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Horwood v the Workers' Compensation Regulator[2015] QIRC 206

Horwood v the Workers' Compensation Regulator[2015] QIRC 206

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Horwood v the Workers' Compensation Regulator [2015] QIRC 206

PARTIES: 

Horwood, Tina

(Appellant)

v

the Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2015/67

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

27 November 2015

HEARING DATES:

13, 14, 15 and 16 July 2015

15 September 2015 - Regulator's written submissions

16 October 2015 - Appellant's written submissions

HEARD AT:

Brisbane

MEMBER:

Industrial Commissioner Fisher

ORDERS:

  1. The appeal is allowed.
  2. The decision of the Regulator is set aside and substituted with a new decision that the application is one for acceptance.
  3. The Regulator is to pay the costs of and incidental to the appeal. Failing agreement, the Appellant is granted liberty to apply.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION – where the appellant complains she was sexually harassed and the manner she was treated as a result of reporting the sexual harassment – where appellant sustained a personal injury – whether injury arose out of or in the course of her employment – whether employment was the major significant contributing factor to the injury – whether the injury arose out of or in the course of reasonable management action taken in a reasonable way – satisfied appellant sustained a personal injury in the course of her employment and employment was the major significant contributing factor – satisfied injury did not arise out of reasonable management action taken in a reasonable way – appeal allowed.

CASES:

Workers' Compensation and Rehabilitation Act 2003, s. 32(1), 32(5)

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

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

Groos v WorkCover Queensland [2000] 165 QGIG 106

Abby Emma Holt AND Q-COMP (WC/2012/44) - Decision http://www.qirc.qld.gov.au

APPEARANCES:

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

Mr S. McLeod, Counsel instructed by the Workers' Compensation Regulator.

Decision

  1. [1]
    Tina Horwood was employed by MSS Security to work as a security guard at Spring Gully and Taloona, west of Roma, on an Origin Energy site.  A security hut was located at each site, and these were about 20 minutes travelling distance apart.
  1. [2]
    The security guards worked a roster of two weeks on and two weeks off.  These rosters were called swings. They worked 12 hour shifts.  Most were fly in/fly out workers and travelled to and from the airport by bus.
  1. [3]
    The case for Ms Horwood is that she complains both about being sexually harassed and the manner in which she was treated as a result of having reported the sexual harassment.  In short, and as outlined in the opening, the case does not involve a question of reasonable management action as it is about the conduct of her co-workers.
  1. [4]
    The Regulator submits that the reasonable management exclusion found in s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 applies.  In its view, the stressors concern her perception of what was purportedly occurring in the workplace.  The Regulator contends that if Ms Horwood sustained an injury under s 32(1) of the Act, it arose out of or in the course of reasonable management action taken in a reasonable way.
  1. [5]
    The Regulator concedes, and the Commission accepts, that Ms Horwood was a worker and she sustained a personal injury.  The issues for determination are:
  1. (i)
    whether Ms Horwood's injury arose out of or in the course of her employment;
  2. (ii)
    whether employment was the major significant contributing factor to the injury; and
  3. (iii)
    whether the injury arose out of or in the course of reasonable management action taken in a reasonable way.
  1. [6]
    The onus rests with Ms Horwood to establish, on the balance of probabilities, the employment elements of her injury and to negative any issue under s 32(5) raised by her own evidence or evidence led by the Regulator.[1]

The Stressors

  1. [7]
    Ms Horwood filed a Statement of Stressors which was in the following terms:
  1. From 18 to 20 April 2014 (inclusive), and throughout the Appellant's period of employment

The Appellant was subjected to unwanted and inappropriate sexually explicit comments:-

  1. (a)
    By Ralph Huggard when:
  1. (i)
    On or about 18 April 2014, the Appellant was sitting outside the Dongers (the huts where the workers stayed and slept) at the Taloona Camp with Todd Moldrow (sic) and Ralph Huggard. Mr Huggard was singing. He then stopped and turned to look directly at the Appellant and said words to the effect, "I wanna take you back to my room and fuck you all day." The Appellant replied by saying words to the effect, "What the fuck. I don't think so." The Appellant then walked away and went to her room. She was disgusted by Mr Huggard's comments, but tried to let it go. (Huggard's first comments)
  1. (ii)
    On or about 19 April 2014, the Appellant was going out on patrol with Mr Moldrow while Mr Huggard was to remain in the hut. The Appellant offered Mr Huggard the use of her laptop to watch a movie on while she was away as he did not have his own. She asked Mr Huggard what movie he wanted to watch and read out a few names. She came across "Resurrection", read this title out and said it was about clones killing people. Mr Huggard said words to the effect, "That'll do" and the Appellant put this movie on for Mr Huggard and then left for her patrol. When she got back to the hut, the Appellant asked Mr Huggard if the movie had finished. Mr Huggard said to the effect, "That was a hot, steam, sex movie. Had lots of naked bodies. Lots of hot sex. Lots of licky lickies and fucky fuckies." The Appellant said to Mr Huggard words to the effect, "I don't want to hear anymore. I don't like this." Mr Huggard replied, "Yes, you do!" and proceeded to say again say there was lots of sex and lots of "licky lickies" and "fucky fuckies" in the movie. The Appellant walked outside, shocked and extremely upset at what Mr Huggard had said. She stayed outside for the rest of the shift so that she did not have to see Mr Huggard. (Huggard's second comments)
  1. (b)
    After this shift, the Appellant and her co-workers went back to camp. Everyone went to bed however, the Appellant was very upset. She was crying and did not know what to do. She telephoned her Supervisor, Bruce Goad, and asked if she could meet with him as Mr Huggard had [sic] something inappropriate to her. Mr Goad met the Appellant in the smoking area, outside the Rec room that morning. The Appellant told Mr Goad what had [sic] Mr Huggard had said on both 18 and 19 April 2014. She was crying and upset as she did so. Mr Goad said words to the effect, "What do you expect? You're an attractive looking women [sic] with blonde hair and big boobs." The Appellant was shocked that Mr Goad had said this to her. The Appellant said to Mr Goad words to the effect, "Does your wife know you're out here with women and saying that?" Mr Goad said that he had described the Appellant to his wife as, "an attractive girl with blonde hair and big boobs." (Goad's personal comments)
  1. (c)
    On or about 18 July 2014, the Appellant was in a car with co-workers, Stuart McNeish, Nathan Landers and Jamie Dalziell. They were driving to work from the camp. There was a conversation between the three co‑workers about putting chocolate over each other's bodies and licking it off. Mr McNeish turned and said to Mr Dalziell words to the effect, "Why don't you rub chocolate over Tina's body?" (Chocolate incident)

