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Gold Coast City Council v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 162

Gold Coast City Council v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 162

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Gold Coast City Council v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 162

PARTIES:

Gold Coast City Council

(Appellant)

v

Simon Blackwood (Workers' Compensation Regulator)

(Respondent)

CASE NO:

WC/2013/229

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

3 September 2015

HEARING DATES:

28, 29, 30, 31 January 2014, 20, 21 March 2014, 21 July 2014

1 August 2014 (Respondent's supplementary submissions and reply)

5 August 2014 (Appellant's supplementary submissions and reply)

HEARD AT:

Brisbane

MEMBER:

Industrial Commissioner Neate

ORDERS:

  1. The appeal is allowed.
  2. The decision of the Workers' Compensation Regulator is set aside.
  3. The application for workers' compensation by Karen Ann Burton is not one for acceptance.
  4. The Respondent is to pay the Appellant's costs of and incidental to the appeal to be agreed or, failing agreement, to be subject of a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION - psychological injury - whether worker's employment was a significant contributing factor to her injury - whether reasonable management action taken in a reasonable way - appellant bears onus of proof

CASES:

Adelaide Stevedoring Company Ltd v Forst (1940) 64 CLR 538

Avis v WorkCover Queensland (2000) 165 QGIG 788

Bowers v WorkCover Queensland (2002) 170 QGIG 1

Browne v Dunn (1893) 6 R 67

Davidson v Blackwood [2014] ICQ 008

Davis v Blackwood [2014] ICQ 009

Delaney v Q-COMP Review Unit (2005) 178 QGIG 197

Dickinson v The Motor Vehicle Insurance Trust (1987) 163 CLR 500

Gaudry v Pacific Coal P/L [1996] QCA 525

Hansen v WorkCover Queensland (Unreported, Industrial Magistrates Court, Industrial Magistrate Taylor, 15 November 2001)

Lackey v WorkCover Queensland (2000) 165 QGIG 22

Mayo v Q-COMP (2004) 177 QGIG 667

Pollock v Wellington (1996) 15 WAR 1

Prizeman v Q-COMP (2005) 180 QGIG 481

Qantas Airways Limited v QComp (2006) 181 QGIG 301

Q-COMP v Foote (2008) 189 QGIG 539

Q-COMP v Glen Rowe (2009) 191 QGIG 67

Q-COMP v Hohn (2008) 187 QGIG 139

R v Turner [1975] QB 834

Re Yu and Comcare [2010] AATA 960

Sheridan v Q-COMP (2009) 191 QGIG 13

State Government Insurance Commission v Stevens Brothers Pty Ltd & Anor (1984) 154 CLR 552

State of Queensland (Queensland Health) v QComp and Beverley Coyne (2003) 172 QGIG 1447

Svenson v Q-COMP (2006) 181 QGIG 629

Versace v Braun (2005) 178 QGIG 315

WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6

WorkCover Queensland v Kehl (2002) 170 QGIG 93

APPEARANCES:

Mr P.B O'Neill, counsel instructed by Clayton Utz

Ms D. Callaghan, counsel instructed directly by the Respondent

Decision

  1. [1]
    The Gold Coast City Council ("the Appellant," "Council") has appealed against a decision of the Review Unit of Q-COMP (now Simon Blackwood, Workers' Compensation Regulator) ("the Respondent") to accept an application by Karen Ann Burton for workers' compensation in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act").
  1. [2]
    The Appellant seeks orders from the Queensland Industrial Relations Commission ("the Commission") that:
  1. (a)
    the appeal be allowed;
  1. (b)
    the Respondent's decision of 13 June 2013 be set aside and substituted with a decision to reject Mrs Burton's application; and
  1. (c)
    the Respondent pay the Appellant's costs of and incidental to the appeal.

Background

  1. [3]
    Mrs Burton has been employed by the Appellant since 1 October 1997, most recently as the Senior Road Safety Officer for approximately 10 years.  Her husband, Ian Burton, was a Project Officer - Road Safety with the Appellant from 2009 to 2012.  They were the only two officers in the Road Safety Unit ("the Unit").  The Unit was part of the Traffic Management and Operations - Engineering Services Branch ("the Branch").
  1. [4]
    In September 2010, Graham Bilton, who was the Manager of the Branch, was seconded to the Council's Light Rail Project.  As a consequence, Tyrone Gerada took over this role, initially in an acting capacity.
  1. [5]
    Mrs Burton reported directly to Mr Bilton and then to Mr Gerada.
  1. [6]
    On 21 March 2011, Mrs Burton fell and sustained a work-related injury to her right ankle, resulting in a successful claim for workers' compensation.
  1. [7]
    Mrs Burton required relatively little time off work because of the ankle injury (22 to 28 March 2011), but required ongoing medical treatment and remained on workers' compensation for this reason.
  1. [8]
    Mrs Burton, Mr Gerada and Louise Cook (the Council's Rehabilitation Case Manager) met to discuss the workers' compensation claim on 16 May 2012.  Following the meeting, Mrs Burton became distressed, and required transportation by Queensland Ambulance Service to the Allamanda Private Hospital where she was diagnosed with a pseudoseizure due to stress.
  1. [9]
    On 24 September 2012, Mrs Burton lodged an application for compensation in respect of a psychological injury said to have been sustained by her on 16 May 2012 as a consequence of "unreasonable management action towards me, in relation to my workplace injury" (Exhibit 4). By letter dated 10 January 2013, Mrs Burton was advised by the insurer that her application was rejected (Exhibit 2).
  1. [10]
    An application for claim review dated 10 April 2013 was made to the Respondent (Exhibit 3). The review decision, dated 7 June 2013 and sent to Mrs Burton by letter on 13 June 2013 (Exhibit 4), was that the Respondent had:
  1. (a)
    set aside the decision of the Appellant to reject Mrs Burton's application for compensation; and
  1. (b)
    substituted a new decision to accept the application in accordance with s 32 of the Act.

 It is against the review decision that the current appeal is made.

 Legal requirements

  1. [11]
    The appeal has to be decided by reference to s 32 of the Act.  At the time when Mrs Burton was diagnosed as having a psychological injury the subject of the application, the relevant subsections provided:

  "(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.

  …

(5)Despite subsections (1) and (3), 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. (b)
    the worker's expectation or perception of reasonable management action being taken against the worker;

   …

Examples of actions that may be reasonable management actions taken in a reasonable way -

action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker

a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment."

  1. [12]
    For Mrs Burton to have a valid application for compensation the following elements have to be established:
  1. (a)
    that Mrs Burton was a "worker" for the purposes of s 11 of the Act;
  1. (b)
    that Mrs Burton sustained a "personal injury";
  1. (c)
    that the injury arose "out of, or in the course of," her employment;
  1. (d)
    that her employment was "a significant contributing factor to the injury;" and
  1. (e)
    that her claim is not excluded by the operation of s 32(5)(a) or (b) of the Act.

 The issues

  1. [13]
    There is no dispute, and I proceed on the basis, that:
  1. (a)
    Mrs Burton is a "worker" for the purposes of the Act;
  1. (b)
    Mrs Burton sustained a psychological injury.
  1. [14]
    There is some issue whether the personal injury arose "out of, or in the course, of" Mrs Burton's employment.  At the hearing, the main issues between the parties were:
  1. (a)
    whether Mrs Burton's employment was a significant contributing factor to her injury; and
  1. (b)
    whether Mrs Burton's psychological disorder arose out of, or in the course of, "reasonable management action taken in a reasonable way" by the Appellant in connection with her employment.

 Onus of proof and relevant evidence

  1. [15]
    The Appellant carries the burden of proof on the balance of probabilities.[1] For the appeal to succeed, the Appellant must prove, on the balance of probabilities, that the claim for compensation should be rejected because:
  1. (a)
    Mrs Burton's employment was not a significant contributing factor to her injury; or
  1. (b)
    Mrs Burton's injury arose out of, or in the course of, reasonable management action taken in a reasonable way by the Appellant in connection with her employment; or
  1. (c)
    Mrs Burton's injury arose out of, or in the course of, her perception of reasonable management action being taken against her.

Workplace events and interactions that preceded Mrs Burton's psychological injury

  1. [16]
    Evidence was given about a range of factors and events (sometimes referred to as stressors) that preceded, or are alleged to have occurred before, Mrs Burton's decompensation on 16 May 2012.  Some are discrete, others are inter-related.  They include:
  1. (a)
    change of manager of the Branch when Mr Gerada commenced as acting manager;
  1. (b)
    the content and conduct of meetings between Mr Gerada and Mr and Mrs Burton (including Mr Gerada's attitude to Mr and Mrs Burton working together, his reference to the perception that they were isolating themselves from other employees in the Branch, and the possible transfer of Mr Burton to another part of the Council's organisation);
  1. (c)
    Mr Gerada's requirements for monthly (and then fortnightly) meetings with Mrs Burton, and his requirements of her in relation to those meetings;
  1. (d)
    Mr Gerada's management style;
  1. (e)
    Mrs Burton's injury to her right ankle and subsequent treatment of it and issues about it (including Mr Gerada's comments about the ongoing treatment of Mrs Burton's ankle, and a conversation in the open office between Mr Gerada and Mr Burton on 3 May 2012); and
  1. (f)
    meetings between Mr Gerada and Mrs Burton on 15 May 2012; and between Mr Gerada, Ms Cook and Mrs Burton on 16 May 2012.   

Where different accounts of a particular meeting were given at the hearing, the evidence of each is summarised in these reasons.

  1. [17]
    Before considering the evidence in relation to those events and factors, it is appropriate to note the qualifications and working relationship of Mrs and Mr Burton.
  1. [18]
    Karen Burton: Mrs Burton has a Certificate in Road Safety and a Diploma of Road Safety, and planned to commence a research master's degree on the effects of advertising for road safety. She commenced work with the Appellant on 1 October 1997 as a Traffic Engineering Officer ("TEO") and, after approximately four years, took on the role of Senior Road Safety Officer, a Level 7 position.  While employed in the latter role, she was associated with awards granted to the Appellant for road safety programs (including a program called Hands Up for Road Safety, and the SMART[2] program which delivered five levels of motor cycle training to motorcyclists).  Mrs Burton said that before September 2010:

"I was enjoying my work.  I found it fulfilling.  I was making a difference which was my job to get out there in the community and make a difference to try and stop crashes, stop people getting hurt, change road user behaviour and assist the community."[3]

  1. [19]
    Ian Burton: Mr Burton commenced work as a permanent employee of the Appellant in January 2005 as a TEO.  In about August or September 2009, he moved to the Road Safety Unit because he and Mrs Burton "were passionate about road safety and people safety."  He was appointed at Mrs Burton's suggestion.  His position was at Level 5 and reported to the Senior Road Safety Officer (Exhibit 27).  Before joining the Unit he had assisted Mrs Burton in moving heavy equipment involved in road safety initiatives.  That earlier work, and his appointment to the Unit, was agreed to or facilitated by the then manager, Mr Bilton.  Mr and Mrs Burton had worked together previously in businesses before moving to the Gold Coast and being employed by the Appellant. Mr Burton had shown interest in some of the reports that Mrs Burton had compiled, particularly in relation to changing behaviour through initiatives.

 Change of manager in September 2010

  1. [20]
    In September 2010, Mr Gerada was seconded to the position of Manager of the Branch to replace Mr Bilton, who had been seconded to the Light Rail Project.  Mr Gerada's secondment was initially for a period of 12 months.  That was extended because Mr Bilton's secondment to the Light Rail Project was also extended.  Mr Gerada was appointed permanently to the position in October 2013.  Before then, he expected that Mr Bilton would return.
  1. [21]
    Mr Gerada has a Certificate of Technology in civil engineering and has received training, among other things, in relation to project management.  He has been employed by the Appellant in various roles since 1988, becoming executive coordinator for the roads portfolio.  He held that role for about six years prior to the secondment, and was responsible for supervising and managing about 15 professional staff. He attended training courses provided by the Council (Exhibit 7), but acknowledged that his training focused on managing projects and resources, achieving project outcomes and timelines rather than good people skills or communicating with people.
  1. [22]
    The Branch had a total of about 55 staff and comprised three sections (each with a coordinator at Level 8):
  1. (a)
    Traffic Management and Investigations section, with about nine staff (some of whom were TEOs) for whom Gordon Pincott was the coordinator;
  1. (b)
    Network Logistics section, coordinated by Ron King; and
  1. (c)
    Traffic Works and Operation section, with about 36 staff including crews at the Southport depot and the Miami depot, coordinated by Gary Quilliam,

and the Road Safety Unit, a two-person unit led by Mrs Burton to whom Mr Burton reported.  Mr Gerada understood that they were married to each other, having been advised of that through the handover from Mr Bilton.  He said that he had no significant concern that they were married.

  1. [23]
    Mr Gerada was to manage the Branch for the duration of Mr Bilton's secondment.  In his previous role, Mr Gerada had "quite a bit" of involvement with the Branch, particularly with Mr Bilton and Mr Pincott in relation to particular projects.  Mr Gerada had a friendly relationship with Mr Bilton, having liaised with him for "quite a number of years" and having a common interest in music.  He had not had any previous involvement with either Mrs Burton or Mr Burton.
  1. [24]
    Mr Gerada had two handover meetings with Mr Bilton at which they discussed a range of issues and concerns.  Mr Bilton mentioned that the Road Safety Unit was, or had been, involved in:
  1. (a)
    nominating for an international award for the SMART program, that was initiated by the Appellant's Director of Engineering in response to excessive numbers of deaths of motorcyclists at the city of the Gold Coast and on surrounding roads;
  1. (b)
    a speed awareness trailer program, promoting the deployment or installation of radar devices that gave courtesy speed check information to drivers; and
  1. (c)
    the Hands Up for Road Safety program featuring Zero the Hero, a bird character that danced with musicians and singers to focus on teaching children about road safety.

Mr Gerada participated in the traffic management liaison group organised by Mr Bilton in relation to the construction of the light rail, and consequently would occasionally have discussions with Mr Bilton after meetings of that group.

  1. [25]
    According to Mr Gerada, his role was to keep the Branch "ticking over" in readiness for Mr Bilton's return after about 12 months.  Accordingly, he was concerned to ensure that programs were delivered and that budgets were formulated on time and performance appraisals were delivered on time, as well as the day-to-day management of the Branch.  When he came into the acting Manager's role, he did not have instructions or any intention to make structural changes to the operations of the Branch.
  1. [26]
    Soon after his appointment as acting Manager, Mr Gerada held an introductory meeting with all of the coordinators and Mrs Burton.   He subsequently met separately with each of the unit coordinators in his Branch.
  1. [27]
    Mr Gerada gave evidence that in the early stage of his role he asked many detailed questions of all the staff.  He felt that if he did not ask detailed questions he would be in a "very awkward position to be able to manage a section trying to catch up where Graham [Bilton] left off, and provide to the director and council, to the best of my ability, a seamless transition between managers."  He wanted to be able to respond in a timely manner to phone, text or email messages from his director. Consequently he "needed to come up to speed with everything that was going on within the section."

 Mr Gerada's first meeting with Mrs Burton

  1. [28]
    Mr Gerada's evidence: Mr Gerada said that he did not remember the detail of the meeting very well, but recalled that he and Mrs Burton talked in detail about the programs in which the Road Safety Unit was involved.  Mrs Burton asked him whether he would support the Unit and its expansion and looking into other initiatives.  Her view was that she would like to expand the Unit, and had aspirations of being promoted to coordinator.  Mr Gerada responded by saying that initially they needed a plan to look at how the Unit could expand and to look at what work Mrs Burton was doing at the time, given that she was at Level 7 and coordinators are at Level 8.  According to Mr Gerada, he "needed to get a bit of a feel for the type of work; whether she was doing low-level administrative work, whether she was focused on higher level work."
  1. [29]
    Mrs Burton's evidence: At her initial meeting with Mr Gerada, Mrs Burton outlined the program and initiatives in which the Road Safety Unit was involved.  She recalled that Mr Gerada was "quite surprised about the extent of the initiatives" and wanted information about how they operated and how much they cost.  Mrs Burton confirmed in her evidence that the only program operating at that time was the SMART motorcycle training program (which operated every second weekend between March and September).  The plan from that meeting was that Mr Gerada was to consider possibly obtaining additional budget allocation so those other programs could become operational again.  Mrs Burton was to put together a submission to go to Council (including an estimate of cost and a plan for the rollout of these programs) to justify why those programs should be run again.
  1. [30]
    Mrs Burton gave evidence that:
  1. (a)
    the SMART program was taking a lot of their time (e.g., advertising and organising it, taking bookings, ensuring that people who were booked paid their money and that they were in the correct course), and they put a few thousand people through that program;
  1. (b)
    the speed awareness trailer program was not operational, but councillors were asking for it to be back online and, having regard to their bookings, the Burtons advised Mr Gerada that they could run the program for approximately two days each week (although some budget would have to be allocated to it); and
  1. (c)
    the Hands Up for Road Safety program had been shelved "for some time" (possibly five years) and, although a small amount of funding had been allocated, that funding was devoted to the SMART program "because it was huge."
  1. [31]
    When they were working every second weekend on the SMART program, Mr and Mrs Burton were claiming overtime.
  1. [32]
    In cross-examination about that first meeting, Mrs Burton:
  1. (a)
    agreed that it was apparent to her that Mr Gerada knew that Mr Burton, who was working in the Project Officer role, was her husband;
  1. (b)
    disagreed that Mr Gerada made no adverse comments about that;
  1. (c)
    did not recall questioning Mr Gerada about whether he would support the Road Safety Unit and its expansion;
  1. (d)
    disagreed that she indicated to Mr Gerada that she had aspirations about expanding the Road Safety Unit and moving up a level to become a coordinator (although she agreed that she indicated to him that she had aspirations of going up to a Level 8 position);
  1. (e)
    said they had discussed having someone else come into the Road Safety Unit (or outsource to outside service providers) to help organise the other programs that were not operating at that time because it was difficult for her and Mr Burton to do all those programs together;
  1. (f)
    agreed that Mr Gerada's perspective was to bring additional resources from within the Council into the Road Safety Unit, that he had spoken of a planned expansion, and that he said he would look into expanding the Unit;
  1. (g)
    agreed that there had to be some investigation as to whether further budgetary resources would be provided, and that Mr Pincott (rather than Mrs Burton) had control over the budget to be allocated for the Road Safety Unit.

Mrs Burton agreed that approval of funding for road safety initiatives was subject to the Council's endorsement of the program, and that was not something within Mr Gerada's control, although he could support (or not support) a recommendation.

 Mr Gerada's first meeting with Mr and Mrs Burton

  1. [33]
    Mrs Burton's evidence: According to Mrs Burton, she and Mr Burton met with Mr Gerada soon after his appointment.  Mr Gerada asked "Who was the idiot who put you together?" because they are married, and said that there needed to be changes because it was not right for them to be working together.  Mrs Burton said that she found Mr Gerada's manner "very aggressive towards us."  She could not understand the reason for that because, in her view:

"our work was successful.  We were making real change.  We were working together.  There weren't any problems that I could see, so I was quite surprised.  In fact, I was put aback a bit as to why he should say that to us."[4]

  1. [34]
    Mrs Burton also said that at that meeting Mr Gerada "threatened to move Ian out to the traffic engineering work that he had previously been doing before he came to join me in the road safety unit."[5]
  1. [35]
    When cross-examined in relation to this meeting, Mrs Burton was unable to recall the purpose of the meeting or whether the statement about her and Mr Burton working together might have been made at the meeting that included Mr Pincott.
  1. [36]
    Mr Gerada's evidence:  Mr Gerada did not recall having that meeting, and denied making a comment to the effect "Who was the idiot that put you two together, as you are married?"  He said that he knew of the structure before taking on the role of acting Manager.  He had a lot of respect for Mr Bilton, who had approved the structure, and would not describe him as an idiot.
  1. [37]
    Mr Burton's evidence: Mr Burton stated that he and Mrs Burton met with Mr Gerada and discussed what they were trying to achieve in road safety.  The meeting went for about 45 minutes to one hour.  At the start of the meeting, Mr Gerada asked "Who's the idiot who put you together?"  Mr Burton understood Mr Gerada to be inferring that they should not be working together because they are married.  That matter was not discussed any more at that time, but Mr and Mrs Burton apparently "just both looked at each other with a bit of shock" because they "classed [them]selves as having a professional relationship at work."
  1. [38]
    Mr Quilliam's evidence: Mr Quilliam said that at no time in the period from September 2010 until May 2012 did he hear Mr Gerada make any adverse comment about Mr and Mrs Burton working together as a married couple.
  1. [39]
    Mr Pincott's evidence: Mr Pincott did not recall Mr Gerada saying to him or in his hearing anything critical or adverse about Mr and Mrs Burton working together.

