Stratco Pty Ltd v Workers' Compensation Regulator
[2015] QIRC 22
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- Stratco Pty Ltd v Workers' Compensation Regulator[2015] QIRC 22
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Stratco Pty Ltd v Workers' Compensation Regulator[2015] QIRC 22
Stratco Pty Ltd v Workers' Compensation Regulator[2015] QIRC 22
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Stratco v Simon Blackwood (Workers' Compensation Regulator) and Tory [2015] QIRC 022 |
PARTIES: | Stratco Pty Ltd (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (First Respondent) And Tory, James (Second Respondent) |
CASE NO: | WC/2013/215 |
PROCEEDING: | Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) |
DELIVERED ON: | 10 February 2015 |
HEARING DATES: | 11, 12, 13 and 14 February 2014 |
MEMBER: | Industrial Commissioner Black |
ORDERS: |
|
CATCHWORDS: | WORKERS' COMPENSATION - Appeal against decision – aggravation of psychological injury - whether injury arose out of reasonable management action taken in a reasonable way – whether injury caused by co-worker behaviour in circumstances unrelated to management action. |
CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32(1), s 550 Sheridan v Q-COMP (2009) 191 QGIG 13 |
APPEARANCES: | Mr L Smith of Counsel instructed by Norman Waterhouse Solicitors for the Appellant Mr SP Sapsford of Counsel directly instructed by the Workers' Compensation Regulator for the First Respondent Mr SJ Cleary of Counsel instructed by Quinn & Scattini by for the Second Respondent |
Decision
Background
- [1]Stratco Pty Ltd appeals a decision of the Review Unit of the Workers' Compensation Regulator ("the regulator") to accept Mr James Tory's application for workers' compensation.
- [2]Tory was employed by Stratco as a truck driver. In terms of his ethnic background, Tory said that three of his grandparents were Indian and one was Scottish. He was born in Australia in 1956.
- [3]Tory said in his WorkCover Queensland Application for Compensation that his injury was caused by racism, bullying, abuse, intimidation and threats occurring in his workplace. He said that the injury occurred over a period of time and that he first experienced symptoms in 2011.
- [4]Prior to his employment by Stratco, Tory had been employed by Jenniben which was a trucking company that sub-contracted to Stratco and which operated out of Stratco premises. Stratco acquired the Jenniben business in July 2012. A number of employees who had been employed by Jenniben had transferred to Stratco's employment. Jenniben employees were often subject to direction by Stratco staff, particularly Graham McGregor.
- [5]Tory had previously lodged a workers' compensation claim in 2005 alleging a psychological injury or stress arising from racial vilification in the workplace (Exhibit 2). At that time he was employed by Websters Transport. Tory said that when he complained about a co-worker who persistently racially taunted him, his employer said to him that if he "didn't like being called a black cunt or a nigger" he was "free to fuck off". Tory said that he subsequently resigned his employment with Websters and withdrew his workers compensation claim (Exhibit 3).
- [6]Tory had also lodged a workers compensation claim while in the employ of Midway Metals. In this instance Tory said that a supervisor, leading hand, and two co-workers had written racially offensive remarks on his work allocation clip board. When he complained about the behaviour the operations manager warned the individuals involved. Tory's claim was not accepted on the basis that the management response to his complaint had been reasonable (Exhibit 4 refers).
- [7]Tory's case was based on one or both of the following propositions:
- That his psychological injury was caused by management action that was neither reasonable nor reasonably taken;
- That his psychological injury was caused by workplace conduct that was not affected by management action.
Nature of the Appeal
- [8]The appeal to the Commission is by way of a hearing de novo. To succeed with its appeal, the appellant must establish on the balance of probabilities that Tory did not sustain a psychological injury, or if a psychological injury was sustained that it did not arise out of or in the course of employment, if the employment was a significant contributing factor to the injury. Failing this, the appellant needs to establish that the injury sustained by Tory should be excluded from section 32(1) of the Act by virtue of section 32(5) of the Act. Section 32 of the Act for the purposes of these proceedings relevantly provides as follows:
"32 Meaning of injury
(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
…
(5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances -
(a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
(b) the worker's expectation or Perception of reasonable management action being taken against the worker;
(c) action by the Authority or an insurer in connection with the workers' application for compensation."
Exhibit 1
- [9]The regulator tendered the following background documents [Exhibit 1]:
- WorkCover Queensland Application for Compensation dated 3 December 2012;
- WorkCover Queensland Reasons for Decision dated 26 February 2013;
- Q-COMP Application for Claim Review dated 23 April 2013; and
- Q-COMP Review Unit Decision dated 7 June 2013.
Evidence
- [10]Evidence for the appellant was given by the following witnesses:
- Dr Rowe (Psychiatrist)
- Graham McGregor (Supervisor)
- Grayeme Henderson (Fleet Manager)
- Tracey Millard (Safety and Rehabilitation Manager)
- Russell Trewin (Operations Manager)
- Colin Bates (Co-worker)
- Barry Schultz (Co-worker)
- Gary McFarlane (Co-worker)
- [11]Evidence for the respondent was given by the following witnesses:
- James Tory
- Rebecca Tory (appellant's wife)
- Dr Chau (Psychiatrist)
- Dr Chang Wai (GP)
- Amy Howie (Psychologist)
- Paul Coombes-Perce (Co-worker at Jenniben)
Events at Jenniben
- [12]Tory claimed that he was harassed and racially abused during his employment with Jenniben. In his evidence Tory described a number of incidents that he said took place during his employment with Jenniben:
- (i)On four occasions Barry Schultz rang his wife at 4.30am in the morning;
- (ii)Gary McFarlane and Barry Schultz often yelled and parroted "going fucking home, are you?" when Tory, as a casual, was sent home earlier than the other workers;
- (iii)On two different occasions Colin Bates walked up to him and said to him "how are you, you black cunt";
- (iv)When he had been assigned a job driving to Mackay, Colin Bates told him that he would ring his fucking wife while he was away;
- (v)While he was tying down his load one morning Gary McFarlane said to him "why don’t you go and fuck off and work somewhere else";
- (vi)While he was tying down his load one morning Peter Meers approached him and said "you're nothing but a black cunt";
- (vii)When he was working out of the X1 factory in Crestmead, a supervisor Cavan Reed would regularly greet him with the salutation "how ya going you black cunt".