2. From 20 April 2014 and throughout the Appellant's period of employment

As a result of the Appellant reporting Mr Huggard's comments and behaviour, she was subjected ongoing inappropriate, unfair and, at times, abusive treatment by her co-workers, including her supervisor, Bruce Goad. The Appellant felt like she was "hanging on by a thread" every day. She did not feel secure in her job and was anxious and upset about what each day would bring. The following exemplifies this treatment and behaviour:-

  1. (a)
    In a further conversation with Mr Goad about what Mr Huggard had said to her, the Appellant told Mr Goad that she was still upset. Mr Goad said that the Appellant could take the matter further if she wanted to but he advised that both the Appellant and Mr Huggard might lose their jobs. Mr Goad also stated that if the Appellant did take it further, everyone within MSS Security would not "take nicely" to the Appellant because they will consider her a "nark/trouble-maker". (Goad's advice)
  1. (b)
    Mr Goad discouraged the Appellant from speaking to other people on site, including to a paramedic whom the Appellant asked if she could see on the morning after Mr Huggard's comments and she was not feeling well. This led to the Appellant feeling even more isolated. (Goad's discouragement)
  1. (c)
    Mr Goad's manner and tone towards the Appellant was quite often harsh and [sic] times, aggressive. He often spoke in this way to the Appellant in front of other workers. (Goad's manner and tone)
  1. (d)
    The Appellant was frequently isolated whilst on her patrols as the other workers would gather in the hut and watch movies together while she stood outside for long periods of time. The Appellant was excluded from conversations and interactions at meal times and when the workers were travelling. On or about 21 May 2014, the Appellant was on first patrol with Nathan Landers, the 2IC. She queried with Mr Landers why she was always on first patrol with him. Mr Landers said that both Jamie Dalziell and Saliva Saeia did not want to do patrols with the Appellant or work with her because of what happened with Mr Huggard and the fact that she reported his behaviour. The Appellant said to Mr Landers, "Well, what am I supposed to do? Let Ralph speak to me sexual and get away with it?" Mr Landers responded by saying that the Appellant should not have said anything at all. The Appellant said, "I'm not out here to listen to someone to talk sexual to me but I am here to work".

The Appellant was really upset knowing the other workers did not want to work with her because of what had occurred with Mr Huggard. She was also upset that nothing was being done to assist the situation and she was expected to just cope with what was occurring. (Isolation and exclusion)

  1. (e)
    On or about 21 July 2014 the Appellant's co-workers, Nathan Landers and Jamie Dalziell were kicking around a milk container in the presence of the Appellant. Whilst doing this, Mr Dalziell said words to the effect, "Let's pretend this is Tina's face and let's see if I can smash her face". The Appellant told these workers, "That wasn't nice". They both laughed and Mr Dalziell said words to the effect, "I am only joking". However the attitudes and conduct of these workers towards the Appellant made this not the case. (Milk container incident)
  1. [8]
    The words in bold after each particular are headings I have given for ease of considering the evidence.