Meeting between Mr Gerada, Mr and Mrs Burton and Mr Pincott

  1. [40]
    Mr Gerada's evidence: Mr Gerada gave evidence that he met with Mr and Mrs Burton and Mr Pincott within weeks after his first individual meeting with Mrs Burton.  The purpose of the meeting was to work out ways in which resources could be reallocated to assist with the expansion that Mrs Burton had suggested.  There was suggestion that an officer at Level 4, Mark Dileo, could assist with some of the initiatives and be available to the Burtons if they were busy.  That work could have included responding to comments and deleting inappropriate comments on the Facebook page connected with the SMART program (an aspect of that program that had been created on the premise that it would not take much time).  So far as Mr Gerada was aware, Mr Dileo had no experience in relation to road safety.  Initially Mr Dileo could transition into the Unit under the guidance of Mr Burton.  However, in order to add value, he would need to have some exposure to the road safety research and initiatives that Mrs Burton was overseeing.  Mr Gerada saw that there was no backfill option when Mr and Mrs Burton were either ill or on any sort of leave.  It was suggested that the person would come out of Mr Pincott's area and would keep the initiatives going (e.g. by dealing with telephone calls and other enquiries) while Mr and Mrs Burton were on leave.  Mr Pincott supported extra resources being provided to the Road Safety Unit.
  1. [41]
    According to Mr Gerada, it would be untrue to suggest that he and Mr Pincott became agitated or aggressive during that meeting.  Rather, the discussion was centred on explaining to Mr and Mrs Burton how Mr Gerada and Mr Pincott could assist with expanding the Road Safety Unit.  He recalled that they explained that simply approaching corporate for a brand-new resource was unlikely to be approved, but that bringing someone from within the Branch (and offering that person an opportunity to expand their skills in the realm of road safety, and providing Mr and Mrs Burton with assistance with their lower level work and backfilling while they were away) was "the way to go."
  1. [42]
    Mrs Burton "wasn't happy with that suggestion at all."  She mentioned that training Mr Dileo, and Mr Gerada making her train somebody, could potentially lead to stress on her part.  She said words to the effect that, "I've been there, done that.  I'm not doing that again."  According to Mr Gerada, Mrs Burton knew Mr Dileo.  She did not express a preference for another person.
  1. [43]
    Mr Gerada said that, although Mrs Burton told him that she had no training qualifications, he knew that she had trained two other people.  However, given the reaction he received from Mr and Mrs Burton, the proposal to provide extra resourcing to the Road Safety Unit was put on hold.
  1. [44]
    Mr Gerada did not recall a proposal being put by him or Mr Pincott that Mr Burton be transferred permanently from the road safety role back to a TEO position.
  1. [45]
    Mrs Burton's evidence: In her evidence in chief, Mrs Burton recalled her second meeting with Mr Gerada, at which Mr Pincott and Mr Burton were also present.  She said that the meeting was about the "transfer or suggestion of transfer" of Mr Burton from the Road Safety Unit back to his traffic engineering work, and for Mrs Burton to train another officer in the branch, Mark Dileo, to become a road safety officer and work with her.  According to Mrs Burton, both Mr Pincott and Mr Gerada were "quite agitated."  She said to Mr Gerada that she did not have the time to train somebody new and keep up with corporate expectations that she needed to address and also the running of road safety initiatives.  She said that she was "quite stressed about the thought of taking someone new" who had no road safety experience.  She felt that to take on the task of training somebody to do quality research for her "would be very daunting and very time-consuming."  Mrs Burton gave evidence that she is not a trainer, and has not been trained to be a trainer.  She could show people what to do (as she had done with two other people previously when training them in operating a road safety initiative), but she had not trained people in doing research and applying that research to the production of road safety initiatives.  Her submission was "basically rejected" and there was talk of further discussion about this later on.
  1. [46]
    When cross-examined in relation to this meeting, Mrs Burton agreed that the meeting was a follow-up from the one-on-one meeting she had with Mr Gerada where there had been a discussion about the expansion of the Road Safety Unit.  She disagreed, however with the suggestion that the purpose of the meeting was for Mr Gerada and Mr Pincott to propose (at least on a temporary basis initially) providing an additional resource from the traffic engineering unit to the Road Safety Unit.  In particular, the proposal was that a Level 4 employee would be under Mr Burton (who was at Level 5) while Mrs Burton was at Level 7.  Rather, she insisted that Mr Gerada wanted to move Mr Burton back into his previous position because they were short of TEOs and put the Level 4 position in the Road Safety Unit.  Mrs Burton said that she "was resistant to losing a resource that knew what he was doing at that time, in the face of having to train someone new from scratch, and not have that resource working with me at all."  Although she had trained two previous project officers, Mrs Burton said that (given the nature and extent of her work in the period after the SMART program concluded in September) she did not have the time to provide training to Mr Dileo, and she "made that very clear to them both in the meeting."
  1. [47]
    Mrs Burton also disagreed that Mr Pincott was trying to get her to accept the proposal for the extra resource being provided, and he did not say, in effect, that:
  1. (a)
    if she had the extra resource, the other road safety initiatives that were shelved at that time or other things that she wanted to develop could be worked on; and
  1. (b)
    having the additional person working in a temporary role would give force or strength to the request for an additional person to be appointed in a full-time capacity.
  1. [48]
    According to Mrs Burton's evidence in chief, "things became very strained" after that meeting, but the Burtons continued with their work because they were quite busy (it was "full on") and they did not have a choice.  Mr Gerada wanted to know "further information about many and various" matters, and that was "like a constant update all the time."
  1. [49]
    Mr Burton's evidence: Mr Burton recalled a meeting involving himself and Mrs Burton, Mr Gerada and Mr Pincott.  According to Mr Burton, Mr Gerada and Mr Pincott "were both just inferring that we should train somebody else in this section … to take over the job" and they wanted him, or he and Mrs Burton, to "train somebody else to take over the job."  They also wanted to move Mr Burton "back out into traffic engineering."  At least that was "the inference they gave" Mr Burton. Mr Pincott said that Mr Burton would "still be doing SMART," which Mr Burton understood to mean that he would be moving but would still be doing the road safety initiative that he and Mrs Burton had put together.  Mr Burton also understood that Mark Dileo would be coming into the Road Safety Unit because Mr Pincott asked Mr Burton to take Mr Dileo out and show him what Mr Burton was doing (including by letting him hold the end of the tape).  The matter was left there, although Mr and Mrs Burton were not happy about it.  They then saw Mr Crutch, the union representative, and explained what had happened.  (That conversation is considered below).
  1. [50]
    In cross-examination, Mr Burton disagreed with the proposition that the proposal put at that meeting (at least initially on a temporary basis) was for an additional staff member to be provided to the Road Safety Unit and trained.  Rather, he said he concluded from "quite clear" comments provided by Mr Pincott that someone would come into the Road Safety Unit to replace him.  He characterised the proposal about the additional resource for the Unit being trained as a poorly or underhanded way of having him removed.
  1. [51]
    Mr Burton did not recall Mr Pincott encouraging them to accept the offer of the additional resource as a way of providing them with an opportunity to develop road safety the initiatives that were shelved or had not been developed, and as a means of helping to build a case for an additional permanent position in the Road Safety Unit.
  1. [52]
    Mr Burton agreed that he remained in his role as the Project Officer - Road Safety from September 2010, throughout the period when Mrs Burton went on sick leave and after she returned to work in about March 2013 until his employment with the Council ended. Indeed he agreed that they were both still working together even though the Unit was transferred to another section of the Council in March 2013.  At no time was he required to return to the traffic engineering section to back-fill a position.
  1. [53]
    In cross-examination, Mr Burton agreed that he and Mrs Burton had spoken about expanding the Unit and possibly that she had aspirations of being promoted to a coordinator level.  However, he was unaware about whether Mrs Burton had spoken separately to Mr Gerada about that matter not long after he commenced as acting Manager.
  1. [54]
    Mr Pincott's evidence: Mr Pincott recalled attending a meeting in 2010 with Mr Gerada and Mr and Mrs Burton about resourcing for the Road Safety Unit.  Although Mrs Burton had initiatives to be done or that were ongoing (e.g. the speed awareness trailer program), the Unit had only sufficient resources to do one major initiative.  According to Mr Pincott, they discussed obtaining an additional person on a temporary basis to assist them to get other initiatives going again, but Mrs Burton objected on the basis that she could not get the right person to do the role.  On that occasion, Mr Pincott tried to convince her that if she took on a temporary person, the initiative would be able to recommence and that would give some substance to a request for another permanent position.  Mrs Burton could be involved in the selection process in relation to the permanent appointees.  Mr and Mrs Burton did not agree to the extra resource being provided because it (possibly another TEO from the office) would not be the right person.  Mr Pincott did not recall any discussion about training a new person, but said that the extra resource was not provided. Nor did he recall that he or Mr Gerada became hostile or agitated.
  1. [55]
    In cross-examination, Mr Pincott agreed that Mark Delio was nominated to be the additional resource and that Mrs Burton objected on the basis that she felt he did not have the correct road safety training.
  1. [56]
    Mr Pincott did not recall that he or Mr Gerada were adamant that Mr Burton must be returned on a permanent basis to the TEO role.   On a later occasion, Mr Gerada suggested that Mr Burton might be required to backfill a position in Mr Pincott's group on a temporary basis, but that did not occur.  Mr Gerada discussed with Mr Pincott the possibility of Mr Burton backfilling in his section if required, but Mr Pincott did not know whether the matter was raised with Mr Burton.  Mr Pincott agreed that it was a "live matter" but that was "the same with the rest of the office."

Meeting of Mrs Burton and Mr Crutch

  1. [57]
    Peter Crutch is Executive Coordinator, Minor Projects, in the Design Section of Engineering Services at the Council, and works in the same building (but on a different floor) as where Mr and Mrs Burton worked.  Although his unit had some contact with the traffic unit, he had no work-related involvement with Mr and Mrs Burton.
  1. [58]
    Mr Crutch is also President of the Services Union local committee.  In that role, he has dealt with many people over many years in relation to a wide range of small issues.  He has trained himself not to take notes, and to try to forget the issue as soon as he can.  If an issue cannot be solved after he has made a suggestion in relation to the appropriate procedure or policy, he will pass it on to the Union.  He described himself as "just a conduit, … a conduit of common sense."
  1. [59]
    Mrs Burton's evidence: Mrs Burton went to see Mr Crutch in September 2010, after the meeting with Mr Gerada and Mr Pincott.  According to her evidence, she went through what had happened to make him aware that Mr Gerada did not like Mr Burton and her working together and that Mr Gerada had made comments that things would have to change.  She also told Mr Crutch about the meeting with Mr Gerada and Mr Pincott and that "they were looking like that they were possibly wanting to move my husband away from … doing road safety work."  Mrs Burton asked Mr Crutch whether there was anything she needed to do or could do about the situation, or how she could make some changes so that it would be "more plausible and pleasant to work there under Mr Gerada."
  1. [60]
    Mr Crutch's evidence: Mr Crutch gave evidence that, in about September 2010, Mrs Burton raised with him a perception at the time of a new Manager about whether being husband and wife would affect the work of her and Mr Burton.  He apparently asked whether she had been able to speak to the Manager, and she said they had tried but the issue was not resolved.  He also asked whether she had tried to keep a spreadsheet to show the work they do, and Mrs Burton advised that they had tried that.
  1. [61]
    He said that he could not work out whether the issue about them being husband and wife was "reality" or was "just a perception" in the sense that "it's just in their minds that they were thinking that it was getting picked on."

Perceptions that Mr and Mrs Burton were isolating themselves from fellow employees

  1. [62]
    There was some discussion about the level of communication between members of the Road Safety Unit and others in the Branch.  Mr Gerada raised with Mrs Burton that she and Mr Burton were too busy and were, in effect, isolating themselves from those others.
  1. [63]
    Mr Gerada's evidence: Mr Gerada said he had received feedback from one of the senior officers in the Branch that, when the Road Safety Unit was asked to provide support in relation to road safety issues in and around schools, "the barriers go up" as Mr and Mrs Burton would say they were too busy with the SMART program or whatever other program they were working on.  Mr Gerada had mentioned to Mrs Burton that they needed to be available to support other staff.  He recalled that she appeared surprised but took note of it.  In that context, he recalled saying to Mrs Burton, in effect, that he thought she and Mr Burton were unapproachable to the rest of the Branch.  He suggested that she might like to change her attitude and talk to Mr Burton about his attitude, so that they would be more approachable to the rest of the Branch if others wanted to ask the Burtons questions or work with them.  He did not give her any guidance about how to do that.
  1. [64]
    Mr Gerada said that subsequently Mrs Burton said to him that she was offended by his comment about Mr and Mrs Burton being unapproachable.  She told him that she met with the coordinators of the various sections and received feedback that there was no issue.  However Mr Gerada said he knew that the issues were not raised by coordinators but by officers at a much lower level (e.g. the TEOs) who were requesting assistance from the Burtons.
  1. [65]
    Mr Gerada had observed that Mr and Mrs Burton "kept very much to themselves."  There was a custom in the Branch of celebrating significant birthdays and such events with morning teas, and Mr and Mrs Burton "rarely wanted to be involved in that."  He gave one example where they participated in a very successful social event at work, but noted that on other occasions he would be told that they were on site, or on leave or not present.  He said that he did not know whether that was "just coincidental."
  1. [66]
    Mr Gerada referred to times when Mrs Burton would not talk to him or acknowledge him, and she would not come into his office for the kind of discussions he had with all the coordinators.  Sometimes weeks would pass with no discussion between him and Mrs Burton.  He had feedback that that she did not communicate with other staff members in the Branch, even when making a cup of tea.  At that stage (in April 2012, see Exhibit 10), he decided to change their meetings from monthly to fortnightly so that he could keep up-to-date.  He felt that frequency was needed to ensure that the lines of communication were clear in relation to how Mrs Burton communicate with him, and he with his director.
  1. [67]
    Mrs Burton's evidence: According to Mrs Burton, Mr Gerada said to her that they were not communicating with, or making themselves available to, the other TEOs if they wanted to ask questions relating to road safety.  Mrs Burton told him that she did not see that that was the case.  Mr Gerada said that she might like to change her attitude and she might like to talk to Mr Burton about changing his attitude about being more available.  She was also told that it was perceived that they could not fit into the planned backfilling because they were so busy.  (Mrs Burton said that Mr Gerada had told her that people within the Branch would all backfill for each other, and that he did not want "silos" within the Council.  She understood that each of the TEOs would take on the work of another person who was away.  She did not understand how that was going to work and, in particular, how she and Mr Burton were going to do their job and the work of somebody else).
  1. [68]
    Mrs Burton said that she had been told that complaints were coming from lower level staff, and she "felt compelled" to ask the coordinators of the other sections about this issue.  She spoke with John McIntyre and Greg Smith outside the office.  She asked whether they had an issue with Mr Burton and her not being available and said that, if so, she wanted to work out a way to make it easier for them to communicate.  Each of the coordinators told her they did not have a problem and that none of their staff had told them there was a problem with the Burtons. Mrs Burton spoke separately with Mr Pincott and Mr Quilliam about whether they felt that the Burtons were isolating themselves.
  1. [69]
    In cross-examination, Mrs Burton disagreed that she and Mr Burton had increasingly been withdrawing from other members of the Branch.  She conceded that on a number of occasions they did not attend morning teas, but explained that they had to attend issues that arose out of the SMART program and hence were not always available to attend morning teas.  But, she said, "We attended most of them.  In fact, we hosted some of the morning teas as well."  Mrs Burton would buy morning tea and bring it in as a token for missing a morning tea.
  1. [70]
    Mr Quilliam's evidence: Mr Quilliam's workstation in the open plan office was close to where Mr and Mrs Burton worked.  Although he often worked away from the office, he observed that Mr and Mrs Burton did not interact very well with other staff and "seemed to segregate themselves."  Mr Quilliam said that he got on quite well with both of them, but observed that often they would not attend morning teas in the office and sometimes others would not attend their morning teas.
  1. [71]
    Mr Pincott's evidence: Mr Pincott had relatively infrequent interactions with Mr and Mrs Burton in his role.  Mrs Burton only reported to him in relation to budgetary information, but they also had a system that Mr and Mrs Burton would review road safety issues at schools.  Mrs Burton would assist in aspects of negotiations with schools.  She might interact with Mr Pincott's team once a month or once every three months.  She was, however, one of the people who would seek his help in relation to traffic engineering issues.  He had a good interactive relationship with her, and agreed that she was conscientious and diligent.
  1. [72]
    Mr Pincott noticed that, from at least 2010, the Burtons appeared to have less time available to interact when they were involved in one of their major initiatives, the SMART program with motor cycle training.
  1. [73]
    Mr Pincott said that somebody within his team had expressed some concerns about the availability of Mr and Mrs Burton to assist TEOs with the investigation of school matters.  Eventually, Mr and Mrs Burton were so involved with their major road safety project that they did not have time to assist in the way they had done previously.
  1. [74]
    According to Mr Pincott, Mrs Burton asked whether he had any difficulties dealing with her in work matters.  He responded that he did not have a problem.

Perceptions that Mr Burton might be transferred or the Road Safety Unit relocated

  1. [75]
    As is apparent from the evidence summarised earlier, from an early stage in Mr Gerada's term as acting Manager, Mr and Mrs Burton concluded that there was at least a possibility that Mr Burton would be transferred from the Unit, probably to be a TEO.  However, in the period from September 2010 to 16 May 2012, Mr Gerada did not:
  1. (a)
    move Mr Burton out of the road safety role; or
  1. (b)
    move or transfer the Road Safety Unit to another director or section of the Council.

Those facts do not, on their own, rebut a perception held by Mr or Mrs Burton (or both of them) that either or both of those management actions might be taken.  It is necessary to consider the evidence about whether and why they had that perception.

  1. [76]
    Mrs Burton's evidence: Mrs Burton gave evidence that, at his first meeting with her and Mr Burton, Mr Gerada threatened to move Mr Burton out of the Unit to do TEO work.  The transfer or suggestion of transfer was also raised in the meeting of those three people and Mr Pincott.
  1. [77]
    Also, according to Mrs Burton, Mr Gerada told her "a few times" that they might have to move to the Transport Branch.  She did not recall him saying that it was his view that the Road Safety Unit belonged within the Traffic Management and Operations area.
  1. [78]
    The Appellant points out that, despite the evidence that Mr and Mrs Burton were concerned that Mr Burton would be transferred out of the Road Safety Unit, Mr Burton remained as the Project Officer in that Unit at all times during the 20 months from September 2010 until May 2012.  He was not ever required to backfill as a TEO. Although Mrs Burton acknowledged that to be the case, she stated that:
  1. (a)
    every time she had a meeting with Mr Gerada he would make some sort of statement that they would have to be moved or have somebody else come in;
  1. (b)
    it was Mr Gerada's prerogative to take his time about making those changes.
  1. [79]
    Later in cross-examination, Mrs Burton could not recall any meeting other than their initial meeting with Mr Gerada and Mr Pincott, when Mr Gerada said that Mr Burton would have to return to TEO work.  However, she did not concede that by late 2011 she and Mr Burton would have felt fairly secure as that had not occurred, because she "didn't know what Mr Gerada's intentions were."
  1. [80]
    Mrs Burton gave evidence that Mr Gerada told her that she "would perhaps have to move to another section" and, although he did not know which section that might be, he gave some examples.  In her view it was "all very uncertain" and she would ask him to where they would find an outcome and when it was going to happen.  He would say that he did not know what the future holds, she would say they could discuss this further, and he would end the meeting. 
  1. [81]
    Mrs Burton said that, from about the end of 2011, she thought the road safety team was going to be dismantled because "it was constantly suggested that either Ian move away or that I would be transferred."  It was made clear to her that, because Mr Burton had done traffic engineering work, there were some vacant spaces, and there was workload there, Mr Gerada wanted him to return to that work.  That "just made me feel that we were on a slippery slope."
  1. [82]
    As noted earlier, Mr Burton inferred from what was said at the meeting of him, Mrs Burton, Mr Gerada and Mr Pincott that he and Mrs Burton were to train someone to take over his job and that management wanted to move him out of the Unit.
  1. [83]
    Mr Gerada's evidence: Mr Gerada said that in the period from September 2010 to May 2012 there was never a proposal from him or senior management for Mr Burton to be transferred permanently back to TEO work.  Mr Gerada:
  1. (a)
    gave evidence that (for that period) he was not aware of a proposal that the Road Safety Unit be transferred to the Active Travel section at Nerang (which was managed by the then Transport Planning Branch of another director), so it was unlikely that he would have said that to Mrs Burton in one of their meetings; 
  1. (b)
    denied ever referring, in those meetings to them possibly having to move to the Active Travel or being transferred from the Branch to another directorate; and
  1. (c)
    did not recall indicating to Mrs Burton that there were going to be changes to the Road Safety Unit.
  1. [84]
    Mr Gerada did not recall saying to Mrs Burton that she would need to stop doing road safety and transfer back to TEO work because he wanted everyone in the Branch to be able to backfill when someone was away and interchange positions where necessary.  There was, however, some discussion about Mr Burton backfilling (but not on a permanent basis) in a TEO role.  That discussion was initially between Mr Gerada and Mrs Burton and centred around backfilling TEO roles when they were on leave or numbers were down for some reason.  Mr Gerada said that they were all working as a team, and he did not subscribe to "silos."  Accordingly, the Road Safety Unit had to be available to the rest of the Branch.  He wanted to allocate staff to the areas most in need.  His "vague recollection was that Mrs Burton asked why, if the leave had been approved, it had to impact on them.  Mr Gerada emphasised that there was never a suggestion by him to Mrs Burton that Mr Burton would go back to the role permanently.  Mr Burton had a position description that identified him as a Road Safety Project Officer and that was his role.
  1. [85]
    Mr Gerada was asked how he responded if, in the course of meetings, question arose about the Road Safety Unit or Mr Burton being transferred.  He replied:

"There was lots of corporate change occurring and did eventually occur and if there was any question asked of me at the time, which I don't recall the detail of - but if there was any question at the time as to what might happen to engineering, what might happen to - to traffic branch, what might happen to the various sections, certainly I would say words to the effect that if the structure came into being where I had to defend, particularly road safety because its operational, then I would."[6]

  1. [86]
    Mr Pincott's evidence: Mr Burton had been a TEO under Mr Pincott's supervision before he transferred to the Road Safety Unit prior to the arrival of Mr Gerada.  Mr Pincott was not aware of any proposal for Mr Burton to move back to a TEO role on a permanent basis.  Had there been such a proposal, he would expect to have known about it.
  1. [87]
    Mr Quilliam's evidence: Mr Quilliam said that he was neither involved in nor overheard any conversation in which Mr Gerada expressed a view that he wanted to close down the Road Safety Unit, remove the role of Mr and Mrs Burton, or that he wanted to transfer the Unit to another area of Council.  He did not hear Mr Gerada express a view about wanting to transfer Mr Burton permanently back as a TEO away from the Unit.  Rather, he recalled a conversation about Mr and Mrs Burton being taken to another section, and he understood that Mr Gerada was fighting to keep them there.

