Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2015
  4. Trindorfer v Simon Blackwood (Workers' Compensation Regulator) - [2015] QIRC 198

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

Trindorfer v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 198

Trindorfer v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 198

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Trindorfer v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 198

PARTIES: 

Trindorfer, Richard Walter

(Appellant)

v

Simon Blackwood (Workers' Compensation Regulator)

(Respondent)

and

Bundaberg Walkers Engineering Limited

(Employer)

CASE NO:

WC/2014/19

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

19 November 2015

HEARING DATES:

19 to 22 May 2014 (hearing)

6 June 2014 [next allocated hearing date]

Saturday 28 June 2014 [next allocated hearing date]

Saturday 13 December 2014 [next allocated hearing date]

23 January 2015 (Appellant's submissions)

9 February 2015 (Respondent's submissions)

6 February 2015 (Employer's submissions)

13 February 2015 (Appellant's submissions in reply)

HEARD AT:

MEMBER:

Childers and Brisbane

Industrial Commissioner Knight

ORDERS :

  1. The appeal is allowed.
  2. The decision of the Regulator dated 18 December 2013 is set aside.
  3. The Regulator and the Employer are to pay the Appellant's costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION – Psychological injury arising out of or in the course of employment – whether injury arose out of, or in the course of reasonable management action taken in a reasonable way – complaints of bullying by supervisor – global assessment – appeal is allowed.

CASES:

Workers' Compensation and Rehabilitation Act 2003, s 32

Industrial Relations Act 1999, s 329

McDonald v Q-COMP (2008) 188 QGIG 180.

Eric Martin Rossmuller AND Q-COMP (C/2009/36) - Decision

Kudryavtseva v Simon Blackwood (Workers' Compensation Regulator [2015] QIRC 053.

Davis v Blackwood [2014] ICQ 009

Keen v Workers' Rehabilitation and Compensation Corp (1998) 71 SASR 42

Prizeman v Q-COMP (2005) 180 QGIG 481

WorkCover Queensland v Kehl (2002) 70 QGIG 93

Bowers v WorkCover Queensland (2002) QIC 18 (23 April 2002) 170 QGIG 1

WorkCover Queensland v Heit (2000) QIC 22 (24 May 2000) 164 QGIG 121

O'Brien v Q-COMP (2007) 185 QGIG 383

Canadian General Electric Company Limited v The Ontario Labour Relations Board (1956) OR 437

APPEARANCES:

Ms S. Anderson, Counsel, instructed by Shine Lawyers for the Appellant.

Mr J. Wiltshire directly instructed for Simon Blackwood (Workers' Compensation Regulator).

Mr D. M. Cormack instructed by BT Lawyers for the Employer.

Decision

  1. [1]
    This is an appeal by Richard Walter Trindorfer ("the Appellant") pursuant to s 550 of the Workers Compensation and Rehabilitation Act 2003 ("the Act") against the decision of Simon Blackwood (Workers' Compensation Regulator) dated 18 December 2013, which confirmed a decision of WorkCover refusing an application for compensation on the basis the Applicant's condition was said to have arisen out of reasonable management action. 
  1. [2]
    WorkCover rejected Mr Trindorfer's application for worker's compensation for a psychiatric injury which was said to have arisen from bullying, harassment and intimidation coupled with threats in respect of the Appellant's job security.  The Regulator subsequently confirmed WorkCover's decision to refuse Mr Trindorfer's application for compensation in respect of the psychiatric disorder which he claimed to have arisen during the course of his employment with Bundaberg Walkers Engineering Limited (BWEL) as a Patternmaker.

Grounds of Appeal

  1. [3]
    The grounds of appeal upon which the Appellant relies are as follows:

"1. That [the] Respondent erred in confirming the decision of WorkCover to reject the Appellant's application for compensation in accordance with section 32 of the Workers Compensation and Rehabilitation Act 2003; [and]  

  1. That [the] Respondent erred in deciding that the Applicant's injury arose out of reasonable management action reasonably taken."
  1. [4]
    As such, the Appellant seeks from the Commission an order that the decision of the Regulator dated 18 December 2013 be set aside.
  1. [5]
    In April 2014, BWEL sought and was granted Leave to Appear and be Heard at the Hearing of the Appeal ("the Hearing") pursuant to s 329(b)(v) of the Industrial Relations Act 1999.

Issue for Determination and Legislation

  1. [6]
    The issue for determination in this appeal is whether Mr Trindorfer suffered an "injury", namely a major depressive disorder, generalised anxiety order and aggravation of social phobia, within the meaning of that term in s 32(5) of the Act.
  1. [7]
    Section 32 of the Act relevantly provides as follows:

"32 Meaning of Injury

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

…

  1. (3)
    Injury includes the following -
  1. (a)
    a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;
  2. (b)
    an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation -
  1. (i)
    a personal injury;
  2. (ii)
    a disease;
  3. (iii)
    a medical condition if the condition becomes a personal injury or disease because of the aggravation;
  1. (4)
    For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation."
  1. (5)
    Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances -
  1. (a)
    reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
  1. (b)
    the worker's expectation or perception of reasonable management action being taken against the worker;
  1. (c)
    action by the Authority or an insurer in connection with the worker's application for compensation".

Nature of the Appeal and Relevant Authorities

  1. [8]
    As with any appeal to the Commission against a decision of the Regulator, the nature of the appeal is by way of a hearing de novo[1].  Except for those matters which are not in dispute, Mr Trindorfer must satisfy the Commission, on the balance of probabilities, that:
  1. (a)
    he was a worker;
  1. (b)
    he suffered a psychological or psychiatric injury;
  1. (c)
    the injury arose out of or in the course of employment;
  1. (d)
    the employment was a significant contributing factor to the injury; and
  1. (e)
    the injury did not arise out of, or in the course of any of the circumstances set out in s 32(5). [see Rossmuller v Q-COMP[2]]
  1. [9]
    It was common ground at the commencement of the hearing[3] that Mr Trindorfer had suffered a work-related psychiatric or psychological injury that satisfied the provisions of s 32(1) and s 32(3) of the Act. 
  1. [10]
    To succeed in the appeal therefore, Mr Trindorfer must satisfy the Commission his psychological injury is not withdrawn from the category of compensable injuries by operation of s 32(5) of the Act.
  1. [11]
    Accordingly, s 32(5)(a) of the Act requires consideration as to whether the Mr Trindorfer's injury has arisen out of, or in the course of, circumstances that involve reasonable management action taken in a reasonable way by the employer in connection with his employment.
  1. [12]
    In Kudryavtseva v Simon Blackwood (Workers' Compensation Regulator)[4] Neate C considered the authorities in so far as they related to onus, noting:

"Although the onus to be discharged is on the balance of probabilities, the Commission, in dealing with the matter, must feel an actual persuasion before the alleged facts can be found to exist.  The mere possibility of an appellant suffering an injury on mere conjecture is not enough.  Inference must be carefully distinguished from conjecture or speculation.  There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish.  (See MacArthur v WorkCover Queensland (2001) 167 QGIG 100, 1010 (Hall P) and cases cited)."

  1. [13]
    In Davis v Blackwood[5] in considering the manner in which the Commission should apply s 32(5) of the Act,  President Martin noted:

"The task of the Commission when applying s 32(5) does not involve setting out what it regards as the type of actions that have been reasonable in the circumstances.  There may have been 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 to 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 be relevant to whether what was done was, in fact, reasonable."

