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Ipswich City Council v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 32

Ipswich City Council v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 32

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Ipswich City Council v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 032

PARTIES: 

Ipswich City Council

(Applicant)

v

Simon Blackwood (Workers' Compensation Regulator)

(Respondent)

CASE NO:

WC/2012/42

PROCEEDING:

Appeal against decision of Simon Blackwood (Workers' Compensation Regulator)

DELIVERED ON:

24 February 2015

HEARING DATES:

8 - 9 October 2013

18 November 2013 (Respondent's written submissions)

9 December 2013 (Appellant's written submissions)  

MEMBER:

Industrial Commissioner Knight

ORDERS :

  1. The Appeal is allowed;
  2. The decision of Simon Blackwood (Workers' Compensation Regulator) of is set aside; and
  3. The decision of Local Government Workcare of 6 July 2011 is reinstated.

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF REGULATOR - WASTE TRANSFER STATION ATTENDANT - bullying complaints - breach of confidentiality during investigation - psychiatric injury - whether injury withdrawn because it arose out of or in the course of reasonable management action taken in a reasonable way - determined injury arose out of reasonable management action taken in a reasonable way - appeal is allowed.

CASES:

Workers Compensation and Rehabilitation Act 2003 s 550

Davis v Blackwood [2014] ICQ 009

Delaney v Q-Comp [2005] 178 QGIG 197

Dorcy Pacific Pty Ltd AND Q-COMP (WC/2010/14) Decision >

Lackey v WorkCover Queensland (2000) 165 QGIG 22

Q-COMP v Hohn (2008) 187 QGIG 139

Queensland Airways Limited v Q-COMP WC/2005/13

State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447

State of Queensland (Department of Communities Disability Services) AND Q-COMP (First Respondent) and Mrs B (Second Respondent) WC/2011/247. Decision

APPEARANCES:

Mr P. Rashleigh instructed by MVM Legal, Appellant

Mr F. Lippett, directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent

Ms S. Anderson, instructed by Mr M. Beckett (Shine Lawyers), Second Respondent

Decision

  1. [1]
    This is an appeal by Ipswich City Council (the "Appellant"/ the "Council") pursuant to s 550 of the Workers Compensation and Rehabilitation Act 2003 (the "Act") against the decision of Q-COMP's Review Unit dated 6 January 2012, which set aside a decision of insurer, Local Government Workcare dated 6 April 2011 refusing an application for compensation lodged by Mr Edey on the basis that the Applicant's condition was said to have arisen out of reasonable management action.  Q-COMP substituted a fresh decision to accept Mr Edey's application for compensation in respect of a psychiatric or psychological disorder said to have arisen during the course of his employment with Ipswich City Council as a Waste Services Employee.
  1. [2]
    Since the hearing of the appeal, the Act has been amended and Q-COMP has since been abolished.  As and from 29 October 2013, the Act provides that Q-COMP is replaced by Simon Blackwood (Workers' Compensation Regulator) (the "Regulator").  Thus the Regulator is the Respondent in this appeal.
  1. [3]
    The basis for the decision by the Regulator was that the provisions of s 32(5) of the Act did not exclude the psychiatric/psychological condition from the definition of "injury" within section 32(1) of the Act.

Grounds of Appeal

  1. [4]
    The grounds of appeal upon which the Appellant relies are as follows:
  1. The review unit failed to give any or any adequate reasons for its decision.
  2. The review Unit erred in:
    1. Failing to take into account the findings of the Appellant's investigation into the worker's complaint lodged in February 2011;
    2. Coming to the conclusion that the stressor of bullying by Mr Donald Watt could be substantiated by a finding that Mr Watt had breached the Code of Conduct and was given a final warning;
    3. Failing to give any or sufficient weight to the limited interaction in recent years between Mr Watt and the worker;
    4. Coming to the conclusion that Mr Peter Schonhagen held a "managerial role" with the Appellant;
    5. Giving too much weight to evidence that was not corroborated or in the alternative was hearsay;
    6. Failing to give any or insufficient weight to evidence as to the worker's underlying personality and clinical profile as determined by a psychologist; and
    7. Failing to give any or any adequate consideration to the management action taken by the Appellant in response to the worker's complaints lodged in 2009 and 2011.
  3. The review Unit misapplied the law to the facts.
  4. The Review Unit failed to apply the correct test in determining whether the worker's injury arose out of reasonable management action taken in a reasonable way by the Appellant in connection with the worker's employment.
  5. The Review Unit failed to apply the correct test in determining whether the worker's injury arose out of his expectation or perception of reasonable management action taken against him.
  6. The Review Unit failed to consider the management action taken by the Appellant as a whole when considering:
    1. The management action taken by the Appellant in connection with the worker's employment; and
    2. The worker's expectation or perception of the management action being taken against him by the Appellant.