 Mr Gerada's monthly meetings

  1. [88]
    Mr Gerada's evidence:  Mr Gerada described the purpose of his regular monthly meetings with coordinators and Mrs Burton as a team leader.  Initially they were joint meetings.  He said that the meetings were for the coordinators to discuss with him issues they were having from an HR perspective (e.g. staff, resource in, leave, training, workplace health and safety issues) and they would discuss budget matters (e.g. progress of expenditure, and what needed to be listed as potential items for future years).  Meetings would last for approximately an hour to an hour and a half.
  1. [89]
    After a few weeks, he changed to monthly individual catch-up meetings on the basis that it was an inappropriate use of a section leader's or a coordinator's time to be present for discussions about particular issues that did not affect their unit.  He was able to obtain information from each coordinator or team leader and could provide them individually with "a download of what was happening in the corporate arena."
  1. [90]
    Mr Gerada said that meeting reminder messages (see e.g. Exhibit 10) would be sent a few days, or a week or two, before the scheduled meeting.
  1. [91]
    Although there were regular monthly meetings, Mr Gerada said that he did not want the coordinators or section leader to wait for those meetings to catch up to tell him about issues that they needed assistance with or support for.  According to Mr Gerada, his door "was always open."  The coordinators (Mr King, Mr Quilliam and Mr Pincott) took that approach and would walk into his office for a discussion.  As a consequence, the catch-up meetings with those coordinators did not always take the allocated time. They were not required to prepare documents for meetings as they provided most of what Mr Gerada needed at the meetings and whatever they did not provide at meetings they would give him in his office intermittently through the week.  Mrs Burton did not often take that opportunity to raise matters with him outside the monthly meeting.  Mr Gerada said that he assumed that the projects and work that Mr and Mrs Burton were working on did not require his input, or that she was comfortable with the requests that had been made of her, and that the initiatives were progressing satisfactorily.
  1. [92]
    The issues that Mr Gerada and Mrs Burton would discuss at their monthly meetings varied.  They included the initiatives that were funded at that time, particularly the SMART program which was "quite dominant in both their … daily working lives."  The challenges in relation to that program included promoting it, and getting participation to a level that could justify continued funding.  Quarterly and annual reporting about usage of the program was required.  Mrs Burton would suggest avenues to promote the SMART program and the logistics involved, and Mr Gerada said that he would support those suggestions.  On one occasion, he asked if they wanted additional resources for a proposed presentation at a convention, and they said no.
  1. [93]
    Mr Gerada kept handwritten notes of matters discussed in his meetings with Mrs Burton.  Copies of the notes of meetings between 9 March 2011 and 2 April 2012 were in evidence (see Exhibit 9).  He agreed that these meetings were amicable, and said that sometimes they would laugh.  The meetings "weren't all serious."
  1. [94]
    Mr Gerada said that he did not ever speak to Mrs Burton in a threatening or tormenting way during one of their meetings.  Rather, they would often sit beside each other at a table and talk through the issues.  He would ask lots of detailed questions, some of which he sent by email.  When he received short answers he would often "dig deeper... to get the detail."
  1. [95]
    Mr Gerada gave evidence that, in relation to the Hands Up for Road Safety school initiative that had been dormant for five years, he had a conversation with a new manager from another unit at the Council who was looking to develop a character to promote safe practices at schools and who was able to fund it.  Mr Gerada knew that Mrs Burton had significant input into the establishment of the program.  He rang to tell her that Zero the Hero was "going to be back on" and they had funding for it.  He recalled that Mrs Burton took that news "on a positive note" but expressed the view that she would believe it when she saw it.  Subsequently there were meetings involving Mrs Burton (but not Mr Gerada) with the Active Travel group (in the Transport Planning area) so that she could provide support to them to "re-enliven this program."  According to Mr Gerada, Mrs Burton initially supported the program going over and her having a consultant's role, but she felt that the team did not understand the program in the way that she did.  The feedback that he received was that Mrs Burton wanted to "hand it over and be done with it" and not continue to be involved.
  1. [96]
    Mrs Burton's evidence: Mrs Burton gave evidence that she had monthly meetings with Mr Gerada to discuss budget matters, bookings for the SMART program, plans for the rollout of another program and other matters in relation to the work of the Road Safety Unit.  Mrs Burton knew what information to bring to these meetings because Mr Gerada would send her an email outlining what he required.  Because she discussed some of the topics (e.g. emerging issues) with Mr Gerada as they arose, he would have an outline of those issues before the meeting.  Otherwise, Mrs Burton "tried my best to negotiate my way through what he required."  She described the amount of information she was required to provide for these meetings as "quite extensive."  It included reports for the SMART rides program (which involved collating feedback sheets from about 50 riders each weekend) and budget information (which she would check with Mr Pincott and others).  The material had to be put together while dealing with the day-to-day operations, including taking phone calls and managing bookings and cancellations.  Mrs Burton estimated that it would take her about two and a half working days to prepare for meetings.  Some of that work was done at home outside working hours (at least one night a week and either a Saturday or a Sunday on the alternative weekends from March to September when the program was not running).
  1. [97]
    The monthly meetings lasted a couple of hours.  In late April 2012 their frequency was increased to fortnightly for one and a half to two hours (Exhibit 10).  Although catch up meetings were sometimes cancelled or rescheduled, Mrs Burton usually had notice of them one and a half weeks before each meeting (see Exhibits 10 and 11).
  1. [98]
    Mr Gerada sent electronic meeting requests which included the issues that he wanted to address in each meeting including any additional information to be provided.  An example was the meeting request for 27 April 2012 (Exhibit 10), which also advised Mrs Burton that the frequency of the meetings would be fortnightly, beginning the following week.  Mrs Burton was asked to bring a copy of the following to leave with Mr Gerada:
  1. (a)
    a summary of the status (financial and progress) of all projects being undertaken by Mr and Mrs Burton.  "We will go through these as a standard item at each meeting."
  1. (b)
    Details of proposed overtime
  1. (c)
    Speed trailer bookings/plan for utilisation
  1. (d)
    SMART reports for 2012 SMART rides completed i.e. March and April.
  1. [99]
    The following topics were listed for discussion at the next meeting:
  1. (a)
    acceptable lines of communication from the Road Safety Unit
  1. (b)
    status of support for Active Travel who in road safety is doing what in this space
  1. (c)
    notification expectations for change to start and finish times for Mr and or Mrs Burton
  1. (d)
    emerging issues
  1. (e)
    annual leave
  1. (f)
    interaction of the RSU with remainder of TMO
  1. (g)
    Road Safety Audit Refresher Course attended by Mr and Mrs Burton March last year - utilisation
  1. (h)
    Excel training feedback how is it being implemented in RSU.
  1. [100]
    As it happened, that meeting did not occur because Mrs Burton was on sick leave (the reason for which is discussed later).  A scheduled meeting on 2 May 2012 was cancelled.  There was a follow-up request for a meeting on 15 May 2012 with the same documents (with the addition of Status of Road Safety Strategy and program for delivery) and the same agenda items (with the addition of notification of banked Rostered Days Off) as listed in the meeting request for 27 April 2012 (Exhibit 11). 
  1. [101]
    In cross-examination, Mrs Burton agreed that there was no other documented meeting request that she could identify that contained an unreasonable request.  She said that was because the requests "weren't always in-depth like this" and some of the requests would be made at the meeting for information to be provided at the next meeting.  She agreed that Mr Gerada did not request her to prepare a Gantt chart, but that she did so at the suggestion of Mr Crutch.
  1. [102]
    Mrs Burton gave an example of Mr Gerada asking her to provide feedback on complex matters within a short period of time.  She said he required information in relation to a parliamentary report about the effects of speed cameras in Queensland the next day.  In particular, he wanted feedback about the report and how it would affect the Gold Coast if it was implemented there.  Mrs Burton said that doing research about whether the city would participate in such a scheme and providing professional advice was not a "five-minute job."
  1. [103]
    Mrs Burton explained that the Hands Up for Road Safety program was given to the Manager for Transport to run under Active Travel.  Mrs Burton had developed it over a period of 12 months.  Activity books for children and workbooks for teachers were prepared and it was delivered to approximately 30 schools in the years that the program was running.  Mrs Burton was told that the program "was gone."  She was concerned about its transfer because the program was crafted around specific messages for children at various stages from five years of age and to year seven.  Those messages had to be given in a specific way, otherwise children would not understand them.  She was concerned that perhaps these messages may have been watered down and their effectiveness compromised.  However, she accepted that it was a Council program (not her program) and that it was for the Council to decide who received funding to run it.
  1. [104]
    Mrs Burton gave evidence that, in relation to the catch-up meetings with Mr Gerada, the issues that caused her stress were about transferring, the program being put to another section, dismantling some programs or withdrawing some funding (particularly away from the SMART program).  She felt it was up to her to make sure that it ran correctly and properly because she felt that "if anyone was killed in any of these training programs … I was responsible."[7]
  1. [105]
    In cross-examination, Mrs Burton agreed that the effect of her evidence was that: 
    1. (a)
      at every meeting with her, Mr Gerada would say something to distress her;
  1. (b)
    virtually from the commencement of his time as acting manager, Mr Gerada was acting in a manner that he was trying to split up Mr and Mrs Burton and that caused her distress;
  1. (c)
    at every monthly meeting, Mr Gerada would say something to the effect that they might have to transfer the Road Safety Unit to somewhere else within the Council.

 Mr Gerada's management style

  1. [106]
    The evidence summarised above illustrates aspects of how Mr Gerada managed the Branch.  There was other evidence about his management style, including how it differed from the style of his immediate predecessor Mr Bilton.
  1. [107]
    Mrs Burton's evidence: Mrs Burton gave evidence about some differences in management style between Mr Bilton and Mr Gerada.  By her account:
  1. (a)
    catch-up meetings convened by Mr Bilton with the coordinators and Mrs Burton were "not very regular" or "very irregular occasions;"
  1. (b)
    although he continued such meetings for a short period after becoming acting manager, Mr Gerada decided to have individual monthly catch-up meetings with the coordinators and Mrs Burton (although on occasions they did not occur because Mr Gerada or Mrs Burton were too busy).
  1. [108]
    Mrs Burton described Mr Gerada's manner during their meetings as "very abrupt."  He would suggest changes and, if she gave him reasons why perhaps they were not a good idea (e.g. because they might affect the integrity of something), Mr Gerada would "get aggressive."  (I note that this was not put to Mr Gerada, but a similar allegation was addressed by him: see [94] above.)
  1. [109]
    In cross-examination, Mrs Burton:
  1. (a)
    said that, although she had never thought of herself as a strong personality, she is not afraid to raise concerns;
  1. (b)
    agreed that, following particular meetings, she saw Mr Crutch for advice on two occasions, sought advice from Mr Shirley, and made a complaint to Ms Cook;
  1. (c)
    said that she did not complain about Mr Gerada's behaviour in their meetings because she is "not the type of person to run to someone willy-nilly."  Rather, she "just got on with it" and thought that it would "pan out" while hoping that something would change, "but nothing ever changed."
  1. [110]
    Mrs Burton stated that, although she made had written notes of what Mr Gerada was doing, she did nothing formal such as making a complaint.
  1. [111]
    Mr Burton's evidence: Mr Burton said that Mrs Burton appeared to become more stressed in about mid-2011 because of the work load.  At that time they were running only the SMART program.  The program commenced in March 2007, with five people running it.  In 2011, the program ran from March to September.  He agreed that he and Mrs Burton would routinely start work at 7.00 am and leave at 3.40 pm each day.  Mr Burton worked a nine day fortnight and Mrs Burton worked a 10 day fortnight.  They also conducted (but did not ride in) the SMART program for four or five hours every second weekend.  Although structural changes were not made to the program from year to year, he gave evidence that the workload increased because the program grew and they had to do all the bookings and associated paperwork (including more reporting) and telephone calls.  They would claim over-time for their weekend work.
  1. [112]
    Mr Pincott's evidence: Gordon Pincott has been a coordinator in the Branch for approximately 17 of his more than 28 years employed by the Appellant.  He directly supervised nine staff in the Traffic Management and Investigations section.
  1. [113]
    For more than ten years before September 2010, Mr Pincott's manager was Mr Bilton.  Mr Pincott described the difference in management style between Mr Bilton and Mr Gerada:
  1. (a)
    Mr Bilton managed a lot of corporate matters while Mr Pincott and Mrs Burton "basically got on with" their core business; 
  1. (b)
    Mr Gerada shifted a lot of the corporate responsibilities to Mr Pincott and Mrs Burton, and he had "high expectations of getting things done, sometimes before time, but at least on time."
  1. [114]
    Mr Pincott said that Mr Gerada sometimes put "tight" deadlines on his staff and "some had longer timelines" depending on what they had to do.  There was "a certain amount of pressure" when Mr Gerada initially came to the office and as a result of the corporate change.  He recalled that, when they discussed Mr Gerada's management style soon after he commenced as acting manager, Mr Gerada said to him "You load people up with work, then you see who breaks, then you will see who your good staff are."  According to Mr Pincott, Mr Gerada was looking for ways to take away some of Mr Pincott's responsibility so that he could do more corporate matters that were passed down.  Mr Pincott was concerned that if his TEOs were loaded up they would have less time to do their core business, including responding to urgent requests from the Director.[8]
  1. [115]
    Mr Pincott also said there was a difference in the atmosphere depending on whether Mr Gerada was present.  "It was a lot calmer when he wasn't there.  When he was there, there seemed to be a tightness in the air."
  1. [116]
    In the period immediately after he commenced as acting manager, Mr Gerada held meetings with all his coordinators, who advised him about how their sections were progressing, what workloads they had, issues that needed to be solved, staff matters and so on.  Mr Gerada asked many questions and took many notes.  Mr Gerada then met separately with Mr Pincott each month for approximately one and a half to two hours, and often longer.  Mr Gerada asked numerous questions and treated Mr Pincott professionally.
  1. [117]
    Mr Pincott said that he would receive a calendar invite to monthly meetings which would occasionally include topics that Mr Gerada wanted to discuss, requests for Mr Pincott to provide information, and a timeline within which he required that information.  Mr Pincott said that he had to be prepared for his formal monthly meetings, but prepared his own list.  He also had informal meetings with Mr Gerada about issues as they arose.
  1. [118]
    In the course of the meetings that both Mrs Burton and Mr Pincott attended, Mr Pincott did not see anything in Mr Gerada's behaviour or conduct towards Mrs Burton that caused him concern or that he considered inappropriate.
  1. [119]
    Mr Pincott was aware that Mrs Burton had monthly meetings with Mr Gerada and recalled one-time particularly when she was quite stressed about having to meet with Mr Gerada.  She showed him a spreadsheet about her projects and issues on which she was working for that meeting, and asked whether he had to do something similar.  He said he had not.  She also asked about an email that had a number of topics that she had to prepare for the meeting and confirmed that Mr Pincott did not receive something similar from Mr Gerada. 
  1. [120]
    Mr Pincott's workstation was located near to the workstations of Mr and Mrs Burton and Mr Gerada's office, as well as the people in his team.  He was regularly required to be within the office area and was at his desk for an average of half of each day.  In the period from September 2010 through to May 2012, he did not see any conduct by Mr Gerada towards Mrs Burton within the office that he thought was inappropriate or bullying.  Mr Pincott said that Mr Gerada appeared to treat Mrs Burton in the same way he treated Mr Pincott.
  1. [121]
    Mr Quilliam's evidence: Mr Quilliam is, and was at the relevant time, the Traffic Works coordinator with the Council.  He is responsible for managing or supervising approximately 36 staff located at three different depots.
  1. [122]
    Before September 2010, Mr Quilliam's direct line manager was Mr Bilton.  Then Mr Gerada became the acting Manager.  Mr Quilliam described the difference in management styles of the two men as follows:
  1. (a)
    Mr Bilton was "one of the most easy-going persons" Mr Quilliam has known, and he would deal with situations as they arose and was "not so much hands on;"
  1. (b)
    Mr Gerada was a "very cross the T's and dot the I's type of person" who would plan to ensure that situations did not happen.[9] 

Mr Gerada held monthly meetings with the coordinators and Mrs Burton to deal with staff and other issues.  The meetings were normally booked for about an hour to an hour and a half, but sometimes they would extend to two or two and a half hours.  Mr Gerada asked many questions.

  1. [123]
    Mr Quilliam said that, in the course of those meetings, he did not see any conduct by Mr Gerada in relation to Mrs Burton or any of the other participants that caused him concern or that he thought might constitute bullying or harassment.  In the office workplace during the period from September 2010 until May 2012, he did not observe Mr Gerada treat Mrs Burton in any way that he considered inappropriate, bullying or harassment.  Indeed, he did not see Mr Gerada treat Mrs Burton any differently from the way he treated Mr Quilliam.
  1. [124]
    Mr Crutch's evidence: Although Mr Crutch said that he had no first-hand experience of Mr Gerada's management and people skills, he expressed the opinion that Mr Bilton and Mr Gerada were "totally different people."
  1. (a)
    Mr Bilton was "more of a people person;" and
  1. (b)
    Mr Gerada was a technical person who looked after big programs, was familiar with spreadsheets, and was "all - can you show me this, this and this."[10]
  1. [125]
    Mrs Burton gave evidence that Mr Crutch said that everyone knew that Mr Gerada did not have any people skills and that he was used to a different type of work.  Mr Crutch knew Mr Gerada quite well because he used to work with him.  Mr Crutch gave evidence that he did not remember saying words to the effect of "Everyone knows Tyrone should not be in that position as he has no people skills."  His evidence was that he never says those things openly, but normally tries to say something along the lines of a person is "quite different than your previous manager." 
  1. [126]
    Mr Shirley's evidence: Clement Shirley has been a senior People and Culture (human resources) consultant with the Appellant since October 2010.  He has had ongoing, fortnightly involvement with Mr Gerada since then, in the course of meetings with branch managers. He was unaware of any complaints made against Mr Gerada as a manager.
  1. [127]
    Ms Cook's evidence: Ms Cook gave evidence that, although Mrs Burton had reported that hers was a "busy job," Mrs Burton had not reported concerns about being overworked or working excessive hours.  Nor had she reported that Mr Gerada was threatening to her in the course of one meeting, or that he wanted to split Mr and Mrs Burton. 
  1. [128]
    Mr Gerada's evidence: Mr Gerada agreed that Mrs Burton was a professional road safety person.  She was a dedicated person who took personal pride in what she did for the Appellant's road safety program.  He also agreed that Mrs Burton had tertiary qualifications and had won awards, had been a really good worker for the Appellant for 14 years and was performing really well. 
  1. [129]
    Mr Gerada said that, in an early meeting with Mrs Burton, he discussed activating initiatives that were "on the shelf" and Mrs Burton intimated that she would need additional resources to manage them.  She also aspired to be a coordinator.
  1. [130]
    Mr Gerada observed that Mr and Mrs Burton kept "regular hours" at work.  They would start at 7.00 am and would leave almost exactly on time at 3.40 pm.
  1. [131]
    On occasion he would ask for information within a short time frame.  For example, he asked her about the effect of speed cameras in Queensland (which request may have been for information by the following day).  He said that when he asked for information from Mrs Burton by nominated dates, she "pretty much" provided what he wanted in a timely fashion.  Mr Gerada said that he had no idea about how demanding the task of scoping other initiatives was, or how much research had already been undertaken.   In relation to the meeting request for the meeting scheduled on 27 April 2012, Mr Gerada estimated that it would not take very long to collate information in relation to work in progress or to prepare the information he had requested be discussed at the meeting.  He suggested it might take "a matter of hours" for Mrs Burton to prepare for the meeting.
  1. [132]
    Mr Gerada recalled saying to Mrs Burton some weeks before the email about the proposed fortnightly meetings that there were often days, if not weeks, when they did not speak and that they needed to communicate more regularly.  He made the decision based on "the lack of information flow coming from her section," to "ensure that information flow occurred more regularly."  By comparison, Mr Gerada stated that the coordinators were not required to attend fortnightly meetings because, unlike Mrs Burton, they would see him often about issues as they arose.
  1. [133]
    Mr Gerada did not agree that by increasing the frequency of their meetings he was increasing the pressure on Mrs Burton.  Although she might have had to spend a few hours preparing information for their meetings in addition to performing her regular duties, Mr Gerada denied that he was "loading up" Mrs Burton.
  1. [134]
    Mr Gerada did not recall telling Mr Pincott that his attitude to management was to load people up with work, see who breaks, and see who your good staff are.  Indeed, Mr Gerada denied that that was his attitude to management.

 Some preliminary conclusions

  1. [135]
    Before considering the evidence in relation to Mrs Burton’s physical injury and the events that immediately preceded her psychological decompensation, it is appropriate to express some preliminary observations and conclusions in relation to the evidence set out in some detail above.
  1. [136]
    Differences in accounts of events: Different recollections of conversations or meetings are not surprising.  Nor do they necessarily lead to adverse findings in relation to witnesses.  The fact that people remember some aspects of conversations or meetings and forget others, or focus on particular exchanges and the interpersonal dynamics of an exchange, need not detract from the value of their evidence or their credit as witnesses.  Such differences could be the product of the passage of time since the conversations or meetings occurred, and of the broader context in which an exchange occurred or is assessed subsequently.  Recollections can also be influenced by how each participant characterises the nature of the relationship between themselves and the other participant or participants.
  1. [137]
    Despite differences that are apparent from the summaries of the evidence, there is a high degree of consistency in the accounts of the content of those conversations or meetings.  The differences are most marked in relation to the messages drawn by different participants.
  1. [138]
    Objections to some evidence: I note that, in the course of the hearing and in final written submissions, the Appellant raised a number of objections to evidence given by Mrs Burton in relation to specific matters the substance of which was not put to the other relevant witness or witnesses.  Those objections were founded on the rule in Browne v Dunn.[11]  Much of that evidence was not relied on in the Respondent's submissions.  To the extent that any of it was relevant, that evidence was usually uncorroborated and it was given no weight or was assessed against the other evidence.
  1. [139]
    The operation of the Road Safety Unit: The working arrangements in the Road Safety Unit suited Mr and Mrs Burton.  They were both passionate about the subject of their work, and they enjoyed working with each other.  Under Mr Bilton’s management they had become content with the work they were doing and the hours they worked, and secure in their working relationship with each other.  Their two person unit was self-sufficient and, whether or not they intended to be so, became somewhat insular and exclusive.  They were busy with the SMART program and other work, but were perceived to be isolating or segregating themselves from others in the Branch and were increasingly unapproachable (including on work related matters) even though they were physically proximate to their colleagues in an open plan office.
  1. [140]
    Mrs Burton seemed to agree that the Unit needed additional resources, particularly if it was to deliver additional programs (and if she aspired to a Level 8 position).  However, she resisted the allocation of another person to the Unit, even though, from the managers’ perspective, there were sound reasons for making that arrangement.  The reason she gave for resisting (she would need to train the person and that could cause her stress) was apparently a product of her concern that she did not have time to do the training (given her other commitments) and was not equipped to do so, but seems also to have been influenced by her experience some years previously in training two other people who had worked in the Unit (discussed later in these reasons).  She also seemed to be concerned that the result of the arrangement would be the appointment of another (untrained and more junior) person to the Unit to replace Mr Burton.  Mr Burton also inferred as much.  On the face of it, the managers’ proposal was a reasonable and practical approach to meeting immediate and possibly some future needs of the Unit.  Yet the proposal to provide additional resources to the Unit was put on hold in light of Mrs Burton’s response. 
  1. [141]
    Mr and Mrs Burton’s working relationship: There is no dispute that by the time of his first meeting with Mrs Burton, Mr Gerada knew that she and Mr Burton were married to each other.  The difference between the witnesses is whether he was critical of the fact that they worked together, and whether he expressed that view to either or both of them.  Having regard to the evidence of witnesses in relation to this topic, I am satisfied that:
  1. (a)
    Mr Gerada accepted that Mr and Mrs Burton worked together and did not plan to separate them because they were married;
  1. (b)
    whether off-handedly and flippantly or not, Mr Gerada made some comment to Mr and Mrs Burton about them working together as a married couple;
  1. (c)
    Mr and Mrs Burton interpreted that comment as critical of their working relationship (which they considered to be entirely professional); and
  1. (d)
    their response to that comment affected the way in which they construed some of Mr Gerada’s subsequent interactions with each of them.
  1. [142]
    Prospect of Mr Burton’s transfer out of the Unit or the Unit’s relocation: There also seems to be no dispute that from time to time Mr Gerada mentioned the possibility that Mr Burton might be required to backfill in a TEO position elsewhere in the Branch.  However, Mr and Mrs Burton concluded that Mr Gerada was intent on moving Mr Burton permanently to another position, effectively splitting the Unit and preventing them from working together.  Taking the evidence from all witnesses on this topic as a whole I am satisfied that:
  1. (a)
    when he came to the acting Manager position Mr Gerada did not have instructions or any intention to make structural changes to the operations of the Branch;
  1. (b)
    Mr Gerada did not want “silos” within the Branch and favoured people (e.g. TEOs and Mr Burton as a former TEO) being available to backfill for others who were on leave;
  1. (c)
    Mrs Burton did not understand how that was going to work and, in particular, how she and Mr Burton were going to do their job and the work of somebody else;
  1. (d)
    Mr Gerada did not intend to transfer Mr Burton permanently from the Unit to a TEO position elsewhere in the Branch;
  1. (e)
    when the future of the Unit was raised by Mrs Burton in meetings with Mr Gerada, he was imprecise in predicting what might happen because corporate change was occurring and he could not say with certainty what might happen in the future, although his preference was to keep the Unit within the Branch;
  1. (f)
    Mrs Burton and Mr Burton apparently drew an incorrect inference from comments made by Mr Gerada and the imprecision of his answers that it was possible that at some time Mr Burton would be transferred out of the Unit and/or that the Unit would be moved to another place in the Council’s organisational structure; and
  1. (g)
    Mr and Mrs Burton concluded that such a change would occur at the time of management’s choosing, and hence felt apprehensive about the security of their working relationship in the Unit.
  1. [143]
    Mr Gerada’s management style: It is clear that Mr Gerada’s management style was different from Mr Bilton’s.  Those differences were readily apparent when he commenced as acting Manager of the Branch.  He needed, and he sought, detailed information from his coordinators and Mrs Burton so that he was informed sufficiently to do his job well and to ensure a seamless transition between managers.  The subjects and extent of his enquiries accord with what a person in that role would and should be expected to do.
  1. [144]
    But the differences in style were apparent beyond the transition period, and included his practice of convening formal periodic meetings with each coordinator and Mrs Burton, and devolving responsibility for some corporate matters to them.  He had a much more “hands on” and directive approach than Mr Bilton, and could be quite demanding of those he managed, including with occasional requests for information or briefing within tight timeframes.  His presence in the office changed the atmosphere.
  1. [145]
    Mr Gerada did not confine, or want to limit, his interaction with each of the coordinators and Mrs Burton to their periodic scheduled catch-up meetings.  He welcomed them talking to him in his office as issues arose – a practice observed by each coordinator but not (or at least not as frequently) by Mrs Burton.  Because Mrs Burton and he had fewer informal meetings, Mr Gerada decided to increase the frequency of their formal meetings from monthly to fortnightly.
  1. [146]
    It is also clear that at a personal level, Mrs Burton considered that Mr Gerada was sometimes very abrupt and even aggressive in the course of their meetings. The way in which Mr Gerada conducted himself as a manager is considered in more detail later in these reasons.
  1. [147]
    Overview: Some of those preliminary conclusions are not consistent with the conclusions drawn by Mr and Mrs Burton, or the assumptions on which they were proceeding.  Rather, the overall effect of Mr Gerada’s interaction with Mr and Mrs Burton was that their relationship with him was strained because they considered that he did not like them working together, he wanted to transfer Mr Burton to a TEO position, he wanted Mrs Burton to train someone else to take Mr Burton’s position in the Unit, and he suggested that they were unapproachable and that they change their attitudes and be more approachable to the rest of the Branch.  In addition, his relationship with Mrs Burton was strained because of what she took to be his unreasonable demands on her for information and other briefing (sometimes within a short period), the frequency of their formal meetings and his behaviour towards her in the course of their formal catch-up meetings.
  1. [148]
    Against that background, I turn to the evidence in relation to Mrs Burton’s physical injury and the events that immediately preceded her decompensation.