  1. [14]
    In Keen v Workers' Rehabilitation and Compensation Corp[6], Lander J, in dealing with s 30A of the Workers Compensation and Rehabilitation Act 1986 (SA) and discussing whether "the administrative action was reasonable and, if reasonable, whether it was taken in a reasonable manner by the employer", wrote:

"Both of these further matters will be an inquiry of fact to be determined objectively.  Whether the administrative action is reasonable is simply a matter of fact.  Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts on the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administrative action was taken in a reasonable manner by the employer."

  1. [15]
    In Prizeman v Q-COMP[7], the [then] President Hall wrote:

"And it must be remembered that it is a consequence of s 34(5)(b) of the WorkCover Queensland Act 1996 that, in determining whether action was reasonable management action taken in a reasonable way 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. [16]
    In WorkCover Queensland v Kehl[8], the then President Hall said that "reasonable" should be treated as meaning "reasonable in all the circumstances of the case"; and in Bowers v WorkCover Queensland[9], he also wrote:

"The circumstances that a system of work or its implementation has miscarried does not necessarily lead to the conclusion that either the system of work or its implementation was unreasonable. Reasonable schemes reasonably implemented can miscarry".

  1. [17]
    Earlier, in WorkCover Queensland v Heit[10], the then President Hall noted that "language, tone of voice and demeanour" are all relevant to the issue whether the action was taken in a reasonable way.

The Stressors

  1. [18]
    The factors identified by Mr Trindorfer and his representatives as contributing to his injury are:

Stressor One - Harassment, Intimidation and bullying

  1. Mr Trindorfer was subjected to continual harassment, intimidation, bullying and verbal abuse by his supervisor, Mr Ivan Hinsby.  This involved yelling, swearing, name-calling, derogatory and hurtful comments about the Appellant and his work.  This behaviour often occurred in front of co-workers at morning meetings.

Stressor Two - Employment threatened in an inappropriate and taunting manner

  1. In conjunction with Stressor One, the employer, primarily Mr Trindorfer's supervisor, Mr Ivan Hinsby, would frequently, either expressly or impliedly say that the Appellant's job was in jeopardy.  This was done as a threat or a taunt and was not necessarily part of performance reviews or disciplinary steps.

Stressor Three - Performance of work impeded - withholding of information

  1. Mr Trindorfer's ability to perform his job was impeded by his supervisor, Mr Hinsby. Mr Hinsby on many occasions withheld important information from the Appellant that he required to do his job.  He told Mr Trindorfer he was not to speak to other workers in the foundry and said that he told other employees they were not to speak to Mr Trindorfer.  This resulted in Mr Trindorfer not being able to ask questions about the patterns he was making.

Stressor Four - Failure by management to adequately address behaviour of Mr Hinsby notwithstanding complaints

  1. Failure by the employer, including the production manager Steve Greaves to take any, or any appropriate steps to address the behaviour of Mr Hinsby despite it being "common-knowledge" that Mr Hinsby behaved aggressively and inappropriately towards the Appellant and that this affected the Appellant.  The Appellant had asked that a third person be present for all of the conversations between himself and Mr Hinsby.  This, not only should have alerted the employer to the fact that there was an issue but was ignored and not enforced.  The Appellant was left to deal with Mr Hinsby by himself.
  1. [19]
    Mr Trindorfer nominated the period of 27 July 2009 to 26 June 2013 as the time during which the events alleged to lead to his injury occurred.  The date of decompensation is listed as 26 June 2013.
  1. [20]
    In O'Brien v Q-COMP[11], her Honour Vice President Linnane referred to the Canadian authority of Canadian General Electric Company Limited v The Ontario Labour Relations Board[12] to assist in determining the scope of what is and what is not management action.  At page 443 it was stated:

"...managerial means something pertaining to or characteristic of a manager and it is equally obvious that the word 'manager' means one who manages ... The word 'manage' is said to be equivalent to conducting or carrying on a business or under-taking or an operation, to conduct affairs.  It is also said to be equivalent to controlling or directing the affairs of a household, institution or state, or as the taking of or attending to a matter.  It apparently includes the action of manner of conducting affairs or administering and directing or controlling any matter.  It is obvious ... that the essential meaning of the word is to control and direct and that must obviously include not only administration but direction of planning for any particular enterprise..."

  1. [21]
    I accept the factors nominated by Mr Trindorfer relate to management action.  As such the onus is on the Appellant to establish the management action was not reasonable or not taken in a reasonable way.

The Evidence

  1. [22]
    The Appellant relied on the evidence of the following witnesses:
  • The Appellant, Mr Richard Trindorfer - Pattern Maker;
  • Mr Keith Rosenblatt - Quality Manager;
  • Mr John Gelhaar - Workplace, Health and Safety Officer;
  • Mr Jan Prinsloo - Foundry Supervisor (ceased role in December 2007); and
  • Genevieve Haig - Workplace Health and Safety Officer (ceased role in August 2010).
  1. [23]
    The Employer relied on the evidence of:
  • Mr Shane Els - Leading Hand Moulder;
  • Mr Steven Greaves - Production Manager;
  • Mr Ivan Hinsby - Foundry Supervisor (January 2008 onwards); and
  • Mr Jamie Norgrove - Casual Patternmaker.
  1. [24]
    A medical report in respect of Mr Trindorfer's injury prepared by Dr Karen Chau, (Psychiatrist) and a bundle of Mr Trindorfer's medical records from the Aspire Medical Centre were tendered by consent.  Neither Dr Chau nor Mr Trindorfer's treating General Practitioner, Dr Kamal of the Aspire Medical Centre, were required for cross‑examination.