 Stressor 1

 1(a)(i)  Huggard's first comments

  1. [9]
    This incident is said to have occurred on the first swing.
  1. [10]
    Ms Horwood's evidence was consistent with the description given in the Statement of Stressors.
  1. [11]
    Mr Huggard recalled sitting with Ms Horwood and Mr Modrow outside the donga and that he was singing.  However, he did not recall saying anything untoward to Ms Horwood.  He denied making the comments as specified.
  1. [12]
    Mr Modrow said Mr Huggard was singing.  At the end of one of his songs, Mr Huggard said, "maybe we could go back to work, or we could go back in the room and have sex".  These comments were made in tune with his song. 
  1. [13]
    Mr Modrow had previously given a signed statement about the matter on 5 August 2014 to Dean Kuru, the supervisor who replaced Mr Goad.  The contents of that statement were put to him in cross-examination.  In that statement Mr Modrow said Mr Huggard was singing and at the end of that he said, "Maybe we could go back to the room and have sex all day."  Mr Modrow said in evidence that despite the content of the statement, Mr Huggard was still singing when he made the comment.
  1. [14]
    It was also put to Mr Modrow, that the statement said, "He looked towards Tina. I'm not sure it was directed at Tina."  His evidence was that after the song had finished Mr Huggard looked at Ms Horwood but he (Modrow) did not believe that the comments were directed at Ms Horwood.  He agreed the statement was not directed at him.  Mr Modrow did not recall Ms Horwood making any response although she gave him a weird look.
  1. [15]
    Mr Goad confirmed that when he met with Ms Horwood after she had contacted him, she said Mr Huggard had stopped singing, looked at her and said, "I want to take you back to my room and fuck you all day."
  1. [16]
    After Mr Goad spoke to Ms Horwood, he met with Mr Huggard to advise him of the allegations.  Although Mr Huggard reacted with disbelief, he confirmed to Mr Goad that he had said words to the effect of, "I want to take you back to my room and fuck you all day."

 1(a)(ii)  Huggard's second comments

  1. [17]
    The following night Ms Horwood was working on a 12 hour night patrol with Mr Modrow.  Mr Huggard was stationed in the Spring Gully hut.  Ms Horwood offered her laptop to Mr Huggard so that he could watch a movie.  She made the gesture, although she felt very uncomfortable, because other staff were watching movies and he was bored.  She named the movies she had and when she mentioned "Resurrection" Mr Huggard selected that one.  Ms Horwood had only seen a small portion of it but did not believe it was a "dirty movie".
  1. [18]
    On her return from patrol, Ms Horwood asked Mr Huggard whether the movie had finished.  He replied, "yeah, lots of fuckie fuckies, naked bodies, licky lickies".  Ms Horwood asked him to stop as she did not like the comments, however, Mr Huggard replied that she did and repeated them.
  1. [19]
    Ms Horwood was adamant that she only set up one movie for Mr Huggard.  He went out on patrol after she returned to the hut.
  1. [20]
    Mr Huggard's evidence was that Ms Horwood asked him whether he would like to watch a movie and he replied "that would be nice".  He left it to Ms Horwood to choose the movie.  He watched it on and off.  It had sex scenes and naked bodies.
  1. [21]
    Mr Huggard said Ms Horwood arranged three movies for him to watch.  The second movie had zombies in it.  The third movie was "disoriented".  He could recall some content but said it did not have a storyline.  It too had sex scenes.
  1. [22]
    After Ms Horwood returned from her patrol, Mr Huggard stood at the door of the hut and said, "The movies were full of sex and licky."  Ms Horwood "must have got upset" because she replied, "Ralph, I don't want to hear that".  Mr Huggard then turned his back and went to get a cup of coffee.  As he did so, he repeated his earlier comments.  Under cross-examination Mr Huggard denied making the "fucky fucky" comments and that he had only watched one movie.
  1. [23]
    Mr Huggard was presented in cross-examination with an email sent from his email address.  Mr Huggard denied writing the email.  Nonetheless, he agreed with its contents, which referred to his having watched one movie.  In a statement prepared by Mr Huggard on 20 April 2014, he wrote, in part, "Saturday 19 April was a quiet night we watched a movie on her computer until she went on patrol again".  Despite the content of these documents being put to him, Mr Huggard was adamant that he watched three movies on Ms Horwood's laptop.
  1. [24]
    When Mr Goad spoke to Mr Huggard about the two incidents on 20 April 2014, Mr Huggard told him in respect of the movie he had said, "There was a lot of sex in it, lots of licky, licky, touchy touchy and fucky fucky."

 1(b) Goad's personal comments

  1. [25]
    Ms Horwood's evidence was consistent with the particulars.
  1. [26]
    Mr Goad confirmed in evidence that he had made the comments attributed to him.  He had done so because he was trying to build up Ms Horwood's confidence.  Mr Goad did not think the comments were inappropriate or sexually oriented.

 1(c) Chocolate incident

  1. [27]
    Ms Horwood confirmed that she was travelling in a vehicle with the three co-workers mentioned in the particulars.  Mr McNeish had not received a packet of Tim Tams.  He turned to Mr Dalziell and said, "Jamie, why don't you rub chocolate over Tina and lick it off her."  She was dumbfounded and unhappy.  Both Mr Landers and Mr McNeish laughed at the remark.
  1. [28]
    Under cross-examination Ms Horwood denied laughing at the comment.  She did not report it as the incident occurred the day she left for R&R.
  1. [29]
    Mr Dalziell said he was travelling back to camp with Ms Horwood, Mr Landers and Mr McNeish when Mr McNeish said words to the effect of, "why don't I rub chocolate over Tina's body".  Later in his evidence he said the comment included a reference to licking the chocolate off her body.  Those in the car, including Ms Horwood, had a bit of a chuckle but otherwise brushed it off.  The incident had not arisen in the context of Mr McNeish not receiving a packet of Tim Tams but the comment was made in retaliation for a comment made by Ms Horwood.
  1. [30]
    Mr Dalziell was also interviewed by Mr Kuru on 6 August 2014 and a statement was prepared.  Mr Dalziell confirmed the statement was correct.  That Statement shows that he told Mr Kuru that Mr McNeish said, "It was a comment made by Stew in regards to me either eating or licking chocolate off Tina's body."  He also told Mr Kuru that he could tell that Ms Horwood did not appreciate the comment.  However, in cross‑examination he said he had not looked at Ms Horwood so he did not know how it affected her "but I thought with what had gone on previous that it was not the right thing to say and I thought to myself that maybe she could be upset".
  1. [31]
    Mr Landers gave evidence that the incident arose in the context of a packet of Tim Tams.  He heard Ms Horwood laugh at the comment.  It is important to note that by the time Mr Landers gave his evidence on this and some other matters he had become uncooperative and generally unresponsive.