Injury to Mrs Burton's ankle and subsequent treatment of that injury and issues about it

  1. [149]
    Mrs Burton's evidence: At lunchtime on 21 March 2011, Mr and Mrs Burton were walking near the building at Varsity Lakes where they worked.  Mrs Burton slipped on she-oak nuts on the concrete path and fell to her right side.  She twisted her ankle and hit her knee and elbow on the path.  She could not rise to her feet without assistance.  Mr Burton helped her back to the office as she could not walk on her right ankle.  When she was seated at her desk, Mr Burton informed the coordinator about her accident and arranged for the first aid officer to attend to Mrs Burton.  Mr Burton also filled out an accident report form, and another colleague offered her some medication for the pain.  Another colleague informed Mr Gerada of her accident, and he came over and spoke to Mrs Burton, advising her to take some sick leave as she had "plenty of leave."  After further discussions, and at Mr Gerada's suggestion, Mrs Burton was transported out of the building on her work chair (which had wheels or castors on it).  Mr Gerada followed them and opened the back door to allow them to leave the building.  Mrs Burton was assisted into the back seat of her car by Mr Burton.  Mr Gerada did not physically assist her to leave the building or enter her car.
  1. [150]
    Mrs Burton saw her doctor on 22 March 2011.  Having arranged and reviewed x-rays, the doctor provided suggested treatment of the ankle.  Mrs Burton was on leave from 22 to 28 March 2011, inclusive  (see Exhibit 20). Mrs Burton found out that she could obtain workers' compensation.  Louise Cook was assigned as her case manager, and Ms Cook coordinated appointments with doctors and a physiotherapist.
  1. [151]
    During the period of rehabilitation for her ankle injury, Mrs Burton did not provide Mr Gerada with any medical certificates as they went to the Workers' Compensation Unit.  Nor did she have any conversation with Mr Gerada to provide him with updates about her rehabilitation because, she said, she was working with the Workers' Compensation Unit.  Mrs Burton said that she was unaware of any obligation on an employee to provide workers' compensation medical certificates to their supervisor.
  1. [152]
    Mrs Burton returned to work on 29 March 2011 with her ankle strapped.  She obtained an adjustable office chair and kept her leg elevated by supporting her foot on an upturned garbage bin next to her desk.  For approximately four weeks during a period of physiotherapy sessions, Mrs Burton wore an orthotic boot.  Her physiotherapy occurred during her lunch hour.  Consequently, she was working in a normal manner.  Where possible, doctors' appointments did not interrupt her work duties.
  1. [153]
    Subsequently, Mrs Burton only took time off work in relation to an injection in her ankle which she was advised to have.  Mrs Burton told Mr Gerada in his office that she was to have the injection and that it was difficult to predict what the side-effects might be or how it would affect her.  Accordingly, she advised Mr Gerada that it was difficult for her to predict when she would be back at work.  By her account, Mr Gerada said that was okay and he would wait to hear from her.  However, he came out of his office after the conversation and said to Mrs Burton at her workstation (and near where Mr Pincott and Mr Quilliam were working) "Is there ever going to be a time where the doctors have seen enough of you?"  Mrs Burton said that his statement "puzzled me a little."  Because she was not arranging these appointments, Mrs Burton referred Mr Gerada to Ms Cook for any further information.
  1. [154]
    Mrs Burton had the injection on about 24 April 2012.  She sent Mr Gerada a text message that day to notify him that she would need some more time off work.  Mrs Burton said that she sent a text message because she knew Mr Gerada was in a meeting and she did not wish to interrupt him by contacting him by phone.  Mrs Burton had three days of WorkCover paid leave on 26, 27 and 30 April 2012 (Exhibit 20).
  1. [155]
    In the morning of Thursday, 3 May 2012, Mrs Burton saw Dr Dickinson about some symptoms in relation to her right ankle.  She felt unwell, shaky at times and unsteady at others (Exhibit 29).  Mr Gerada gave her time off work to visit the doctor.  Mrs Burton sent Mr Gerada a text message to the effect that she had been advised by her doctor to rest at home, she may return to work the following Wednesday, and he should contact Ms Cook for further information.  Early that afternoon, Mr Gerada sent a text message to Ms Cook, referring to the mobile text message from Mrs Burton and asking what else Ms Cook could tell him.  The following morning, Ms Cook sent him an email stating:

"Yes this is correct, Mrs Burton has a current medical certificate supporting total incapacity through to 07/05/2012.  This is due to the side effects she has experienced following an injection into the ankle.  Her GP will review again on 08/05/2012 and guide us further about an expected RTW.

May I suggest we have a meeting next week with Karen to review her case and you can raise any further questions at this time?"  (Exhibit 13)

  1. [156]
    Mrs Burton was on WorkCover paid leave on 3 and 4 May 2012 (Exhibit 20).  She returned to work on full duties the following week, on Wednesday 9 May 2012.
  1. [157]
    Mrs Burton apparently heard from Mr Burton (and, on her return to work, from Mr Quilliam) about a conversation in the open office area on 3 May 2012 between Mr Gerada and Mr Burton in relation to her.  Subsequently, Mrs Burton spoke with Ms Cook by telephone and expressed concern that Mr Gerada had spoken to Mr Burton about Mrs Burton having more time off work.  Mrs Burton said that she was "quite anxious" as she thought she had met her obligations to "get around this injury as best I could."

"I was very stressed.  I felt that I couldn't understand what I'd done wrong actually going back to the manager and letting him know beforehand what - what the expectations may or may not be of this injection.  And I just felt completely stressed and unable - in the situation that I was, I felt helpless."[12]

  1. [158]
    Mrs Burton then arranged a meeting with Clem Shirley, a senior People and Culture (human resources) consultant, for advice.  The meeting took place at Surfers Paradise office in the afternoon of Thursday 10 May 2012.
  1. [159]
    Mr Gerada's evidence:  Mr Gerada's account of his interactions with Mrs Burton immediately after her injury on 21 March 2011 is consistent with hers, even though he recalls offering a little more physical assistance when transporting her from the office that day.  He said that he suggested that Mrs Burton take all the time she needed off work, and recalled her taking a "bit of time off" and having to get a boot for her ankle.  He did not recall the length of time that she wore the boot, and did not enquire about her well-being during that period.  Mrs Burton sent him an email to say that she was advised that her injury could fall under the workers' compensation and that she would be looking into it.  However he did not recall receiving any further confirmation that an application had been made or accepted.
  1. [160]
    Because it seemed like "business as usual" when Mrs Burton resumed her duties (including overtime on the weekends working on the SMART program), Mr Gerada said that he thought she was fit to be back at work and assumed that all was well with her ankle.  He did not recall seeing Mrs Burton hobbling or needing assistance to walk, or her reporting any difficulties to him or complaints about working overtime.
  1. [161]
    Mr Gerada gave evidence that on or before 3 April 2012 he first received advice of an active workers' compensation claim in respect of Mrs Burton's ankle (see Exhibit 12).  Having assumed that she had completed her workers' compensation claim for her ankle, Mr Gerada approached Mrs Burton at her desk to explain that he assumed the corporate record was wrong.  She responded by saying that Mr Gerada should talk to her case manager, then turned around and resumed work.
  1. [162]
    Subsequently, Mrs Burton spoke to Mr Gerada in his office explaining that she needed to get an injection into her ankle and that she might be away for a few days as a result, but she was not sure how much time she would need to take.  He acknowledged that and thanked her for letting him know.
  1. [163]
    Mr Gerada did not recall going to Mrs Burton's desk later that day and asking her in an aggressive manner, "Is there ever going to be a time when doctors have seen enough of you?"  He said that he could see no reason why he would ask that.
  1. [164]
    Mr Gerada said that, after receiving an injection, Mrs Burton sent him a text message to the effect that she had been sent home under doctor's orders and that she would be away, and that if he needed more advice he should speak to the case manager.  At the time when the message was sent, Mr Gerada was in Southport at a meeting with Mr Bilton.  He read the message after that meeting.  When he returned to his office at Varsity Lakes, he noticed that Mr Burton was at the photocopier.  As Mr Burton was walking towards his workstation and past Mr Gerada's office door, Mr Gerada stopped him and approached him and asked what had happened to Mrs Burton.  Mr Gerada spoke in "a usual speaking tone - voice - volume" standing close to Mr Burton, near the workstations of Mr Pincott and Mr Quilliam (see Exhibit 6).
  1. [165]
    According to Mr Gerada:
  1. (a)
    he spoke to Mr Burton because he did not have any details about what had happened, and whether Mrs Burton had sustained some other injury or her ankle had flared up, and because he assumed that it was reasonable to ask Mrs Burton's husband what happened to her;
  1. (b)
    he told Mr Burton that he had received a text message from Mrs Burton and asked what had happened, whether she was all right, and whether it was to do with the workers' compensation matter in relation to her ankle ("Because I've seen you walk around at lunchtime") or something else;
  1. (c)
    Mr Burton responded by suggesting that Mr Gerada talk to Mrs Burton's case manager; and
  1. (d)
    Mr Gerada returned to his office.
  1. [166]
    Later that day, Mr Gerada sent an email to Ms Cook, who responded the following day proposing that they have a meeting the following week with Mrs Burton to review her case and so that he could raise any further questions (Exhibit 13).  Mr Gerada said he was happy to go along with the proposal, and a meeting was arranged for 16 May 2012.
  1. [167]
    Mr Gerada observed that, in the period between when Mrs Burton returned to work (on 9 May 2012) and the meeting on 16 May 2012, Mrs Burton was "back to normal" and did not raise with him any concerns about him speaking with Mr Burton.
  1. [168]
    Mr Gerada said that he had not read the Council's rehabilitation and return to work policies.  He was not aware of any requirement for supervisors to maintain privacy and confidentiality in relation to workplace injuries, or of the obligations of supervisors in relation to injury management and return to work.  Rather, he assumed that any guidance he required would come from relevant sections within the Council.
  1. [169]
    Mr Gerada said that, apart from facilitating her sick leave, he provided no support to Mrs Burton in relation to her injury.  However, Mrs Burton had not approached him to request support or for an alteration of her duties.
  1. [170]
    Mr Burton's evidence: Mr Burton was present when Mrs Burton injured her ankle in March 2011.  He helped her back to the office and sat her in a chair.  Mr Gerada returned to the office and, at his suggestion, Mr Burton pushed the chair on which Mrs Burton sat out to the back of the building.  Mr Gerada followed them out of the building.  Mr Burton went to the car, drove it to where Mrs Burton was seated and helped her out of the chair and into the back seat of the car.  Mr Burton did not agree that Mr Gerada held the door of the car open and that Mrs Burton leaned on him.
  1. [171]
    Mrs Burton returned to work while her ankle was swollen, but after x-rays were taken to ensure it was not broken.  According to Mr Burton, Mrs Burton had no problems in relation to carrying out her work duties until 2012.
  1. [172]
    In April 2012, Mrs Burton needed time off for one steroid injection and examination by a specialist.  At that time, as a result of the injury, Mrs Burton was unable to drive.  Mr Burton drove her to Robina for the treatment and then took her home.  Mr Burton returned to the office.  Mr Gerada came out of his office and said loudly to Mr Burton, in the presence of others (including Mr Quilliam), words to the effect "Hasn't she had enough time off?  You still going walking at lunch time."  According to Mr Burton, Mr Gerada spoke in an aggressive tone.  Mr Burton recalled that he was "a bit mortified … a bit shocked actually," but he replied that they still went walking and would like to do more.
  1. [173]
    Mr Burton disagreed with the suggestion that Mr Gerada had told him he had received a text message from Mrs Burton and had asked him "What's happened?  Is she all right?  Is it to do with the workers compensation thing, her ankle, because I've seen you walk around at lunchtime?"  Mr Burton also disagreed that his response was "Talk to her case manager."  He agreed, however, that Mr Quilliam said "Can you take the conversation somewhere else?"
  1. [174]
    Mr Burton said that, on another occasion after the steroid injection to Mrs Burton's ankle, he was present when Mr Gerada walked over to the desks where Mr and Mrs Burton were seated and asked Mrs Burton whether there was going to be a time when she had seen enough doctors.  In particular, Mr Gerada asked "Haven't you seen enough doctors yet?"  Mr Burton could not recall whether Mr Quilliam and Mr Pincott were working in the same office area at that time, but agreed that, if they had been there when Mr Gerada asked the question of Mrs Burton, there would be no reason why they would not have heard it.
  1. [175]
    Mr Quilliam's evidence: Mr Quilliam recalled a conversation on 3 May 2012 between Mr Gerada and Mr Burton, outside Mr Gerada's office and a few feet behind Mr Quilliam's desk, in which Mrs Burton's name was mentioned.  Mr Gerada and Mr Burton were within a couple of feet of each other and were speaking in a conversational manner.  Mr Quilliam said that he was not aware of what the conversation was about.  (However, apparently he made a statement in October 2012 to the effect that the conversation was about Mrs Burton being off work.)  Because he was trying to work and their conversation was annoying him, he turned around and asked them to move.  They moved away.  After the conversation, Mr Burton spoke with Mr Quilliam and asked whether they should have held the conversation there.  Mr Quilliam said "probably not."
  1. [176]
    Mr Pincott's evidence: Mr Pincott recalled the day when Mrs Burton injured her ankle and hobbled back into the office near to where he sat.  He subsequently became aware from Mrs Burton that her injury was worse than she thought.  However, she did not talk to him about the treatment she received.
  1. [177]
    Ms Cook's evidence: Louise Cook has been a Rehabilitation Case Manager in the Council's Workers' Compensation Unit since October 2008.  She first encountered Mrs Burton in April 2011 in relation to Mrs Burton's workers' compensation application form about her injured ankle.  Ms Cook became Mrs Burton's case manager, a role which involved monitoring Mrs Burton's progress and recovery, and liaising with relevant people such as doctors and physiotherapists and Mrs Burton's managers about any impact of her injury on her capacity to perform her normal role at work.  Although Ms Cook described Mrs Burton's progress as a "long rehabilitation" of a "complex injury,"  she said that until about April 2012 Mrs Burton was functioning at her full capacity at work, performing full duties unrestricted.  After Mrs Burton received a steroid injection on 24 April 2012 on the recommendation of her specialist some three weeks earlier, she experienced side-effects such as inflammation and pain.  Mrs Burton's GP issued a certificate for total incapacity in the workplace.  Ms Cook recalled that by May 2012 Mrs Burton was still receiving treatment for her ankle, but had not been assessed for permanent impairment in relation to the ankle injury.
  1. [178]
    Ms Cook made file notes of discussions, telephone conversations and meetings with Mrs Burton.  The notes were stored in the Appellant's computer database.  Her notes for the period 23 April until 16 May 2012 are Exhibit 22.  They record conversations about the side effects to Mrs Burton's foot of the injection (inflammation, bruising, pain and discomfort), and about her GP issuing a total incapacity certificate until 1 May and then another from 3 to 9 May 2012.
  1. [179]
    According to Ms Cook, she first had contact with Mr Gerada on 4 May 2015 after receiving an email from him advising that he had received a text message from Mrs Burton that she had been advised by her doctor to rest at home and suggesting that he contact Ms Cook to obtain additional information (Exhibit 13).  Ms Cook agreed that, although it was appropriate for Mr Gerada to make that enquiry, it would usually have been the case for him to be updated by the provision of workers' compensation medical certificates either from her or Mrs Burton.  That did not occur.  Ms Cook said that she was not aware at that stage that Mr Gerada was not receiving the certificates.
  1. [180]
    Ms Cook recalled that Mrs Burton contacted her by telephone on 4 May 2012 and expressed concern that she believed Mr Gerada had been discussing her case with someone in an open office environment in the presence of other co-workers.  According to Ms Cook's note of that conversation:

"Ms Burton outlined that her manager had reportedly raised issues about having too much time off work and that she was able to walk the other day.  Ms Burton was very distressed about this. RCM [i.e., Ms Cook] suggested she provide manager with an update on her status including TI then suggest a meeting altogether to discuss her injury & case.  RCM and did advise Ms Burton that it may be an idea to address her concerns directly with her manager will liaise with P&C [i.e., People & Culture] for their support."  (Exhibit 22)

That note also records the latest assessment of Ms Burton's ankle and the possibility that surgery might be likely.

  1. [181]
    In her note of a conversation on 8 May 2015, Ms Cook recorded that, apart from outlining her ongoing pain in the ankle, Mrs Burton also outlined that she had "thought further about her concerns with her manager discussing her case in the office and will discuss further with P&C.  RCM again offered to attend a meeting with supervisor to discuss her rehab and this concern further."  Ms Cook recalled that the purpose of the proposed meeting was to discuss the injury because it was now impacting on the workplace.

 Meeting of Mrs Burton and Mr Shirley on 10 May 2012

  1. [182]
    At the request of Mrs Burton, she and Mr Shirley met at the Council's Surfers Paradise administration building on 10 May 2012.  Mrs Burton did not indicate what she wanted to discuss.
  1. [183]
    Mrs Burton's evidence: Mrs Burton recalled that the tone of the meeting was "very standoffish, which was fine" and the advice was "very much from a management point of view."  She agreed that Mr Shirley commenced the meeting by indicating that he was not taking sides and that he was just looking to get a resolution to the issue.  He also indicated to Mrs Burton that if he felt there was some issue arising from the conversation that he should raise with the Branch Manager he would do so.  He gave Mrs Burton an opportunity to raise whatever concerns she had and, according to Mrs Burton, he suggested that concerns about what Mr Gerada was doing or not doing could be in the form of a formal grievance.  Mrs Burton recalled seeing Mr Shirley taking notes during the meeting.
  1. [184]
    Mrs Burton agreed that the first issue she raised with Mr Shirley concerned a suggestion that she had not given a greeting to Mr Gerada at a time when she was coming to or from the photocopier, and that Mr Gerada was saying to her that she tended to walk around the office and not say hello to him or other staff (a comment which Mrs Burton described as "totally untrue").
  1. [185]
    Mrs Burton raised with Mr Shirley whether it was appropriate for her to be requested to train people.  He indicated to her that there was not any real difficulty about that request. According to Mrs Burton, she was concerned that, if they could not find anyone with relevant qualifications and the plan was to get people into the Unit, she would be in a training situation again.  This issue arose in at least some of her meetings with Mr Gerada, but there was never clarification about what direction they were taking.  The matter was never finalised. Looking at the workload and other initiatives, she was concerned about how she would achieve everything.
  1. [186]
    Mrs Burton said that she asked Mr Shirley about the likelihood of Mr Burton being moved out of his position and being required to do some TEO work.  In cross-examination, Mrs Burton confirmed that Mr Burton had previously worked as a TEO and that the position was at Level 5, the same level as his project officer position in the Road Safety Unit. Mrs Burton agreed that Mr Shirley indicated that, if Mr Burton was required to transfer at level to do something he had experience with, that was perfectly reasonable.  If he was asked to do something he had not had experience with in the past, Mr Burton could be retrained and that would still be a reasonable request.
  1. [187]
    Mrs Burton also raised a concern with Mr Shirley about aspects of the requirements for her to report to Mr Gerada (particularly the amount of reporting and the timeframes in which to report).  She agreed that Mr Shirley told her that it was appropriate for her Branch Manager to ask her to provide information.
  1. [188]
    Apart from specific responses to some issues, she recalled that Mr Shirley said that what Mr Gerada was doing was "quite fine" and he did not see anything wrong with it.  Mr Shirley said that this was the conversation Mrs Burton should be having with Mr Gerada, and that her options were mediation or (if she wanted to elevate it) she could go to the director who would say "Go and work it out." 
  1. [189]
    Mrs Burton said that she did not discuss the WorkCover injury very much with Mr Shirley because she thought that a separate section of the Council (the Workers' Compensation Unit) was handling that matter, and she did not see that there would be any overlap into the People and Culture section. 
  1. [190]
    At the end of the conversation, Mrs Burton mentioned the plan to have a meeting which would include Ms Cook, and, Mr Shirley said that would be "a good opportunity to air these incidents."  He said that there was counselling available.  He did not give her any "paperwork," in particular the extract from the enterprise bargaining agreement ("EBA") dealing with grievance/dispute avoidance and settlement (Exhibit 19).
  1. [191]
    Although the original purpose of the meeting was apparently to express her concerns about Mr Gerada speaking to her husband about her ankle injury, Mrs Burton said that she could not recall whether she raised with Mr Shirley.  There is no evidence that she did.
  1. [192]
    Mr Shirley's evidence: Mr Shirley confirmed in his oral evidence that, as recorded in his handwritten note of the meeting (Exhibit 18), he opened the meeting by stating that:
  1. (a)
    his role was not about taking a side but getting a resolution to the issue; and
  1. (b)
    if there was anything he needed to pass onto the Branch Manager (Mr Gerada) to resolve the issue, he would.

He recalled that Mrs Burton "may have been taken a little aback by" the latter statement.