Stressors

Stressor 1 - Harassment, Intimidation and bullying by Mr Hinsby

  1. [25]
    Mr Trindorfer, a pattern maker employed by Bundaberg Walkers Engineering Limited (BWEL) since 2007, complained of being the subject of continual harassment, intimidation, bullying and verbal abuse by his supervisor, Ivan Hinsby during the period 27 July 2009 to 26 June 2013.
  1. [26]
    By way of example, Mr Trindorfer relied on a number of recorded conversations which he said occurred in late 2011 and June 2013, two of which, were the subject of recordings tendered during the hearing of the Appeal.  Mr Trindorfer also provided the Commission with diary notes he retained in respect of comments his supervisor, Mr Hinsby made during his employment with BWEL.
  1. [27]
    In this matter, the employer has acknowledged there were rare instances, most notably the longer of the first audio recordings, where Mr Hinsby was unreasonable in his response to Mr Trindorfer.  However, the employer submits this was an isolated event which constituted a blemish in otherwise reasonable management action generally taken by Mr Hinsby and BWEL.  Mr Hinsby's employer also argues Mr Trindorfer mischievously selected the worst recorded conversation, holding it out to be representative of the standard of interaction between Mr Trindorfer and Mr Hinsby, when in fact, a subsequent series of audio recordings discovered part‑way through the proceedings are more reflective of the standard manner in which Mr Hinsby engaged with Mr Trindorfer.
  1. [28]
    In the conversation which the employer submits is more the exception rather than the rule, Mr Trindorfer was requested to attend Mr Hinsby's office in or around late 2011.  Comments made to Mr Trindorfer by Mr Hinsby during those discussions included:
  • "You reckon you can modify that piece of foam? Do it";
  • "Don't waste my time!";
  • "Listen to me! Listen.  If you can't understand English, lip read";
  • "Don't spread your bullsh-t!";
  • "I don't care what you requested." (in response to a reminder about the need for a third person to be present in their discussions);
  • "No.  Don't blame me that I got you all riled up.  I'm sick of this rubbish and crap that I harass you."; and
  • "It's not my problem your knees are shaking.".
  1. [29]
    At one point during the conversation, Mr Hinsby in a raised voice can be heard saying, "Tell me this.  I don't want to know about this sh-t'.  When Mr Trindorfer responded with "you don't have to speak to me like that Ivan", Mr Hinsby can be heard saying, "I don't care (about) the way I talk to you Richard." 
  1. [30]
    Mr Hinsby can also be heard referring to disciplinary proceedings during his discussions with Mr Trindorfer.  Later on in the recording, another person can be heard approaching the office, at which point Mr Hinsby gently suggests that he should return at a later time.  The contrast between the manner in which Mr Hinsby addresses Mr Trindorfer in the recording, in comparison with the other employee is striking.
  1. [31]
    Mr Hinsby's evidence in respect of the first recording was that it was "one of the worst" or "up there as the worst", noting the frequency of this type of conversation as "not that often" or "very rare". 
  1. [32]
    Mr Trindorfer provided the Commission with a second recording of a conversation between himself and Mr Hinsby around the same period.  Comments made by Mr Hinsby during those discussions included:
  • "As you can see I'm doing something.  If I don't do this now, I'll get all confused like you get.";
  • "If you don't like it, that's 'tough titties"; and
  • "You can read that, can't you?" Want me to read it out for you?".
  1. [33]
    Mr Hinsby was unable to recall other occasions where he spoke to Mr Trindorfer in the same or similar manner as the first or subsequent recording Mr Trindorfer provided to the Commission.  Instead, Mr Hinsby pointed to additional recordings discovered part-way though the proceedings which he said were more reflective of the standard way in which he generally engaged with employees, including Mr Trindorfer.  He noted his voice might be occasionally raised due to other foundry noise and acknowledged occasional swearing which he said was not directed at Mr Trindorfer.
  1. [34]
    Mr Trindorfer's evidence was that the longer audio recording first played to the Commission was reflective of the way in which Mr Hinsby spoke to him the majority of the time.  Later in cross-examination he acknowledged it was one of the worst.
  1. [35]
    As a further example of his mistreatment, Mr Trindorfer in his list of stressors, relies on events he says occurred on 26 June 2013, which also became his last day at work.  On this day, he claims Mr Hinsby abused him, telling him to repeatedly shut up.  Trindorfer submitted this conversation took place in the pattern shop.  When Mr Trindorfer advised Mr Hinsby he was being rude, his supervisor apologised in a sarcastic manner, questioning the Appellant's competency as he walked away.
  1. [36]
    When Mr Trindorfer, who completed his apprenticeship with honours, suggested Mr Hinsby take a look at his resume, Mr Hinsby yelled at him, "you be careful!".  As Mr Hinsby was walking out of the pattern shop, he then denied telling Mr Trindorfer to shut up and subsequently told him to "prove it".  Later, Mr Hinsby directed a casual pattern maker, Jamie Norgrove, to "have a look at this pattern for this dude" (referring to the Appellant), to which the Appellant responded, "My name is Richard!".
  1. [37]
    Mr Trindorfer provided the Commission with series of diary entries recording various comments made by Mr Hinsby during his interaction with his supervisor between early 2011 until mid-2013.  The diary notes included:

02/02/2011 -  "Ivan asked me 3 times what I had done all day.  I answered him all three times.  Told him I need to see someone about this.  Ivan got Steve in for me.  I told Steve as soon as I saw him that I would like to request a third person to be present every time Ivan talks to me"

19/8/2011 -  "…Ivan said it shouldn't be like that.  We should employ monkeys if that was the case.  Shane and Kevin was there"

20/9/2011 -  "Ivan's language, 'soft cocks morons over there"

8/11/2011 -  "…Ivan degraded me."

15/12/2011 -  "..using abusive language 'F-ckn, f-uckn, fuckn'.  I told him he shouldn't use that language with me."

6/6/2012 -   "I asked Ivan for a Trolley for the pattern shop…he commented about 'being a puss puss', 'come down and use the foundry trolley'"

19/6/2012 -  "Ivan not in good mood.  Using words like 'uppy down like a f-cking rabbit', 'being a dick' and 'you can be boss while I'm gone, if anyone plays up kick em in the arse and give em the flick!' "

08/03/2012 -  "Phone call Ivan, 'there's no toolbox meeting today, "I ask what was the reason, he said 'because I said'".

13/4/2012 -  "Cut through power cord lead, Ivan threatened to give me a written warning"

9/8/2012 -   "* 2.20pm called Ivan about pinnon pattern not returned (incorrect storage area) * He said 'get off your arse and find it"

18/9/2012 -  "Hearing test … I explained to Ivan that dates for test was changed.  Told Ivan that he gots me flustered, that I can't think straight"

31/10/12 -   "…Ivan was checking to see if I was listening and I was, even when he said I was looking off into the distance (off with the fairies)"

12/12/2012 -  "Storage of gas cylinders * Ivan pointed at me and said 'that mean you pecker heads' (about having pride in your work)"

21/1/2013 -  "Asked Ivan if my priorities had changed 'you keep doing what your doing", "what you pecker heads do up there"

26/03/2013 -  "*Ivan came in and asked Jamie 'when you quiting uni', Jamie said 'why', Ivan said, you can come work here.  I'll give you your own pattern shop apprentice - Spoken to Jamie Norgrove other pattern maker in my presence"

26/06/2013 -  "Ivan abused me telling me to 'shut up' then yelled 'shut up' a second time."

  1. [38]
    Mr Hinsby's evidence in respect of his engagement with Mr Trindorfer was that he frustrated him and made him angry on occasion.  He denied many of the events described by Mr Trindorfer in his diary notes and his list of stressors.  He was of the view Mr Trindorfer became confused easily, did not always listen and was deliberately setting out to get him.  His description of his interaction with Mr Trindorfer on 26 June 2013, the Appellant's final day of work, included:

"And what was the tone of your voice? ---It was a raised voice, Shut up and listen.  Listen to me.  If someone's frustrated.  You are not listening to me, shut up and listen.  So it was probably a little bit - a bit louder than that.  More of - I've heard many tape recordings.  I'm not sure which one.  But it was with a raised voice, yes.  Nothing to the extent of - of the very first.  The first tape recording."[13]

  1. [39]
    Mr Els indicated he was not surprised when he heard the recordings of the conversations between Mr Hinsby and Mr Trindorfer.  He conceded he had heard Mr Hinsby call people names and swear during conversations.  Ms Haig was of the view Mr Hinsby was a person who became easily frustrated.  Mr Greaves indicated Mr Hinsby would become louder when he was frustrated.
  1. [40]
    Mr Prinsloo, who worked with Mr Hinsby for a number of years before he left his employment with the foundry in 2009 was of the opinion Mr Hinsby was a very aggressive and unbalanced fellow with a short fuse.  He understood Mr Hinsby to be a person who swore and engaged in name calling.
  1. [41]
    During his employment with BWEL, Mr Rosenblatt had observed Mr Hinsby becoming aggravated when speaking to employees, including Mr Trindorfer.  His evidence was that Mr Hinsby would use colourful language in morning meetings and that he had also heard him describe employees in derogatory terms.  He was of the opinion there was limited point in reporting it to senior management because he considered it would 'fall on deaf ears'. 