Issues for Determination

  1. [5]
    The appeal to the Commission is by way of a hearing de novo.  In order to succeed in its appeal, Ipswich City Council must establish at least one of the following points.[1]
  1. (a)
    that at the relevant time Mr Edey was not a worker within the meaning of the Act (this point is conceded and is not argued);
  2. (b)
    that at the relevant time Mr Edey did not sustain an injury; or
  3. (c)
    that if Mr Edey did sustain an injury that the injury either did not arise out of or in the course of his employment or was one to which the employment was not a significant contributing factor; or
  4. (d)
    that any injury alleged (being of a psychiatric or psychological nature) was one which arose out of reasonable management action taken in a reasonable way, or alternatively, occurred as a result of Mr Edey's expectation or perception of reasonable management action taken against him.
  1. [6]
    There is no dispute that Mr Edey is a worker for the purposes of the Act.  Nor is there any issue he has suffered a personal injury in the form of an Adjustment Disorder and that it more than likely arose out of, or in the course of his employment and that employment is a significant contributing factor.[2]  What is in dispute between the parties is whether or not, in all the circumstances, Mr Edey's injury is excluded because it arises out of reasonable management action taking in a reasonable way in connection with Mr Edey's employment.
  1. [7]
    Section 32 of the Act relevantly provides as follows:

"32  Meaning of Injury

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

…

  1. (3)
    Injury includes the following -
  1. (a)
    a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;
  2. (b)
    an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation -
  1. a personal injury;
  2. a disease;
  3. a medical condition if the condition becomes a personal injury or disease because of the aggravation;

   …

  1. (4)
    For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.
  1. (5)
    Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances –

        …

  1. (c)
    reasonable management action taken in a reasonable way by the employer in connection with the workers' employment;
  2. (d)
    the worker's expectation or perception of reasonable management action being taken against the worker;
  3. (e)
    action by the Authority or an insurer in connection with the worker's application for compensation."

 Evidence

  1. [8]
    Mr Edey commenced work for the Ipswich City Council in 2005 where his initial role was located in a cannery in Briggs Road.  On 30 March 2006 he was appointed as a waste services employee.  In this role was responsible for the collection and disposal of waste and other general duties associated with waste management.  He resigned at some point in 2006 and went to work for Cumners Earthmoving.  Although the timing and the reasons are unclear on the materials before the Commission it seems Mr Edey made a decision within a short time to return to employment with the Council.  At some point after he returned to Council, Mr Edey accepted a position as a Transfer Station Attendant which commenced on or around 4 October 2007.
  1. [9]
    Mr Edey work with Mr Watt, a crew leader in the transfer station from late 2007 until early 2009.  In or around March 2009 he made a formal complaint (Exhibit 8) to his supervisor, Mr Sippel, about the manner in which Mr Watt treated him in the workplace.  A response was sought from Mr Watt (Exhibit 7).  At some point thereafter he and Mr Watt were placed on separate shifts and Mr Edey was no longer required to work with or report to Mr Watt.
  1. [10]
    Mr Edey made a further, separate bullying complaint in relation to Mr Watt, Mr Schonhagen and Mr Hutchison in or around February 2011.  Mr Michael McMahon, Human Resources Manager for the Council commenced an investigation in early March 2011.  As part of the council investigation, Mr McMahon met with Mr Edey to obtain further details in relation to the bullying allegations.  Mr McMahon's evidence was that he found it quite difficult to obtain specific examples from Mr Edey and that he had also encouraged Mr Edey to access counselling through the Council during the investigation process.  In a file note dated 4 March 2011 which was prepared by Mr McMahon following a meeting he held with Mr Edey (Exhibit 26), the key areas of complaint captured related to:
  • Details of a conversation reported to Mr Edey by Mr Hutchinson where Mr Watt had allegedly made some adverse comments about him;
  • Mr Watt making a comment to another team member that "It's not my shift, it's not my problem", which Mr Edey interpreted as threatening;
  • Details of inappropriate comments reported to Mr Edey by Mr Grayson where Mr Schonhagen had allegedly made some adverse comments about him.
  1. [11]
    As part of the investigation process Mr Watt was reminded by the Council both in formal written correspondence and verbally about his obligations to maintain confidentiality in relation to Mr Edey's complaint and to resist discussing matters related to the investigation with other employees. 
  1. [12]
    Subsequent to the commencement of the initial investigation into the February 2011 complaint, Mr Edey made a second complaint on 29 March 2011 raising concerns Mr Watt had shown two other employees a copy of a letter from Council relating to the investigation and had also spoken to the same employees in an adverse manner about the nature and potential outcome of Mr Edey's complaint.  At the conclusion of investigation, which included interviewing eight other employees within Council and further consideration of the additional complaint lodged by Mr Edey in March 2011 in relation to Mr Watt's alleged breach of confidentiality and conduct during the investigation, Mr McMahon prepared a series of findings and further recommendations to the Chief Operating Officer in a Memorandum dated 8 April 2013 (Exhibit 15).
  1. [13]
    Whilst Mr McMahon determined Mr Schonhagen's comments about Mr Edey were not made intending that they be relayed back to Mr Edey, he noted in his findings that Mr Schonhagen had acknowledged in his interview that he previously did make some disparaging comments about Mr Edey to a fellow worker.  As a result, Mr McMahon determined Mr Schonhagen's comments to be inappropriate and a breach of the Council's Code of Conduct.  He recommended Mr Schonhagen be formally reprimanded by Council in relation to his conduct and also advised that any further repetition would be dealt with accordingly.
  1. [14]
    In relation to Mr Watt's conduct towards Mr Edey, Ms McMahon found he had:
  • Breached the confidentiality requirement imposed by Council policy and procedure by:

(1)discussing matters related to Mr Edey's complaint with two other employees; and

(2)also showing them correspondence related to the complaint;

  • Breached written and verbal instructions given to him by the Human Resources Manager not to discuss Mr Edey's complaint and the related investigation with other employees;
  • Breached council procedure by making threats against Mr Edey in statements to Mr Kennedy and Mr Wilkins that he knew would be communicated to Mr Edey.
  1. [15]
    In respect of a separate claim by Mr Edey that Mr Watt had made some adverse comments about Mr Edey to Mr Hutchinson whilst visiting him at his home, Mr McMahon also noted that whilst Mr Hutchison had left his position at Council and had declined to provide any further information during the investigation, Mr Edey's version of events was supported by Mr Grayson who was present when Mr Hutchinson had allegedly told Mr Edey that Mr Watt had been at his place discussing how he could get Mr Edey back on his crew so that Mr Watt could get rid of him.
  1. [16]
    On 8 April 2011 Mr McMahon recommended Mr Watt be sent a letter from Council asking him to show cause as why he should not be disciplined in relation to his conduct.  On 12 April, Council sent Mr Watts a letter (Exhibit 12) seeking a response to allegations of misconduct.  In particular, the letter set out Council's concerns in relation to Mr Watt's conduct after he had been advised of Mr Edey's initial complaint of February 2011 and also raised concerns about the nature of some "out of work" discussions Mr Watt had allegedly held with Mr Hutchison in relation to Mr Edey's performance.  Mr Watt was requested to attend an interview with the Chief Operating Officer (Engineering Services) and another Human Resources Manager on 18 April 2011 where he was asked to respond to the allegations set out in Council's show cause letter.  At the same meeting it was proposed he be given an opportunity to explain why he should not be disciplined for this conduct.
  1. [17]
    Following the meeting, Council provided Mr Watt with a formal letter of warning  dated 28 April 2011 (Exhibit 13) in the following terms:

"Dear Don

Re: Misconduct

I refer to my previous letter dated 12 April 2011 and or subsequent meeting to discuss allegations of misconduct made against you set out in that latter.  At that meeting you admitted that you had disobeyed a written and verbal instruction of the Human Resources Manager not to discuss matters relating to Tyron Edey with other employees.  As has been stated to you previously this is a serious matter for a number of reasons:

  • The conduct is in breach of a written and verbal direction;
  • The conduct is in breach of Council policy and procedures;
  • You were made aware that you are in a work environment where conversations that you have with Council employees are being relayed back to Mr Edey;
  • You were made aware of the impact of talking about Mr Edey to others and the significant negative impact that this has on his mental health.