- [13]Tory presented the case that Stratco management were familiar with the issues he confronted in the workplace during his time with Jenniben. He said that any incidents occurring on Strato property had to be reported to McGregor, who was a Stratco supervisor. He also said that racism was discussed with Trewin and Henderson at a pre-employment interview. This was denied by both Trewin and Henderson in their evidence and Tory conceded during cross-examination that he had assumed that Ruben Smith (owner of Jenniben) had told Stratco in the handover process that he (Tory) had been subject to racism at Jenniben.
- [14]Coombes-Perce said that Bates told him that Schultz had been calling Tory's wife early in the morning. Tory complained to McGregor but he denied that McGregor asked him to bring his wife's mobile phone into to work to prove that Schultz was calling at 4.30am. On the evidence, Tory had also alleged that Schultz was responsible for getting his wife sacked from her job.
- [15]Whether the events at Jenniben are relevant to the determination of the appeal and, if so, to what extent, is a matter for consideration in this decision.
Events at Stratco
- [16]It was Tory's position that the management action related to the development of his psychological injury was neither reasonable, nor reasonably taken. It was also submitted, in the alternative or in addition, that Tory's injury was caused by racism and intimidation or harassment suffered by him at the hands of his co-workers, particularly McFarlane. In his evidence Tory relied on a number of incidents that occurred during his period of employment with Stratco from 2 July 2012 to 9 November 2012. These incidents and the evidence relevant to them are discussed in the following paragraphs.
Pay Discrepancy Issue
- [17]Tory said that on one particular occasion his start time was recorded as 6.30 am in lieu of an actual start time of 5.30 am. Tory took the matter up with either McGregor or Henderson and the matter was resolved on a timely basis. In his evidence Tory accepted that his complaint about a discrepancy in his pay was resolved within a week of being raised.
Cavan Reed Incident
- [18]Tory complained that Cavan Reed, a Stratco supervisor at the Crestmead facility, had a habit of referring to him as a black cunt. When the matter was brought to the employer's attention the matter was addressed and there had been no recurrence. Tory accepted that following his complaint to management, Reed apologised to him and shook his hand, and that he (Tory) was happy with that outcome.
- [19]The respondent raised the proposition that the event should have led to further action from the employer such as ongoing monitoring of Tory's welfare and some form of refresher training for drivers on the "Good Working Relationships Policy". I acknowledge that best practice HR might use the incident to roll out some refresher training on policy or appropriate conduct. But given that the issue was resolved on a timely basis, and to Tory's satisfaction, I do not accept that the failure of the employer to implement such a program amounts to unreasonable management action. Absent any history associated with Tory's time at Jenniben, this was an isolated incident and the first of its type raised by Tory since commencing employment at Stratco.
Log Book Issue
- [20]Tory said that McGregor refused to allow him to get a new driver's logbook from the Beenleigh office of the Department of Transport during work time despite this being normal practice. Despite the claimed refusal Tory got the log book in his own time on 8 August 2012, and without any difficulty. Further Tory accepted that when he raised the log book issue with Henderson, he was told to "just go do it". Coombes-Perce said that while he was employed by Jenniben he had heard McGregor tell Tory that he was not allowed to get a new log book in his employer's time.
- [21]McGregor denied that he told Tory he could not get the logbook in Stratco's time. McGregor's evidence was that the drivers would drive past the Transport Department Office three or four times a day and the usual practice was that the drivers would stop and get the new book. In the end result no particular inconvenience eventuated.
- [22]While Coombes-Perce's evidence might support a view that Tory was being treated differently by McGregor, I am reluctant to arrive at any such conclusion in circumstances where no evidence was adduced explaining why McGregor may have declined Tory's request. For example, such a denial by a supervisor would have been reasonable if operational priorities prevented Tory from leaving the workplace at the time he made the request. This matter appears to me to be trivial. Given the independent nature of truck driving and the fact that the acquisition of the log book was a requirement of Tory's employment, a common sense view suggests that drivers would obtain a new log book in the manner suggested by McGregor.
Training Issue
- [23]Tory said that he was compelled to attend training on Saturday, 1 September 2012 despite him holding a prior GP appointment. He said that he was told to turn up, or be sacked. Tory accepted that he was told the prior Wednesday of the requirement to attend training on the Saturday. He said that Henderson told him that if his GP appointment was not a life threatening appointment, he should be at the training and if he did not attend Henderson would take him to Trewin's office for a reprimand. He denied that he was told that he could take a sick day for a rescheduled GP appointment.
- [24]While the employer acknowledged that it could have handled the matter better and counselled Henderson about his approach I do not accept that the employer's conduct amounted to unreasonable management action. The employer needed to schedule the training and it was important that all drivers attend. The completion of the training was a pre-requisite to Stratco and its drivers securing accreditation. A response by Tory to the effect that he had to go to the doctor was not necessarily reasonable without some explanation about the importance of the visit and why the visit could not be deferred. Tory did not provide any evidence at the time to his employer, nor to the Commission in the proceedings, to the effect that his GP appointment could not be changed or that significant consequences might flow if he did not attend the appointment at the scheduled time.