Mr Trindorfer's work performance and conduct towards Mr Hinsby

  1. [42]
    Mr Hinsby acknowledged he raised his voice to Mr Trindorfer out of frustration.  He indicated this would happen when Mr Trindorfer would waste time over a particular issue, which would in turn, annoy him.
  1. [43]
    In Mr Hinsby's role as a supervisor, both he and Mr Greaves confirmed he had sought to introduce a series of changes to processes and controls within the foundry, with the objective of improving overall productivity and performance.  The changes highlighted previously undetected inefficiencies or problems in areas throughout the foundry, including the pattern shop.  At times it was necessary to speak to Mr Trindorfer about mistakes in his work.
  1. [44]
    The evidence of Mr Greaves and Mr Hinsby was that Mr Trindorfer found it difficult to accept feedback, often continuing to argue the point when these mistakes were raised with him.  Mr Els' and Mr Norgrove's evidence was that Mr Trindorfer would argue back at Mr Hinsby.  Mr Greaves indicated there had been complaints raised about Mr Trindorfer's attitude towards Mr Hinsby.
  1. [45]
    The employer submitted the attitude of Mr Trindorfer was best demonstrated in relation to a number of warnings he received, both verbal and written.  Further, that Mr Trindorfer's responses to the warnings confirm he was argumentative and lacked insight.
  1. [46]
     The first such incident involved a situation in June 2010 where Mr Trindorfer received a verbal warning for modifying a hand grinder in an unsafe manner, which involved removing a manufacturer's guard whilst cutting some domestic tiles.  Mr Trindorfer was of the view Mr Greaves had given him permission to both use the tool and to make the modifications.  Mr Trindorfer's response to the warning was the Production Manager had seen him using the modified grinder and told him to put a guard on it, which he subsequently complied with.
  1. [47]
     Mr Greaves agreed he had given permission to Mr Trindorfer to use the grinder but was unaware of the modifications.  Essentially, the employer submitted this was one of many examples where Mr Trindorfer was unable to accept he had made a mistake.
  1. [48]
    The employer followed up the warning in relation to the tool modification by distributing an alert throughout the workshop.  Although it didn't specifically name Mr Trindorfer, the alert referred to an employee receiving a verbal warning and included photos of the modifications.  The incident was raised at a pre-start meeting and it wasn't long before other employees became aware it was Mr Trindorfer who had modified the equipment and received a warning.  The employer submitted the alert was not intended to bully or harass Mr Trindorfer.
  1. [49]
    The employer also pointed to Mr Trindorfer's conduct and circular responses during the hearing as further examples of a pattern of behaviour he regularly engaged in where he was unwilling to concede he had made a mistake or failed to follow a direction from Mr Hinsby.
  1. [50]
    In the month of February 2011, the tension between Mr Trindorfer and Mr Hinsby flared up. At the time, it was agreed Shane Els would be in intermediary between the two men when it came to communicating pattern requirements for the moulding shop to Richard.  This decision occurred following an interaction where Mr Trindorfer made a complaint to Mr Greaves about the manner in which Mr Hinsby spoke to him.
  1. [51]
     Later, in the same month Mr Trindorfer made a further complaint when Mr Hinsby swore in a morning meeting and said "for f-cks sake" after Mr Trindorfer directed a series of questions towards his supervisor.  A file note headed "complaint meeting" and dated 25 May 2011, included:

"The consensus between Ivan Hinsby, Shane Els and Steve Greaves is that Richard (Trindorfer) is further antagonizing the supervisor for his own personal causes…It is believed Richard has now started this type of attack to force his supervisor into inappropriate behaviour giving Richard the opportunity to be unquestioned on poor work performance…could lead to violent actions toward this employee… Shane Els has been communicating instructions on occasions to Richard to reduce the exposure between Ivan and Richard."

  1. [52]
    Another incident which led to a final warning for Mr Trindorfer involved a situation where he had been directed to go back and check some materials to determine if they were suitable for a job.  Mr Trindorfer failed to follow up and this led to a final warning being issued on 5 March 2012.  A couple of weeks earlier Mr Trindorfer also allegedly indicated that a pattern was "good to go" to Mr Hinsby when instead it required some repairs.
  1. [53]
    The employer submitted Mr Trindorfer's comments during the hearing in response to questioning around those and other circumstances where concerns had been raised  with him by Mr Greaves or Mr Hinsby, highlighted his evasiveness and capacity to engage in blame shifting behaviour in order to avoid accepting responsibility for a mistake.
  1. [54]
    It was this approach by Mr Trindorfer which the employer submitted was the cause of many arguments and the root problem for his failure to follow direction or instructions.  For example, Mr Norgrove noted Mr Trindorfer would place the blame on others for some of his mistakes.  Mr Els was also of the view that Mr Trindorfer would 'prod' Mr Hinsby to lose his cool.  He was aware the two men did not like one another.  Mr Els' evidence was that he would shout at Mr Trindorfer because he would not accept responsibility for his mistakes.  Mr Greaves was aware that Mr Trindorfer was subject to shouting.
  1. [55]
    Mr Norgrove, Mr Els and Mr Greaves were of the opinion Mr Trindorfer would ask silly or irrelevant questions during morning meetings which would frustrate Mr Hinsby.  In turn Mr Hinsby would become "a bit snappy" and say things like "Oh, not again".  Mr Hinsby was also of the opinion Mr Trindorfer would purposely try to antagonize him or provoke him during morning meetings.
  1. [56]
    Mr Trindorfer's representatives submitted Mr Hinsby was permitted to continue to supervise Mr Trindorfer even though it appeared the supervisor appeared to lose control when he was frustrated.

Employment threatened in an inappropriate and taunting manner

  1. [57]
    Mr Trindorfer submitted Mr Hinsby would frequently, either expressly or impliedly suggest his role was in jeopardy.  In his list of stressors he submitted this was done as either a threat or a taunt and was not necessarily part of performance reviews or disciplinary steps.
  1. [58]
    Included in the materials provided to the Commission was a diary entry retained by Mr Trindorfer noting, "26/03/2013 - "*Ivan came in and asked Jamie 'when you quiting uni', Jamie said 'why', Ivan said, you can come work here.  I'll give you your own pattern shop apprentice - Spoken to Jamie Norgrove other pattern maker in my presence".
  1. [59]
    An earlier diary entry noted, "19/6/2012 - Ivan not in good mood.  Using words like 'uppy down like a f-cking rabbit', 'being a dick' and 'you can be boss while I'm gone, if anyone plays up kick em in the arse and give em the flick!"
  1. [60]
    In the longer recorded conversation provided to the Commission, which Mr Hinsby noted was the worst example of his interaction with Mr Trindorfer, he can be heard telling Mr Trindorfer he didn't have the greatest reputation as a pattern maker.
  1. [61]
    Mr Prinsloo was complimentary about Mr Trindorfer and the quality of his work whilst he was the Appellant's supervisor.  Mr Trindorfer's evidence is that he had never been told he wasn't a good pattern maker.
  1. [62]
    Mr Trindorfer believed that Jamie Norgrove, a casual pattern maker, was made his supervisor in 2013.  Mr Els also believed this was the case.  In contrast, Mr Greaves who was senior to Mr Hinsby was unable to provide any reason why Mr Hinsby would tell Mr Trindorfer that Mr Norgrove was his boss.  Whilst it was the case that Mr Norgrove was put in charge of the pattern shop clean up and organization following the 2013 Bundaberg floods, Mr Greaves' evidence was that he was not appointed as Mr Trindorfer's boss.  Mr Trindorfer told the Commission that no-one spoke to him about Mr Norgrove's role.
  1. [63]
    Mr Hinsby retained a number of file notes dated 24 May 2011, 26 February 2012 and 2 March 2012 recording details of interactions between he and Mr Trindorfer about work matters where in two instances he had threatened disciplinary action.  Further materials submitted to the Commission indicate Mr Trindorfer received an actual warning on two of those occasions with a prior warning issued in mid-2010.  The BWEL Enterprise Agreement 2011 specifically required warnings to be removed from an Employee's personal file where there was no further infringement for a period of twelve months.
  1. [64]
    Mr Hinsby can be heard during the recording of a conversation between he and Mr Trindorfer alluding to disciplinary processes.  The evidence of Mr Greaves was that warnings were reserved for serious matters and it was not BWEL's intention to terminate Mr Trindorfer's employment.  Mr Greaves noted there were approximately 26 qualified pattern makers in Australia and that they were a scarce commodity.