In determining the appropriate disciplinary action I have taken into account your lengths of service, admissions, cooperation during the interview, expressions of remorse for your actions and commitment not to repeat the conduct.  I also need to take into account the findings of the Human Resources Manager in relation to the investigation of Mr Edey's grievance.  Whilst you deny making threats, implied or otherwise, against Mr Edey to Mr Kennedy and Mr Wilkins there is evidence to the contrary.  The same is also true in relation to conversations you allegedly had with Mr Hutchison.

You are directed to refrain from:

  • Any contact with Mr Edey for the purposes of discussing or referring to any matters relating to his complaint or grievance;
  • Discussing any matters relating to Mr Edey's complaint or grievance with other Council employees or persons;
  • Discussing matters relating to Mr Edey with other employees or other persons unless they are clearly required to effectively carry out the operations of the Transfer Station;
  • Ensure that your conduct in relation to Mr Edey is consistent with the standards required under Council's Code of Conduct and Council Policy and Procedures;
  • Take all reasonable steps to ensure that your conduct towards Mr Edey takes into account his current state of health and is not misinterpreted by Mr Edey as being adverse to him;
  • Maintain confidentiality in relation to these matters.

       …

The letter serves as a formal warning in relation to your conduct.  My expectation is that you will modify you (sic) behaviour to ensure there is no further incidents and comply with the directions above.  Any further breaches would be viewed as a serious breach and will be viewed as misconduct and dealt with accordingly.

Yours faithfully

Ross Drabble

Chief Operating Officer (Engineering Services)"

  1. [18]
    Mr MacMahon gave evidence he invited Mr Edey to attend a meeting to discuss the outcome, the findings and the action that was taken as a result of his complaint.  Whilst he wasn't entirely sure of the time, Mr MacMahon recalled the meeting was held on 20April 2011, possibly mid-morning.  Mr McMahon's recollection of the meeting was that he told Mr Edey:

" there'd been an adverse finding in relation to Mr Schonhagen and a formal reprimand had been issued and I also said there'd been some adverse findings in relation to Mr Watt…that Mr Dravell had decided to formally warn Mr Watt for his conduct."

In response, Mr MacMahon's evidence was that Mr Edey had said:

"...that's not good enough.  You need to sack him."

  1. [19]
    Mr MacMahon recalled he spent some time with Mr Edey explaining the reasons for the warnings and noting that dismissal was a very serious matter.  Mr Sippel, who was also present in the meeting, recalled Mr Edey suggesting that Mr Watt should have been terminated or dealt with more harshly for his conduct.
  1. [20]
    Whilst it appears there may have been some delay in a letter about the outcome being sent and/or received by Mr Edey, it is clear formal correspondence (Exhibit 27) dated 21 April 2011 was prepared by Mr McMahon setting out the Council's response to Mr Edey's grievance.  The correspondence prepared for Mr Edey highlighted Council's findings and then set out the disciplinary action Council had taken with respect to Mr Schonhagen and Mr Watt as a result of Mr Edey's complaint.  It also briefly noted allegations that had been made in relation to Mr Edey's adverse treatment of Mr Watt and reminded him of his reciprocal obligations in terms of his engagement with and conduct towards Mr Watts. 
  1. [21]
    Prior to Mr Edey receiving the correspondence setting out the outcome of the investigation (Exhibit 27), but after he had met with Mr McMahon in relation to the investigation outcomes, he made an appointment to see Dr Prabhat Kapadia on Wednesday, 20 April 2011 on or around 2.30pm.  According to Dr Kapadia's notes (Exhibit 30), Mr Edey reported intimidation at work raising concerns about Don Watt and Paul Schonhagen.  He noted both men had been warned and confirmed he had attended counselling arranged through work.  The "Reason for Contact" was recorded as Anxiety/Depression.  Mr Edey was advised not to attend work and to return to see the Doctor the following week.  A sick certificate was prepared by Dr Kapadia.
  1. [22]
    A week later (27 April 20111), Mr Edey returned to see Dr Kapadia where he reported he continued to feel down and had contacted the union about his employment issues.  At some point Dr Kapadia completed a Workers Compensation Medical certificate which was dated 27 April 2011.  The diagnosis was recorded as "depression/anxiety" with "conflict with 2 individuals at work" noted as the worker's stated cause of injury.  Mr Edey lodged an application for compensation with Local Government Workcare (LGW) on 16 May 2011 noting depression and anxiety as the nature of the injury.  The application was rejected but later accepted on review by Q-Comp.

