Thiess Pty Ltd v Simon Blackwood (Workers' Compensation Regulator)
[2015] QIRC 39
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- Thiess Pty Ltd v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 39
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Thiess Pty Ltd v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 39
Thiess Pty Ltd v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 39
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Thiess Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 039 |
PARTIES: | Thiess Pty Ltd (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) |
CASE NO: | WC/2013/306 |
PROCEEDING: | Appeal against a decision of the Regulator |
DELIVERED ON: | 4 March 2015 |
HEARING DATES: | 14, 15, 16 April 2014 21 May 2014 (Appellant’s submissions) 12 June 2014 (Respondent’s submissions) 20 June 2014 (Appellant’s submissions in reply) |
MEMBER: | Deputy President O'Connor |
ORDERS: |
|
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF REGULATOR - Where the worker has suffered a psychological injury - Where a significant contributing factor to the onset of the injury was the manner and outcome of an investigation carried out by management into allegations of misconduct by the worker - Whether s 32(5) operates to exclude the worker’s psychological condition from the definition of injury in s 32(1) - Whether management action was reasonable management action taken in a reasonable way - Appeal dismissed. |
CASES: | Keen v Workers' Rehabilitation and Compensation Corporation (1998) 71 SASR 42 Prizeman v Q-COMP (2005) 180 QGIG 481 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 Sabo v Q-COMP (C/2010/46) WorkCover Queensland v Kehl (2002) 170 QGIG 93 Workers' Compensation and Rehabilitation Act 2003, s 32 |
APPEARANCES: | Mr W. D. P. Campbell, Counsel instructed by BT Lawyers, for the appellant. Mr C. J. Clark, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator). |
Decision
- [1]At or about 11.00 pm on 16 April 2013, Emma Coleman, an employee of Thiess Pty Ltd ("the appellant") was showering in her "donga" at the Lake Vermont Mine camp when she noticed a hand at the window, which led her to believe someone was watching her.
- [2]The incident was reported to management and an investigation ensued. Statements were initially taken from Coleman and two other employees of the appellant: Nicholas Bullivant and the worker, Dustin McGowan.
- [3]On 19 April 2013, a meeting took place between two of the appellant's managers at Lake Vermont Mine - Peter Fuss, Manager People and Capability and Jeff Pattel, Manager Mining - and McGowan. Following that meeting, McGowan was removed from his shift and suspended on full pay for four days. Thereafter, he was stood down on full pay and sent home to his own residence at Collinsville. The incident was reported to Dysart Police.
- [4]On 23 April 2013, Dysart Police attended at the Village in the presence of Coleman and Fuss. McGowan was not interviewed by Police.
- [5]Further investigations into the incident of 16 April 2013 were undertaken with statements being taken from three other employees: Sam Tritton, Brad Shanks and Bill Ryan.
- [6]McGowan returned to work on 1 May 2013. On that day McGowan met for a second time with Fuss and Pattel. Following the investigation, the allegations against McGowan in relation to the "peeping tom" incident could not be substantiated however he was issued with a formal written warning for a breach of the Village Rules, namely the consumption of alcohol in the village after the 10.00 pm curfew. He was also reassigned to a different crew.
- [7]McGowan was asked not to talk to other employees about the investigation, not to approach Coleman or any other person from whom statements had been taken as part of the investigation, or have any conversation with them that could be seen as intimidating or harassing them. He was told that, if he did approach or talk to those people contrary to those requests, it may be seen as grounds for immediate termination.
- [8]On 13 May 2013, McGowan applied to WorkCover for compensation[1] in respect of a psychological injury said to have arisen out of his employment with the appellant. He alleged that his injury arose as a result of being ostracised by fellow workers and staff; being falsely accused; and being victimised by HR and above (management).
- [9]WorkCover rejected his application, but on review, the Workers' Compensation Regulator ("the respondent") set aside that decision and substituted a new decision to accept his application concluding that s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 ("the Act") did not operate to exclude his psychiatric/psychological condition from the definition of injury in s 32(1) of the Act. The appellant now appeals against that decision.