  1. [193]
    Mr Shirley's notes of the meeting, expanded by his oral evidence, are to the effect that they discussed the following issues raised by Mrs Burton:
  1. (a)
    Greeting - the photocopier incident: Mrs Burton explained that, when busy, she would walk from her desk past Mr Gerada's office to go to the photocopying machine without greeting him.  Apparently this had not been mentioned to her as an issue of concern, but she said it was her standard practice and she did not see it as unreasonable.  He observed that he would have thought it common courtesy to acknowledge the Branch Manager and explain what she was doing at that time and that, if she was busy and could not have a conversation, that brief discussion was appropriate.
  1. (b)
    Retraining: Mrs Burton asked whether (in the context of Mr Burton possibly returning to another part of the Branch and another officer being introduced to her work Unit) it was appropriate that she be asked to retrain or train that person.  Mr Shirley responded that it was "entirely appropriate" for her to be asked to do that, to ensure that the person understood their role and had skills to perform their role.  He formed the impression that Mrs Burton thought that was an "unreasonable request." 
  1. (c)
    Moving Mr Burton - same level and work: Mr Shirley understood from Mrs Burton that there was some proposal to move Mr Burton at the same level within his classification band back to what he had been doing previously.  He observed to Mrs Burton that it was within Mr Gerada's responsibility as the manager to take that action.  He stated in his evidence that that such a move would be appropriate.
  1. (d)
    Reporting to Branch Manager:  Mrs Burton was involved in meetings with other officers and asked whether it was appropriate that she would need to report to the Branch Manager.  Mr Shirley said that a conversation with Mr Gerada would clarify what level of reporting was required.
  1. [194]
    Speaking generally, Mr Shirley said that all the matters raised in the meeting, and his comments about what should happen next, were based on the fact that Mrs Burton had not raised these matters with Mr Gerada.  Mr Shirley described them as being at "the level of matters that should occur as a normal part of a normal conversation between an employee and a supervisor."  He thought that it was reasonable that Mrs Burton discuss the matters with Mr Gerada and a person from People and Culture (Louise Cook, as Mrs Burton's case manager, was nominated), and he suggested that she should do so.  He thought it appropriate for Mr Gerada "to have his input too."  That suggestion was in line with the EBA that was in effect at that time.  Mrs Burton did not indicate that she felt uncomfortable talking to Mr Gerada. Mr Shirley said that, consistently with his general practice, he provided Mrs Burton with a copy of the grievance procedure from the EBA (Exhibit 19).  He understood that she would arrange that discussion.  He also advised Mrs Burton that they had an Employee Assistance Program and asked if she was aware of it.  Mrs Burton said that she was.  Mr Shirley did not have any further contact with Mrs Burton.
  1. [195]
    Mr Shirley did not consider that the matters raised by Mrs Burton amounted to harassment.  According to Mr Shirley, Mrs Burton did not raise a complaint or allegation of bullying or harassment during that meeting on 10 May 2012.  He thought that, had such an allegation been made, he would have noted it.  In any case, his advice about "moving forward to resolve this" would have been different if that was the case.  Nor did Mrs Burton raise as a concern for her that she was required to attend fortnightly meetings with Mr Gerada, or that she was experiencing an excessive work load.
  1. [196]
    Mr Shirley's notes of the meeting, together with his oral evidence, record that:
  1. (a)
    on 16 May 2012, he briefed Graeme Wicks, the manager of People and Culture (who was Mr Shirley's line manager) about the contents of the meeting, and the course of action that he proposed, and that he intended to brief the branch manager; and
  1. (b)
    on 22 May 2012 he briefed Mr Gerada about his meeting with Mrs Burton on 10 May 2012.

Mr Shirley gave evidence that, at the time he briefed Mr Wicks, he was unaware of the meeting with Mrs Burton on 16 May 2012 or about Mrs Burton having been taken to hospital that day. 

 Meeting of Mrs Burton and Mr Crutch on 11 May 2015

  1. [197]
    Mr Crutch's evidence: Mr Crutch did not recall any other meeting with Mrs Burton between their first meeting in September 2010 and 11 May 2012 when she discussed an issue around perception of work performance which he understood to be "still about the same scenarios."  Again he advised that Mrs Burton to keep a spreadsheet to show the type of work she was doing (and to "validate" what she was doing) and to keep her head down, get on with her work and "just show that you are a good worker."  He asked Mrs Burton what she wanted to do next if, despite keeping her head down, she could not put up with the situation.  He suggested that, if there were still issues, Mrs Burton could seek to get People and Culture or the Union involved, or use the grievance process.  Mr Crutch thought that Mrs Burton "took on board" what he said, but did not ask him to pass anything on to the Union.
  1. [198]
    Mrs Burton's evidence: On 11 May 2012, the day after the meeting with Mr Shirley, Mrs Burton went to see Mr Crutch again.  She told him about the meeting with Mr Shirley.  They discussed the possibility that she and Mr Burton might be split up, and that they might be moved to another directorate.  Mrs Burton explained what was going on with Mr Gerada, particularly that they "were still receiving the same sort of treatment."  She told him about the frequency of meetings with Mr Gerada increasing from monthly to fortnightly, that Mr Gerada had asked her in the office when they are going to have enough of her, and about her concerns that Mr Gerada was saying that she was not mixing with other people. 
  1. [199]
    Mrs Burton said that Mr Crutch said that everyone knew that Mr Gerada did not have any people skills and that he was used to a different type of work.  Mr Crutch knew Mr Gerada quite well because he used to work with him.  She described Mr Crutch's response to most issues as non-committal.  He suggested that the Burtons should "just put up with this" and keep their heads down.  He also suggested they divert as much attention away from themselves as possible because of people's perception of them working together, and that Mrs Burton should put her work schedules on a Gantt chart.  She followed that suggestion and prepared a Gantt chart which she took to her meeting on 15 May 2012.
  1. [200]
    Before the meeting with Mr Gerada, Mrs Burton felt "stressed" as she had not had to complete this sort of form before.  She was nervous about whether she had done so correctly, and saw Mr Pincott to ask whether he had prepared a Gantt chart.  He said that he had not done so and did not know anything about it. 

 Meeting of Mr Gerada and Mrs Burton on 15 May 2012

  1. [201]
    The meeting on 15 May 2012 was, in effect, the meeting that was originally scheduled for 27 April 2012 and the cancelled meeting on 2 May 2012, for which Mr Gerada sent meeting requests with topics to discuss and documents for Mrs Burton to bring (see paragraphs [98] to [100] above.)
  1. [202]
    Mrs Burton's evidence: At their meeting, Mr Gerada looked through the Gantt chart that Mrs Burton had prepared and made some suggestions about how she could make it better.  Mrs Burton said that Mr Gerada "actually smiled" when she produced the Gantt chart.  She was pleased with his favourable response, as she "actually found something I could communicate with him."  Mr Gerada told her that he expected it to be updated for each meeting.
  1. [203]
    He then talked about the initiatives that she had outlined and gave her extra work.  They discussed budgets and where they might obtain funding for some other initiatives referred to in the Gantt chart (which included initiatives for the next 10 years).  There had been a decline in numbers for the SMART program and Mr Gerada had said that, if the decline continued, those above him might decide that it was not worth continuing to fund that program.  Mrs Burton agreed that it was appropriate for him to alert her to that, and that she had shrugged her shoulders and said "Well, whatever will be will be."  She had responded positively to him about working on an initiative concerning fatal crash investigations and road safety audits.
  1. [204]
    Mrs Burton said that the meeting was "probably more amicable than any other that I'd ever had."  She assessed that the meeting "wasn't too bad" (and agreed that it was quite positive) and that perhaps she had done the right thing, although in doing so she had made more work for herself.  However, Mrs Burton said that she was concerned about whether suggestions made at the meeting would come to fruition as she had not seen decisions made about other suggestions to expand the Unit or move the road safety team somewhere else. 
  1. [205]
    Mr Gerada's evidence:  Mr Gerada recalled that he and Mrs Burton discussed a Gantt chart (Exhibit 14) which, by reference to a series of timelines, was "essentially a way to articulate what projects the road safety unit was working on at that time, when things were going to wrap up, when we needed to start transitioning in to the next phase of introduction, budget submissions or whatever the case may be."  The Gantt chart was a "device to enable you to see on a page the start and finish of certain phases of a project."  Mr Gerada said that he told Mrs Burton that she had charted territory that she had not been before, this was "an excellent way" and they had "raised the level of the running of the section a few notches."  The professionalism reflected in the chart, and the fact that what Mr and Mrs Burton were doing was recorded on one sheet, enabled them to move on.
  1. [206]
    Mr Gerada described the Gantt chart as a living document that was amended when a task or deliverable was completed or if a task required more time.  He agreed that the document could mean that meetings would be shorter.
  1. [207]
    Mr Gerada had told Mrs Burton that the chart was "really excellent" and "really good stuff."  She had a "pretty big smile on her face," but did not otherwise respond to his praise.
  1. [208]
    At that meeting, they discussed where they might be heading in relation to the funding of initiatives that Mr and Mrs Burton were working on.  About one month earlier, a new Council was elected with a different view of priorities for the forthcoming budget.  Mr Gerada and Mrs Burton discussed that it was highly likely that funding would not be approved for the SMART program for the subsequent year.  According to Mr Gerada, there had been a steady decline in the use of the SMART program (after they had trained about 2,500 people) and the mayor and senior executives considered that it was not an essential service.  He recalled that Mrs Burton "kind of shrugged her shoulders" and said "Well, whatever will be will be."  Mr Gerada said that they would need to look at what else the Road Safety Unit would move into, referring to projects that they had not had time to look into because of the SMART program.  One of the suggestions discussed at that meeting was fatal crash investigations and road safety audits.  Mrs Burton said "Great, that's the sort of work that Ian and I love to do," or words to that effect.
  1. [209]
    The meeting finished with Mr Gerada suggesting some amendments to the Gantt chart, by shortening the timeframe and compressing the targets a little.  Mrs Burton was to adjust the program for the next meeting after she had spoken to Mr Burton about whether it was possible to do that.  Mr Gerada recalled that the meeting was amicable and ended on a positive note.
  1. [210]
    Mr Gerada made some brief handwritten notes during that meeting of matters that he thought were worth recording (Exhibit 17).

 Meeting between Mr Gerada, Ms Cook and Mrs Burton on 16 May 2012

  1. [211]
    Following the meeting on 15 May 2012, Ms Cook arranged a meeting between Mr Gerada, Mrs Burton and herself to be held in his office at approximately 9.00 am on 16 May 2012.  The subject to be discussed was Mrs Burton's workers' compensation case.
  1. [212]
    Mrs Burton's evidence: Mrs Burton spoke with Ms Cook by telephone before the meeting.  Apparently Ms Cook said that she was going to discuss Mrs Burton's workers' compensation case, and that she would give Mrs Burton an opportunity to talk to Mr Gerada about speaking about her injury in the open office if she felt comfortable to do that.  Ms Cook described her role as providing support to clarify Mrs Burton's workers' compensation matter if that needed clarifying.
  1. [213]
    In summary, Mrs Burton's evidence (in chief and in cross-examination) was that the meeting went for no longer than 20 minutes and that the matters were discussed as follows:
  1. (a)
    Ms Cook spoke first, and outlined the history of Mrs Burton's injury and noted that there had been minimal contact with Mr Gerada to date because of the limited impact the injury had had on Mrs Burton's workplace functioning;
  1. (b)
    Mr Gerada wanted to know how long Mrs Burton was expected to be off work because he wanted to know how much it- was going to cost the business;
  1. (c)
    Ms Cook said that the ankle injury was complex, they were working with the unknown and they were working on medical evidence, they understood that rehabilitation would take some time;
  1. (d)
    Ms Cook said that a specialist had identified that a cortisone injection should be recommended, that it was common for injections to have negative side effects, and that in Mrs Burton's case it had led to a negative side effect;
  1. (e)
    Mrs Burton confirmed that she had advised Mr Gerada of that procedure and the possible negative side effects;
  1. (f)
    at some stage Mr Gerada suggested that the doctor's diagnosis could be incorrect;
  1. (g)
    Ms Cook confirmed that Mrs Burton had seen her GP when experiencing increased pain levels and she was issued with certification for time off work;
  1. (h)
    Mr Gerada said that he had not received medical certificates and was going on Mrs Burton's discussions with him about being at work or not;
  1. (i)
    Ms Cook said there had been a glitch in the system, that he should have received them and she promised to arrange copies of all the medical certificates to be provided to him;
  1. (j)
    Ms Cook said that Mrs Burton would need to hand copies of any future medical certificates to Mr Gerada;
  1. (k)
    (at that point, or possibly earlier in the meeting) Mr Gerada asked Ms Cook about her qualifications and she told him what they were and spoke to her experience in the Allied health industry;
  1. (l)
    Mr Gerada said he was not aware of any further rehabilitation for Mrs Burton and he believed that the injury must have recovered, although he confirmed that he had received some monthly reports from the Workers' Compensation Unit which identified her claim as still active;
  1. (m)
    Mr Gerada said that, as a manager, he needed to monitor the costs of the claim;
  1. (n)
    Mr Gerada expressed some concern that he was not informed about the possible implications of the injury for Mrs Burton in the workplace, particularly as she did significant walking;
  1. (o)
    Ms Cook suggested that if Mr Gerada had any concerns regarding Mrs Burton's claim or injury, he should first discuss them with Mrs Burton, but Ms Cook would remain a point of contact if required.
  1. [214]
    Having discussed Mrs Burton's ankle injury and the WorkCover claim for about five to ten minutes, Ms Cook asked anybody to ask questions or raise issues.  Mrs Burton started to talk about other things in the office. 
  1. (a)
    Mrs Burton said that Mr Gerada had "privileged information" about her and this made her upset, and she asked him why he had asked Mr Burton about her information in the office (i.e., on 3 May 2012);
  1. (b)
    Mr Gerada replied that Mr Burton was the obvious one to ask as he is her husband;
  1. (c)
    Mrs Burton asked whether, if there had been another work colleague working with her, he would have asked that person about her health;
  1. (d)
    Mr Gerada said "No";
  1. (e)
    Mrs Burton said that she was very upset, that she and Mr Burton pride themselves on being professional in the office, and Mr Gerada was not affording them the same dignity by disclosing personal information;
  1. (f)
    Mrs Burton said that she felt humiliated by this information being out in the office;
  1. (g)
    Mrs Burton then became upset and started to cry;
  1. (h)
    Mr Gerada smiled and smirked at her and said "Oh, I was just concerned about you;"
  1. (i)
    Mrs Burton said "If you are concerned about me, I would have thought that you would have given me a call or sent me some sort of message to ask how I was;"
  1. (j)
    Mrs Burton went on to speak and Mr Gerada shouted and said "Oh, it's my turn to talk;"
  1. (k)
    Mr Gerada "went on about" medical certificates and why he wasn't given the information as a manager about how much time Mrs Burton was having off;
  1. (l)
    Mr Gerada said that he had not heard anything apart from a text message from Mrs Burton;
  1. (m)
    Mrs Burton sought to clarify the matter by saying that the text message contained her advice to talk to Ms Cook regarding workers compensation;
  1. (n)
    Mrs Burton also stated that she had "computer issues" at work so was unable to send him an email before going to the doctor to let Mr Gerada know what was happening, and that she did not wish to ring and disturb him as she understood he was busy. 
  1. [215]
    At some stage in the conversation, Mrs Burton:
  1. (a)
    outlined her version of the conversation in which Mr Gerada was alleged to have said "Oh, she's having more time off" and that he had seen Mrs Burton walking around at lunchtime;
  1. (b)
    said that Mr Quilliam overheard the conversation; and
  1. (c)
    said to Mr Gerada that the conversation should not have occurred in the open office, and he replied "Well, maybe I could have done it differently."
  1. [216]
    Mrs Burton did not recall the rest of the conversation, but remembered that:
  1. (a)
    during the discussion, Mr Gerada's voice was "raised and it was very abrupt and almost aggravated" (although Mr Gerada did not yell at her and did not abuse her);
  1. (b)
    the conversation was cut off abruptly, when Mr Gerada called an end to the meeting (soon after he said that he could have handled things differently); and
  1. (c)
    she and Ms Cook walked out of the office. 
  1. [217]
    In cross-examination, Mrs Burton agreed that, although she returned to work on about 8 May 2012:
  1. (a)
    she did not raise the matter of the 3 May conversation with Mr Gerada in the week before the 16 May meeting; and
  1. (b)
    she did not give Mr Gerada notice that she would raise the issue in that meeting.

Mrs Burton also agreed that, of all people in the office, Mr Burton was going to know her state of health, and that, given the contents of her text message to Mr Gerada, Mr Burton was the person in the office who would know the reason why the doctor had given her more time off work.

  1. [218]
    Mrs Burton also stated that she was concerned that, by mentioning to Mr Burton that he had seen Mr and Mrs Burton walking at lunch time, Mr Gerada had made her feel that he was querying why she was able to walk at lunchtime and hence was questioning her injury.
  1. [219]
    Mrs Burton said that, although ordinarily she would not care too much about the information about her being disclosed, it was "basically the end of the story, the straw that broke the camel's back, I guess."  She had known the majority of the people with whom she worked for a long time and they had a good working relationship.  She felt belittled about Mr Gerada breaking a confidence and not affording Mr Burton and her a professional relationship within the branch.  Mr Gerada let out private information about her.
  1. [220]
    Mrs Burton described her demeanour by the end of the meeting as "just shattered.  I was crying.  I tried to control myself because I realised that I was in a professional - or what I thought was going to be a professional meeting.  So I walked outside to calm myself as much as I could, and did that when I walked outside with Louise."  Ms Cook comforted her and said that she would call Mrs Burton later to see how she was.  Mrs Burton went outside to get some air, dried her eyes in the ladies' room, and returned to her office.
  1. [221]
    When asked in relation to "the straw that broke the camel's back" what the other "straws" were, Mrs Burton listed:
  1. (a)
    being asked when her injury was going to get better;
  1. (b)
    increasing the frequency of her meetings from monthly to fortnightly;
  1. (c)
    increasing the amount of information required in the time provided;
  1. (d)
    asking her to provide feedback on complex matters within a short period of time (e.g., a on a Parliamentary report about the effects of speed cameras in Queensland the following day);
  1. (e)
    doing accurate research so that she could give professional advice within a relatively short period.
  1. [222]
    Mrs Burton's assessment was that:

"As I look back - back on it, I didn't realise at the time but the information that I was expected - the amount of information and projects and meetings and telephone calls and then also being told that I wasn't in a sense a team player by not being available to others, just being given short notice to do things.  I felt - I felt singled out.  Some of the comments that - made me feel insecure in my position about having to transfer.  I felt that, you know, my career was over, to take it to the nth degree.  I didn't know what to think.  I was just stressed."[13]

  1. [223]
    According to Mrs Burton, Mr Gerada "was in contempt of" the road safety team and made them feel like they were always under the microscope for performance.  Although Mrs Burton understood the importance of their work being correct ("because we were talking about saving lives or putting lives in jeopardy and we both took that very seriously"), Mr Gerada's approach "concerned" her and "made me stressful."              
  1. [224]
    Mr Gerada's evidence:  Mr Gerada said that he understood the purpose of the meeting on 16 May 2012 was to provide information on the workers' compensation issue with Mrs Burton and to provide him with an avenue to ask questions of Ms Cook.  This was the first occasion on which he met or spoke to Ms Cook, although (as noted earlier) they had previously communicated by email.
  1. [225]
    In summary, Mr Gerada's recollection of the first part of the meeting was that:
  1. (a)
    it started with him trying to get a sense of who Ms Cook was and what her background was, and Ms Cook explained her expertise and qualifications;
  1. (b)
    Ms Cook explained that this was a significant injury, they were acting on medical advice and that it takes quite a long time to heal, and that just because someone is back to their pre-injury duties that does not mean that the injury has healed;
  1. (c)
    they discussed who could ask questions (as it was of concern to him as a manger to clarify who he was entitled to obtain information from, as he had been afforded no information by the Workers' Compensation Unit) and Ms Cook said that he could ask Mrs Burton questions about her ankle and sick leave, rather than seeing Ms Cook;
  1. (d)
    Ms Cook admitted that Mr Gerada should have been given medical certificates and advice about what was happening, and she apologised and said that she would make sure that she sent the documents to him.
  1. [226]
    At that stage, Mrs Burton became upset.  Mr Gerada observed that she started to quiver and shake a little bit, and he saw tears come down each cheek.  Mrs Burton then told Mr Gerada how upset she was that he had asked Mr Burton the question about her injury on 3 June 2012.  She said that Mr Gerada had privileged information, and that by mentioning Mr and Mrs Burton walking at lunch time she took that as Mr Gerada judging her or them.  About that stage, Mrs Burton said words to the effect that she and Mr Burton had a professional relationship in the workplace.  She said that Mr Gerada should not have asked Mr Burton that question, but should have asked her.  At some stage, she asked Mr Gerada whether, if someone else was working with her instead of Mr Burton, he would have asked that person about her medical history, and he said "No."  Mrs Burton said that her husband and Mr Quilliam told her what had happened, and that Mr Gerada had asked the question in the open office, for all to hear. (Mr Gerada suggested that Mrs Burton was intimating that he had yelled across the office when in fact he was standing in front of Mr Burton.)  Mr Gerada said that he told Mrs Burton he was concerned.  He did not remember smirking.  In essence, Mrs Burton was upset that Mr Gerada had asked the question of Mr Burton and that the discussion took place in the office.
  1. [227]
    Mr Gerada then asked her whether she had finished as he wanted to respond to tell her why he did what he did.  Mrs Burton kept looking across to Ms Cook, and kept talking over Mr Gerada as he was trying to give his response.  He put his hand up and said in an assertive tone "Look, it's my turn to talk now."  He considered that Mrs Burton had confirmed that she had finished telling Mr Gerada what her concerns were, and he needed an opportunity to answer her questions and statements.
  1. [228]
    At that point, Mrs Burton stopped talking.  Mr Gerada addressed Mrs Burton's two issues.
  1. (a)
    He told her that, because he was concerned that he had no other detail, he asked Mr Burton.  Given that Mr Burton was her husband, Mr Gerada thought that was the reasonable thing to do as he would be aware of what had happened to his wife in terms of whether it was the ankle or another injury. 
  1. (b)
    Mrs Burton said that he shouldn't have asked Mr Burton the question in the open office, and Mr Gerada admitted that and said "Well, maybe I could have done it differently."

He agreed that was the only acknowledgement that he made of Mrs Burton during the meeting, and that he did not apologise in relation to her other concerns or seek to support or reassure her during the meeting.