Is the injury removed from the definition of injury by virtue of section 32(5) of the Act?

  1. [23]
    Whilst the mere occurrence of reasonable management action does not necessarily insulate a disorder from characterisation as an "injury",[3] the Commission's role is to embark upon an enquiry as to whether Mr Edey's psychological/psychiatric injury is excluded because it arises out of reasonable management action taking in a reasonable way in connection with his employment.
  2. [24]
    Although a list of stressors was not formally provided to the Commission during the course of the proceedings, Ms Anderson, Counsel for the Second Respondent summarised Mr Edey's complaints in so far as they contributed to his injury in the following terms:
  1. Mr Edey was bullied over a period of time by a Supervisor, Mr Don Watt;
  2. Adverse comments were made to and about Mr Edey by Mr Hutchinson and Mr Schoenhagen;
  3. Management failed to act on Mr Edey's complaints made first in 2009 and then on 22 February 2011.
  1. [25]
    Ms Anderson, on behalf of Mr Edey submitted it was bullying which led to Mr Edey's injury.  She further submitted there was no evidence Mr Edey's first complaint lodged in 2009 was investigated and that notwithstanding Mr Watt's continued bullying and harassment of Mr Edey's following his February 2011 complaint, the Council had determined that a mere warning would suffice.  Ms Anderson further argued there was no evidence during the proceedings which could lead to the conclusion the decision maker had erred in coming to the conclusion Mr Edey's injury fell within the definition of section 32 of the Act.
  1. [26]
    Mr Rashleigh, on behalf of the Appellant submitted that in cases such as this where there are issues that are not management action, and issues said to be management action, and which arise over an extended period of time, rather than looking at each issue separately and determining whether that is reasonable, a global assessment of the reasonableness or otherwise of management action needs to be made: see Delaney v Q-COMP.[4]
  1. [27]
    In this respect, Mr Rashleigh argued that on an overall assessment of the Council's management actions relative to the issues said to be causative of Mr Edey's condition, the management action could not be seen to be anything other than reasonable management action taken in a reasonable way in connection with Mr Edey's employment.
  1. [28]
    Mr Rashleigh further submitted it was not until Mr Edey was advised of the outcome of Mr McMahon's investigation of the 2011 complaint that he went to his doctor to complain and that in this regard the medical evidence supported the position that it was the communication of the findings and outcome of the investigation to Mr Edey by the Council which appears to have be the most significant contributing factor in the development of Mr Edey's condition.
  1. [29]
    As recently noted by the Hon. Martin J, President of the Industrial Court:

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

How did Council respond to Mr Edey's March 2009 bullying complaint about Mr Watt?

  1. [30]
    Mr Edey accepted a role within the Ipswich Waste Services Branch as a Transfer Station Attendant in or around October 2007.  Whilst Mr Watt performed the same or similar duties as Mr Edey and was his "partner" on the job, he was also the designated working supervisor for one of two rostered work groups at the transfer station and made decisions as to the allocation of various responsibilities for team participants including Mr Edey.
  1. [31]
    Mr Sippel, an Operations Manager with the Council, gave evidence the Council rotated two separate work groups at the transfer station through a four day on, four day off roster.  Each shift comprised of a supervisor, three site attendants and a spotter.  Mr Watt was nominated as a working supervisor.  All the attendants, including the supervisor were required to rotate their duties which included driving trucks and operating the plant and the weighbridge systems.
  1. [32]
    Whilst Mr Edey's March 2009 complaint did not contain any specific examples, Mr Edey noted Mr Watt could be very rude and demanding.  He also suggested Mr Watt undertake a course in customer service.  Mr Sippel's recollection of the complaint was that Mr Edey believed Mr Watt was belittling him.  An example Mr Edey provided Mr Sippel at the time he made the complaint was that Mr Watt would step in where he perceived Mr Edey was having some difficulties with a customer and take over the matter.  Mr Sippel recalled he requested Mr Watt to write his complaint down, which he then escalated to his direct supervisor.  Mr Watt was asked to prepare a response which was also escalated to Mr Sippel's supervisor to review.  Mr Watt's response raised a number of concerns with respect to Mr Edey's conduct and performance.
  1. [33]
    Mr Sippel told the Commission his supervisor at the time was unable to "put his finger on" exactly what the problem was between the pair, but said they determined the best outcome for both men was to separate them and place Mr Edey on the opposite shift.  In his memo dated 8 April 2011 to the Chief Operating Officer - Engineering Services (Exhibit 15), Mr McMahon, the Council's Human Resources Manager noted as part of the background to the matter that:

"As a result of this investigation Mr Sippel found that there was no conclusive evidence of any breaches of Council's Code of Conduct or human resource policies but did conclude there were significant interpersonal issues between Mr Edey and Mr Watt.  As a result of this Mr Edey was assigned to another crew away from the supervision of Mr Watt."

  1. [34]
    Mr Edey gave evidence he verbally spoke to Mr Sippel on a number of occasions about Mr Watt's conduct prior to submitting the written complaint but that he did not receive any feedback in relation to his complaint.  Whilst Mr Edey's evidence was a little inconsistent and difficult to understand at times, his recollection was that his move away from Mr Watt occurred at his own initiative after he applied for a role as a roustabout with the goal of becoming a truck driver for the Council.  However, the progress from roustabout to truck driver took too long and Mr Edey eventually asked Mr Sippel for his role back at the transfer station where he was appointed to the opposite work team to Mr Watt.
  1. [35]
    Mr Rashleigh, on behalf of the Appellant argued the steps taken by the Council at this point were reasonable management action taken in a reasonable way.  Further, that a close review of Mr Edey's complaint reveals little if any detail in relation to exactly how he was being treated and that the Council could not be seen to have been anything other than reasonable in separating Mr Watt and Mr Edey on different shifts, particular given the system of shifts and the very limited opportunity for either Mr Watt or Mr Edey to come into contact with one another.  Conversely, Ms Anderson submitted there is no evidence that the complaint submitted by Mr Edey was investigated.
  1. [36]
    The difficulty I have with Ms Anderson's submission is that it is clear Mr Watt was requested by Council to provide a response to Mr Edey's complaint in or around March 2009.  I accept Mr Sippel's evidence that at some point after lodging his complaint the Council took active steps to place Mr Edey on the opposite shift given the difficulties between the two men.  Further, in a file note (Exhibit 26) dated 4 March 2011, Mr McMahon noted Mr Edey's comments that he no longer worked on Mr Watt's crew due to difficulties he raised in the past. 
  1. [37]
    In this respect I am satisfied the actions taken by Council to separate the two men in response to the complaint filed by Mr Edey in March 2009 were reasonable management taken in a reasonable way, particularly given the limited details provided by Mr Edey at the time and the nature of the complaint at that point. 

How did Council respond to Mr Edey's February 2011 bullying complaint about Mr Watt and Mr Shonhagen