Issue for determination
- [10]The appeal proceeded to trial on the basis of the following statement of agreed facts:
- That the worker, Dustin McGowan, suffered an injury within the meaning of the Act, namely an "adjustment disorder".
- That a significant contributing factor to the onset of that adjustment disorder was the manner and outcome of an investigation carried out by Thiess management into allegations of workplace behaviour in the period 16 April 2013 until 1 May 2013.
- That the interaction between the worker and his managers was management action.[2]
- [11]In light of the statement of agreed facts the sole question for determination by the Commission is whether the injury is withdrawn from s 32(1) of the Act by the operation of s 32(5), that is, that reasonable management action was taken in a reasonable way.
- [12]McGowan was at work on 19 April 2013 when he was called to a meeting with Fuss and Pattel.
- [13]McGowan was not told the purpose of the interview but believed that it related to his refusal to sign a "travel commute form".
- [14]The conduct of the investigative process is governed by the Workplace Conduct Policy[3]. That written policy requires that managers and supervisors must understand and comply with the policy. In particular, the investigation must be unbiased, non-judgmental and professional.
- [15]Step 3 of the Workplace Conduct Policy outlines the steps to be taken by the interviewer in conducting the investigation. They include, inter alia:
- during the investigation, the respondent must be advised of the complaint and asked to respond within a reasonable timeframe[4];
- the interviewer must document the interview and advise the respondent of the investigation process;
- the respondent must date and sign the interview record; and
- the respondent must be advised of and agree to the interview protocol and understand that the:
- complainant must not be victimized for making the complaint;
- complaint must be kept confidential; and
- complaint will be investigated fairly and impartially.
- [16]It is not in dispute that management was required to respond to the complaint made by Coleman and to conduct an inquiry into the matter. Indeed, the respondent concedes that in light of the complaint from Coleman it was incumbent upon the appellant to commence an investigation, gather evidence and potentially interview McGowan.
- [17]The Commission has before it the sound recording[5] and the transcript of the interviews between Fuss and McGowan which were recorded secretly by McGowan using his mobile phone.
- [18]The interview opened, not with the particulars of the complaint, but rather with an expression by Fuss of what appears to be a concluded view.
- [19]The relevant passages from the transcript of the first interview are as follows:
"MR FUSS: Dustin….. I've got had a very serious issue raised with me and I need to talk to you about it.
MR McGOWAN: Yes, yes.
MR FUSS: It relates to something that has occurred in the village earlier this week.
MR McGOWAN: All right.
MR FUSS: What - I've interviewed a number of people, and based on those statements, I've - I've formed the view that you've been observed acting in a way that's inappropriate in the camp, and that in fact you've been looking through the window of a fellow employees---
MR McGOWAN: I don't think so.[6]
MR FUSS: And then I'm going to need you to give me a statement. So Tuesday night of this week a female employee was in the shower - in her shower in her village room, and as she looked out the window she saw that somebody was there at the window. She came to us that next morning and complained about that.
MR McGOWAN: Mm.
MR FUSS: And as a result of that, that person moved out of that room. You were observed the following night, the Wednesday night, in the vicinity right behind that same room.
MR McGOWAN: And?
MR FUSS: And you were observed to go back from that area back to your room.
MR McGOWAN: So? It's a walkway.
MR FUSS: No, it's not a walkway. That - that's not an area where people walk. We've got pathways to walk.
MR McGOWAN: Well, that's where we use to walk. I was going to see if Maurie was home, if what you're talking about is what I think you're talking about."[7]
- [20]Counsel for the Regulator asked Fuss if he had recorded his opening statement to the investigation in his diary:
"Did you write that down? Did you write down your opening statement so far as these allegations are concerned in your contemporaneous notes? --- No.