Stressor 2

  1. [32]
    After the events of 18 and 19 April 2014, Ms Horwood contacted Mr Goad to complain about Mr Huggard.  The particulars of Stressor 2(a) and (b) concern comments allegedly made by Mr Goad during the course of this conversation.

 2(a) Goad's advice

  1. [33]
    Ms Horwood's evidence was as follows:

"He turned around and said to me that I can report it and take it further.  He said if you report it he says you'll probably lose your job, and he said no-one in MSS will want to work with you.  You'll be known as a nark.  I said to him, what am I supposed to do, take it up the fucking arse?  What am I supposed to do?

What did he say? --- He didn't say anything.  He said you'll lose your job if you report it.  He said me and Ralph will both lose our job.  He said it's up to you.

Then what happened? --- That was it.  Nothing happened.  Absolutely nothing happened.  I did deal with it.  I had to sit there every night, just cry."

  1. [34]
    Mr Goad said he told Ms Horwood she could take the matter further if she wanted however this would cause problems both for her and Mr Huggard if she did.  In making this comment he was describing the attitude of other people who would either be working with Mr Huggard or Ms Horwood.  Mr Goad denied saying anything about people losing their jobs.  After the meeting Mr Goad told Ms Horwood that if she was not comfortable and would like to take it further he would endeavour to find out the next step.
  1. [35]
    It was not put to Mr Goad that he used the words "nark" or "trouble maker" to Ms Horwood to describe the anticipated reaction of her co-workers.

 2(b) Goad's discouragement

  1. [36]
    Ms Horwood said that on 20 April 2014 after she had informed Mr Goad of Mr Huggard's comments, Mr Goad told her not to see anyone or talk to anyone, not even to MSS staff or the paramedic.
  1. [37]
    Mr Goad denied telling Ms Horwood not to see the paramedic.  He recalled saying to her that "we're going to try to keep this in-house" but did not say to her "don't go off and speak to anybody."  He offered to take the matter further if that was what she wanted.  In his view she was entitled to speak to anyone she considered necessary.

2(c) Goad's manner and tone

  1. [38]
    Ms Horwood said she was at the Spring Gully hut at the checkpoint with Mr Goad and Eddie Bennet, Senior Field Advisor for Emergency Response and Security, Origin Energy when Mr Goad told her to stand at attention.  Ms Horwood said "no".  Mr Goad repeated his command.  Ms Horwood said she nearly broke down, Mr Goad then informed her that he and Robert Tait, Regional Operations Co-ordinator, MSS Security, wanted to congratulate her on a particular incident report.
  1. [39]
    William Jacobs, a co-worker, gave evidence that Ms Horwood informed him that she was told to stand at attention by Mr Goad in the presence of Mr Bennet.  Mr Goad said that he and Mr Tait wanted to congratulate her on written reports.  Ms Horwood explained Mr Goad's tone as "very deep … like militant".  Ms Horwood told Mr Jacobs that she felt humiliated.
  1. [40]
    Mr Bennet did not recall Mr Goad speaking to Ms Horwood in an inappropriate way although he remembered her being distressed about two matters, one of which was being made to stand at attention.  He did not give evidence that he was present when this occurred.
  1. [41]
    Mr Goad recalled telling Ms Horwood that Mr Tait wanted him to pass on to her that she had done a good job with an incident report but he denied that he had told Ms Horwood to stand at attention.  He agreed that on occasion he would raise his voice a couple of decibels when speaking to Ms Horwood and other security guards but did not agree that he spoke harshly to her.  He acknowledged he raised his voice and spoke to her in a matter of fact, direct or commanding way.