  1. [229]
    The meeting concluded shortly after Mr Gerada spoke.  He was already late for another meeting at Bundall. He thought that Mrs Burton was "reasonably composed" when she stood up with Ms Cook.  Mrs Burton was not crying.  She and Ms Cook left the office.  Mr Gerada turned around, picked up a file and almost immediately followed them out because he was due at the other meeting.  He did not say goodbye to them.
  1. [230]
    Mr Gerada made some brief handwritten notes about that meeting during the meeting and during the following meeting later that day (Exhibit 15).
  1. [231]
    Mr Gerada said that he became aware that Mrs Burton had become unwell when he received a phone call from Mr Quilliam who advised him that she had been taken by ambulance to hospital with Mr Burton.  Mr Gerada then rang Ms Cook to let her know what had happened.  At that stage he did not know whether Mrs Burton's condition was related to the meeting, so he said to Ms Cook that he was going to call Mrs Burton to see how she was.  Ms Cook suggested that he should not do that, and he followed her advice.  Mr Gerada remembered little else about that conversation.  He had no further contact with Mrs Burton after the meeting on 16 May 2012.
  1. [232]
    Mr Gerada asked Mr Burton how Mrs Burton was, and Mr Burton referred him to the case manager.  On 17 May 2012, Mr Gerada sent an email to Mr Shirley to explain what had happened (Exhibit 16).
  1. [233]
    Ms Cook's evidence: Ms Cook organised and chaired the meeting on 16 May 2012, which commenced about 9.00 am.  In her oral account of that meeting, Ms Cook recalled the first half being devoted to discussing Mrs Burton's complex injury and her time off work following the injection, and that the rehabilitation would take some time.  Ms Cook did most of the talking during that part of the meeting.  Mr Gerada listened to the information and explanations.  Ms Cook's detailed (but not verbatim) notes of the meeting do not record Mr Gerada asking aggressively "Is there ever a time that the doctors are going to be finished with you?"  Nor could she recall him saying that.  Apparently his enquiries at that stage of the meeting were appropriate and were asked in an appropriate manner. 
  1. [234]
    Although he was entitled to have them, Mr Gerada had not received medical certificates or anything of that nature, and had been relying on what Mrs Burton had told him.  Ms Cook apologised at that stage of the meeting and undertook to send the medical certificates to Mr Gerada.  She also instructed Mrs Burton that copies of any future medical certificates would need to be handed to Mr Gerada and the workers' compensation unit.  Mr Gerada made other statements in relation to the injury, including noting that he was not aware of any further rehabilitation for Mrs Burton and believed the injury must have recovered (it being more than 12 months since the original injury had occurred).  However, he admitted to receiving monthly reports from Workers' Compensation identifying that Mrs Burton's claim was still alive.  He commented that, as manager, he needed to monitor the costs of this claim.  Ms Cook's notes then record that he expressed concern as he was not informed if there was an increased risk of Mrs Burton remaining at work and performing full duties, as she did perform "significant walking at times."  Ms Cook outlined that this advice would come from the treating medical officer.  To date there had been no restrictions placed on Mrs Burton and therefore it was not applicable for any advice to be given regarding Mrs Burton's working ability.  Ms Cook informed Mr Gerada that he would only be informed when Mrs Burton's injury impacted her in the workplace or restrictions were in place.  Rehabilitation progress did not need to be passed on to the employer.  She suggested that he should discuss with Mrs Burton any concerns he may have regarding her injury, although Ms Cook would be a point of contact if required.
  1. [235]
    At that point in the meeting, Ms Cook asked if there were any further questions from either party.  She recalled that Mrs Burton became upset when she started discussing the occasion when Mr Gerada had reportedly discussed her matter in the open office environment in front of co-workers.  Ms Cook's note of the meeting recorded:

"Ms Burton became upset and distressed when discussing this and outlined that Mr Gerada was privy to this information as a manager and should not have shared with any of her co-workers.  Ms Burton went on to outline that people within her area now know she is on compensation and she was upset this information had been shared.  Ms Burton went on to explain the situation she had been advised of where this had occurred.  Following the injection and returning to work after some time off Ms Burton had to leave the workplace due to pain levels and had text Mr Gerada to advise she had left and was seeing her GP.  Mr Gerada of then reportedly went out into the open office arena and asked Ms Burton?s husband whom also works within the same area what had happened to Ms Burton.  This conversation was reportedly overheard by a co-worker sitting next to Mr Burton.  Ms Burton explained that herself and her husband were very professional in the workplace and did not bring the relationship into it and therefore Mr Gerada had not paid the same respect back in discussing her injury with her husband and in front of other workers." (errors in original)

  1. [236]
    Ms Cook, who was seated next to Mrs Burton, observed her crying and rocking slightly. She remained upset with tears present whilst discussing this issue.  Mrs Burton informed Mr Gerada that this had clearly made her upset.
  1. [237]
    According to Ms Cook's notes:

"Mr Gerada then asked had Ms Burton finished and for his chance to speak.  Mr Gerada went on to outline he had only received a text message from Ms Burton and nothing further and wanted to enquire further about why she had gone home.  Ms Burton went to speak when Mr Gerada raised his hand in front of him as his voice became louder and stated it was ?his turn to talk?.  Mr Gerada went on to outline he was asking out her husband out of concern for her. Ms Gerada again outlined he only received a text with limited information of why she left, Ms Burton explained she had computer issues and could not email and did not wish to ring and disturb him as she understands he was busy.  Ms Burton also outlined Mr Gerada did not try to contact her to discuss and should not have gone to Mr Burton to ask."  (errors in original)

  1. [238]
    The notes record that Mrs Burton confirmed that a co-worker had also heard Mr Gerada's conversation in the open office about Mrs Burton.  According to Mrs Burton, Mr Gerada said "Oh, she is having more time off," and that he had seen Mrs Burton walking around in lunchtimes.  The notes continue:

"Ms Burton again was upset by this.  Mr Gereada did confirm he had made that statement of her walking and did not follow on further explanation of why.  Mr Gerada stated that he was surprised and disappointed by Ms Burton?s reaction here and also outlined that if he had his time over that yes he could have possibly handled that situation of discussion better."  (errors in original)

  1. [239]
    Although it was put to Ms Cook that Mr Gerada did not use the word "better" but said "differently," she could not recall his precise wording.  Nor did she recall seeing Mr Gerada smirk at Mrs Burton at any time during the course of the meeting.
  1. [240]
    In her notes of the meeting, Ms Cook recorded that Mr Gerada's manner in the meeting was "non-compassionate, abrupt at times with voice loudening and becoming defensive."  When cross-examined, Ms Cook agreed that her description of Mr Gerada's manner referred to the second part of the meeting.  She agreed that she did not stop the meeting or offer Mrs Burton a break.
  1. [241]
    Ms Cook also agreed that, in effect, Mrs Burton had been afforded an opportunity to raise her concerns with Mr Gerada and he had provided a response to those concerns during that meeting.
  1. [242]
    Ms Cook also noted that when she finished the meeting, Mr Gerada did not say goodbye or add further comment.  He did not look up as Ms Cook and Mrs Burton were arising from their chairs to walk out of the office.
  1. [243]
    Ms Cook recalled that Mrs Burton stopped crying before they both walked out of the meeting. According to Ms Cook's notes, Mrs Burton was "still upset however had settled somewhat with no further crying."
  1. [244]
    Events immediately after the meeting:  As noted earlier, after her meeting with Mr Gerada, Mrs Burton returned to her workstation.  She sat down and "started to shake violently."  After Mr Burton managed to calm her down, Mrs Burton started again, fell off her chair onto the floor and started to have seizures.  She remembers kicking her legs and arms and choking.  Mr Burton asked another worker to call an ambulance, and paramedics gave Mrs Burton some medication to calm her down and took her in an ambulance to the Allamanda Hospital.
  1. [245]
    Mr Quilliam gave evidence that he was not in the workplace at the time of the meeting on 16 May 2012 but arrived from one of the depots after Mrs Burton had been taken away by ambulance.  In accordance with the relevant Council policy, Mr Quilliam notified Mr Gerada of that event.
  1. [246]
    After the meetings, two other interactions involving Ms Cook occurred that are relevant to this appeal.  First, at 12.25 pm, Ms Cook sent a text to Mrs Burton to see how she was feeling.  Ms Cook received a reply from Mr Burton who rang on Mrs Burton's work mobile phone to inform Ms Cook that he was at the Allamanda Hospital.  Mrs Burton was not well and had suffered a seizure directly after the meeting with Mr Gerada that morning.  They were waiting for tests to be performed.
  1. [247]
    Second, after her lunch, Ms Cook rang Mr Gerada in response to his urgent email message.  According to her note of that conversation:
  1. (a)
    Mr Gerada thanked her for the meeting and outlined it had helped him clarify the process;
  1. (b)
    he said that he did not expect to "provoke a reaction … like that" from Mrs Burton;
  1. (c)
    he had to rush to another meeting following that meeting, and when he returned he had been told that Mrs Burton had been taken from the workplace by ambulance;
  1. (d)
    he stated that Mrs Burton had "taken it personally" and that "this is what happens in this environment with everyone knowing everyone's business;"
  1. (e)
    he stated that the first 20 minutes of the meeting went okay with Mrs Burton's involvement, then she "snapped" and he had wracked his brains as to why Mrs Burton have reacted like that;
  1. (f)
    he asked Ms Cook for her thoughts on Mrs Burton's reaction;
  1. (g)
    Ms Cook outlined that any injured worker who believed that their supervisor/manager was discussing their case with other staff members, and that the whole office now knew their business, would be upset by this and would possibly react in that way;
  1. (h)
    she went on to outline that Mrs Burton's comments of being advised her manager had stated that he had seen her out walking at lunch could well make her feel that the trust and legitimacy to her injury is not there from a manager;
  1. (i)
    Mr Gerada stated that this was the first time Mrs Burton had got upset, and he had been advised of this concern with the discussion;
  1. (j)
    he said that, although he had been advised that Mr Burton had contacted the work area to let them know that Mrs Burton was in hospital (and on a drip and waiting for a CT scan), he had not been advised directly;
  1. (k)
    Mr Gerada was not sure what to do from here and wondered if an incident report would need to be completed;
  1. (l)
    Ms Cook agreed that it would be, but suggested that he wait to liaise with Mr or Mrs Burton before he completed an incident report;
  1. (m)
    Mr Gerada was not sure if he should contact or visit Mrs Burton as he identified that he possibly may have been an aggravation and he did not wish to make Mrs Burton feel worse;
  1. (n)
    Ms Cook suggested that he avoid contact at this stage, and await contact first from Mr or Mrs Burton;
  1. (o)
    Ms Cook advised Mr Gerada that she would be on leave from the following day and he should contact Mark Dank, Coordinator of Workers' Compensation, if he had any further enquiries about this matter.

Medical evidence

  1. [248]
    The following doctors gave written and oral expert medical evidence in relation to the nature and cause of Mrs Burton's psychological injury:
  1. (a)
    Dr Ian Dickinson, Mrs Burton's general practitioner who, at the time of the hearing, had been seeing her as a patient for about 15 years and knew her quite well;
  1. (b)
    Dr Mark Whittington, a psychiatrist;
  1. (c)
    Dr John Daniels, a clinical psychologist.
  1. [249]
    Before considering their evidence it is appropriate to set out Mrs Burton's evidence in relation to the history of her condition and associated medical treatment.
  1. [250]
    Mrs Burton's account of her history and consultations with doctors: Mrs Burton gave evidence that she had not previously been treated for any sort of psychological condition.  However she had been treated for stress in 2008 in circumstances where she had commenced to train a new person working with her in road safety.  That person (along with Mr Burton) assisted in the SMART program every second weekend. They became friends inside and outside the work environment.  They had discussed going into business together, but the other person indicated that she did not want to do that.  Subsequently, Mrs Burton was interviewed by People and Culture about an accusation that she had bullied the other person.  That caused Mrs Burton "a great deal of stress for a long time" and she felt unsure about her employment (e.g. whether her position would be made redundant or she would be dismissed).  Because she was not to discuss the matter with others, Mrs Burton consulted her doctor, Dr Dickinson, for some months into 2008.  He did not prescribe any medication for anxiety or depression.  His consultation notes for 4 March 2008 refer to "stress at work" and "intimidatory work place" (Exhibit 29).  In late March and early April 2008, Mrs Burton received letters from Mr Bilton advising her that the allegations had not been substantiated and no further action would be taken (Exhibits 24, 25).  However, Dr Dickinson recorded stress-related work problems in his notes of consultations on 15 May and 24 June 2008 and diagnosed anxiety/depression.  Mrs Burton explained that after the other person left her Unit, she had to run the SMART program on her own (with assistance from her husband on weekends, at least until at her suggestion he became her Project Officer in place of the previous officer).  Although she did not agree that she was depressed, Mrs Burton said that she felt "stressed" and "terribly anxious" at that time.  She sought medical advice in relation to palpitations she was experiencing at work. Mrs Burton did not consult, and was not referred to, a psychologist or a psychiatrist.
  1. [251]
    Mr Burton provided some confirmation of that evidence.  He supposed that he was aware that in around 2007/2008 Mrs Burton was suffering from stress in relation to one of her previous co-workers.  To his knowledge, she did not seek any psychological or psychiatric assistance at that time.
  1. [252]
    Mrs Burton gave evidence that she next spoke to Dr Dickinson in relation to any stress or anxiety after Mr Gerada started as Manager of the Branch.  Dr Dickinson prescribed medication which was adjusted in light of her reaction to it.  In cross-examination, Mrs Burton agreed that there was no mention of work-related stress in any of Dr Dickinson's notes of nine consultations in the period from 13 September 2010 until 3 May 2012, following Mr Gerada's appointment as acting Manager.  She also agreed that the there was no reason why, in any of those consultations, she could not have raised with Dr Dickinson any behaviour of Mr Gerada that was causing her distress. 
  1. [253]
    The first reference to such matters is in relation to a consultation on 8 May 2012 where Dr Dickinson recorded that Mrs Burton was "in tears" and "being emotionally bullied," apparently "about time off and work security and working with husband"  (Exhibit 29). That consultation was after the event on 3 May 2012 when Mrs Burton took issue with Mr Gerada asking Mr Burton about her.  That event caused Mrs Burton distress and to consult Dr Dickinson.  She next saw Dr Dickinson on 17 May 2012 after the meeting with Mr Gerada and Ms Cook on 16 May 2012.  Mrs Burton disagreed with the proposition that the medical records are consistent with the cause of her decompensation being events in May 2012 alone.  Her only (and repeated) response to the absence of references to such concerns in Dr Dickinson's consultation notes was that they had not been noted.  However, she did not give positive evidence that she had raised such concerns in any of her consultations with Dr Dickinson in that period.
  1. [254]
    Dr Dickinson arranged for Mrs Burton to see John Daniels under the psychological medical scheme.  She continued to see him on a weekly basis to check about her progress.
  1. [255]
    Dr Dickinson:  Dr Dickinson wrote a report in the form of a letter dated 11 June 2012 at the request of the Appellant (Exhibit 30).  He described Mrs Burton as a "normally fit and healthy woman."  She presented to him on 17 May 2012, the day after the meeting at work and her assessment at the hospital.  Dr Dickinson described Mrs Burton's demeanour and her account of her work circumstances as follows:

"She was distressed, over her superior's attitude to her injury and work cover claim.  She found the meeting stressful and felt demeaned.  Ms Burton had related to me on numerous occasions, a non-caring and unsupportive attitude to her, right from the start of her injury and claim.  At the meeting Ms Burton felt victimized and her opinions and feelings disregarded.  The meeting to discuss her injury (I believe her case worker was present) was the culmination and reinforcement of her feelings.  She cannot remember much else except returning to her desk.  Her husband who is also a patient of mine and works in the same department told me what happened.  She fell off her chair and started "fitting".  An ambulance was called and I have obtained the Queensland Ambulance Service notes.  These state that she was having a seizure and required an intra-muscular injection to control her clonic tonic contractions.  Ms Burton was taken to the Allamanda Private Hospital where she was investigated including a CT scan of her head.  This was normal and a diagnosis of panic attack with pseudo-seizure was made.  The next day I saw her, she was still shaky and teary following her ordeal."

  1. [256]
    Dr Dickinson agreed with the diagnosis of a panic attack presenting in the form of pseudo-seizure on the background of anxiety/depression.  In his oral evidence, he described the panic attack as a "psychogenic non-epileptic seizure" and a "dissociative seizure" that occurs under great stress.  He considered it to be unusual.
  1. [257]
    Dr Dickinson diagnosed Mrs Burton's condition in May 2012 as a generalised anxiety state with a depressed mood.
  1. [258]
    In his written report, Dr Dickinson recorded that Mrs Burton has no history of an ankle injury or any history of any psychological condition.  In his opinion, Mrs Burton's psychological injury:

"is directly related to her physical injury.  The two are intertwined; the work circumstances that evolved from her physical injury created the atmosphere that caused her psychological injury.  One would not have occurred without the other and both are the result of her employment."

  1. [259]
    Although he described her psychological injury as "significant" and anticipated that it would be "a slow process of recovery," Dr Dickenson wrote that Mrs Burton's prognosis "remains good given time for both her physical and psychological injuries."
  1. [260]
    In his oral evidence, Dr Dickenson described Mrs Burton as a confident woman who is neat, polite and "fairly work-proud."  He could see no psychological deficits in her personality that would be considered anything but normal.  He recalled, by reference to his records, that Mrs Burton consulted him on 8 May 2012 when she said that she felt she was being emotionally bullied.  Mrs Burton was in tears and was worried about her work security and apparently working closely with her husband was being questioned or "frowned upon" by her current manager.  She had had some time off work. Dr Dickinson counselled her but provided no other treatment or medication.
  1. [261]
    The medical records in relation to Mrs Burton's consultations with Dr Dickinson between 12 February 2008 and 24 June 2008 (Exhibit 29) indicate that she consulted Dr Dickinson on four occasions and expressed concerns about stress at work, stress related work problems or palpitations while at work. The records of three consultations note that she was counselled, once "at length" having discussed her stress related work problems at length, and anxiety/depression was noted.  Dr Dickinson's expressly "vague recollections" of those consultations were that Mrs Burton was involved in some office politics and was "a bit worried."  However, these matters were mentioned "more or less in passing" and he was being a "sounding board."  There was no treatment and no real diagnosis made other than Mrs Burton felt that she was "a little bit stressed at work."  In hindsight, he did not think he would diagnose Mrs Burton having a psychological or psychiatric condition in 2008, and described the reference to anxiety/depression as being at subclinical (rather than pathological) levels, as he did not institute treatment.
  1. [262]
    There were, however, no references to work related stress in the medical records maintained by Dr Dickinson for Mrs Burton's consultations with him in relation to other health matters, including her ankle injury, during the period from 13 September 2010 until  3 May 2012.  As noted earlier, his first record of her emotional concerns about her work circumstances was for the consultation on 8 May 2012.  Dr Dickinson agreed that, at consultations prior to 3 May 2012, Mrs Burton did not give him any indication of suffering from any form of psychological condition.  However, he gave evidence by reference to her presentation on 8 May 2012 that:

"I would've assumed that these symptoms would've been brewing a little before that time.  It's very rare that you get a single event causing a dissociative seizure or a pseudo-seizure.  It's usually a culmination over time in the initial seizure then you have a learned response of triggering in other stressful points in time so the point is that was our first real physical evidence of a psychological injury but it was probably brewing for a little bit before then, I would think."[14]

  1. [263]
    Dr Dickinson agreed, in re-examination, that it is not unusual for patients who present with some severe manifestation of anxiety and depression to have had an insidious onset over a period of time.
  1. [264]
    In the course of cross-examination, Dr Dickinson agreed that his diagnosis was based on information that Mrs Burton provided to him but added that he was also informed by his general impressions and by Mr Burton who, along with other family members, is a patient of Dr Dickinson.  He agreed that any views he expressed about causation or attribution of the psychiatric condition was depended upon the accuracy and completeness of the history that Mrs Burton provided to him.
  1. [265]
    Mr Daniels: Mr Daniels provided a written psychological report dated 28 November 2012 to the Appellant's Coordinator Worker's Compensation (Exhibit 21).  He stated that Mrs Burton was referred to him by Dr Dickinson who had noted anxiety/panic as the "predominant conditions."  A Mental Health Care Plan was provided to Mr Daniels, and Mrs Burton's psychological treatment was provided under the Medicare Better Access Scheme.  Mr Daniels stated that his role as a treating practitioner for Mrs Burton was to mitigate her experience of depression, anxiety and stress.  He agreed that it was important for him to build a therapeutic relationship with her.
  1. [266]
    Mrs Burton attended 16 one hour sessions of psychotherapy between 28 May 2012 and 22 November 2012, and Mr Daniels noted that her improvement over time had been "significant" (at least by reference to Depression Anxiety Stress Scales (DASS 42) and Outcome Rating Scales). 
  1. [267]
    Mr Daniels stated that Mrs Burton presented her problems as "elevated depression, anxiety, and stress, arising from perceived mistreatment by her immediate supervisor" Mr Gerada ("TG").  Mr Daniels set out Mrs Burton's description of the circumstances which gave rise to her problems as follows:

"Ms.  Burton reported that she had suffered a work-related leg injury for which she was receiving paid leave and medical expenses under workcover arrangements.  She reported that TG had taken a belligerent and impatient approach to her slow pace of physical recovery and that TG had also, on more than one occasion, insinuated future employment uncertainty which added to her increasing stress.  Ms.  Burton reported that the progressive impact of the physical injury did not affect her ability to carry out her duties as normal, however, TG's alleged bullying in relation to the physical injury and negative employment implications, caused her to collapse at work on the 16th May, 2012, necessitating hospital admission.  She reported having had another anxiety attack while at the hospital and I understand she has not returned to work from that time." (Exhibit 21, para 1.2)

  1. [268]
    In his oral evidence, Mr Daniels described Mrs Burton's condition when she was referred to him as being related to what she perceived as difficult working relationships with one or more of her supervisors, starting with her immediate manager.  The relationship and her problems were exacerbated by what Mrs Burton felt was an "uncaring and abrasive approach" to questioning her genuineness in recovery from her ankle injury.  She then questioned whether there was a broader problem - that her future employment was being threatened, and that she was going to be split up in the working relationship with her husband.  He also referred to Mrs Burton's perception that certain events or actions (including Mr Gerada allegedly being abrasive, insulting and harassing) had caused her to fear for her employment and suffer indignation.  It appeared to him that Mrs Burton had a series of worries in relation to "generalised kind of criteria", including how she was performing at work, what was her future, whether she would have a job, and how she was going to pay the mortgage and survive.
  1. [269]
    Mr Daniels recalled that, at her first consultation with him on 28 May 2012, Mrs Burton was "trembling uncontrollably" and had "little control over her own thought processes."  He had rarely seen somebody with the physical presentation of anxiety and stress as Mrs Burton.  She had a lot of self-doubt at that time, thinking that there must be something wrong with her and that she was mad.  He was unable to say over what period her symptoms of anxiety or depression evolved, but was not particularly surprised when it was put to him that Mrs Burton first reported her symptoms to Dr Dickinson on 8 May 2012.  He described Mrs Burton as "by nature one who is inclined not to complain, is inclined to push through, and if she was experiencing some stress and anxiety … she might have pushed through that."
  1. [270]
    That assessment was consistent with his written description of her personality patterns:

"Ms. Burton is typically a well-functioning individual with no major personality disturbances who is currently undergoing psychosocial stresses which resulted in diminishing symptoms that are essentially transient and situational.  Ms. Burton is typically concerned with appearance, that is, with being seen by others as one who is composed, virtuous and conventional in their behaviour.  Ms. Burton may attempt to down-play any distressing emotions and to deny troublesome relationships with others to the detriment of her emotional stability."  (Exhibit 21, para 4.5.1.2)

  1. [271]
    The diagnosis made by Mr Daniels by reference to the DSM-IV-TR Multiaxial Evaluation was "Generalised Anxiety Disorder" (Axis I) and "Problems/fears related to occupational problems" (Axis IV).  He stated that Mrs Burton had been extensively assessed for personality and psycho pathology and had been found to be a "highly functioning individual" with, hopefully, only transient Axis I symptoms situationally prescribed.
  1. [272]
    Ongoing discussions with Mrs Burton gave Mr Daniel the impression that:

"her psychological injury was not necessarily due to the content of management decision-making or action, but may have been due to the aggressive manner in which that information was delivered to her by TG.  Similarly, it is also my impression that it was not TG's enquiries about her ankle recovery that increased her anxiety, rather it may have been the abrasive manner in which TG dealt with the issue." (Exhibit 21, para 7.3)

  1. [273]
    Mr Daniels agreed that, when forming his opinion about the cause of Mrs Burton's injury, it was vitally important that the history given to him was both complete and accurate; and that he had received only one version.  So, for example, he agreed that the history of allegations of Mr Gerada acting in an overbearing manner towards Mrs Burton (as reflected in the flavour of their exchanges and his uncaring tone) was important to his view about Mr Gerada being implicated in her decompensation.  He also recalled that Mrs Burton "inferred from fairly early on in the piece" and formed an impression that there was a proposal or threat from Mr Gerada to split Mr and Mrs Burton as a team.  Mr Daniels was asked whether, if such a comment was made in September 2010 it could not be seen to be a significant contributing factor to a decompensation that occurred in May 2012.  He replied that the only way it could be a contributing factor over that period of time would be if, during that period, the relationship between Mr Gerada and Mrs Burton was not good and perhaps Mr Gerada's comment "just became one of the other factors in an aggressive relationship from Mr Gerada's part."  He was only aware of some occasions on which Mr Gerada was said to have exhibited aggressive behaviour towards Mrs Burton. 
  1. [274]
    In cross-examination, it was put to Mr Daniels that his consultation notes included a report on the Millon Clinical Multiaxial Inventory III ("MCMI - III") which stated that Mrs Burton appeared to fit an Axis II of classification of "histrionic personality disorder with narcissistic personality features."  Mr Daniels said that, although the MCMI - III is a "guiding tool for diagnosis," it is a computer-driven response which does not take into account the therapist's other perceptions or judgments about the behaviour of the person completing the test.  He said that Mrs Burton never appeared to be histrionic in any way, and that his assessment of her personality (quoted above) correlated with what he observed and information from Mrs Burton.  He considered that, having regard to the 16 sessions with Mrs Burton over approximately two years, he would have started to pick up any major inconsistencies and any features or criteria of personality disorders.
  1. [275]
    Mr Daniels also gave evidence that, in the course of mental health assessments, he had not picked up any evidence of Mrs Burton having a distorted reality or personality traits that would lead to distortion of perception.
  1. [276]
    Mr Daniels also noted that no prior psychological or psychiatric occasions for Mrs Burton were reported and she reported that, to her knowledge, no one in her immediate family had experienced mental health issues.
  1. [277]
    Mr Daniels recalled a brief mention of major renovations at her residence in 2011 and 2012 that appear to have caused her stress, but he was unaware that Mrs Burton had reported to Dr Dickinson a work event in 2008 that caused her stress.
  1. [278]
    When asked about this apparent omission in the history she gave to Mr Daniels, Mrs Burton said that:
  1. (a)
    she understood that her GP had forwarded all her information to Mr Daniels and hence he would have had her full history; and
  1. (b)
    she was being treated by Mr Daniels for the anxiety and depression she experienced after what had happened to her at the Council; and
  1. (c)
    she considered the event of 2008 to be "so removed in magnitude from me being stressed at work that I saw it as a different ailment" and did not see the "overlap of both."
  1. [279]
    Dr Whittington:  Dr Whittington had a 45 minutes consultation with Mrs Burton on 22 April 2013 and prepared a medico-legal report dated 24 April 2013 at the request of the Services Union (Exhibit 28).  He reported Mrs Burton's account of her difficulties at work said to have been caused by her manager, including uncertainty in her job.  He also recorded symptoms of "predominantly an anxiety nature" described by Mrs Burton, and the accompanying depressive symptoms she experienced.  He noted that, apart from some medication, Mrs Burton had been managed by a psychologist, having 16 sessions which she found supportive and beneficial.  Dr Whittington also noted that there was no family psychiatric history and the only psychiatric history related to the workplace incident.
  1. [280]
    Dr Whittington wrote:

"In conclusion, in the absence of any other information, I believe that Mrs Burton suffered from an Adjustment Disorder with anxious and depressed mood in the setting of escalating pressure within the work place at the Council with her manager.  What was most significant is the degree of uncertainty, the questioning of her decisions and the major doubt that created in herself, the internalised conflict, escalating anxiety and then depressive symptoms.  It appears that she had a precipitous breakdown after being questioned regarding leave she legitimately took for a sprained ankle.