You wouldn't have been game to record that anyway, would you? Because you know it's demonstrably wrong, don't you? What do you say to that? Let's be frank, Mr Fuss. You wouldn't have been game to record that, would you? ---No, I didn't put those words very well.
Question was: you would not have been game to have recorded that contemporaneously, would you? --- No, that was something I would not put in my notes."
- [21]Fuss conceded in cross-examination that he did not provide sufficient detail to McGowan of the allegations against him.
- [22]The statement of Coleman contained no evidence of the identity of the culprit. Coleman only saw a hand in the top right hand side of her bathroom window. Fuss had no evidence upon which he could put to McGowan in his opening statement to the interview "… and in fact you’ve been looking through the window of a fellow employees."[8]
- [23]The statement of Bill Ryan, records that Coleman told him that she believed that it was either Dustin McGowan or Shaun Honnery who had looked through her window. Notwithstanding the fact that Honnery had been identified as a potential suspect, Fuss told the Commission that he made no inquires of Honnery nor did he seek to formally interview him.
- [24]The statement of Coleman[9] records that Bullivant had told her that "… he had seen and heard someone walking on the gravel between my room and Brad's room and opened gate". Bullivant's statement makes no reference to what he had told Coleman about what he had seen and heard on the Wednesday evening. Further, Bullivant's evidence was that he had a verbal exchange with McGowan at or around 9.40 pm. However, Coleman's statement would suggest that Bullivant had the exchange with McGowan at 10.20 pm, some 40 minutes later. McGowan maintained that he had not spoken to Bullivant at or about 9.40pm or at all.
- [25]Fuss said in his evidence that he re-interviewed Bullivant after the first interview with McGowan. However, Fuss made no contemporaneous note of his further interview with Bullivant and Bullivant had no recollection of being re-interviewed.
- [26]Following the second interview on 1 May 2013, McGowan was issued with a formal written warning relating to the allegation that he had consumed alcohol in the village after the 10.00 pm curfew.
- [27]A convenient starting point for considering this issue is to look at what was said by Fuss to McGowan in the second interview on 1 May 2013. This is as follows:
"MR FUSS: In terms of the village, you told us that second night you were when you caught up with Sam - that you were drinking after 10 o'clock, and you were drinking alcohol.
MR McGOWAN: A can of Coke.
MR FUSS: No, you were drinking alcohol.
MR McGOWAN: I had Coke Zero.
MR FUSS: Be very, very careful here, Dustin. I've got a statement from a person you told me I could should talk to and he's told - attested to certain things. You have a beer together.
MR McGOWAN: I don't drink beer.
MR FUSS: What do you drink?
MR McGOWAN: Rum.
MR FUSS: You had an alcoholic drink.
MR McGOWAN: Possibly, yeah.
MR FUSS: Right. Please don't make this fucking worse by lying to me.
MR McGOWAN: So youse are going to kick me out of camp as well now?"[10]
- [28]Fuss put to McGowan at the second interview that "I've got a statement from a person you told me I could should talk to and he's told - attested to certain things. You have a beer together."
- [29]As the following exchange in examination-in-chief clearly demonstrates, Fuss did not have a statement from Tritton attesting to the fact that Tritton and McGowan had a beer together:
"Right. Well, so Mr McGowan had advised you of that, had he? --- He did and that was confirmed when I interviewed Mr Tritton a few days later. So Mr Tritton, in his statement, doesn't admit that he, Mr Tritton that; do you understand what I mean by that? --- I - I thought Mr Tritton did tell me that he'd stayed up drinking alcohol. That he, Mr Tritton had stayed up drinking alcohol? --- I thought what Mr Tritton told me was that they had both stayed up consuming alcohol. Have a look at exhibit 10? --- No, that statement doesn't say that he had been drinking alcohol. My recollection is that I thought during the discussion he'd told me this they'd both been up consuming alcohol."