- [25]The facts and circumstances associated with this issue do not support a finding of unreasonable management conduct. Further any suggestion by Tory that the employer's behaviour amounted to discrimination cannot be substantiated. The training was important and it was Henderson's responsibility to ensure the attendance of drivers. Because the training was held on a Saturday it would not have been surprising if a number of drivers were confronted with competing priorities. In directing Tory to attend the training Henderson was not motivated by spite or discriminatory considerations, he was motivated by an important operational objective.
Narrabri Incident
- [26]It was Tory's evidence that on Friday 31 August 2012 he attempted to commit suicide while returning to Brisbane from a trip to Narrabri. When he arrived back at the depot Tory said at T1-56 that he did not talk to anyone. He said that neither McGregor nor Henderson were on the premises. He attended training the next day (Saturday) but did not suggest in his evidence that he raised the matter with anyone that day. He said however that he informed both Schultz and McFarlane of the incident the following Monday. He said that he was sick of the racism and bullying. He said that in separate instances Schultz and McFarlane came over to him and expressed concern about his welfare. Schultz asked him what was going on and said that Tory did not look happy. McFarlane asked him what was wrong and said that Tory did not look well. Tory said that he told both men that he had written a suicide note and asked them whether they wanted to read it. He also said that McGregor and Bates approached him about the matter. He said that both Schultz and McGregor told him not to be silly, or not to do anything silly.
- [27]McGregor denied that any conversation took place with him about the matter. McFarlane was not asked during cross-examination about the matter. Schultz agreed that Tory had told him about the suicide attempt. Schultz said that he told Tory to get some help. He also said that he referred the matter to Henderson but not to McGregor. However, Henderson denied that Schultz had passed the information on to him and maintained that he had no knowledge of Tory threatening to suicide prior to 9 November 2012. Schultz said that he could not remember Henderson's response when he raised the matter and did not elaborate on the context. Schultz had observed in a prior statement (Exhibit 41) that it was commonplace for Tory to announce that he intended to take his own life.
- [28]It was not in dispute that Tory told Shultz about the Narrabri incident, but McFarlane denied that Tory told him about the matter. It seems improbable to me, given the discordant nature of the relationship, that Tory would have taken McFarlane into his confidence, discussed an attempted suicide, and offered to show him a suicide note.
- [29]Included in Ms Howie's notes was a summary of a phone call that she received from Tracey Millard on or about 21 November 2012. The summary stated inter alia that Millard admitted that Tory's original suicidal threat in September was not handled adequately as it was not taken any further than Tory's direct manager with whom he had been having problems.
- [30]Millard was questioned about the matter during cross-examination. She said that she found out that Tory had spoken to Trewin and Henderson about an intention to commit suicide. It was her view that such a matter should have been escalated to either herself or Matt Weisman, the general manager. It was not established in the evidence however when Millard had got this information and who she had received it from. It may have been that she got the information from Tory after the 9 November 2012 incident, or that Schultz was the source. Millard subsequently said in her evidence that she did not know who Tory reported the Narrabri suicide incident to but she thought that he told one of the truck drivers.
- [31]In these circumstances I decline to make a finding that Millard's evidence establishes that Trewin and Henderson were informed by Tory in the 26 September meeting about the Narrabri incident. Nor am I able to reconcile the evidence given by Schultz and Henderson. However I accept that if Henderson had been informed of the Narrabri incident, he should have acted on the information.
26 September Meeting
- [32]Tory was asked to attend a meeting with Trewin and Henderson on 26 September 2012. The meeting was not called at Tory's instigation. It was called to deal with a complaint that Bates had made about Tory. Tory said that he raised the Narrabri incident in the meeting. Tory said that he told Trewin and Henderson that he had had enough of the racism. Both Trewin and Henderson denied that Tory raised the Narrabri incident in the meeting.
- [33]Trewin said that he made notes of the meeting and typed a record of the meeting on 27 September 2012. The contemporaneous record is in the evidence as Exhibit 42. This record does not include any reference to Tory attempting suicide on 31 August 2012. In his oral testimony Trewin rejected the proposition that Tory had raised the incident in the meeting.
- [34]Henderson had also made notes of the meeting. His notes are in the evidence as Exhibit 30. Henderson said that he made the notes about five or six days after the meeting. The notes do not include any reference to the Narrabri incident. In cross-examination Henderson denied that Tory raised the suicide attempt in the 26 September 2012 meeting and denied any knowledge of any attempt until after the 9 November 2012 incident.
- [35]Both Trewin's notes and Henderson's notes record that during the meeting Tory complained about a number of matters. He complained that Bates, McFarlane and Schultz picked on him and made racist comments to him, he discussed how he had been treated in previous workplaces, he raised the Cavan Reed incident and the log book incident, and he questioned whether he was being paid correctly for away trips. Most of these issues were not current, except for the complaint by Tory about the way Bates, McFarlane and Shultz were treating him. The matter for consideration is whether the employer should have responded differently to this particular complaint.
- [36]Trewin's position was that when they discussed the matter with Tory, he counselled Tory to avoid retaliatory comments, to inform his co-workers that the comments were unwelcome, and if they did not desist he should inform his supervisor or manager. I think the preferable course would have been for Trewin to summon the offending co-workers and to instruct them to comply with non-negotiable standards of behaviour in the relevant areas, including racism. As it had transpired, on Trewin's evidence, he had taken this course of action, at least in part. In Exhibit 42 he said that during the prior discussion with Bates he had told Bates that he was not "to joke with Jim about anything that could be see (sic) a (sic) racist or his colour". As part of the process Trewin also called McFarlane into a meeting after the discussion with Tory concluded. In Exhibit 42 Trewin said that he told McFarlane that "he needed to deal with Jim in a business type manner to avoid any drama in the future".