  1. [38]
    Mr Edey and Mr Watt continued to work on separate shifts within the transfer station seemingly without incident until February 2011 when Mr Edey lodged a further complaint with Council in relation to Mr Watt, Mr Shonhagen and Mr Hutchison.  In his complaint (Exhibit 14), Mr Edey suggested he had been a casualty of workplace bullying for some time.  The complaint letter attempted to provide some details about the impact of the alleged bullying on his life but lacked any specific details or examples of the bullying.  On or around the time he lodged the complaint Mr Edey was the acting Crew Leader of his crew.  His previous shift leader, Mr Hutchinson had resigned from the role.  The other employees on his crew were Mick Grayson, David Smith and Dave Byron.
  1. [39]
    Relying on the timecards of Mr Watt (Exhibit 5) and Mr Edey (Exhibit 6) for the period 1 July 2010 to 20 April 2011, Mr Sippel's evidence is that Mr Watt and Mr Edey would have come into direct contact with one another on two occasions at most during this period and only when one or the other was required to work on the same shift as part of an overtime requirement.  Mr Edey's evidence with respect to the number of times he came into contact was unclear but at one point he indicated it would have been more than two occasions.
  1. [40]
    In a formal interview between Mr Edey and Mr MacMahon on 4 March 2011, Mr Edey provided the Council with more details in relation to his concerns which were summarised into three main areas being:
  • Mr Schonhagen allegedly making adverse comments about Mr Edey to a fellow worker;
  • Mr Watt allegedly making adverse comments about Mr Edey to Mr Hutchinson at his place of residence; and
  • Mr Edey feeling threatened after Don Watt said to a fellow worker; "It's not my shift.  It's not my problem."
  1. [41]
    Mr MacMahon commenced an investigation into Mr Edey's complaints which included interviews with eight Council employees over a period of two weeks in March 2011.  During this period Mr Edey approach Mr MacMahon a second time after he was advised Mr Watt had approached two other employees and shown them a copy of a letter relating to Mr Edey's complaint and reportedly made a statement to the effect of "they have nothing on me.  The complaint will go nowhere.  They have not heard of the last of this".  Mr MacMahon took steps to speak to the two relevant Council employees who both verified Mr Edey's report (Exhibit 15).  Mr Watt had previously been reminded by Mr MacMahon both verbally and in writing to maintain confidentiality with respect to Mr Edey's complaint and the investigation process.
  1. [42]
    On or around 8 April, Mr MacMahon prepared a memorandum for the Chief Operating Officer, Engineering Services outlining his findings and making a number of disciplinary recommendations with respect to Mr Schonhagen and Mr Watt.  These included: a recommendation that Mr Schonhagen be issued with a formal warning in response to his acknowledgement in an interview with Mr MacMahon that he had made some adverse comments about Mr Edey to a fellow worker; the commencement of a show cause disciplinary process for Mr Watt after it was found he had disregarded Council's request for confidentiality during the investigation into Mr Edey's complaint; and Mr MacMahon's further finding he had more than likely made some adverse comments about Mr Edey to Mr Hutchinson when visiting his house.
  1. [43]
    Mr Schonhagen subsequently received a formal warning from Council and Mr Watt was requested to attend a disciplinary meeting where he was provided with an opportunity to respond to the allegations.  Whilst there was no direct evidence provided during the proceedings by anyone who was present in the show cause meeting with Mr Watt, it is clear he was subsequently given a formal and in my view quite serious letter of warning with respect to his conduct towards Mr Edey.
  1. [44]
    The letter (Exhibit 13) clearly spelt out Council's view that Mr Watt had breached its policies and procedures and highlighted its concerns in relation to Mr Watt's breach of confidentiality during the investigation process and the negative impact his discussions with Mr Hutchinson may have had on Mr Edey.  Mr Watt's evidence was that a senior member of Council hand delivered the letter to him.  In determining a penalty, the letter indicates Council took into consideration Mr Watt's length of service, his remorse for his actions and his commitment not to repeat his conduct.  In terms of addressing Mr Edey's concerns about Mr Watt's treatment of him, the letter directed Mr Watt to refrain from:
  • Any contact with Mr Edey for the purposes of discussing or referring to any matters relating to his complaint or grievance;
  • Discussing any matters relating to Mr Edey's complaint of grievance with other Council employees or persons;
  • Discussing matters relating to Mr Edey with other employees or other persons unless they are clearly required to effectively carry out the operations of the Transfer Station;
  • Ensure that your conduct in relation to Mr Edey is consistent with the standards required under the Council's Code of Conduct and Council Policy and Procedures;
  • Takes all reasonable steps to ensure that your conduct towards Mr Edey takes into account his current state of health and is not misinterpreted by Mr Edey as being adverse to him;
  • Maintain confidentiality in relation to these matters.

Mr Watt was clearly put on notice that any failure to modify his behaviour or a repeat of his conduct would be viewed as misconduct and dealt with accordingly.