- [30]I accept the submission of the respondent that if there was any substance in the evidence of Fuss as to what he was told by Tritton, then one might expect that Tritton would have been called. The evidence before the Commission was that Tritton was still in the employ of the appellant.
- [31]Fuss suspended the interview to consider the outcome of the investigation. Fuss was aware that senior management had taken the position that there was insufficient evidence to terminate the employment of McGowan.
- [32]The Workplace Conduct Policy requires that the outcome of an investigation must be explained to both parties. As far as McGowan was concerned, the outcome was explained in the following terms:
"MR FUSS: All right. Okay. Dustin, as you know, we view this event very very seriously.
MR McGOWAN: Yep.
MR FUSS: I guess I'm asking you to I want to ask you, do you understand how seriously we view this.
MR McGOWAN: Yeah. Yep, yep.
MR FUSS: I mean, you're married, aren't you?
MR McGOWAN: Well, I'm engaged.
MR FUSS: Engaged. Okay. So you have got a partner, female partner ---
MR McGOWAN: Yeah. Yeah.
MR FUSS: How upset would she be if someone was looking through her bathroom window?
MR McGOWAN: I's say she'd probably be pretty upset, yeah, as I would be if someone did it to me as well, not that I - probably wouldn't really care but - but yeah, it's a different story for them, I suppose, yeah.
MR FUSS: How upset would you be if it happened to your partner?
MR McGOWAN: I'd be pretty upset, I suppose, yeah.
MR FUSS: If - all right. If that didn't happen at your place and then you walked out the front ---
MR McGOWAN: Yep.
MR FUSS: --- and you saw someone leaving your place, what - what would you think? What would be your reaction?
MR McGOWAN: I'm not sure what I'd do. Probably wouldn't be very nice, I suppose.
MR FUSS: I'm trying to understand - do you appreciate how upset the a female is … when this happens to them?"[11]
- [33]Notwithstanding the view taken by senior management and the paucity of evidence against McGowan, Fuss nevertheless goes on to express his personal view:
"MR FUSS: To put it bluntly, Dustin, I - I believe - what I believed allege you did, I believe you did it and that, I find - I find that incredibly wrong for someone to have done that.
MR McGOWAN: So do I. I have high morals. I - I don't do things like this, you know, what else can I say?
MR FUSS: Well, that is it. as I said, I formed the view and the belief that … from all the people I've talked to.
MR McGOWAN: Okay.
MR FUSS: And I'm very clear in my mind what I believe happened, and if it was left to me, the I know what decision I'd be taking.
MR McGOWAN: all right.
MR FUSS: In fact I know the what decision I'd recommend I've recommended be we taken in relation to your employment. So the decision that we've made in relation to your ongoing employment is that it won't be terminated.
MR McGOWAN: Well, it shouldn't be, because I didn't do it.
MR FUSS: Well, I don't believe you, simple as that."
- [34]McGowan was given a written warning relating to his consumption of alcohol in the village after the 10.00 pm curfew time.
- [35]Fuss in his investigation report dated 13 May 2013 made the following conclusions:
- Someone had looked through Emma's bathroom window on the night of the 16th.
- That Dustin McGowan had been "loitering" in an area near Emma's room the next night the 17th and had been challenged by another employee.
- While I believe that it was Dustin McGowan who looked through the window, I could not prove it.
- [36]
“On the basis of all the information gathered through an extensive investigation the decision was made to move Dustin on to another shift. The decision was based on reviewing all of the evidence against the test of the ‘balance of probabilities’.”
- [37]McGowan was informed that he would be transferred from B crew to D crew. In response, McGowan said that he was "being punished for something I didn't do". The Workplace Conduct Policy contemplates a transfer only in circumstances where a complaint has been substantiated.
- [38]The appellant argued that the transfer from B Crew to D Crew effective from 8 May 2013 was in accordance with subclause 17.4 of the Lake Vernon Employee Collective Agreement 2008 and without any reduction in his remuneration as a result of this change. The transfer was necessary, it was submitted, to significantly reduce the ability for there to be interaction between McGowan and Coleman.