She has ongoing anxiety and depressive symptoms."

  1. [281]
    Later in the report he expressed his belief that Mrs Burton's symptoms of anxiety and depression "are related to stress in the work place."  He stated that he found it "interesting … that she didn't realise how serious the symptoms were," but thought that as Mrs Burton did not have a past psychiatric history she did not know what to expect.  He continued:

"I would think that she was working hard, trying to solve the practical problems and meet the expectations of the boss, but was just not coping and being somewhat tuned out to herself, didn't realise how unwell she was becoming.  The uncertainty of her job created much conflict, and anxiety until it was overwhelming and she had the breakdown and obviously could no longer cope.  However, by my reading of it, there were lots of symptoms, anxiety, sleep disturbance, physical symptoms of anxiety that were occurring for months, if not longer before she had the breakdown proper."

  1. [282]
    Mrs Burton agreed that she told Dr Whittington that she had no previous psychiatric or psychological history, but said that she assumed that her GP sent her history to Dr Whittington.
  1. [283]
    In his oral evidence, Dr Whittington stated that his opinion was not altered by reference to Mrs Burton's reports to Dr Dickinson between late 2007 and early 2008 that she was experiencing stress at work with "anxiety/depression" (but she was not taking medication and was not seen by a psychologist or psychiatrist).  In his opinion:
  1. (a)
    there is a "big difference between stress symptoms and a breakdown" and between a description of symptoms and diagnosis;
  1. (b)
    the fact that she continued working for succeeding years "suggests that she was still … managing."[15]

He also wondered how "tuned in or tuned out she was to herself emotionally," a matter that he thought relevant to her risk and breakdown but which is an aspect of her character.  It is not an abnormality or a problem per se.  Later he expressed the opinion that Mrs Burton is a woman who "tunes out" as a way of perceiving and dealing with things.  That is not a psychiatric illness.  It means that, although she has "escalating symptoms that insidiously come on over a period of time," she does not recognise the significance of them.  In other words, she has a blind spot or is "emotionally colour blind."[16]

  1. [284]
    On the basis of his consultation with Mrs Burton, Dr Whittington assessed that:
  1. (a)
    Mrs Burton does not have a personality disorder;
  1. (b)
    her traits include a strong work ethic and being obsessive and somewhat perfectionist.
  1. [285]
    When asked whether the reference in Mr Daniels' report (by reference to MCMI - III) to "histrionic personality disorder with narcissistic personality features" would change his opinion, Dr Whittington said it would not as he did not think there was anything dramatic in her presentation and he did not note any narcissistic character traits.  However, he stated that it is sometimes very difficult to make an assessment of character traits over a fairly brief assessment period.  His ability to make a viable assessment of personality traits on the basis of one consultation was "limited."  Normally character traits like that reveal themselves over passage of time and during a therapeutic relationship.  Some people will camouflage certain traits in a certain setting.
  1. [286]
    Dr Whittington volunteered that he was totally dependent on the history given by the person being examined, including as to whether the person's only psychiatric history relates to a workplace incident and what events or actions in the workplace influenced Mrs Burton's thinking. 
  1. [287]
    Dr Whittington stated that Mrs Burton's perception of the  meeting on 16 May 2012 when she was questioned about the time off she was taking due to her ankle injury "was that she was not believed, or doubted, and this was in keeping with the whole mistrust, and whatever, that she felt by the manager. …  That was her perception."  He acknowledged that she could have been wrong, but he observed that perception depends on such things as patterns, historical events and motivations.  Although it was possible that Mrs Burton could have misperceived the situation, "she was definite in her history to me that this was entirely in keeping with the attitude of the manager."[17]  He recorded that on the evening prior to 16 May 2012, Mrs Burton had a range of physical and psychological symptoms which, he thought, were experienced in anticipation of a meeting or something else.

 Consideration

  1. [288]
    In order to decide this appeal, it is necessary to assess the evidence and submissions against the relevant statutory criteria in relation to:
  1. (a)
    the nature and cause of Mrs Burton's psychological condition, including whether the injury arose out of, or in the course of, her employment and whether her employment was a significant contributing factor to the injury;
  1. (b)
    whether her psychological condition arose out of, or in the course of, reasonable management action taken in a reasonable way by the Council.

Nature and cause of Mrs Burton’s psychological condition

  1. [289]
    It is clear from the medical evidence that Mrs Burton sustained an injury that is psychological in nature.  Dr Dickinson diagnosed her condition in May 2012 as a generalised anxiety state with depressed mood.  Mr Daniels also diagnosed her as having generalised anxiety disorder (Axis I).  Dr Whittington diagnosed her as suffering from an adjustment disorder with anxious and depressed mood.
  1. [290]
    The Appellant accepts, and I find, that Mrs Burton suffered such a psychological injury.
  1. [291]
    The next issue is what caused the injury, in particular whether Mrs Burton's employment was "a significant contributing factor" to her injury.  Although that is an issue for the Commission to determine, the Commission is often assisted by medical experts’ opinions (based on relevant evidence or agreed facts) when assessing the evidence as a whole.[18]
  1. [292]
    Before considering whether the injury is of a type referred to in s 32(1) of the Act, it is necessary to deal with three other potential causes or influencing factors that were mentioned, however briefly, in the course of the hearing and in some of the documentary evidence.
  1. [293]
    First, there is medical evidence that Mrs Burton did not have a personality disorder.  Dr Dickinson, who has been her doctor since May 2007, described her as a confident, neat, polite and work proud woman.  He could see no psychological deficits in her personality that would be considered anything but normal.  Mr Daniels stated that Mrs Burton had been extensively assessed for personality and psycho pathology and had been found to be a “highly” or “well-functioning individual with no major personality disturbances” with symptoms that are essentially situational and transient.  Dr Whittington referred to one of Mrs Burton’s personality traits, but said that it was not an abnormality and she did not have a psychiatric illness.
  1. [294]
    Second, Mrs Burton experienced, in her words, “a great deal of stress for a long time” in relation to an accusation of bullying of a work colleague years earlier.  Dr Dickinson’s notes for four consultations in the period between 12 February and 24 June 2008 refer to stress related work problems and he noted anxiety/depression (at a subclinical rather than pathological level).  However, there was no treatment and no diagnosis other than that Mrs Burton felt she was a little bit stressed at work.  She did not consult and was not referred to a psychologist or psychiatrist.  In hindsight, Dr Dickinson did not think that he would diagnose her as having a psychological or psychiatric condition in 2008.  Dr Whittington’s opinion was not altered by reference to the reports of that period, including because stress symptoms did not constitute a breakdown, there was no diagnosis in 2008, and the fact that Mrs Burton continued to work suggested that she was managing.
  1. [295]
    I accept the evidence that the stress Mrs Burton suffered in 2008 did not contribute to her decompensation on 16 May 2012.  However, that evidence illustrates that Mrs Burton was prone to be anxious about the security of her employment when stressful events involving her arose in the workplace.  That was apparent from her concerns about the future of the Unit or Mr Burton’s role in it after Mr Gerada became acting Manager of the Branch.
  1. [296]
    Third, Mr Gerada recalled one conversation with Mrs Burton in 2012 when she mentioned that she was going through a phase of home renovation and that was a point of stress.  Mr Daniels recalled a brief mention of major renovations at her residence in 2011 and 2012 that appear to have caused her stress.  When asked about this, Mrs Burton replied that renovating her house was “a joy.  I love it.”  Twice before in the previous 25 years she had renovated different houses, and she considered home renovation a hobby.  Although there was, presumably, some stress in relation to aspects of home renovations, there is no evidentiary basis for finding that it was a contributing factor to her decompensation on 16 May 2012.
  1. [297]
    Being satisfied that none of those three factors contributed to her decompensation, the question is whether Mrs Burton’s injury arose out of, or in the course of, her employment and whether her employment was a significant contributing factor to her injury.
  1. [298]
    In relation to those issues, the Appellant submits that, although there is no real evidence of non-work related factors that gave rise to Mrs Burton's condition in the period from September 2010 to 16 May 2012:
  1. (a)
    the Commission should be satisfied that events close in time (in the six weeks prior) to 16 May 2012 gave rise to Mrs Burton's injury;
  1. (b)
    the Commission is entitled to reach the conclusion that much of what Mrs Burton complains of as being work-related events that have given rise to her condition in fact arise from a flawed perception, and hence the Commission could not be satisfied that Mrs Burton's work duties were a significant contributing factor to her decompensation (as opposed to that flawed perception of events);
  1. [299]
    The evidence about the circumstances leading to and surrounding her decompensation has been summarised in detail above and need not be repeated.  The medical opinion evidence, albeit reliant on the history provided to each doctor by Mrs Burton, is to the effect that her condition arose from incidents in her work-place and her treatment by her manager.  In Dr Dickinson’s opinion, Mrs Burton’s psychological injury is directly related to her physical injury.  The two are intertwined.  The work circumstances that evolved from her physical injury created the atmosphere that caused her psychological injury.  One would not have occurred without the other and both are the result of her employment.  Mr Daniels’ diagnosis referred to “Problems/fears related to occupational problems” and his written and oral evidence displayed his understanding of a range of work-related factors involving Mrs Burton’s immediate supervisor.  Similarly, Dr Whittington’s diagnosis referred to Mrs Burton’s condition being “in the setting of escalating pressure within the work place at the Council with her manager.”
  1. [300]
    Based on the events up to and including the meeting on 16 May 2012, I agree with the conclusions reached by the doctors, albeit that Mrs Burton's symptoms were probably exacerbated because of her flawed perception or interpretation of some events or comments made in the workplace.  Those events or statements were real, not imagined.
  1. [301]
    What is less clear is the period over which the injury developed.  At the very least, Dr Dickinson’s consultation notes show that Mrs Burton was in tears, referred to being emotionally bullied, and was concerned about her work security on 8 May 2012.  His evidence was that it is very rare that a single event causes a dissociative seizure or pseudo-seizure, that it is not unusual for patients who present with some severe manifestations of anxiety and depression to have had an insidious onset over a period of time, and that at 8 May 2012 he would have assumed that the symptoms would have been “brewing a little before that time.”  Mr Daniels was not surprised that Mrs Burton first reported her symptoms to Dr Dickenson on 8 May 2012 as she is by nature not inclined to complain and is “inclined to push through.”  Dr Whittington referred to “lots of symptoms that were occurring for months if not longer before she had the breakdown proper.”  He described Mrs Burton as someone who “tunes out” as a way of dealing with issues and hence, although she has “escalating symptoms that insidiously come on over a period of time,” she does not recognize their significance.
  1. [302]
    In light of that opinion evidence am satisfied that, for at least some weeks and possibly months before 16 May 2012, Mrs Burton was experiencing symptoms of what resulted in her decompensation.  On the evidence before the Commission, it is not possible to be any more precise than that.  Nor is it necessary to be so.
  1. [303]
    It is clear that Mrs Burton decompensated on 16 May 2012 at, and as a direct response to events in, the workplace.  I find that:
  1. (a)
    Mrs Burton's injury arose out of, and in the course of, her employment; and
  1. (b)
    in the absence of any other factor, her employment was a (but probably the) significant contributing factor to her injury.

 Reasonable management action

  1. [304]
    The next question is whether, despite the findings just made, Mrs Burton’s claim for compensation should not be accepted because, to apply the words of s 32(5) of the Act, her psychological disorder arose out of or in the course of:
  1. (a)
    reasonable management action taken in a reasonable way by Mrs Burton’s employer in connection with her employment; or
  1. (b)
    Mrs Burton’s expectation or perception of reasonable management action being taken against her.

That is the central issue in this appeal.  Before assessing the evidence, it is appropriate to set out the relevant legal principles.

  1. [305]
    General principles: The extent and limits of the operation of s 32(5) of the Act have been described in decisions in cases summarised below.
  1. [306]
    In Q-COMP v Foote, Hall P wrote that, subject to the "very significant statutory qualifications" contained in s 32(5) of the Act, "an insurer takes a worker with all his faults."[19]  In relation to those statutory qualifications, Hall P wrote:

"Where the psychological disorder develops out of a worker's perception of reasonable management action being taken against the worker, it is withdrawn from the definition of injury (see s 32(5)(b) of the Act).  Where the psychological disorder arises out of or in the course of reasonable management action taken in a reasonable way by an employer in connection with the worker's employment, the psychological injury is withdrawn from the definition of 'injury,' whatever the worker's perceptions may have been (see s 32(5)(a))."[20]

  1. [307]
    In Sheridan v Q-COMP, Hall P referred to "a statutory deviation from the general rule where the psychological disorder arises out of or in the course of a claimant's expectation or perception of reasonable management action being taken against the worker, compare s 32(5)(b) of the Act."[21]
  1. [308]
    In Lackey v Workcover Queensland,[22] Hall P accepted that:

"the test posited by the words 'arising out of' is wider than that posited by the words 'caused by' and that the former phrase, although it involves some causal or consequential relationship between the employment and injury, does not require the direct or proximate relationship which would be necessary if the phrase used were 'caused by' …"

  1. [309]
    The former President repeated that statement in Avis v WorkCover Queensland ("Avis").[23]
  1. [310]
    In the subsequent decision of WorkCover Queensland v Curragh Queensland Mining Pty Ltd,[24] Hall P stated that the statutory provision:

"does not withdraw from the definition of injury psychological disorders caused by reasonable management action taken in a reasonable way.  It withdraws from the definition of injury psychological disorders arising out of reasonable management action taken in a reasonable way."  (emphasis added)

 He continued by reiterating that it was settled by the decision in Avis[25] that the test posited by the words "arising out of" is wider than that provided by the words "caused by."[26]

  1. [311]
    However, there is also authority rejecting the proposition that once an injury was in any way "touched" by reasonable management action reasonably taken it is not compensable.[27]  More recently, Martin J expressed his agreement with the reasoning of in Q-Comp v Hohn where Hall P said that the mere occurrence of reasonable management action will not insulate a disorder from characterisation as an “injury.”[28]
  1. [312]
    There is also authority in decisions of Hall P for the proposition that "reasonable" should be treated as meaning "reasonable in all the circumstances of the case," and that such circumstances can include circumstances relating to the psychological make-up of the worker where those circumstances are known to the employer.[29]
  1. [313]
    In Bowers v WorkCover Queensland,[30] Hall P rejected a submission that where the work environment is found to be a significant cause of a depressive illness, the employer's system of work and its implementation cannot be found to be reasonable.
  1. [314]
    There are also decisions to the effect that:
  1. (a)
    what management must do is be reasonable, not perfect, and, although considerations of fairness will always be relevant, "reasonableness" does not always equate with "industrial fairness;"[31]
  1. (b)
    it is not necessary that management action be perfect or above criticism, and the term "reasonable management action" permits "failings, deficiencies and flaws provided the management action was sound, based on reason, was not arbitrary, did not involve any unfairness and did not produce an unfair result."[32]
  1. [315]
    In Prizeman v Q-COMP,[33] Hall P stated that in determining whether action was reasonable management action taken in a reasonable way by the employer in connection with the worker's employment, "it is the reality of the employer's conduct and not the employee's perception of it which must be taken into account."
  1. [316]
    In Svenson v Q-COMP,[34] Hall P found that the appellant had "developed a propensity to perceive 'bullying' in the conduct of others and to react to it."  Hall P continued:

"Perfectly reasonable activity in the workplace may be held to be a significant contributing factor to a psychiatric injury where a claimant's perception of what has occurred is quite different to the reality of that which has occurred.  But an injury which arises out of or in the course of reasonable management action reasonably taken is not removed from the exclusion at s 34(5) because of the claimant's flawed perception, see esp. s 34(5)(b)." 

  1. [317]
    For s 32(5)(a) to operate there must not only be reasonable management action but that action must be "taken in a reasonable way."  The responsibility of management action being taken in a reasonable way lies with the management.  Whether management action was taken in a reasonable way is a question of fact, and reasonable people may differ from time to time about whether a particular management decision was reasonably implemented.[35]
  1. [318]
    The Commission's role is 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.[36]  As Martin J stated:

“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 considerations of what else might have been done but that will only be relevant to whether what was done was, in fact, reasonable.”[37]

 Was reasonable management action taken in relation to Mrs Burton?

  1. [319]
    The evidence in relation to management actions taken by Mr Gerada in the period from September 2010 and when he commenced as acting Manager of the Branch until and including the meeting between him, Mrs Burton and Ms Cook on 16 May 2012 is summarised in detail earlier and need not be repeated.
  1. [320]
    I am satisfied that Mrs Burton's injury arose out of, or in the course of, management action taken in connection with her employment.  Was that management action reasonable?
  1. [321]
    The Appellant submits that Mrs Burton's claim is excluded by the operation of s 32(5) of the Act because, in summary:
  1. (a)
    Mr Gerada, in his management of Mrs Burton, treated her in exactly the same manner as the other subordinate managers under his management. Nothing more was asked of Mrs Burton that was not asked of the others;
  1. (b)
    it was reasonable management action for Mr Gerada to hold monthly meetings with Mrs Burton and the other management staff;
  1. (c)
    it was reasonable management action for Mr Gerada to provide Mrs Burton and the others with a  calendar invite setting out the issues he wished to address in the monthly meetings.  Further, that management action was taken reasonably because he provided ample time for Mrs Burton to prepare for the meetings and there is no evidence of continued, unreasonable requests by Mr Gerada for detailed information for the monthly meetings;
  1. (d)
    it was reasonable management action for Mr Gerada on occasions to request that Mrs Burton provide him with updates or reports on matters relevant to her portfolio (e.g. the parliamentary report on traffic light cameras);
  1. (e)
    it was reasonable management action for Mr Gerada to raise with Mrs Burton his concerns about the Road Safety Unit becoming a "silo" and isolating itself from the rest of the Branch (indeed it was incumbent on him to do so).  Further, in asking her to simply consider this and raise it with Mr Burton as well, the management action was taken in a reasonable way;
  1. (f)
    it was a reasonable management proposal to have someone trained and ready to backfill for Mr and Mrs Burton should this become necessary;
  1. (g)
    it was a reasonable management proposal to have someone come into the Unit as an extra resource to build a case for that occurring on a permanent basis;
  1. (h)
    given Mrs Burton's strong objection to Mr Delio being provided as an extra resource to the Unit, it was reasonable management action to accede to her objections at not introduce the new resource;
  1. (i)
    it was reasonable management action to propose on a business needs basis that Mr Burton occasionally backfill as a TEO, given that he had come from that role and it was the same level as his current position (although he was never required to backfill as a TEO);
  1. (j)
    given that there appears to have been a breakdown in the level of communication between Mr Gerada and Mrs Burton, and that he was not experiencing the same level of communication from her as he was from his other subordinate managers, it was also entirely appropriate and reasonable for him to seek an increase in the regularity of his meetings with her to fortnightly;
  1. (k)
    it was reasonable management action for Mr Gerada to seek to obtain further information from Mr Burton about Mrs Burton's state of health given the text message that he received from her on 3 May 2012 (which did not identify the reason for her leaving work or how long she would be away from work) and having regard to other factors (such as the limited information previously available to Mr Gerada about the ongoing nature of Mrs Burton's ankle injury and treatment, the period between the steroid injection and Mrs Burton leaving work on 3 May 2012, Mr and Mrs Burton being the only two members of the Unit as well as being married to each other - a fact that was generally known in the office).
  1. [322]
    The Appellant submits that the meeting chaired by Ms Cook on 16 May 2012 was an instance of reasonable management action, as it provided an opportunity to clear the air between Mrs Burton and Mr Gerada.  The manner in which Mr Gerada conducted himself in the meeting on 16 May 2012 was also reasonable management action reasonably taken.
  1. [323]
    The Appellant also refers to the assistance provided to Mrs Burton by Mr Shirley at their meeting on 10 May 2012 as evidence of reasonable management action being taken in a reasonable way.
  1. [324]
    In a more general vein, the Appellant submits that the fact that Mr Gerada had a different and more authoritarian management style from his predecessor, being a style that is not necessarily accord with more modern management styles of practices, does not mean that management action is unreasonable.
  1. [325]
    The Respondent, while critical of the actions taken by the Council (particularly by Mr Gerada), focuses the submission primarily on the way in which management actions were taken rather than the reasonableness of those actions.  Those submissions are considered below.
  1. [326]
    In particular, the Respondent, acknowledges that the requirement for monthly meetings was reasonable but submits that Mrs Burton was treated differently from other staff reporting to Mr Gerada in terms of:
  1. (a)
    the nature and volume of work she was required to do in preparation for their meetings;
  1. (b)
    increasing the frequency of their meetings to fortnightly in 2012;
  1. (c)
    sending emails requiring documentation, which emails were not sent to the coordinators.

There is evidence that Mrs Burton was treated differently from the coordinators in terms of the way in which Mr Gerada sought documentation from her.  However, as noted earlier, that seems to be explained because the coordinators either prepared their own list of documents which they would provide at meetings or provided information to Mr Gerada intermittently during the week by calling by his office.

  1. [327]
    In the alternative, the Appellant submits that any differential treatment of Mrs Burton in relation to those matters was justifiable in all the circumstances and hence constituted reasonable management action.
  1. [328]
    Having regard to the totality of the evidence, and essentially for the reasons outlined in the Appellant's submissions and despite some acknowledged blemishes, I am satisfied that reasonable management action was taken by the Council in relation to Mrs Burton in connection with her employment.
  1. [329]
    Consequently, the final issue is whether management action was taken in a reasonable way.