 2(d) Isolation and exclusion

  1. [42]
    The particulars concern:
  1. (i)
    other workers gathering in the hut and watching movies while she stood outside for long periods;
  2. (ii)
    Ms Horwood being excluded from conversations at meal times and while travelling; and
  3. (iii)
    a specific conversation between Ms Horwood and Mr Landers on or about 21 May 2014.
  1. [43]
    In relation to the first complaint of isolation, Ms Horwood said that she was left at the Spring Gully hut, which was the main gate, while the "boys" went on patrol.  She would be left there until about 5.00 am, and sometimes 5.30 am the next morning, while they were watching TV.
  1. [44]
    Mr Jacobs related telephone conversations he had with Ms Horwood about being left at the Taloona gatehouse on nightshift on her own when there was supposed to be another guard there.  These phone calls became more frequent and Ms Horwood was crying, emotional and upset.  He said Ms Horwood would be left for up to three or four hours when the two guards should be there for two hours.
  1. [45]
    Mr Landers was Ms Horwood's supervisor on night shift.  He gave evidence that at the beginning of the night shift two guards would go to each hut.  At about 7.00‑7.30 pm, one guard would leave the hut and pick up another from the other hut to go on the first patrol.  At the end of the patrol the guards would return to their huts and spend a few hours with the guard who had remained in the hut.  After a period a second patrol by the guards who had remained in the hut for the first patrol would occur.  Mr Landers denied that on occasion the two guards on patrol would return to the Taloona hut for a few hours before returning to the Spring Gully hut where Ms Horwood was stationed.  He further denied that Ms Horwood was left alone from three or four hours at the Spring Gully hut and said this would be unacceptable if it had occurred.
  1. [46]
    Mr Landers was also unaware of Ms Horwood being left for long periods in the road checking vehicles while the other guard was in the hut.
  1. [47]
    Mr Dalziell agreed that on occasion the guards who had been on patrol would return to one hut for a coffee before picking up Ms Horwood.  He agreed she would be left alone for a couple of hours but "not every day".  However, he said they were not excluding her.
  1. [48]
    The second complaint of exclusion concerns meal times and travelling.  Ms Horwood travelled with her co-workers on a bus to and from the airport.  These workers were Mr Dalziell, Mr Jacobs, Mr Landers, Saliva Saeia, Mr Modrow and Mr Huggard. Ms Horwood said that while travelling to the airport after the first swing and on her return for the start of the second swing, she only conversed with Mr Jacobs.  During the return trip to the airport after the completion of the first swing, the other workers were talking amongst themselves when Mr Modrow turned around and said, "Shh.  Don't say that.  I'll get reported to Spud" i.e., Mr Tait.
  1. [49]
    After that, she sat at the back of the bus with her earphones on.  She complained that no one would talk to her – they were at the front of the bus and she was stuck at the back by herself.  However, in cross-examination, Ms Horwood said that her co-workers would sit all over the bus.  Although Ms Horwood confirmed that she put her earphones on because they were not talking to her, she also said because of the nature of their conversations, she did not want to involve herself because of what she had gone through with Mr Huggard.
  1. [50]
    The third issue concerned her conversation with Mr Landers about only being on patrols with him.  In relation to the specific conversation, Ms Horwood's evidence is generally consistent with the particulars.
  1. [51]
    Mr Landers was interviewed by Mr Kuru on 14 August 2014 and signed a Statement which contains the following:

"She was only on first patrol with me for the first two nights then we rotated after that, I said were [sic] on patrol so that she could be shown the ropes and pass that onto the other boys.  Also the other boys weren't comfortable working with her due to what happened with Ralph.  The boys were scared they'd say the wrong thing to her."

  1. [52]
    In answer to the next question asked during the interview, Mr Landers said he did not mention Mr Huggard's name, only "the previous incident".  Under cross‑examination Mr Landers confirmed the content of the Statement was correct.
  1. [53]
    In relation to being excluded, Mr Landers' Statement contains the following:

"She said she wanted to be included and be like 'one of the boys', but we were too scared to say anything or include her in any of our jokes in case she took it the wrong way."

  1. [54]
    Mr Landers explained in evidence that he was protecting the team, including Ms Horwood.  He went on to say:

"… Tina excluded herself from us from the start.  She wanted to go have dinner by herself.  She wanted to sit and smoke by herself.  She wanted to have little abusive phone calls on the phone by herself.  She wanted to do everything by herself, so at the end of the day, I was just protecting everyone against everyone."

2(e) Milk container incident

  1. [55]
    Ms Horwood's evidence is consistent with the particulars of the Stressor.
  1. [56]
    Mr Dalziell's evidence is that he and Mr Landers were kicking a milk carton around, having a bit of friendly banter.  Mr Landers said he was going to put Mr Dalziell's face on the carton and see how far he could kick it.  Mr Dalziell replied that if he was going to do that then he would put Mr Landers' face on it and see how far he could kick it.  Ms Horwood was about thirty metres away having a cigarette.  He did not mention Ms Horwood's name while kicking a milk carton around.
  1. [57]
    Mr Landers' evidence was generally consistent with that of Mr Dalziell's except that he believed they were kicking a Milo tin.  He denied that Ms Horwood's name was mentioned.