- [37]In his evidence Tory said that he should have been offered counselling by Trewin after he had informed him of his suicide attempt. This is Tory's reflection after the event. At the time, the circumstances were that he did not discuss the matter with his employer until four weeks after the suicide attempt, he did not ask for any assistance from his employer, nor had he attended on his GP immediately after the suicide attempt and seek assistance. Given that Tory was taking anti-depressant medication, if he did not consider the Narrabri event significant enough to attend on his GP for treatment, it is doubtful that he could reasonably complain about his employer's failure to direct him to go to his doctor and/or to seek counselling. In the end result, however, given that Trewin and Henderson said that Tory did not raise the suicide attempt, they were not possessed of the knowledge necessary for them as a precondition to act.
- [38]Finally, Tory alleged in his evidence that he was bullied by Trewin and Henderson during the meeting. Other than making the assertion, Tory did not explain how he was bullied. Tory's tendency to make unsubstantiated criticisms of management action do not assist his cause.
Nipple Cripple Incident and Punching Incident
- [39]Tory said that in late October 2012 McFarlane approached him and squeezed and twisted Tory's left breast (nipple cripple). There is no dispute that Tory complained to McGregor about the incident and that McGregor said he would tell McFarlane to apologise to Tory. McGregor said that he subsequently told Tory that McFarlane was going to apologise to him. He said that Tory responded by saying that "that's fine; that's all he needed" (T3-56). Tory accepted that McGregor said that the nipple cripple act was inappropriate and that he would talk to McFarlane.
- [40]While both Tory and McFarlane said that the nipple cripple incident and the punching incident were separated by about a week, McGregor said that both events occurred at the same time or on the same day. McGregor said that both events occurred about two days before 9 November 2012. Tory said that the punches were thrown on 7 November 2012.
- [41]It was Tory's version of events that soon after the start of work on 7 November 2012 McFarlane, Bates, and Schultz approached him and that McFarlane started throwing fake punches at Tory. It is not in dispute that the punches did not make contact or if so, only superficial contact with Tory's chest. Tory said that Bates and Schultz were laughing as they watched the incident. When Tory complained to McGregor he was told that McGregor would instruct McFarlane to apologise.
- [42]McFarlane did not deny that the incidents occurred but took the view that the exchanges were harmless and that no physical harm had been occasioned. He accepted that McGregor had asked him to apologise to Tory arising from his behaviour with the nipple cripple incident. He said that McGregor followed up the next day and reminded him "can you please go and apologise to Jim". McFarlane said in response to these requests that he would apologise when he next encountered Tory. However he never did and in cross examination he conceded that he was reluctant to apologise because he considered that the incident or incidents did not warrant it. He also said that he saw Tory soon thereafter when tying down his load but that he did not apologise because "there was nothing to apologise for".
- [43]Despite saying in a statement taken by Millard that he did execute a nipple cripple on Tory (Exhibit 29) McFarlane tried to suggest in his evidence that such did not occur, and that all that happened was that he flicked Tory shirt (presumably with his finger or hand).
- [44]Annoying, teasing or taunting behaviour may not necessarily be uncommon in blue collar workplaces and in many instances such behaviour may not cause offence. In this case while it was reasonably clear that Tory did not suffer physical harm, nor even discomfort, on balance he did not appreciate McFarlane's conduct and did not view it as affectionate or harmless. I accept that McFarlane was trying to annoy or taunt and provoke a reaction from Tory. While McFarlane may not have been aware of Tory's mental state, I think that he was singling Tory out for attention that while not necessarily malicious, was nevertheless unwelcome.
- [45]McFarlane's failure to apologise to Tory is indicative of McFarlane's conduct or approach. McFarlane agreed that despite being asked by McGregor to apologise on more than one occasions, he avoided doing so, an outcome not lost on Tory who believed that there was no lack of opportunity for McFarlane to apologise. McFarlane could have apologised when he walked past Tory and smiled on 9 November 2012, or when Tory was refuelling his truck at the BP Staplyton.
Crane Incident
- [46]Tory said that at the start of the work day on 9 November 2012 McFarlane walked past him (about 40 feet away) on two occasions with a "big smirky" smile on his face. McFarlane agreed that he walked past Tory and smiled at him. Given that he was expecting an apology it followed from Tory's evidence that he did not interpret McFarlane's gesture as one of friendship, more of a statement of derision or contempt. Tory said that this incident was the tipping point as his evidence at T1-70 explains:
"When you said enough was enough, can you expand on what you mean by that?---I'd – I thought, after the nipple-cripple, the punching, the racism, the threats to be sacked, I would've thought that would all – finished. And as no one – no one – from Stratco ever come and said are you coping okay? Are you doing – you know. I was doing me job that I was paid to do. I went to work. I went home. I rang Graham McGregor. I told him enough was enough. I’ve had it. I told him what my intentions were. It was to do the delivery for them, go to the police at Beenleigh about Gary McFarlane and that was going to be it, I was going to finish me life."
- [47]On the evidence, Tory completed a delivery to Mt Gravatt and headed back to Beenleigh. He did not go to the Police Station but pulled up near the Beenleigh Showgrounds and ruminated before making his call to McGregor. Soon thereafter Henderson arrived. He reached into the cab and withdrew the keys.