  1. [45]
    I accept Mr MacMahon and Mr Sippel met with Mr Edey on the morning of 20 May 2011 to discuss the outcome of the investigation and advise of Council's decision with respect to the type of disciplinary action it proposed to take in response to Mr Edey's complaint.  Prior to this meeting it is also clear that Mr MacMahon provided Mr Edey with access to Council's counselling service and that Mr Edey accessed these services.
  1. [46]
    I also accept Mr MacMahon's evidence that he spent some time with Mr Edey explaining why Council had made its decision.  On the evidence before the Commission it is also clear Mr MacMahon took immediate steps to follow up and investigate Mr Edey's complaints as soon as they were formally provided to Council.  He interviewed eight other employees, including Mr Watt and Mr Schonhagen.  Mr MacMahon also took steps to draw out further details in relation to Mr Edey's complaint in circumstances where the original complaint letter lacked specific details or examples of instances of alleged bullying.
  1. [47]
    Mr Watt's conduct, particularly in so far as he had breached his confidentiality obligations during the investigation into Mr Edey's complaint, was unacceptable.  Mr Schonhagen's comments about Mr Edey to a fellow worker were also inappropriate.  In my view, Council through Mr MacMahon took reasonable and timely steps to investigate Mr Edey's concerns.  Having finalised the investigation and met with Mr Watt again, Council then made a decision with respect to an appropriate penalty which was also communicated to Mr Edey both verbally and in writing.
  1. [48]
    It was not until the afternoon of 20 April, after Mr Edey had been advised on the same day of the proposed penalty for Mr Watt, that he visited his GP, Dr Kapadia and first complained of depression and anxiety.  At that appointment, it is clear he was aware both Mr Watt and Mr Shonhagen had been warned about their conduct.  In my view, Mr Edey's disappointment with respect to the penalty imposed by Council on Mr Watt following the investigation was a significant contributing factor to the development of his injury. 
  1. [49]
    In this respect, I am satisfied on the balance of probabilities that Mr Edey's injury more likely that not arose out of reasonable management action taken in connection with his employment. Further, whilst the outcome of the grievance process may not have been completely in accordance with Mr Edey's wishes, I do not consider Council's actions to be unreasonable or to have been taken in an unreasonable way.
  1. [50]
    Further, when conducting an overall assessment of the management action relative to the complaints raised on behalf of Mr Edey by Ms Anderson which were argued to be the reasons for the onset of Mr Edey's psychiatric or psychological injury, including steps taken by Council to address Mr Edey's initial 2009 complaint in relation to Mr Watt I find that the behaviour of the Ipswich City Council and it responses to Mr Edey's concerns was reasonable management action taken in a reasonable way.
  1. [51]
    In these respects, Mr Edey's injury is excluded from the operation of s 32(5) of the Act because it arose out of or in the course of reasonable management action taken in a reasonable way by the employer in connection with Mr Edey's employment.  
  1. [52]
    The Appeal is allowed.
  1. [53]
    The Decision of the Regulator is set aside.
  1. [54]
    The decision of Local Government Workcare is reinstated.

Footnotes

[1] State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447; Queensland Airways Limited v Q-COMP WC/2005/13; Dorcy Pacific Pty Ltd AND Q-COMP (WC/2010/14) Decision ; State of Queensland (Department of Communities Disability Services) AND Q-COMP (First Respondent) and Mrs B (Second Respondent)WC/2011/247 Decision .

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

[3] Davis v Blackwood [2014] ICQ 009; Q-COMP v Hohn (2008) 187 QGIG 139.

[4] (2005) 178 QGIG 197.

[5] Davis v Blackwood [2014] ICQ 009.

Close

Editorial Notes

  • Published Case Name:

    Ipswich City Council v Simon Blackwood (Workers' Compensation Regulator)

  • Shortened Case Name:

    Ipswich City Council v Simon Blackwood (Workers' Compensation Regulator)

  • MNC:

    [2015] QIRC 32

  • Court:

    QIRC

  • Judge(s):

    Member Knight IC

  • Date:

    24 Feb 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
Cf Delaney v Q-Comp Review Unit (2005) 178 QGIG 197
2 citations
Jump To
Cite 1 - (2005) 178 QGIG 197
Cite 2 - (2005) 178 QGIG 197
Davis v Blackwood [2014] ICQ 9
3 citations
Jump To
Cite 1 - [2014] ICQ 9
Cite 2 - [2014] ICQ 9
Cite 3 - [2014] ICQ 9
Dorcy Pacific Pty Ltd v Q-COMP [2011] QIRC 4
1 citation
Jump To
Cite 1 - [2011] QIRC 4
Lackey v WorkCover Queensland (2000) 165 QGIG 22
2 citations
Jump To
Cite 1 - (2000) 165 QGIG 22
Cite 2 - (2000) 165 QGIG 22
Q-Comp v Hohn (2008) 187 QGIG 139
2 citations
Jump To
Cite 1 - (2008) 187 QGIG 139
Cite 2 - (2008) 187 QGIG 139
Qantas Airways Limited v Q-COMP [2006] QIRC 31
2 citations
Jump To
Cite 1 - [2006] QIRC 31
Cite 2 - [2006] QIRC 31
State of Queensland v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447
2 citations
Jump To
Cite 1 - (2003) 172 QGIG 1447
Cite 2 - (2003) 172 QGIG 1447

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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