Management Action

  1. [58]
    The Regulator contends that Ms Horwood's injury arose out of or in the course of reasonable management action taken in a reasonable way.  The two instances of management action which the Regulator contends fall into this category are the interventions by Mr Goad after Ms Horwood's report of the sexual comments made by Mr Huggard and then subsequently by Mr Tait.
  1. [59]
    After the second set of comments made by Mr Huggard, Ms Horwood contacted Mr Goad in a very distressed state.  He asked whether she wanted him to come and see her and she agreed.  Ms Horwood told him of the sexual references made by Mr Huggard.  In addition to making the comments about Ms Horwood's appearance as set out in Stressor 1(b) Mr Goad said he would try to do everything he could to rectify the problem.
  1. [60]
    As a result of that meeting Mr Goad telephoned his supervisor, Mr Tait, to seek some direction.  The evidence of Mr Goad and Mr Tait differs as to the advice provided.  Mr Tait gave Mr Goad three options to put to Ms Horwood - to make a formal complaint to MSS; to have a face to face meeting with Mr Huggard controlled by Mr Goad or to request a letter of apology from Mr Huggard.  Mr Goad said Mr Tait advised him to try to keep the matter in house, i.e., resolve it within the group of people.  Mr Goad then arranged a round table meeting the following day with Mr Huggard, Ms Horwood, himself and Mr Landers as a witness.
  1. [61]
    Mr Goad invited Ms Horwood to express her concern about Mr Huggard's comments.  She was very upset.  Mr Huggard responded in absolute disbelief but apologised if he had upset Ms Horwood.  Mr Goad believed Ms Horwood accepted the apology as she did not appear to be as agitated.  He could not recall Ms Horwood and Mr Huggard shaking hands.
  1. [62]
    Mr Goad said Ms Horwood also offered to work with Mr Huggard on the next night shift.  Mr Goad was not amenable to that suggestion and notified Mr Landers not to roster Mr Huggard and Ms Horwood together on patrol or in the security hut.  Mr Goad contacted Mr Tait after the meeting to advise of what had transpired at the meeting and of Ms Horwood's proposal for them to work together.  Mr Tait agreed that working together was inappropriate.
  1. [63]
    Ms Horwood denied she told Mr Goad she wanted to work with Mr Huggard.  The evidence shows that it was Mr Landers who was responsible for rostering the guards in pairs.  He had rostered Ms Horwood and Mr Huggard together.  On being contacted by Mr Goad, Mr Landers altered the roster to ensure that they were not at the hut or on patrol together.
  1. [64]
    There is some debate about whether Ms Horwood accepted Mr Huggard's apology.  In my view the issue is resolved by considering the nature of the evidence about the apology offered by Mr Huggard.  He apologised if he had offended her.  It is clear that Ms Horwood did not accept this as an apology.  After Mr Huggard "apologised", Mr Goad suggested they put the incident behind them and move forward.  Ms Horwood felt she had to agree to Mr Goad's suggestion because he had told her when they met earlier she would be viewed as a nark or would lose her job. 
  1. [65]
    During a visit by Mr Tait to the site after this meeting and at the end of their second swing in May 2014, he spoke to Ms Horwood who expressed concern that her team did not want to work with her as a result of her allegations about Mr Huggard.  Mr Tait arranged a meeting with all the security guards who worked on Ms Horwood's swing.  Those present at the meeting included Messrs Tait, Goad, Landers, Dalziell and Jacobs.
  1. [66]
    Mr Tait explained to those present that Ms Horwood was unhappy and then left it to the others to make comments.  Ms Horwood expressed her concern that no one wanted to work with her as a result of the issues with Mr Huggard.  Mr Landers was the only other person to speak.  He said words to the effect he had had enough of her bullshit; it was all about her; he had his own issues to deal with and he came from a break to get away from them.  He did not want to be listening to her problems.  As the swing was coming to an end, the staff left. 
  1. [67]
    Mr Tait acknowledged that Mr Landers' comments were inappropriate and neither he nor Mr Goad expressed that view at the meeting.  He further acknowledged that not to do so was inappropriate management action.

Medical Evidence

  1. [68]
    Ms Horwood consulted her General Practitioner, Dr Joseph Hui, on 24 July 2014 and reported encountering bullying and sexual harassment while working for MSS Security.  Dr Hui provided a workers' compensation medical certificate.  Dr Hui prepared a Mental Health Care Plan on 22 September 2014.  The entries on the MHCP under the heading of "Events happened for the sexual harassment" were made by Dr Hui based on the information provided by Ms Horwood.  He recorded the comments made by Mr Huggard, Mr Goad's comments about her appearance and losing her job, together with bullying and harassment by male workers and being given unfair duties.
  1. [69]
    Ms Horwood was referred to Dr Axel Estensen, Consultant Psychiatrist, for the purposes of a medico-legal report.  Dr Estensen diagnosed Ms Horwood with Major Depressive Disorder (moderate severity) and Adjustment Disorder with anxiety (chronic).  In the summary of this report, Dr Estensen opines:

"In mid-2014, shortly after commencing work for MSS Security as a security guard at a construction camp in a remote location, Ms Horwood was subject to repeated episodes of sexual harassment.  She reported her concerns to her supervisor whom she felt was unsupportive and dismissive of her issues.  Subsequent to her voicing her concern and distress at the harassment she had experienced, further social isolation, degrading comments and intimidating behaviours ensued from work colleagues.  In response to these events she experienced a decline in her emotional state with her describing a diminished mood, depressive cognitions and neurovegetative features.  She had prominent anxiety relating to her colleagues, their comments and behaviours.  Ultimately she was unable to continue in her role as a security guard and was placed on sick leave by her general practitioner".