- [48]Tory said that McGregor should have responded differently when Tory called him around 6.30am and told him he was going to take his life. My review of the evidence suggests that McGregor could not have done much more. He immediately phoned Henderson who took steps to locate Tory's vehicle using a GPS tracker. He also made timely contact with Trewin. Tory denied that when he phoned McGregor on the morning of 9 November 2012, that McGregor said "don’t do anything silly". He maintained that McGregor told him to go and work somewhere else. He said that when he called McGregor again at 7.30am, McGregor said that "there was someone on their way".
- [49]While Tory's version of events about management action or management behaviour in response to his decompensation differed from the Stratco witnesses, I do not propose to attach significant weight to what happened after the event. To the extent that considerations of credit are relevant, I prefer the Stratco evidence to the evidence given by Tory. On a balanced review of the evidence I decline to find that management conduct on 9 November 2012 and thereafter was unreasonable or unreasonably taken.
- [50]McGregor, Millard and Trewin’s version of events are supported by contemporaneously prepared records. In an email written by McGregor at 12.21 pm on 9 November 2012 (Exhibit 25) he said that after he got the phone call from Tory he immediately rang Henderson. A file note written by Trewin on 9 November 2012 about his involvement in the incident is in the evidence as Exhibit 43. Trewin said he got a phone message from Henderson at 7.05am and that he responded at 7.25 am. Subsequently Henderson called again at 8.15 am to say that he had found Tory outside the Beenleigh Showgrounds. Trewin then set off for Beenleigh which was about 15 minutes drive from the Ormeau factory. When Trewin arrived he asked Tory to get out of the cab and entered into a conversation with Tory about his circumstances. Shortly thereafter Trewin took Tory back to Ormeau. He told Tory that he would get Millard to take him to a doctor and said that he would be given leave on full pay until his circumstances were resolved and he was mentally fit to drive his truck again.
- [51]Tory was equivocal in his evidence about what transpired after he was taken back to the depot, particularly in respect to what assistance was offered to him by Stratco in terms of getting home and in terms of accessing medical treatment. A report prepared by Millard about her involvement with Tory following his decompensation on 9 November 2012 is in the evidence as Exhibit 34. Her involvement commenced after Trewin and Tory had returned to Ormeau and when she was called into Trewin's office. She said that she offered to take Tory to get medical assistance but that he declined. He also declined her offer to drive him home. She said that Tory left the site at 9.05 am and that she rang him at home at 9.30 am to ensure that he arrived home safely. After making relevant enquiries she subsequently rang Tory later in the day and asked him if she could take him to Logan Hospital.
- [52]Tory accepted that Millard contacted the Beenleigh Police Station and that police officers visited him at his home and he accepted that Millard took steps to look after his welfare. Tory also accepted that Stratco acted reasonably after the event in establishing a graduated return to work program for him.
- [53]It is not to Tory's credit that he asserts that his condition was attributable in part to threats that he would be sacked. While Tory may have faced disciplinary action if he did not attend training on 1 October 2012, there was no other evidence adduced that supported a finding that Tory's job was in jeopardy. There was no evidence that he was issued with a warning arising from Bates's complaint which was the subject of the 26 September 2012 meeting.
Medical Evidence
- [54]The notes of Tory's consultations at a Beenleigh medical centre were admitted into the evidence as Exhibit 24. One of the GPs practicing at the centre, Dr Chang Wai gave evidence in the proceedings. The notes disclose that Tory was first prescribed with the anti-depressant medication, Lexapro, by Dr Baragi on 12 October 2011. The relevant part of the medical record was limited to the word "depression". He was prescribed the medication again on 7 May 2012 and on 7 October 2012 but there was no mention in the records for these days of Tory reporting on or discussing depression. Dr Chang Wai said that the notes indicated that when Tory attended the practice on 7 May he presented seeking more medication. The inference open to be drawn is that repeat prescriptions were issued on 7 May 2012 and 7 October 2012.
- [55]A review of Exhibit 24 discloses that while Tory continued to be treated with Lexapro, there was no evidence that during the period of his employment with Stratco:
- That he had reported to a GP any increase in his depressive symptoms; or
- That he had sought further or particular treatment for symptoms of depression caused by workplace behaviour or by unreasonable management action; or
- That he had sought medical treatment following his alleged suicide attempt on 31 August 2012.
- [56]Tory attended on Dr Baragi on 12 November 2012 and saw Dr Chang Wai in his following consultations at the Beenleigh medical centre. The medical record showed that Dr Baragi administered a test designed to measure psychological distress and instituted a mental health care plan for Tory including a referral to a psychologist. According to Dr Chang Wai's understanding of the medical record it showed that the application of a measure of psychological distress resulted in a score which indicated that Tory was suffering from a "quite severe mental health disorder". Not surprisingly therefore the consultation provided for a referral to a psychologist and the preparation of a mental health care plan.
- [57]Dr Chang Wai explained at T3-5 that "a GP mental health plan is a provision under the Medicare legislation that allows patients who are either depressed or anxious to be able to go and see a psychologist and entitles them to 10 sessions per 12 months". Following the 12 November consultation, Tory attended on Dr Chang Wai on 26 November 2012. It was Dr Chang Wai's evidence at T3-11 that based on the assessment conducted by Dr Baragi on 12 November 2012 and Tory's presentation during his consultation on 26 November 2012, that Tory was suffering from a psychiatric illness.
- [58]Dr Rowe examined Tory on 25 June 2013 at the request of WorkCover. Arising from his examination Dr Rowe completed two reports both dated 27 June 2013, however the second report was written a couple of weeks later and the date displayed on the report was incorrect. Dr Rowe said that he thought that Tory's condition arose from "interpersonal relationship problems at work and very much how people behave in that type of workplace". In his evidence at T2-5 Dr Rowe said that he "didn’t think it was appropriate for him to go back to work at Stratco because of the problems he was having there with other people."