Performance of work impeded - withholding of information

  1. [65]
     Mr Trindorfer submitted his ability to perform his work was impeded by his supervisor.  His representatives submit this stressor must be considered in the context of the behaviour complained of in Stressors One and Two.
  1. [66]
    In the longer recording of the conversation between the two men, Mr Hinsby can be heard reinforcing his role as "the boss" and demanding Mr Trindorfer speak directly to him rather than to other employees within the workshop in respect of the jobs he is performing.  Mr Trindorfer recalled that a chain was put up against the doorway with a sign preventing other employees from elsewhere in the foundry entering the pattern shop.  He was also prevented from speaking to employees in the drawings office.
  1. [67]
    To do his job, Mr Trindorfer said he needed to understand the proposed modification to a pattern.  Mr Trindorfer's evidence was that he would be provided with notes on a little timesheet rather than being provided with a drawing, which in his view, was the standard manner in which pattern makers approached such a task. 
  1. [68]
    Mr Hinsby told the Commission it would have been counterproductive for him to withhold information from Mr Trindorfer given he required him to do his job properly.

Failure by management to adequately address behaviour of Mr Hinsby notwithstanding complaints

  1. [69]
    Mr Trindorfer submitted his employer, including the production manager, Mr Steven Greaves did not take any, or any appropriate steps to address the behaviour of Mr Hinsby despite it being common knowledge Mr Hinsby behaved aggressively and inappropriately towards Mr Trindorfer.  Further, that Mr Trindorfer had asked that a third person be present for all of the conversations between himself and Mr Hinsby which should have alerted the employer that that there was a problem.
  1. [70]
    In a diary entry dated 02/02/2011 Mr Trindorfer recorded:

"Ivan asked me 3 times what I had done all day.  I answered him all three times.  Told him I need to see someone about this.  Ivan got Steve in for me.  I told Steve as soon as I saw him that I would like to request a third person to be present every time Ivan talks to me."

  1. [71]
    On the same day, a record retained by the employer about a meeting held in response to a complaint raised by Mr Trindorfer about Mr Hinsby's treatment of him noted:

"Agreed:  Shane Els would communicate pattern requirements for the moulding shop to Richard."

  1. [72]
    Mr Hinsby's evidence was that no-one had told him Mr Trindorfer had claimed he was bullying and harassing him.  Further, that he had not been interviewed about whether he had bullied him until after Mr Trindorfer had lodged his worker's compensation claim; and that he had never been requested to modify his behaviour.  Mr Hinsby said he had complained about Mr Trindorfer's behaviour to Mr Greaves.  Mr Greaves acknowledged he had appointed Mr Els as the conduit between the two men in response to Mr Trindorfer's earlier complaint.
  1. [73]
    Mr Greaves' evidence was that he considered Mr Els might be more effective in his interaction with Mr Trindorfer and with also explaining what needed to be done.
  1. [74]
    In one of the recorded conversations between Mr Hinsby and Mr Trindorfer in or around late 2011, Mr Hinsby said:

"Don't blame me that I got you all riled up.  I'm sick of this rubbish and crap that I harass you."

  1. [75]
    In a file note dated 24 May 2011, Mr Hinsby's comments included:

"This is the second incident in less than a week where Richard has accused me of harassment."

  1. [76]
    In a further file note dated 2 March, 2012 in respect of an issue around the ordering of Styrofoam blocks, Mr Hinsby's comments included:

"This guy makes accusations that I'm harassing and victimizing him every time."

  1. [77]
    In a file note retained in response to a formal complaint made by Mr Trindorfer in response to the manner in which Mr Hinsby had spoken to him during a morning workshop meeting, management determined that Mr Trindorfer was:

"…further antagonizing the supervisor for his own personal causes."

And later:

"…now started this attack to force the supervisor [Mr Hinsby] into inappropriate behaviour…"

  1. [78]
    Mr Els was aware he was asked to be the third person, but confirmed he was not aware of any complaints by Mr Trindorfer.  His understanding was he was given the role because he could relate to Mr Trindorfer and was also better at reading and understanding drawings.  He understood Mr Trindorfer wanted him to be involved.  Mr Greaves' evidence was that it was not always practical or possible for BWEL to implement Mr Trindorfer's request.  Both he and Mr Hinsby confirmed a decision was made in 2012 to provide instructions for Mr Trindorfer in writing with the objective of simplifying the process.
  1. [79]
    Although Mr Trindorfer had complained of bullying and harassment from Mr Hinsby, Mr Greaves was of the view that Mr Hinsby's requests were fair and reasonable.  Further, that if he had observed any conduct which gave him cause for concern he would have referred it on to the appropriate company representatives.
  1. [80]
    Mr Greaves confirmed that on occasions Mr Hinsby was requested to reduce his volume when speaking.  There were also instances where Mr Hinsby was pulled up for conduct such as swearing and had apologized.  Mr Greaves considered Mr Hinsby's swearing, in the main, was no different to "workshop talk".

Medical Evidence

  1. [81]
    Dr Karen Chau, in her report of 28 November 2013, noted:

"Mr Trindorfer currently had major depressive disorder (currently in partial remission), generalized anxiety disorder and aggravation of social phobia since feeling harassed in the workplace.  It was likely that he developed adjustment disorder with mixed anxiety and depressed mood, particularly since 2012.  This developed into the conditions he now appeared to have.  The incident on 26 June 2013 was reported to aggravate the symptoms."

  1. [82]
    In his patient summary records for an appointment with Mr Trindorfer on 6 March 2012, Dr Abu Hena Kamal noted:

"moved to Bundaberg 5 yrs  back with wife from Brisbane for work in foundry; reshuffle at work place 4 years back; conflict with supervisor; building up over time, received warning letter from workplace, says trying to get rid of him there; being bullied; victimized; affecting him badly; not sleeping at night/impact on family relations / low mood / depressed / cannot concentrate on anything / feels helpless / having physical symptoms lately / headache / epigastric pale; no alternative job opportunities available…"

  1. [83]
    On 27 June 2013, Dr Kamal recorded:

"low mood; ongoing conflict with supervisor; alleged bullying at work; affecting him badly; can't focus at work; ongoing for a while now; initially moved to Bundaberg for this work; and no option but to move to a different job; says other workers are leaving job; similar prob in 2012…".

Findings and Conclusions

  1. [84]
    Given the evidence of Dr Chau, I have concluded Mr Trindorfer sustained a psychological injury which was diagnosed as "Major Depressive Disorder, Generalised Anxiety Disorder and Social Phobia."
  1. [85]
    In the absence of other evidence to demonstrate external factors contributing to Mr Trindorfer's psychological injury, I also find his employment with BWEL was a significant contributing factor to his psychological disorder.
  1. [86]
    The key issue for determination before the Commission is whether Mr Trindorfer's psychological injury was withdrawn from the category of compensable injuries by the operation of s 32(5) of the Act.
  1. [87]
    Accordingly, s 32(5) of the Act requires consideration as to whether the Appellant's injury has arisen out of, or in the course of, circumstances that involve reasonable management action taken in a reasonable way by the employer in connection with the Appellant's employment.
  1. [88]
    In the circumstances of this case a global assessment of the stressors is warranted.
  1. [89]
    In determining the question of reasonableness, I am mindful that it is a question of fact to be determined having regard to all the circumstances of the case.