- [39]The rationale for the transfer was explained in the following exchange between the bench and Fuss:
"Page 4, yes. Line 20, you start - there's the discussion there that was mentioned briefly in cross-examination before, about termination or whether that was the appropriate course to take. But as you read down, whilst termination wasn't advised, you then went on to say, at line 30 - you might see it there - you mentioned briefly about not being terminated? --- Yes.
And then you go on to say:
…but you'll be transferred.
?--- Yes.
Now - and that was notwithstanding there was no substantiation to the complaint, he was still going to be transferred? --- That's right.
Which is one of the remedies, under the conduct policy, when somebody has a substantiated complaint against them, you can transfer them? --- That's correct.
But this wasn't substantiated, was it, but you still transferred him? --- That - that's correct, given all of - all of the circumstances - - -
But what circumstances? This is what I can't understand? --- The - the - the circumstances - - -
It was not proven, was it? It was never proven against him. So there were really no circumstances against him, was there? --- Well, yes, I believe there were. I believe that the evidence clearly showed that on the Wednesday night, Mr McGowan had been standing in that area near those rooms when he had no occasion to be - no need to be.
The allegation was that he peeped into somebody's room - into their bathroom, wasn't it? But you had no evidence of that, did you? --- I had evidence that it happened. What I couldn't show was that it was Mr McGowan that - that - - -
That's what I said. There was no evidence of it. See, I just can't understand what he was actually dealt for by being transferred. It seems to be odd that he was transferred, but notwithstanding the fact that there was no substantiated complaint? --- The decision was that given how upset Emma Coleman was by the event, that it would be inappropriate for these two people to work every working day, potentially on the same crew, potentially coming in contact with each other and that, as I said to Mr McGowan, for his sake as much, that we were going to have him work on a different crew."
- [40]Despite the apparent concern by Fuss that McGowan and Coleman should be separated at work, it was the evidence of Coleman that by 9 May 2013 she had been reassigned to do overtime on D Crew, the same crew to which McGowan had been transferred.
- [41]Whilst it is not material to my determination of the issues before the Commission, it is an extraordinary thing that Fuss destroyed his original hand written notes on which he based his file notes. This is notwithstanding that the Workplace Conduct Policy contains a record keeping requirement.
Conclusions
- [42]In determining the reasonableness of the management action, reference is made to the reasoning of Hall P in Sabo v Q-COMP[13] his Honour President Hall wrote:
"In the absence of argument, I do not accept that the exercise of determining whether a managerial decision is 'reasonable' and 'taken in a reasonable way' is so like an exercise of discretion that an appellant seeking to reverse a decision of a tribunal of first instance, should be required to meet the standard set by the principles in House v The King at 505 per Dixon, Evatt and McTiernan JJ; compare Macauslane v Fisher Paykel Finance Pty Ltd (a 'reasonable notice' case). However, the exercise of assessing 'reasonableness' for the purposes of s. 32(5) (a) of the Act, is evaluative as well as judgmental. There is room for difference of opinion. The judicial officer dealing with the matter at first instance should be allowed a measure of latitude; compare IOOF Building Society Pty Ltd v Foxeden Pty Ltd at 554 to 556 (a 'reasonable notice' case)."[14]
- [43]In Keen v Workers' Rehabilitation and Compensation Corporation[15], Lander J, in dealing with s 30A of the Workers' Rehabilitation and Compensation Act 1986 (SA), and discussing whether "the administrative action was reasonable and, if reasonable, whether it was taken in a reasonable manner by the employer", wrote:
"Both of these further matters will be an inquiry of fact to be determined objectively. Whether the administrative action is reasonable is simply a matter of fact. Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administrative action was taken in a reasonable manner by the employer."[16]
- [44]
- [45]Management action need only be reasonable; it does not need to be perfect. Instances of imperfect but reasonable management action may, in the appropriate circumstances be considered a "blemish". Management action does not need to be without blemish to be reasonable.