- [59]Dr Rowe concluded after he had assessed Tory on 27 June 2013 that Tory did not suffer from any psychiatric illness "although he has some minor symptoms of despondency and apprehension about coming in contact with his previous co-workers but anger seems to be the predominant feeling". While not discussed in the evidence, it may have been a factor in Dr Rowe's assessment that he examined Tory six months after he last worked for Stratco particularly given that some of the primary stressors related to his treatment by co-workers.
- [60]Dr Rowe stated in his report that Tory "has responded to some of his co-worker's aggressive attitude, swearing and possible belittlement by being upset, angry and at times despondent but these symptoms would not amount to a psychiatric illness such as an Adjustment Disorder …". Dr Rowe said that he was not of the opinion that Tory was suffering from an adjustment disorder. He regarded the term to involve a "psychiatric diagnosis which is a bit short of a major depression". In terms of the impact of racist behaviour over time, Dr Rowe opined at T2-8:
"You would agree that somebody who has been racially abused in the workplace in the past may well be sensitive to racially offensive comments in future workplaces?---Yes, I suppose so. Over a period of time I think they would become worried about that, yes.
That would be a relatively normal response to having been subject to racially offensive comments previously in the workplace?---Yes, yes, I think so."
- [61]Dr Chau examined Tory on 13 January 2014 and prepared a report arising from the examination on 17 January 2014. The report is in the evidence as Exhibit 11. Dr Chau diagnosed Tory with an "adjustment disorder with mixed anxiety and depressed mood, social phobia, specific phobia of needles". She also noted that Tory had experienced symptoms consistent with an adjustment disorder when working in Midway Metals and another previous place of employment. She concluded that "this has made him more sensitive to racism and discrimination, which undoubtedly predisposed him to aggravation of symptoms during his employment in Jenniben and later, Stratco".
- [62]Dr Chau said that she considered Tory's symptoms to warrant a diagnosis of depression (T1-43):
"Can you expand on your view as to why Dr Rowe is wrong in his diagnosis and why he's wrong in saying that it's not a psychiatric disorder?---Well, I thought – I just thought that – the first point that I raised was that Dr Rowe had mentioned symptoms suggestive of psychological illness, and then I quote, "Complains of feeling angry, generally upset and depressed. Is irritable and impatient at home. His sleep varies and he may lie in bed thinking about the way he was treated but then he may sleep in until 7 or 8 the next morning. He spends a lot of time thinking about how unfairly he was treated", and to me I think that sounds more like a psychiatric disorder rather than just normal – someone with a normal stress reaction."
- [63]In her evidence Dr Chau said that the main contributing factor to Tory's diagnosed condition was the nipple pinching incident. She said that "… the other thing that stood out to me was that Mr Tory did mention that the breaking point was when he felt physically threatened" (T1-41). She also opined at T1-46 that "people with social phobia are more likely to be on the paranoid scale". This could mean that Tory might perceive events differently to what had actually occurred.
- [64]Ms Howie treated Tory following his decompensation on 9 November 2012. She first saw Tory on 14 November 2012. The contemporaneous note of this session disclosed that Tory said that he has been the victim of bullying, racism and intimidation since he started working with Stratco and that most of the adverse behaviour had come from the "three amigos". He also complained that his manager was aware that he tried to commit suicide on a prior occasion (Narrabri incident) but that the manager took no action in respect to it. Further his manager had bullied him.
- [65]It is not necessary that I make a finding of whether Tory has suffered an adjustment disorder as provided for under the DSM IV scale. The question to be answered is whether Tory has suffered a personal injury. When Tory attended on Dr Baragi on 12 November 2012 he was referred to a psychologist under a mental health care plan. The contemporaneous medical records and the evidence of Dr Chang Wai establish that soon after his decompensation at work Tory had been assessed with a significant mental health disorder. Dr Rowe's definition of an adjustment disorder as a psychiatric diagnosis which is "a bit short of a major depression" does not exclude the possibility of a significant mental illness even if an adjustment disorder were not diagnosed.
- [66]On the matter of whether Tory has sustained a personal injury, I accept the respondent's submission to this extent. I accept that the weight of medical opinion supports a finding that Tory suffered from a diagnosable psychiatric condition, in circumstances where his employment with Stratco was a significant contributing factor to the aggravation of Tory's psychiatric condition.
The Appellant's Submissions
- [67]The appellant submitted that:
- (i)Tory did not suffer any psychological or psychiatric illness;
- (ii)Any injury that Tory may have sustained arose out of his psychological make-up and distorted perceptions of events and not his employment with Stratco;
- (iii)While Tory made broad allegations of racial abuse, most of the incidents relied on have no racial element to them;
- (iv)Tory was hypersensitive to particular events and tended to distort the truth or wrongly perceive events through the prism of past race claims;
- (v)The Jenniben incidents are not relevant to the issue of whether any injury arose out of or in connection with Tory's employment with Stratco;
- (vi)Tory had a flawed and unreasonable perception of events and was prone to making broad sweeping statements which lacked substance;
- (vii)Tory had unrealistic expectations regarding his complaints in a context where he never made any formal complaints but just mentioned matters to others in the workplace. While he knew he could complain directly to Trewin, he chose not to. He never followed through on any of his alleged complaints;
- (viii)It was open to the Commission to conclude that if Tory sustained an injury it arose out of in the course of employment with a prior employer, not with Stratco;
- (ix)Stratco's response to all the alleged incidents comprised reasonable management action taken in a reasonable way.
