):

    O'Connor VP

  • Date:

    28 Jun 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
Allesch v Maunz (2000) 203 CLR 172
3 citations
Jump To
Cite 1 - (2000) 203 CLR 172
Cite 2 - (2000) 203 CLR 172
Cite 3 - (2000) 203 CLR 172
Azzopardi v Tasman UBE Industries P/L (1985) 4 NSWLR 139
2 citations
Jump To
Cite 1 - (1985) 4 NSWLR 139
Cite 2 - (1985) 4 NSWLR 139
Belal Yousif v Workers' Compensation Regulator [2017] ICQ 4
3 citations
Jump To
Cite 1 - [2017] ICQ 4
Cite 2 - [2017] ICQ 4
Cite 3 - [2017] ICQ 4
Bowers v WorkCover Queensland (2002) QIC 18
2 citations
Jump To
Cite 1 - (2002) QIC 18
Cite 2 - (2002) QIC 18
Burton v Workers' Compensation Regulator [2022] ICQ 17
4 citations
Jump To
Cite 1 - [2022] ICQ 17
Cite 2 - [2022] ICQ 17
Cite 3 - [2022] ICQ 17
Cite 4 - [2022] ICQ 17
Compass Group Education Hospitality Services Pty Ltd & Anor v Commissioner of State Revenue(2021) 8 QR 1; [2021] QCA 98
2 citations
Jump To
Cite 1 - (2021) 8 QR 1
Cite 2 - (2021) 8 QR 1
Coulton v Holcombe (1986) 162 CLR 1
2 citations
Jump To
Cite 1 - (1986) 162 CLR 1
Cite 2 - (1986) 162 CLR 1
Davis v Blackwood [2014] ICQ 9
3 citations
Jump To
Cite 1 - [2014] ICQ 9
Cite 2 - [2014] ICQ 9
Cite 3 - [2014] ICQ 9
Delany v Q-Comp [2005] QIC 11
2 citations
Jump To
Cite 1 - [2005] QIC 11
Cite 2 - [2005] QIC 11
Fair Work Ombudsman v Eastern Colour Pty Ltd [2016] FCAFC 187
2 citations
Jump To
Cite 1 - [2016] FCAFC 187
Cite 2 - [2016] FCAFC 187
Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298
2 citations
Jump To
Cite 1 - (2015) 230 FCR 298
Cite 2 - (2015) 230 FCR 298
Fox v Percy (2003) 214 CLR 118
2 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Hetmanska v Q-COMP (2006) 183 QGIG 917
2 citations
Jump To
Cite 1 - (2006) 183 QGIG 917
Cite 2 - (2006) 183 QGIG 917
Hetmanska v Q-COMP [2006] QIC 67
2 citations
Jump To
Cite 1 - [2006] QIC 67
Cite 2 - [2006] QIC 67
JM v QFG[2000] 1 Qd R 373; [1998] QCA 228
2 citations
Jump To
Cite 1 - [2000] 1 Qd R 373
Cite 2 - [2000] 1 Qd R 373
Keen v Workers Rehabilitation and Compensation Corp (1998) 196 LSJS 203
2 citations
Jump To
Cite 1 - (1998) 196 LSJS 203
Cite 2 - (1998) 196 LSJS 203
Keen v Workers' Rehabilitation and Compensation Corporation (1998) 71 SASR 42
2 citations
Jump To
Cite 1 - (1998) 71 SASR 42
Cite 2 - (1998) 71 SASR 42
Khan v Workers' Compensation Regulator [2023] ICQ 2
2 citations
Jump To
Cite 1 - [2023] ICQ 2
Cite 2 - [2023] ICQ 2
Nutley v President of the Industrial Court of Queensland(2019) 1 QR 354; [2019] QSC 167
3 citations
Jump To
Cite 1 - [2019] QSC 167
Cite 2 - (2019) 1 QR 354
Cite 3 - (2019) 1 QR 354
Nutley v Workers' Compensation Regulator [2019] ICQ 2
3 citations
Jump To
Cite 1 - [2019] ICQ 2
Cite 2 - [2019] ICQ 2
Cite 3 - [2019] ICQ 2
Purcell v Electricity Commission of New South Wales (1985) 59 ALJR 689
2 citations
Jump To
Cite 1 - (1985) 59 ALJR 689
Cite 2 - (1985) 59 ALJR 689
Reid v Workers' Compensation Regulator [2016] QIRC 47
2 citations
Jump To
Cite 1 - [2016] QIRC 47
Cite 2 - [2016] QIRC 47
Schlumberger Australia Pty Ltd v Workers' Compensation Regulator [2023] ICQ 7
2 citations
Jump To
Cite 1 - [2023] ICQ 7
Cite 2 - [2023] ICQ 7
State of Queensland (Queensland Police Service) v Workers' Compensation Regulator [2021] QIRC 366
2 citations
Jump To
Cite 1 - [2021] QIRC 366
Cite 2 - [2021] QIRC 366
Suncorp-Metway Ltd v Nagatsuma [2019] QSC 16
2 citations
Jump To
Cite 1 - [2019] QSC 16
Cite 2 - [2019] QSC 16
Turay v Workers' Compensation Regulator [2023] ICQ 13
4 citations
Jump To
Cite 1 - [2023] ICQ 13
Cite 2 - [2023] ICQ 13
Cite 3 - [2023] ICQ 13
Cite 4 - [2023] ICQ 13
Workers' Compensation Regulator v Glass(2020) 4 QR 693; [2020] QCA 133
4 citations
Jump To
Cite 1 - (2020) 4 QR 693
Cite 2 - (2020) 4 QR 693
Cite 3 - (2020) 4 QR 693
Cite 4 - (2020) 4 QR 693
Workers' Compensation Regulator v Langerak [2020] ICQ 2
5 citations
Jump To
Cite 1 - [2020] ICQ 2
Cite 2 - [2020] ICQ 2
Cite 3 - [2020] ICQ 2
Cite 4 - [2020] ICQ 2
Cite 5 - [2020] ICQ 2
Workers' Compensation Regulator v Mahaffey [2016] ICQ 10
4 citations
Jump To
Cite 1 - [2016] ICQ 10
Cite 2 - [2016] ICQ 10
Cite 3 - [2016] ICQ 10
Cite 4 - [2016] ICQ 10

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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