Stressor One - Harassment, Intimidation and bullying by Mr Hinsby

  1. [90]
    Ms Anderson, Counsel for the Appellant argued there can be no question as to whether the behaviour alleged by Mr Trindorfer in Stressor One occurred, noting it would be impossible to find that it did not occur in light of the manner in which Mr Hinsby spoke to Mr Trindorfer in the recordings and the supervisor's concession during the proceedings that he behaved inappropriately.
  1. [91]
    Mr Cormack, Counsel for the Employer submitted Mr Trindorfer had "cherry picked" the worst examples of the recorded conversations and held them out as being the flavour and nature of routine conversations and dealings with Mr Hinsby.  Further, that Mr Trindorfer had mischievously selected those conversations, failing to provide the Commission, the employer and the Regulator with other more "standard" recordings of Mr Hinsby being quite civil in his communications, until later in the proceedings when it was discovered the recording devices were in fact not "dead" and contained conversations relevant to the proceedings.
  1. [92]
    The Employer further submitted Mr Trindorfer's manner of not accepting responsibility for mistakes, failing to follow directions and repeatedly asking questions, was annoying and frustrating for Mr Hinsby and inevitably precipitated raised voices and swearing.
  1. [93]
     Likewise, the Regulator argued the longer recorded conversation of late 2011 is the worst example of communication between Mr Hinsby and Mr Trindorfer.  Further, that there was no substantial evidence of unreasonable behaviour in terms of Mr Hinsby's language, tone or demeanour towards Mr Trindorfer save and except for perhaps the recorded conversation of late 2011 which it characterized as a blemish, if that.
  1. [94]
    Having listened to the recordings and considered the materials before the Commission, including Mr Trindorfer's diary entries and the various file notes adduced as evidence during the proceedings, I have great difficulty accepting the submissions of the Regulator and the Employer in respect of Mr Hinsby's conduct being a rare or one-off event.
  1. [95]
    In many instances it was not necessarily "what" Mr Hinsby was speaking to Mr Trindorfer about that distressed the Appellant, but rather "how" he was communicating.  It is clear on the materials before the Commission that from as early as February 2011, Mr Trindorfer had concerns about the way he was being spoken to by his supervisor, having raised a formal complaint on 2 February 2011.  At the same time, he requested a third person as an intermediary when it was necessary for him to engage with Mr Hinsby.
  1. [96]
    Later, in May of the same year, a separate file note records an instance where Mr Hinsby used the words "for f-cks sake" in response to questions Mr Trindorfer was asking, at a pre-start toolbox meeting where other employees were in attendance.  The file note indicates management reached a conclusion during or around the time of this incident that Mr Trindorfer was "antagonising the supervisor for his own personal causes".
  1. [97]
    Whilst the Regulator and Employer have played down the longest recorded conversation between Mr Trindorfer and Mr Hinsby as an unusual event, I do not accept, having regard to the manner in which the conversation unfolded, that this was a one-off or rare incident.  In my view, the approach taken by Mr Hinsby during this discussion would be regarded, by any reasonable person, at a minimum as unkind, condescending, belittling, aggressive and sarcastic.  Furthermore, the tenor of the conversation and the language used by Mr Hinsby during the recording was consistent with diary notes Mr Trindorfer had retained over the years as well as elements of oral evidence to the Commission in respect of the unreasonable manner in which he was spoken to and treated by Mr Hinsby.
  1. [98]
    I'm satisfied after considering the materials before the Commission that Mr Hinsby regularly swore in his conversations with Mr Trindorfer and also engaged in labelling and name calling.  Whilst I accept the BWEL foundry was no doubt a loud and robust environment where employees engaged in swearing and other behaviour that might be considered to be reasonably standard in such a workplace, in my view, there was a nastiness underpinning Mr Hinsby's communications and engagement with Mr Trindorfer that would be considered unreasonable by any reasonable person.
  1. [99]
    When listening to the longer recorded conversation between the two men, it becomes clear that this was not a case where Mr Hinsby had simply lost his cool or engaged in some form of spontaneous 'one-off' eruption after being pushed to the brink by Mr Trindorfer.  From the commencement of the conversation Mr Hinsby can be heard taking quite an aggressive and condescending stance even before Mr Trindorfer has a chance to respond to his questions.  He repeatedly interrupts Mr Trindorfer, speaking over the top of him, cutting him off and not allowing him to finish his answers or explain why he may have chosen to undertake the work in the manner in which he had. 
  1. [100]
    At various points in the discussion, Mr Hinsby can also be heard speaking to Mr Trindorfer, a grown man with a respected trade qualification and a key role within the foundry, as if he were a simpleton.  In my view, a similar tenor can be heard in a second shorter recorded conversation during the same period between Mr Hinsby and Mr Trindorfer.  For example, early on in the discussion Mr Hinsby can be heard saying, "As you can see, I'm doing something.  If I don't do this now I'll get all confused like you get", and later, sarcastically inquiring "You can read that, can't you?  Want me to read it out for you?".
  1. [101]
    The Regulator argues that it is not outside the bounds of reasonableness to jovially chide a worker in such a way, however in my view, there is nothing jovial in the manner in which these comments are made to Mr Trindorfer by Mr Hinsby.
  1. [102]
    Likewise, a number of the diary notes retained by Mr Trindorfer about his various interactions with Mr Hinsby from 2011 until he left his employment at BWEL reflect a similar pattern of communication.  For example, "…Ivan was checking to see if I was listening and I was, even when he said I was looking off into the distance (off with the fairies)" or, "Phone call Ivan, 'there's no toolbox meeting today, "I ask what was the reason, he said 'because I said'".
  1. [103]
    There is also a record of Mr Hinsby swearing on at least one occasion in a pre-start meeting in front of other employees in response to questions asked by Mr Trindorfer.
  1. [104]
    Mr Trindorfer's oral evidence in respect of how he was treated was, in my view, compelling.  Much has been made by the Regulator and the Employer about the inconsistencies in the Appellant’s evidence, his circular and evasive answers during the hearing itself and his failure to produce other recordings of conversations which, they both submit, are more reflective of the general standard of communication between he and Mr Trindorfer in the workplace.
  1. [105]
    In my view, Mr Trindorfer, although exhibiting a degree of quiet confidence in respect of his skills and work as a pattern maker, presented as an unsophisticated but generally honest fellow who endeavoured to understand and answer questions as best he could during the proceedings.  At times his answers were inconsistent, however I'm satisfied he was not purposely setting out to deceive the Commission or his questioners, but simply struggled to understand, on occasion, what was being asked of him.
  1. [106]
    Conversely, Mr Hinsby was somewhat less credible.  For example, at one point in the proceedings he indicated that he was unaware Mr Trindorfer had made any complaints about him in respect of harassment and intimidation, yet the longer recorded conversation and various file notes submitted to the Commission, indicate he had some knowledge of the Appellant’s concerns to the extent that one point he overtly said to Mr Trindorfer:

"No.  Don't blame me that I got you all riled up.  I'm sick of this rubbish and crap that I harass you."