Was management action taken in a reasonable way?

  1. [330]
    The Respondent submits that:
  1. (a)
    bullying is frequently covert, subtle and insidious;
  1. (b)
    many of the allegations about what happened between Mrs Burton and Mr Gerada involve matters where there are no witnesses;
  1. (c)
    the individual events or stressors, in isolation, may be considered blemishes but when considered in total (with the strong linkages between subject matter, time and personality) they support a finding that the way in which Mrs Burton was treated by Mr Gerada should be characterised as unreasonable;
  1. (d)
    it was not the changes or possibility of further changes that was the root cause of Mrs Burton's condition but the manner in which Mr Gerada spoke to her, treated her, singled her out and broke her down;
  1. (e)
    although Mr Gerada's position of Manager required him to support his staff through change and through recovery from injury, he did neither; and
  1. (f)
    Mr Gerada's style of management, with subtle undermining and disrespect over a period of time, eventually broke Mrs Burton.
  1. [331]
    In support of those submissions, the Respondent referred to specific instances of the way management actions were taken, primarily by Mr Gerada.  The Respondent submitted that the evidence in relation to the early meeting between Mr Gerada and Mr and Mrs Burton demonstrated that from the outset Mr Gerada's attitude to their working relationship was, at best, disrespectful and dismissive of Mrs Burton's hard work and achievements.
  1. [332]
    Mrs Burton gave some evidence about what she described as Mr Gerada's "aggressive" response to her when she said she did not have time to train someone new and keep up with the initiatives that she had running, and his abrupt and sometimes aggressive manner in their monthly meetings.
  1. [333]
    The Respondent also refers to the question that Mr Gerada allegedly asked Mrs Burton after she advised him of the proposed injection in her ankle, "Is there ever going to be a time when the doctors have seen enough of you?"  The Respondent submits that, although this could be considered a relatively minor issue on its own, it is relevant to the overall consideration of the claim.  It was disrespectful in nature in the context of Mr Gerada making no attempt to ascertain the nature of Mrs Burton's injury or her well-being from her or the Workers' Compensation Unit, and making no enquiry about any support she may require in the workplace.
  1. [334]
    The Respondent makes submissions in relation to the tone, volume and content of the conversation between Mr Gerada and Mr Burton on 3 May 2012 in the open office.  In particular, the Respondent submits that Mr Gerada's comment was without any genuine concern for Mrs Burton's well-being and was challenging the validity of her ankle injury.  Indeed, the Respondent submits that Mr Gerada had never shown any concern or genuine interest in Mrs Burton's ankle injury and admitted that he had never asked Mrs Burton about her well-being when she worked for four weeks with an orthotic boot on her foot.
  1. [335]
    In relation to the meeting on 16 May 2012, the Respondent submits that (at least in the latter part of the meeting) Mr Gerada's voice was abrupt, aggravated, and becoming louder.  He became more assertive when he said it was his turn to talk, and his manner in the meeting was non-compassionate and defensive.  After the meeting, Mr Gerada did not say goodbye or even look at Mrs Burton despite the fact that she was still upset.              In the Respondent's submission, the way in which Mr Gerada treated Mrs Burton on 16 May 2012 was contrary to human decency, let alone reasonable management action conducted in a reasonable way toward an employee.
  1. [336]
    The Respondent also criticises aspects of Mr Shirley's actions, particularly:
  1. (a)
    for not asking Mrs Burton whether she felt comfortable talking to Mr Gerada about the issues she raised on 10 May 2012, or why she had not addressed the issues with Mr Gerada, despite the fact that she was approaching Mr Shirley in his capacity in People and Culture about concerns that Mr Gerada was treating her unfairly; and
  1. (b)
    his suggestion that after that meeting, and despite receiving an email from Mr Gerada advising that Mrs Burton had collapsed after a meeting with him on 16 May 2012, he had no role in ensuring some further action was taken.
  1. [337]
    In the Respondent's submission, there was a culture and attitude within at least part of the Council which is relevant to Mrs Burton's claim and to her feeling of being unsupported and helpless. 
  1. [338]
    The Respondent also relies on medical evidence which suggests that it was the comments made on 16 May 2012 which resulted in Mrs Burton's decompensation, and that the other matters were a very important background of insidious eroding of security, confidence and respect for a mature, long-term, professional employee in her fifties with professional qualifications who had been a diligent worker and award-winner for the Council.
  1. [339]
    There is some medical opinion evidence that Mrs Burton's condition was caused not so much by management action as by the manner in which that action was delivered.  For example, Mr Daniel formed the impression from discussions with Mrs Burton that her psychological injury was not necessarily due to the content of management decision-making or action but may have been due to "the aggressive manner in which that information was delivered to her" by Mr Gerada, and that it was not Mr Gerada's enquiries about her ankle recovery that increased her anxiety but rather it may have been "the abrasive manner" in which Mr Gerada dealt with the issue.
  1. [340]
    That opinion evidence can only be given a significant weight if it is based on a sound and admissible evidentiary basis.  If, for example, the history given to a doctor by a patient is incorrect then any opinion which relies on that history must be discounted if not discarded.[38]             
  1. [341]
    The Appellant submits that Mrs Burton appears to have given an incomplete version of her medical history to Dr Whittington and Mr Daniels, and that Dr Whittington was not provided with a history regarding the 16 May 2012 meeting.  The Appellant also submits that Mr Daniels and Dr Whittington were provided with a highly embellished version of events at the workplace, and that some of the history she recounted arose from a fundamental misunderstanding and misperception of the relevant events.  Accordingly, the Appellant submits that only limited weight can be placed on their reports and their evidence.
  1. [342]
    In relation to Mr Gerada's behaviour as a manager, the Appellant submits that:
  1. (a)
    although Mr Gerada held his discussion with Mr Burton on 3 May 2012 in an open office setting, the discussion was held in a normal conversational tone, was of very short duration, and Mr Gerada did not otherwise behave aggressively or inappropriately;
  1. (b)
    Mr Gerada's conduct in the second part of the meeting with Mrs Burton and Ms Cook on 16 May 2012 amounted to reasonable management action taken in a reasonable way given that:
  1. he had not been kept informed about Mrs Burton's ankle injury (a matter that is not in dispute and for which Ms Cook apologised);
  1. he was not given notice that Mrs Burton was going to raise her concerns about his meeting with Mr Burton on 3 May 2012 (a matter she had not raised with him after her return to work on 9 May 2012);
  1. he listened to Mrs Burton and waited until he thought she had finished before asking for his chance to speak; and
  1. although he raised his hand and his voice, he did not shout but was responding to Mrs Burton interrupting him and speaking over him while he was responding to her allegation.
  1. [343]
    As noted earlier, Mr Gerada conceded that he could have handled the situation on 3 May 2012 differently, perhaps by asking Mr Burton to come into his office to have the discussion.
  1. [344]
    The Appellant also submits that:
  1. (a)
    while Mr Gerada's conduct might not have been perfect during the second part of the meeting, reasonableness rather than perfection is the standard for s 32(5) to operate; and
  1. (b)
    the fact that Mrs Burton became upset and ultimately decompensated following that meeting does not detract from the reasonableness of Mr Gerada's actions or corroborate her perception that he behaved unreasonably.
  1. [345]
    The evidence, including evidence given by Mr Gerada, demonstrates that he was not the most sympathetic or empathetic of managers.  His management focus was on the delivery of programs and ensuring appropriate resources were available for them (in his Branch or elsewhere).  He was outcomes oriented and, by his own admission, was not familiar with the detail of the Council's rehabilitation and return to work policies.  He assumed that if he needed to know something in this area, the relevant person would provide guidance.  In the period when:
  1. (a)
    he was not being informed, as he was entitled to be, about Mrs Burton's workers' compensation claim; and
  1. (b)
    when her work was uninterrupted by her ankle injury and its treatment,

he proceeded in relative (though not complete) ignorance of her circumstances.  His reactions following messages which gave him an incomplete picture of stages of her progress were understandable if not entirely appropriate.  Again by his own admission, Mr Gerada could have done some things differently or more appropriately.

  1. [346]
    Mr Gerada's occasional flippant or ill-considered utterances, and the understandable imprecision of his answers to Mrs Burton's enquiries about her Unit's future in the context of ongoing organisational change, appear to have provided at least some of the basis for her increasing sense of apprehension and uncertainty.  His stated inability to recall the content of some significant discussions, including what he said to Mrs Burton, detracted from the weight to be given to some of his evidence.
  1. [347]
    That assessment of Mr Gerada as a manager, however, falls far short of leading to a finding in favour of the Respondent's submissions which, on the evidence before the Commission, appear overstated. 
  1. [348]
    As noted earlier, the task of the Commission when applying s 32(5) of the Act does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances.  The Commission's 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 considerations of what else might have been done, but that will only be relevant to whether what was done was, in fact, reasonable. 
  1. [349]
    Furthermore, it appears that:
  1. (a)
    by contrast with her approach in 2008, Mrs Burton did not raise allegations of workplace bullying or stress with her treating GP;
  1. (b)
    when she raised matters with Mr Shirley, most if not all of them were matters which he considered reasonable management action and/or matters which it was appropriate for Mrs Burton to raise with Mr Gerada (noting that she did not indicate that she felt uncomfortable talking to Mr Gerada and she did not mention her concern about the 3 May 2012 conversation between Mr Gerada and Mr Burton); and
  1. (c)
    her conversations with others such as Mr Crutch did not lead them to conclude that Mr Gerada's management style was unreasonable or cause for concern.
  1. [350]
    As noted earlier in these reasons, there was other evidence about Mr Gerada's management style and how it differed from that of his predecessor, Mr Bilton.  There was specific evidence from:
  1. (a)
    Mr Pincott that, in the course of the meetings which he and Mrs Burton attended with Mr Gerada or in the open plan office, he did not see anything in Mr Gerada’s behaviour or conduct towards Mrs Burton that caused him concern or that he considered inappropriate or bullying – and that Mr Gerada seemed to treat Mrs Burton in the same way as he treated Mr Pincott; and
  1. (b)
    Mr Quilliam that, in the course of those meetings or in the workplace, he did not see any conduct by Mr Gerada in relation to Mrs Burton or any of the other participants that caused him concern or that he thought might constitute bullying or harassment – indeed, he did not see Mr Gerada treat Mrs Burton any differently from the way he treated Mr Quilliam.
  1. [351]
    Even if their evidence were to be given less weight on the basis that they were supervised by and reported directly to Mr Gerada, or that they were not present at the individual meetings between Mr Gerada and Mrs Burton or that they were away from the office for significant periods, there was also evidence from:
  1. (a)
    Mr Shirley that he was unaware of any complaints made against Mr Gerada as a manager, that the matters of concern raised by Mrs Burton with him on 10 May 2012 involved appropriate action by Mr Gerada or were matters that she should discuss with him, and that he did not consider the matters raised by Mrs Burton amounted to harassment;
  1. (b)
    Mr Crutch that he asked Mrs Burton what she wanted to do if she could not put up with her work situation (e.g. by involving People and Culture or the Union, or using the grievance process) and she did not ask him to pass anything to the Union;
  1. (c)
    Ms Cook that, although Mrs Burton had reported that hers was a “busy job”, Mrs Burton had not reported concerns about being overworked or working excessive hours; nor had she reported that Mr Gerada was threatening her in the course of one meeting, or that he wanted to split Mr and Mrs Burton;
  1. (d)
    Mrs Burton that, apart from making a complaint to Ms Cook (apparently about Mr Gerada’s conversation with Mr Burton on 3 May 2012), she did not complain about Mr Gerada’s behaviour in their meetings but “just got on with it” and thought it would “pan out” while hoping that something would change.
  1. [352]
    Again, having regard to the totality of the evidence, I am satisfied that, despite some acknowledged blemishes, management action was taken in a reasonable way by the Council in connection with Mrs Burton's employment             
  1. [353]
    In summary, I am satisfied that:
  1. (a)
    Mrs Burton's injury arose out of, or in the course of, management action;
  1. (b)
    the management action was reasonable; and
  1. (c)
    the management action was taken in a reasonable way.

 In other words, s 32(5)(a) of the Act operates in relation to this appeal.

 Mrs Burton's perception of management action

  1. [354]
    Another issue was whether Mrs Burton's psychological disorder arose out of, or in the course of, her perception of reasonable management action being taken against her (i.e., whether s 32(5)(b) of the Act operates to exclude her entitlement to compensation).
  1. [355]
    The Appellant submits that Mrs Burton's psychological injury is not compensable because it arose out of her perception of reasonable management action being taken against her.
  1. [356]
    Given my ruling in relation to the operation of s 32(5)(a) of the Act, it is not necessary to consider those submissions.
  1. [357]
    However, for completeness, I note briefly that, as will be apparent from the earlier analysis of the evidence, some of the Mrs Burton's concerns arose from her perceptions about the meaning of some actions taken and comments made by management in relation to her and Mr Burton.  Some of her most significant perceptions were based on assumptions or inferences drawn from incomplete or incorrect information.  When tested by reference to what had happened, or management's rationale for acting in a particular way, those perceptions were shown to be flawed or false.

 Conclusion

  1. [358]
    For the reasons given above I have concluded that:
  1. (a)
    Mrs Burton suffered a psychological injury;
  1. (b)
    the injury arose out of, and in the course of, her employment;
  1. (c)
    her employment was a significant contributing factor to her injury; and
  1. (d)
    Mrs Burton's injury arose out of reasonable management action taken in a reasonable way.
  1. [359]
    Consequently:
  1. (a)
    the appeal is allowed;
  1. (b)
    the decision of the Workers' Compensation Regulator is set aside;
  1. (c)
    the application for workers' compensation by Karen Ann Burton is not one for acceptance; and
  1. (d)
    the Respondent is to pay the Appellant's costs of and incidental to the appeal to be agreed or, failing agreement, to be subject of a further application to the Commission.
  1. [360]
    Order accordingly.

Footnotes

[1] State of Queensland (Queensland Health) v QComp and Beverley Coyne (2003) 172 QGIG 1447, 1448 (Hall P).

[2] Safer Motorcycle Advanced Rider Training

[3] Transcript of Proceedings, Gold Coast City Council v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2013/229, Industrial Commissioner Neate, 30 January 2014) 16.

[4] Transcript of Proceedings, Gold Coast City Council v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2013/229, Industrial Commissioner Neate, 30 January 2014) 17.

[5] Transcript of Proceedings, Gold Coast City Council v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2013/229, Industrial Commissioner Neate, 30 January 2014) 17.

[6] Transcript of Proceedings, Gold Coast City Council v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2013/229, Industrial Commissioner Neate, 28 January 2014) 50.

[7] Transcript of Proceedings, Gold Coast City Council v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2013/229, Industrial Commissioner Neate, 30 January 2014) 72.

[8] Transcript of Proceedings, Gold Coast City Council v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2013/229, Industrial Commissioner Neate, 29 January 2014) 49.

[9] Transcript of Proceedings, Gold Coast City Council v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2013/229, Industrial Commissioner Neate, 29 January 2014) 54.

[10] Transcript of Proceedings, Gold Coast City Council v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2013/229, Industrial Commissioner Neate, 29 January 2014) 71.

[11] Browne v Dunn (1893) 6 R 67.

[12] Transcript of Proceedings, Gold Coast City Council v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2013/229, Industrial Commissioner Neate, 30 January 2014) 55.

[13] Transcript of Proceedings, Gold Coast City Council v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2013/229, Industrial Commissioner Neate, 30 January 2014) 71-72.

[14] Transcript of Proceedings, Gold Coast City Council v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2013/229, Industrial Commissioner Neate, 21 July 2014) 17.

[15] Transcript of Proceedings, Gold Coast City Council v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2013/229, Industrial Commissioner Neate, 21 March 2014) 5, 10.

[16] Transcript of Proceedings, Gold Coast City Council v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2013/229, Industrial Commissioner Neate, 21 March 2014) 12.

[17] Transcript of Proceedings, Gold Coast City Council v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2013/229, Industrial Commissioner Neate, 21 March 2014) 15.

[18]  Gaudry v Pacific Coal P/L [1996] QCA 525;  Adelaide Stevedoring Company Ltd v Forst (1940) 64 CLR 538, 563 (Rich ACJ); Davidson v Blackwood [2014] ICQ 008, [17] (Martin J).

[19] Q-COMP v Foote (2008) 189 QGIG 539, 810 (Hall P).

[20] Q-COMP v Foote (2008) 189 QGIG 539, 810 (Hall P).

[21] Sheridan v Q-COMP (2009) 191 QGIG 13, 16 (Hall P).

[22] Lackey v WorkCover Queensland (2000) 165 QGIG 22.

[23] Avis v WorkCover Queensland (2000) 165 QGIG 788, citing State Government Insurance Commission v Stevens Brothers Pty Ltd & Anor (1984) 154 CLR 552, 555 and 559 (Murphy, Wilson, Brennan and Deane JJ); Dickinson v The Motor Vehicle Insurance Trust (1987) 163 CLR 500, 505 (Murphy CJ, Wilson, Brennan, Dawson and Toohey JJ).

[24] WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6, 6-7 (Hall P).

[25] Avis v WorkCover Queensland (2000) 165 QGIG 788.

[26] WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6, 7 (Hall P).

[27] See Q-COMP v Hohn (2008) 187 QGIG 139, 143 (Hall P); Q-COMP v Glen Rowe (2009) 191 QGIG 67, 71 (Hall P).

[28] Davis v Blackwood [2014] ICQ 009, [51] (Martin J).

[29] See WorkCover Queensland v Kehl (2002) 170 QGIG 93, 94 (Hall P); Mayo v Q-COMP (2004) 177 QGIG 667; Delaney v Q-COMP Review Unit (2005) 178 QGIG 197.  See also Re Yu and Comcare [2010] AATA 960.

[30] Bowers v WorkCover Queensland (2002) 170 QGIG 1, 2 (Hall P)..

[31] Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301, 307 (Blades C).

[32] Hansen v WorkCover Queensland (Unreported, Industrial Magistrates Court, Industrial Magistrate Taylor, 15 November 2001) 16.

[33] Prizeman v Q-COMP (2005) 180 QGIG 481.

[34] Svenson v Q-COMP (2006) 181 QGIG 629, 630 (Hall P).

[35] Versace v Braun (2005) 178 QGIG 315, 316 (Hall P).

[36] See Q-COMP v Glen Rowe (2009) 191 QGIG 67, 71 (Hall P).

[37] Davis v Blackwood [2014] ICQ 009, [47] (Martin J).

[38] See e.g. R v Turner [1975] QB 834, 840 (Lawton LJ); Pollock v Wellington (1996) 15 WAR 1, 3 (Anderson J).

Close

Editorial Notes

  • Published Case Name:

    Gold Coast City Council v Simon Blackwood (Workers' Compensation Regulator)

  • Shortened Case Name:

    Gold Coast City Council v Simon Blackwood (Workers' Compensation Regulator)

  • MNC:

    [2015] QIRC 162

  • Court:

    QIRC

  • Judge(s):

    Member Neate IC

  • Date:

    03 Sep 2015

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
2 citations
Jump To
Cite 1 - (1940) 64 CLR 538
Cite 2 - (1940) 64 CLR 538
Avis v WorkCover Queensland (2000) 165 QGIG 788
3 citations
Jump To
Cite 1 - (2000) 165 QGIG 788
Cite 2 - (2000) 165 QGIG 788
Cite 3 - (2000) 165 QGIG 788
Bowers v WorkCover Queensland (2002) 170 QGIG 1
2 citations
Jump To
Cite 1 - (2002) 170 QGIG 1
Cite 2 - (2002) 170 QGIG 1
Browne v Dunn (1893) 6 R 67
2 citations
Jump To
Cite 1 - (1893) 6 R 67
Cite 2 - (1893) 6 R 67
Cf Delaney v Q-Comp Review Unit (2005) 178 QGIG 197
2 citations
Jump To
Cite 1 - (2005) 178 QGIG 197
Cite 2 - (2005) 178 QGIG 197
Davidson v Blackwood [2014] ICQ 8
2 citations
Jump To
Cite 1 - [2014] ICQ 8
Cite 2 - [2014] ICQ 8
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
Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500
2 citations
Jump To
Cite 1 - (1987) 163 CLR 500
Cite 2 - (1987) 163 CLR 500
Gaudry v Pacific Coal Pty Limited [1996] QCA 525
2 citations
Jump To
Cite 1 - [1996] QCA 525
Cite 2 - [1996] QCA 525
Lackey v WorkCover Queensland (2000) 165 QGIG 22
2 citations
Jump To
Cite 1 - (2000) 165 QGIG 22
Cite 2 - (2000) 165 QGIG 22
Leigh Sheridan v Q-COMP (2009) 191 QGIG 13
2 citations
Jump To
Cite 1 - (2009) 191 QGIG 13
Cite 2 - (2009) 191 QGIG 13
Mayo v Q-COMP (2004) 177 QGIG 667
2 citations
Jump To
Cite 1 - (2004) 177 QGIG 667
Cite 2 - (2004) 177 QGIG 667
Pollock v Wellington (1996) 15 WAR 1
2 citations
Jump To
Cite 1 - (1996) 15 WAR 1
Cite 2 - (1996) 15 WAR 1
Prizeman v Q-Comp (2005) 180 QGIG 481
2 citations
Jump To
Cite 1 - (2005) 180 QGIG 481
Cite 2 - (2005) 180 QGIG 481
Q-COMP v Foote (No. 2) (2008) 189 QGIG 539
3 citations
Jump To
Cite 1 - (2008) 189 QGIG 539
Cite 2 - (2008) 189 QGIG 539
Cite 3 - (2008) 189 QGIG 539
Q-Comp v Hohn (2008) 187 QGIG 139
2 citations
Jump To
Cite 1 - (2008) 187 QGIG 139
Cite 2 - (2008) 187 QGIG 139
Q-COMP v Rowe (2009) 191 QGIG 67
3 citations
Jump To
Cite 1 - (2009) 191 QGIG 67
Cite 2 - (2009) 191 QGIG 67
Cite 3 - (2009) 191 QGIG 67
Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301
2 citations
Jump To
Cite 1 - (2006) 181 QGIG 301
Cite 2 - (2006) 181 QGIG 301
R v Turner (1975) QB 834
2 citations
Jump To
Cite 1 - (1975) QB 834
Cite 2 - (1975) QB 834
Re Yu and Comcare [2010] AATA 960
2 citations
Jump To
Cite 1 - [2010] AATA 960
Cite 2 - [2010] AATA 960
State Government Insurance Commission v Stevens Bros Pty Ltd (1984) 154 CLR 552
2 citations
Jump To
Cite 1 - (1984) 154 CLR 552
Cite 2 - (1984) 154 CLR 552
State of Queensland v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447
2 citations
Jump To
Cite 1 - (2003) 172 QGIG 1447
Cite 2 - (2003) 172 QGIG 1447
Svenson v Q-COMP (2006) 181 QGIG 629
2 citations
Jump To
Cite 1 - (2006) 181 QGIG 629
Cite 2 - (2006) 181 QGIG 629
Versace v Braun (2005) 178 QGIG 315
2 citations
Jump To
Cite 1 - (2005) 178 QGIG 315
Cite 2 - (2005) 178 QGIG 315
WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6
3 citations
Jump To
Cite 1 - (2003) 172 QGIG 6
Cite 2 - (2003) 172 QGIG 6
Cite 3 - (2003) 172 QGIG 6
WorkCover Queensland v Kehl (2002) 170 QGIG 93
2 citations
Jump To
Cite 1 - (2002) 170 QGIG 93
Cite 2 - (2002) 170 QGIG 93

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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