The Respondent's Submissions
- [68]The respondent submitted that the appellant had not satisfied its evidentiary onus. It was the respondent's view that the evidence sustained the following conclusions:
- (i)That Tory was subjected to racial abuse, harassment and other unfair treatment while employed by Stratco from 2 July 2012 to 9 November 2012;
- (ii)That Tory had previously experienced racial mistreatment and harassment at the hands of the same people who were employed with him at Stratco (Jenniben);
- (iii)That Stratco was aware of Tory's treatment while at Stratco and at Jenniben and that they knew that Tory was psychologically vulnerable to workplace harassment;
- (iv)That Stratco failed to respond reasonably to the behaviour that Tory was subject to;
- (v)That Tory had been the subject of harassment at the hands of McFarlane in October and November 2012 which was causative of Tory's decompensation;
- (vi)That McFarlane's harassment did not constitute management action;
- (vii)That Tory sustained a psychiatric injury, being an aggravation of an adjustment disorder, as a result of McFarlane's actions taking place between late October and 9 November 2012;
- (viii)That there was no management action taken by Stratco which was reasonable and taken in a reasonable way which excludes Tory's injury from the operation of section 32(1) of the Act.
Conclusion
- [69]Tory blamed both management and his co-workers for his decompensation. He claimed that Stratco management were unsympathetic to his plight and should have taken preventative and corrective action to prevent bullying harassment and racism. While the discord with co-workers extended back to his employment with previous employers, his complaints about Stratco's management occurred within a relatively short period of time between the end of July 2012 and early November 2012.
- [70]While I accept that there would have been a level of familiarity within Stratco management of workplace behaviour within Jenniben, Stratco was a large employer employing around 130 people at its Ormeau factory and transport yard and Stratco management, particularly Henderson and Trewin, could not be expected to be aware of the specifics of the Jenniben workplace culture or worker personalities. To the extent that Tory relied on Jenniben incidents to demonstrate management failures at Stratco, he must take responsibility for not informing Stratco that he had a history of mental illness derived from both inappropriate management and worker behaviour at previous workplaces.
- [71]The evaluation of Stratco's management conduct starts with a July 2012 incident when Tory complained about Reed's manner of addressing him. This practice had started during Tory's employment with Jenniben and continued into his employment with Stratco. Reed was a supervisor at Stratco's XI factory at Crestmead. When Stratco management were apprised of the matter they instructed Reed to stop and desist, and to apologise, all of which he did. Tory was satisfied with the outcome.
- [72]In early August 2012, Tory was required to renew his drivers log book and said he asked McGregor for time off to attend at the Beenleigh office of the Department of Transport. While Tory interpreted McGregor’s refusal as discriminatory, when viewed objectively it should be regarded as a relatively unexceptional issue which was resolved itself quickly after Henderson's intervention.
- [73]The evidence is less consistent around Tory's alleged suicide attempt on 31 August 2012. While Tory said that he told just about everybody about the event, management denied that they were informed. The significant issue in dispute was whether Tory raised the matter in the meeting with Trewin and Henderson on 26 September 2012. Tory said that he raised the matter but both Trewin and Henderson denied his version of events. They were supported in this regard by notes of the meeting which were contemporaneously prepared and which were in the evidence as Exhibits 42 and 30.
- [74]I resolve any inconsistency by preferring the evidence of Trewin and Henderson. It is relevant that on Tory's version of events he waited four weeks before informing management of the Narrabri incident, and even then the matter was not raised on his initiative but in a context where he had been asked to defend himself in response to the complaint the Bates had levelled against him.
- [75]Setting aside the Narrabri incident, it is not in dispute that Tory did raise a complaint about Bates, McFarlane and Schultz picking on him and acting in a racially offensive manner. The issue arising here is whether, given the Calvin Reed incident, management should have acted differently in responding to Tory's complaint. In this regard while I consider that Stratco could have acted more robustly in its response to Tory's complaints of racism in particular, I accept Trewin's statement that he did counsel both McFarlane and Bates on 26 September 2012 about their interaction with Tory, and that he did encourage Tory to report any instances of continuing bad behaviour.
- [76]In the interim Tory complained that he had been treated unfairly because his employer directed him to attend a training session on Saturday 1 September 2012. Given the importance of the event, and Tory's failure to spell out what adverse consequences that might flow if he did not meet his GP's appointment, I am not persuaded to elevate this incident beyond a normal HR issue which arises from time to time in these type of circumstances. I do not accept that the employer's attempts to get him to attend an important and compulsory training session can be characterised as discrimination or some other form of adverse management action.
- [77]The evidence does not support a finding that the management action associated with the incidents occurring in July, August and September 2012 amounted to unreasonable management action taken unreasonably. Neither do the events leading up to Tory's decompensation on 9 November 2012 justify a finding of unreasonable management action. There are three reasons for this conclusion.
- [78]Firstly, on an objective examination, the incidents were not serious. Secondly, in a context where Tory said that he was looking for management to respond, not a lot of time had passed and the first line of management action had been taken. That is, McGregor had already said that the behaviour was inappropriate and had told McFarlane to apologise. In the working time available before 9 November 2012 insufficient time was available for the matter to be escalated, investigated and responded to. Thirdly, McGregor expected that McFarlane would deliver an apology on a timely basis. McFarlane told McGregor that he would deliver the apology. When this did not occur McGregor reminded McFarlane to get it done. McFarlane's derelict behaviour in frustrating McGregor's wish is what caused the delay and led Tory to believe that his circumstances had been ignored.