  1. [70]
    In his oral evidence Dr Estensen said that both of Ms Horwood's conditions are causally related to the sequence of incidents i.e., the request for sex, the computer incident, the lack of support following the incidents with Mr Huggard and then the discrimination by being given undesirable jobs and the Milo tin incident.  Although she found the incidents of sexual references very distressing it was difficult for him to say whether the incidents or the lack of support had the greater impact.  Dr Estensen considered that it was all of the events together and the progression of them that led to the mental state he observed.  As different incidents occurred she felt under supported and some of the things she complained about were not changing.
  1. [71]
    Dr Estensen said Ms Horwood had not told him of the meeting between Mr Goad, Mr Huggard and herself and another co-worker.  He agreed that such a meeting would be an appropriate and supportive step.  It was an important bit of history that could ultimately have influenced his report.  However, he went on to say that while that meeting would have been supportive, the subsequent events were unsupported and would have negated any beneficial effect of the promises of that initial meeting or assurances that were given about Mr Huggard not being on the same shifts as Ms Horwood.

Conclusion

  1. [72]
    Ms Horwood nominated two Stressors, each which had several parts, as being causative of her condition.  The first Stressor concerned her being subjected to unwanted and inappropriate sexually explicit comments.  The comments were made by Mr Huggard (twice), Mr Goad and Mr McNeish.
  1. [73]
    In relation to the first comments made by Mr Huggard, I accept that he made the comments as alleged.  I consider that he turned his head and directed the comments at her.  She could be left in no doubt to whom the comments were directed.  The comments made by Mr Huggard contained sexual references, were unwanted and inappropriate.
  1. [74]
    I also find that he only watched one movie and made the second set of comments as alleged.  He admitted to doing so albeit that he did not concede that he included the words, "fucky fucky".  However, this is contrary to evidence given by Mr Goad about the words used by Mr Huggard when he first met with him.  Again these comments were unwanted, inappropriate and sexually explicit.
  1. [75]
    Mr Goad admitted to making the remarks attributed to him in Stressor 1(b).  Although his evidence and the Regulator's submission was that these remarks were designed to boost Ms Horwood's confidence, they were unwanted, inappropriate and sexually explicit.
  1. [76]
    I also accept that the chocolate incident occurred.  That it was made was confirmed by Mr Dalziell and Mr Landers.  I do not accept that Ms Horwood laughed at the comments.  Mr Dalziell recognised that she may be upset by it.
  1. [77]
    The Regulator submits that the comment was just banter between co-workers.  That submission is rejected.  The comment was offensive and humiliating and also meets the description of being unwanted, inappropriate and sexually explicit.
  1. [78]
    Stressor 1, with its various component parts, has been made out on the evidence.  Except for Mr Goad's comments about Ms Horwood's personal appearance, the incidents in Stressor 1 cannot be characterised as management actions.
  1. [79]
    The second Stressor has a number of components which concern the treatment of Ms Horwood by her co-workers and Mr Goad as well as her feelings of job insecurity.
  1. [80]
    In relation to Stressor 2(a), I accept that Mr Goad told Ms Horwood that pursuing a complaint against Mr Huggard would cause problems for both her and Mr Huggard in terms of the reaction from her co-workers.  However, I am not satisfied that he said she would lose her job or that she would be considered a nark or a troublemaker.
  1. [81]
    With respect to Stressor 2(b), I do not accept that Mr Goad discouraged her from seeing the paramedic or talking to other staff.  This may have been her perception as a result of his remark about trying to keep the matter in-house.
  1. [82]
    Stressor 2(c) concerned the manner and tone by which Mr Goad frequently addressed Ms Horwood.  In her evidence, the particular incident raised by Ms Horwood was the "stand at attention" incident.  Ms Horwood was supported in her evidence by Mr Jacobs who relied on what he had been told by her.  Neither Mr Goad nor Mr Bennet recalled the incident, although Mr Bennet had remembered being aware that she was upset by it.  In my view, Mr Bennet, who was independent of MSS, would have recalled such remarks had they been made in his presence.
  1. [83]
    That Mr Goad was quite often harsh and at times aggressive towards Ms Horwood is not made out on the evidence.
  1. [84]
    The evidence around Stressor 2(d) is vague in parts.  I am satisfied that on occasion Ms Horwood was left alone at the Spring Gully hut for longer periods than she ought to have been.  The evidence does not establish that she was left outside while others watched television.
  1. [85]
    Similarly, there is no evidence of substance establishing that Ms Horwood was excluded at meal times. 
  1. [86]
    In relation to travelling on the bus, the evidence establishes that Ms Horwood was excluded on the trip to the airport after making the complaint about Mr Huggard and on her return to site.  Thereafter, Ms Horwood decided to isolate herself by putting on headphones.  This was done in part to remove herself from earshot of conversations she considered unsavoury as well as to mitigate her isolation.
  1. [87]
    The evidence does not establish that Ms Horwood was only on first patrol with Mr Landers.  However, I am satisfied that when she raised her concern about other workers not being willing to work with her, Mr Landers advised her that this was because of her report of Mr Huggard's behaviour.  Although the Regulator submits that such a response was not an unexpected consequence, it is evidence of Ms Horwood being isolated by her co-workers.
  1. [88]
    The Commission is satisfied on balance that the milk carton incident occurred as claimed by Ms Horwood.  I consider that Mr Dalziell and Mr Landers were protecting their own interests by denying the comment was made.