  1. [107]
    Although it transpired that a number of the recording devices Mr Trindorfer had used contained additional recordings of conversations between Mr Hinsby and himself or other employees in the foundry, which hadn't been produced prior to the commencement of the hearing, the Appellant happily advised the Commission there were other recordings when the question was asked during the proceedings and didn't seek to hide this information.
  1. [108]
    As such, I'm satisfied, based on his conduct and responses during the hearing that Mr Trindorfer was not mischievously withholding the recordings from his representatives, but instead simply didn't understand the importance of taking all necessary steps to retrieve all relevant recordings and supply them to his lawyer, irrespective of the technical or time challenges that might have existed.  I also accept that it wasn't always possible or practical for Mr Trindorfer to record every conversation he had with Mr Hinsby in the workplace.
  1. [109]
    In my view, the demeanour, language, tone and approach adopted by Mr Hinsby in the first two recordings clearly demonstrates he was a supervisor who easily resorted to harassing, sarcastic, belittling and aggressive behaviour when engaging with Mr Trindorfer, even if there were other occasions where he adopted a more civil tone, particularly when other workers were present.
  1. [110]
    As such, after considering all the evidence before the Commission, I accept it's more likely than not that Mr Trindorfer was subjected to such treatment on a regular and ongoing basis.
  1. [111]
    Both the Regulator and the Employer have pointed to a number of warnings Mr Trindorfer received, arguing he engaged in a pattern of behaviour that included blame shifting and a refusal to accept a mistake or direction from Mr Hinsby, which in turn, significantly frustrated and annoyed his supervisor.  Certainly, a file note of 25 May 2011 indicates management believed Mr Trindorfer was purposely behaving in this manner to "force the supervisor into inappropriate behaviour". 
  1. [112]
    The representatives for Mr Trindorfer submitted that such comments by management could be "no clearer example of a manager blaming the victim".  Further, that despite Mr Trindorfer complaining of being bullied and harassed, Mr Greaves arbitrarily determined, without any investigation, that Mr Trindorfer was at fault and was engaging in activity that was deliberately designed to cause trouble for his supervisor.
  1. [113]
    The Regulator argued that whilst such behaviour does not provide an excuse for an employer to yell or mistreat an employee, it provides a context to instances where an individual supervisor might get frustrated and raise his voice on isolated occasions, in what might be considered to be blemishes.  Further, that in a busy workplace under pressure to perform there is no excuse for bullying or harassment, but at the same time, a worker cannot expect that every conversation they have in the workplace with a supervisor will always be conducted in an absolutely calm and polite manner.
  1. [114]
    I accept there are occasions where employees can be frustrating and undermining to the extent that supervisors and managers can be pushed beyond their limits.  In Mr Trindorfer's case, I accept he held established views about the manner in which patterns should have been prepared or adjusted, with a preference for updated drawings and consultation with other employees within the foundry, in addition to Mr Hinsby.  It's also more likely than not that he asked questions of his supervisor or pushed back in response to certain instructions, perhaps unnecessarily on some occasions.  
  1. [115]
    However, notwithstanding the Employer's reliance on these factors during the Appeal proceedings, during the actual course of Mr Trindorfer’s employment there appears, aside from a warning in early 2012, to have been limited action taken by the Employer to identify such a pattern and address the alleged behaviour through formal performance management processes or alternatively, limited efforts to provide guidance to Mr Hinsby as to how he might have better managed his engagement with Mr Trindorfer.
  1. [116]
    Whilst it is more than reasonable for Mr Hinsby to provide direction and guidance to Mr Trindorfer in respect of how he should undertake his role, I find, after considering all the materials before the Commission, that it is more likely than not Mr Hinsby regularly moved beyond the bounds of reasonableness when it came to engaging with or communicating of instructions to Mr Trindorfer or when expressing his displeasure about a particular aspect of Mr Trindorfer's work or conduct.

Stressor Two - Employment threatened in an inappropriate and taunting manner

  1. [117]
    In conjunction with the Stressor One, Mr Trindorfer has claimed his supervisor, Mr Ivan Hinsby, would frequently, either expressly or impliedly suggest that the Appellant's job was in jeopardy.  This was done as a threat or a taunt and was not necessarily part of performance reviews or disciplinary steps.
  1. [118]
    Whilst I accept Mr Greave's evidence that Mr Trindorfer was a scarce commodity in respect of his skill set, I do think it was reasonable for Mr Trindorfer to form the view his employment was being threatened by Mr Hinsby.  This is particularly so when regard is had to the treatment described in Stressor One in combination with certain other events which unfolded prior to his decompensation.
  1. [119]
    In the longer recorded conversation provided to the Commission, Mr Hinsby can clearly be heard taunting Mr Trindorfer about disciplinary processes.  Mr Hinsby acknowledged he would ask Mr Trindorfer how many warnings he had received.  He agreed with the suggestion that this a way of reminding staff that if they had any existing warnings and received more, that this could be a problem for them. 
  1. [120]
    Notwithstanding the Employer's enterprise agreement contained a clear provision requiring the removal of a warning in circumstances where twelve months had lapsed with no further infringement, it was not unreasonable in the circumstances for Mr Trindorfer to form the view he was approaching his limit in respect of warnings, particularly in an environment where Mr Hinsby kept reminding him about his warnings. 
  1. [121]
    I also accept Mr Trindorfer's evidence that Mr Hinsby would make comments in front of him to Mr Norgrove about his role at BWEL in such a manner as to make the Appellant feel insecure about his own position.  This is reflected in his diary entry of 26/03/2013 where he noted: "Ivan came in and asked Jamie 'when you quitting uni', Jamie said 'why', Ivan said, you can come work here.  I'll give you your own pattern shop apprentice - Spoken to Jamie Norgrove other pattern maker in my presence".
  1. [122]
    Later, following the Bundaberg floods in 2013, Mr Norgrove was appointed to a role where he was responsible for the clean-up and re-organisation of the pattern shop.  Mr Trindorfer was subsequently told by Mr Hinsby that Mr Norgrove was now his supervisor.  In combination with Mr Hinsby's earlier suggestions to Mr Trindorfer that he did not have the greatest reputation as a pattern maker in the context of Stressor One, it was not unreasonable for Mr Trindorfer who possessed limited knowledge about human resource processes, to form the view his employment may have been in jeopardy.

Stressor Three - Performance of work impeded - withholding of information

  1. [123]
    Mr Trindorfer claimed his ability to perform his job was impeded by his supervisor, Mr Hinsby.  He was of the view Mr Hinsby withheld important information that was necessary to do his job.
  1. [124]
    In order to properly carry out his role, Mr Trindorfer firmly believed he required at least a sketch to understand how he was required to modify a pattern.  He said Mr Hinsby would provide him with notes containing measurements instead of drawings which in turn made his role more difficult.  The longer recording provided to the Commission also indicates Mr Trindorfer was requested not to speak to other employees and instead, speak directly to Mr Hinsby about his work.
  1. [125]
    Mr Trindorfer's evidence is that at one point a chain was placed in the doorway of the pattern shop to prevent employees from entering and speaking to him.  Mr Hinsby acknowledged he stopped Mr Trindorfer from speaking directly to the drawings office.  As such, Mr Trindorfer formed a view that aside from speaking to Mr Hinsby, who he believed was harassing and bullying him, he was being prevented from engaging with his colleagues or conferring with others about his work.
  1. [126]
    In considering the evidence before the Commission and assessing the reality of Mr Hinsby's treatment of Mr Trindorfer, I find it was not unreasonable for Mr Trindorfer to form the view his supervisor was purposely undermining his ability to perform his role by refusing to provide him with drawings or preventing him from conferring with other employees about his work. This is particularly so in the context of Stressors One and Two, and when having regard to many of the events which transpired before the onset of his injury and his employer's response to those events.