- [79]While the respondent pointed to omissions and failures in Stratco's approach, the evidence does not support a finding that Stratco acted unreasonably toward Tory. It was submitted that Stratco did not follow their own procedures and that more vigilant action on their behalf would have prevented any on-going harassment of Tory by his co-workers. While I think there is a basis to conclude that Trewin and Henderson may have acted more aggressively to warn Tory's co-workers and ensure corrective action was effective I am not of the view that these omissions in all the circumstances of this case amounted to unreasonable management action unreasonably taken. These circumstances include Tory's psychological make-up and the responsiveness of Stratco management to deal with issues when they were brought to their attention.
- [80]Beyond this, I have a reservation about the reliability of Tory's evidence. There is an inconsistency between his allegations of flawed management conduct and what has actually occurred. The evidence established that in most instances that when Tory complained, his complaints were listened to and responded to with action intended to correct the offending behaviour. Further while Tory may have been dissatisfied with McGregor's handling of some events, there were checks and balances in the Stratco management structure, and Tory had other avenues of complaint. It was Trewin that stepped in and handled Tory's complaint against Reed, it was Henderson to whom Tory turned when he said McGregor would not let him get a log book, and it was both Henderson and Trewin who listened to Tory’s complaints about Shultz, Bates and McFarlane. Finally it was Trewin who encouraged Tory to inform him of any problems that he was experiencing in the workplace.
- [81]There is a basis to distinguish between co-worker behaviour and management behaviour in evaluating the association between Tory's mental illness and his employment with Stratco. While Stratco management could not be held accountable for behaviour impacting on Tory's mental health during his employment with Jenniben, the practical circumstances were different when it came to co-worker behaviour in that Tory's change of employer did not result in a change of co-workers. Consequently, to the extent that Tory's mental state had been negatively impacted by co-worker behaviour at Jenniben, this factor remained a constant subject to intervention by the new employer over time.
- [82]Tory's descent into psychological illness had commenced prior to his employment with Jenniben and had occurred over a period of time and across a number of different workplaces. Tory's perception of events, flawed or otherwise, the way he was treated by his co-workers, and perceived failures in the relevant management response were all factors contributing to his fragile psychological state. These matters were confirmed by Dr Chau in her report where she opined as follows in the "Summary and Conclusions" section:
"It was noted that he had similar problems as a result of feeling discriminated against in two previous workplaces. Mr Tory stated there were no symptoms at the time he commenced work at Jenniben. However I suspect that he was already sensitive to racism and discrimination by the time that he commenced work at Jenniben.
He may have been predisposed to these disorders given his previous history of similar type of harassment in two other workplaces …"
- [83]Dr Chau also concluded that the nipple-cripple episode was the main contributing factor to Tory's injury. Prior to Dr Chau's involvement Tory's consultation with Dr Baragi a few days after his decompensation confirmed the disharmony with co-workers. The contemporaneous medical record of Tory's consultation with Dr Baragi on 12 November 2012 stated inter alia that Tory had been suffering from "racial hatred & bullying at work place for a long time & that causing his anxiety & depression". The notes then stated that "his workmates hate him but lately his supervisor & state manager have learnt his situation there & handling that". Further, Tory told Ms Howie on 14 November 2012 that he had been the victim of bullying, racism and intimidation since he started working with Stratco and that most of the adverse behaviour had come from Bates, McFarlane and Schultz.
- [84]Dr Rowe's opinion about Tory's circumstances was articulated in his evidence at T2-11 when he said past experiences would have made Tory more sensitive to particular behaviour or comment and that he might be disposed to see "slights and insults where none are really made". He also observed that there was a "lot of horsing around, a lot of name calling and silly behaviour in Tory's workplace". In this regard Dr Rowe opined that a lot of this behaviour can be misinterpreted and that some of the "actions and words said by some of his colleagues were perhaps taken by him more seriously than they were intended".
- [85]An explanation here is that Tory's descent into illness was most likely related to co-worker behaviour which, although not necessarily perpetrated with malicious intent, was received and processed differently by Tory. Tory saw McFarlane's behaviour as harassment or assault and further evidence that he had been singled out and ostracised by his co-workers. Tory regarded these incidents involving McFarlane as the catalyst and main contributing factor to his decompensation on 9 November 2012. While the physical contact was minimal, Tory could have been intimidated by McGregor's nipple twisting and fake punches. From a psychological perspective, an apology was important to Tory and McFarlane's refusal to apologise was a matter of significance to Tory. The impact became more serious when McFarlane provocatively put himself in Tory's presence and taunted him by refusing to make the apology directed of him by McGregor.
- [86]The facts and circumstances of this case suggest that Tory's decompensation may have been inevitable and could have resulted from any combination of the stated factors. However in my view, when the decompensation did occur on 9 November 2012, the significant causative factors were his own fragile mental state and the behaviour of his co-workers. On the facts of this case the behaviour of co-workers, particularly McFarlane, established the necessary connection between the aggravation of Tory's psychological illness and his employment. While other factors were in play, co-worker behaviour was a significant contributing factor to the injury. In this regard the reasoning of Hall P. in Sheridan v Q-COMP[1] is apposite:
"… So long as the events within the workplace are real rather than imaginary, it matters not that they impact upon the claimant's psyche because of a flawed perception of events attributable to a disordered mind,… The inability of a worker to psychologically cope with an attitude or manner of another worker is analogous to a worker being unable to cope with any other feature, including a physical feature, or aspect of the work environment."
- [87]The appeal is dismissed and the decision of the regulator dated 7 June 2013 is confirmed. I order accordingly.
Footnotes
[1] Sheridan v Q-COMP (2009) 191 QGIG 13, 16