- [46]The appellant submits that any "imperfection" in the conduct of the interviews was nothing more than a "blemish" and, as such, did not render the appellant's management action unreasonable. I do not accept the submission.
- [47]The appellant submitted that "McGowan has failed to establish that the accusation by the appellant that he was the perpetrator of the Peeping Tom incident was not reasonable management action taken in a reasonable way by the appellant." It must be remembered that the onus rests on the appellant, and not on McGowan, to establish that the management action taken can be properly found to be reasonable management action taken in a reasonable way by the employer in connection with the worker's employment.[20]
- [48]The evidence supports, in my view, a conclusion that in undertaking the investigation Fuss had prejudged the matter. This may well explain why the inconsistency in the evidence of Bullivant was never tested and also account for why Honnery was never interviewed. In my view, both Fuss and Pattel formed the view, at an early stage, that McGowan had committed the act of which he was accused and the investigation proceeded on that basis.
- [49]The whole investigative process is peppered with failings which cannot, in my view, be properly categorised as mere blemishes or minor imperfections. In particular, the following:
- failed to adhere to the procedures mandated by the Workplace Conduct Policy;
- failed to advise McGowan of the particulars of the allegations against him;
- did not advise McGowan of the fact the interview was being conducted in accordance with Workplace Conduct Policy;
- did not provide McGowan with a record of interview for his signature;
- did not provide McGowan with sufficient time to respond to the allegations made against him;
- putting false accusations to McGowan;
- did not investigate the complaint fairly and impartially;
- did not adequately or properly explain the outcome of the investigation to McGowan; and
- transferred McGowan from B crew to D crew contrary to the Workplace Conduct Policy and notwithstanding the fact that the allegations against McGowan were unproven.
- [50]The investigation was so fundamentally flawed that McGowan was denied procedural fairness. Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam[21], in discussing the manner in which procedural fairness cases are approached by the courts, said (at [37]):
"Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice."[22]
- [51]On a consideration of the evidence, the manner in which the investigation was undertaken was unreasonable. I am not satisfied that the appellant has discharged the onus of proof of establishing that the management action was reasonable and taken in a reasonable way. Accordingly, the appeal must be dismissed.
Orders
- [52]I make the following orders:
- 1.The appeal is dismissed.
- 2.The decision of the respondent dated 27 August 2013 is affirmed.
- 3.The appellant is to pay the respondent's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.
Footnotes
[1] Exhibit 25.
[2] Exhibit 1; T1-2.
[3] Exhibit 4.
[4] Exhibit 4 at p.15.
[5] Exhibit 27.
[6] Transcript of Exhibit 27 (MFIA) P4 ll. 39-45 P-5 ll. 1-46.
[7] Transcript of Exhibit 27 (MFIA) P-5 ll. 1-46.
[8] Transcript of Exhibit 27 (MFIA) P-5 ll. 3-4.
[9] Exhibit 7.
[10] Transcript of Exhibit 27 (MFID) P. 6, L.41 to P. 7, L.17.
[11] Transcript of Exhibit 27 (MFID) p. 2, Ll. 4-45.
[12] Exhibit 24.
[13] Sabo v Q-COMP (C/2010/46), 11 November 2010 at [21].
[14] Alex Sabo AND Q-COMP (C/2010/46) - Decision
[15] Keen v Workers' Rehabilitation and Compensation Corporation (1998) 71 SASR 42.
[16] Keen v Workers' Rehabilitation and Compensation Corporation (1998) 71 SASR 42, 47.
[17] WorkCover Queensland v Kehl (2002) 170 QGIG 93.
[18] WorkCover Queensland v Kehl (2002) 170 QGIG 93, 94.
[19] Prizeman v Q-COMP (2005) 180 QGIG 481.
[20] Workers' Compensation and Rehabilitation Act 2003 s 32(5).
[21] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6.
[22] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6, 37.