Stressor Four - Failure by management to adequately address behaviour of Mr Hinsby notwithstanding complaints

  1. [127]
    Mr Trindorfer's representatives claim his employer, including the production manager Steve Greaves failed to take any, or any appropriate steps to address the behaviour of Mr Hinsby despite it being "common-knowledge" that Mr Hinsby behaved aggressively and inappropriately towards the Appellant and that this affected him.  Mr Trindorfer requested a third person be present for the conversations between himself and Mr Hinsby. 
  1. [128]
    Ms Anderson, on behalf of Mr Trindorfer submitted this not only should have alerted the employer to the fact that there was an issue, but that it was ignored and not enforced.  Ultimately, the Appellant was left to deal with Mr Hinsby by himself.
  1. [129]
    The Employer argued Mr Trindorfer's manner of not accepting responsibility for mistakes, failure to follow directions and repeatedly and nonsensically asking questions or returning to matters to try and reiterate his point of view, was annoying and frustrating.  In turn, this led to the occasional raised voice and swearing.  The Employer, whilst accepting Mr Hinsby was not a perfect supervisor contends Mr Trindorfer's manner was one which frustrated his supervisor and provoked occasional harsh words.  Further, that when viewed globally, the actions of management were within the bounds of reasonableness, albeit with some blemishes. 
  1. [130]
    There is no doubt that in 2011 Mr Trindorfer requested Mr Greaves identify a third person to be present when Mr Hinsby spoke to him.  There is also no question there were occasions from 2011 onwards where the conduct between Mr Hinsby and Mr Trindorfer necessitated the intervention of Mr Greaves on behalf of BWEL.  Mr Trindorfer directly complained to Mr Greaves of being bullied and harassed.  There was also awareness within the workplace that tension existed between the two men.
  1. [131]
    In response to questioning around Shane Els being nominated as the middle person to liaise between himself and Mr Trindorfer, Mr Hinsby said:

"Is it right that no-one told you that Richard Trindorfer had claimed you were bulling and harassing him?? --- Yes.

No-one mentioned it? --- No

Is it right that you were never interviewed about whether you had bullied him until his worker's compensation application? --- Yes.

And it was never suggested to you by Steven Greaves that you should modify your behaviour with respect to Richard Trindorfer? --- No."

  1. [132]
    Likewise, although Mr Hinsby complained about Mr Trindorfer's conduct to Mr Greaves, no effective action, aside from injecting Mr Els into their communications from time to time and a finding that Mr Trindorfer was "antagonising" Mr Hinsby for the purpose of getting him to act inappropriately, appears to have been taken by Mr Greaves or BWEL to investigate or address the behaviour and conduct of Mr Hinsby.  In effect, Mr Trindorfer, a pattern maker with a very limited understanding of human resource processes and procedures, was left in the invidious position of having to navigate his way through a dysfunctional employee-supervisor relationship largely on his own.
  1. [133]
    For the reasons advanced above, I am satisfied that when viewed globally, the actions of management, certainly for the period of early 2011 until Mr Trindorfer's decompensation in mid-2013 were not within the bounds of reasonableness.  I uphold the Appeal and find the Appellant has sustained an "injury" within the meaning of that term in s 32 of the Act and therefore the claim is one for acceptance.
  1. [134]
    I make the following orders:
  • that the decision of the First Respondent dated 18 December 2013 is set aside; and
  • that the Regulator and the Employer pay the Appellant's costs of, and incidental to, this appeal, such costs to be agreed between the parties, or failing agreement, to be the subject of a further application to the Commission.

Footnotes

[1] McDonald v Q-COMP (2008) 188 QGIG 180.

[2] Eric Martin Rossmuller AND Q-COMP (C/2009/36) - Decision

[3] Transcript of proceedings, Trindorfer v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/19) [T 1-3 and 4]

[4] Kudryavtseva v Simon Blackwood (Workers' Compensation Regulator [2015] QIRC 053

[5] Davis v Blackwood [2014] ICQ 009

[6] Keen v Workers' Rehabilitation and Compensation Corp (1998) 71 SASR 42

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

[8] WorkCover Queensland v Kehl (2002) 70 QGIG 93 at 94

[9] Bowers v WorkCover Queensland (2002) QIC 18 (23 April 2002) 170 QGIG 1

[10] WorkCover Queensland v Heit (2000) QIC 22 (24 May 2000) 164 QGIG 121

[11] O'Brien v Q-COMP (2007) 185 QGIG 383

[12] Canadian General Electric Company Limited v The Ontario Labour Relations Board (1956) OR 437

[13] Transcript of proceedings, Trindorfer v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2014/19) [T 6-97]

Close

Editorial Notes

  • Published Case Name:

    Trindorfer v Simon Blackwood (Workers' Compensation Regulator)

  • Shortened Case Name:

    Trindorfer v Simon Blackwood (Workers' Compensation Regulator)

  • MNC:

    [2015] QIRC 198

  • Court:

    QIRC

  • Judge(s):

    Member Knight IC

  • Date:

    19 Nov 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
Bowers v WorkCover Queensland (2002) QIC 18
2 citations
Jump To
Cite 1 - (2002) QIC 18
Cite 2 - (2002) QIC 18
Bowers v WorkCover Queensland (2002) 170 QGIG 1
2 citations
Jump To
Cite 1 - (2002) 170 QGIG 1
Cite 2 - (2002) 170 QGIG 1
Canadian General Electric Company Limited v The Ontario Labour Relations Board (1956) OR 437
2 citations
Jump To
Cite 1 - (1956) OR 437
Cite 2 - (1956) OR 437
Davis v Blackwood [2014] ICQ 9
2 citations
Jump To
Cite 1 - [2014] ICQ 9
Cite 2 - [2014] ICQ 9
Keen v Workers' Rehabilitation and Compensation Corporation (1998) 71 SASR 42
2 citations
Jump To
Cite 1 - (1998) 71 SASR 42
Cite 2 - (1998) 71 SASR 42
Kudryavtseva v Blackwood [2015] QIRC 53
2 citations
Jump To
Cite 1 - [2015] QIRC 53
Cite 2 - [2015] QIRC 53
MacArthur v WorkCover Queensland (2001) 167 QGIG 100
1 citation
Jump To
Cite 1 - (2001) 167 QGIG 100
O'Brien v Q-Comp (2007) 185 QGIG 383
2 citations
Jump To
Cite 1 - (2007) 185 QGIG 383
Cite 2 - (2007) 185 QGIG 383
Prizeman v Q-Comp (2005) 180 QGIG 481
2 citations
Jump To
Cite 1 - (2005) 180 QGIG 481
Cite 2 - (2005) 180 QGIG 481
Rossmuller v Q-COMP [2010] ICQ 4
2 citations
Jump To
Cite 1 - [2010] ICQ 4
Cite 2 - [2010] ICQ 4
Stephen Horace MacDonald v Q-COMP (2) (2008) 188 QGIG 180
2 citations
Jump To
Cite 1 - (2008) 188 QGIG 180
Cite 2 - (2008) 188 QGIG 180
WorkCover Queensland v Heit (2000) QIC 22
2 citations
Jump To
Cite 1 - (2000) QIC 22
Cite 2 - (2000) QIC 22
WorkCover Queensland v Kehl (2002) 70 QGIG 93
2 citations
Jump To
Cite 1 - (2002) 70 QGIG 93
Cite 2 - (2002) 70 QGIG 93
WorkCover v Heit (2000) 164 QGIG 121
2 citations
Jump To
Cite 1 - (2000) 164 QGIG 121
Cite 2 - (2000) 164 QGIG 121

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

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

Message not sent!

Something went wrong. Please try again.