  1. [89]
    In my view the evidence about these matters does not fully support Ms Horwood's claims as set out in the particulars of Stressor 2.  However, the evidence establishes that she was subjected to further comments (the chocolate and milk carton incidents) and social isolation from her colleagues.  I note the statement specifies the particulars exemplify the treatment of Ms Horwood and the behaviours of her co-workers and Mr Goad.  The Commission has not considered other incidents raised in the evidence as the matters identified in the Statement of Stressors constitute the entirety of the claim.[2]
  1. [90]
    Whether a worker sustains an injury within the meaning of s 32(1) is a mixed question of law and fact on which medical opinion is often helpful but necessarily not decisive.[3] Dr Estensen's evidence establishes that Ms Horwood's injury was causally related to a series of events commencing with the sexual comments made by Mr Huggard.  Dr Estensen said Ms Horwood continued to experience social isolation, degrading comments and intimidating behaviours as a result of her reporting the harassment.  I consider Dr Estensen's opinion as it relates to sexual comments, social isolation and degrading comments has been borne out on the evidence.  Accordingly, I am satisfied that Ms Horwood sustained a personal injury that arose out of or in the course of her employment and her employment was the major significant contributing factor to it.
  1. [91]
    The next question is whether, despite satisfying s 32(1), the injury is withdrawn because of the operation of s 32(5) of the Act.  Whether management action is reasonable is a question of fact to be determined having regard to all of the circumstances of the case.[4]
  1. [92]
    The Regulator submits that management action was reasonable and reasonably taken.  Management, through Mr Goad, responded quickly to the issues involving Ms Horwood and Mr Huggard.  Steps were immediately taken to ensure Ms Horwood did not work with Mr Huggard on shift.
  1. [93]
    While I accept that Mr Goad responded quickly in meeting with Ms Horwood to hear her concerns, his remarks about her appearance were entirely misplaced in a work environment.  They were especially inappropriate for a manager part of whose role is to model appropriate behaviour.  They were especially inappropriate in circumstances where Ms Horwood had identified being the recipient of unwanted sexual remarks.  That aspect of Mr Goad's response was not reasonable management action taken reasonably.
  1. [94]
    Mr Goad's actions in organising the round table meeting and ensuring that Ms Horwood was not rostered to work with Mr Huggard were reasonable and reasonably taken.
  1. [95]
    Mr Goad's comment about the effect on her co‑workers of her complaint was unsupportive.  In my view, reasonable management action would have been to offer to support her and if necessary ensure her co-workers treated her with respect or to reinforce the sexual harassment training they had received before starting work on site.  In the absence of such support being offered, it is not surprising that Ms Horwood felt she had to accept the proposal to move on after the meeting with Mr Huggard.
  1. [96]
    I also accept that Mr Tait's actions in checking on Ms Horwood's welfare and organising a meeting with her co-workers so that she could raise issues of concern were reasonable and reasonably taken.  Unfortunately, Mr Landers attacked Ms Horwood and neither Mr Tait nor Mr Goad intervened.  Although such a response was inappropriate it is not a matter about which she complained either after the meeting or to Dr Estensen.  However, despite the efforts by Mr Tait to address Ms Horwood's concerns, she was subsequently subjected to further degrading comments by her co‑workers.  In my view the steps taken by management to support Ms Horwood were not adequate.  No action was taken in respect of modifying the behaviour of her co-workers. My conclusion is consistent with Dr Estensen's opinion that Ms Horwood felt under supported and some of the matters she was complaining about were not changing.
  1. [97]
    O'Connor DP said that "[t]he authorities support the approach that the Appellant may succeed in a claim for compensation based on any event or stressor that does not arise or occur in the course of reasonable management action taken in a reasonable way."[5]  In this case the majority of the incidents that have been found to have occurred and to be causative of Ms Horwood's injury were the conduct of co-workers or part of Mr Goad's initial response.  Further, two key actions of Mr Goad have been found not to be reasonable management action taken in a reasonable way.
  1. [98]
    In the circumstances I am satisfied that her injury did not arise out of or in the course of reasonable management action taken in a reasonable way.
  1. [99]
    The following Orders are made:
  1. The appeal is allowed.
  2. The decision of the Regulator is set aside and substituted with a new decision that the application is one for acceptance.
  3. The Regulator is to pay the costs of and incidental to the appeal.  Failing agreement, the Appellant is granted liberty to apply.

Footnotes

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

[2] Blackwood (Workers' Compensation Regulator) v Adams [2015] ICQ 001 [17].

[3] Groos v WorkCover Queensland [2000] 165 QGIG 106.

[4] Abby Emma Holt AND Q-COMP (WC/2012/44) - Decision http://www.qirc.qld.gov.au [89].

[5] Ibid [106].

Close

Editorial Notes

  • Published Case Name:

    Horwood v the Workers' Compensation Regulator

  • Shortened Case Name:

    Horwood v the Workers' Compensation Regulator

  • MNC:

    [2015] QIRC 206

  • Court:

    QIRC

  • Judge(s):

    Member Fisher IC

  • Date:

    27 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
Groos v WorkCover Queensland (2000) 165 QGIG 106
2 citations
Jump To
Cite 1 - (2000) 165 QGIG 106
Cite 2 - (2000) 165 QGIG 106
Workers' Compensation Regulator v Adams [2015] ICQ 1
2 citations
Jump To
Cite 1 - [2015] ICQ 1
Cite 2 - [2015] ICQ 1

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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