CFMEU v Blackwood[2015] QIRC 50

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Decision

1. [1]
   The Construction Forestry Mining and Energy Union (Queensland Branch) ("CFMEU"/ "the Union") appeals under ss 549 and 550 of the Workers' Compensation and Rehabilitation Act 2003 ("the WCR Act") against a decision of the Review Unit of Q-COMP (now Simon Blackwood, the Workers' Compensation Regulator) ("the Regulator") dated 3 May 2013 to accept an application for compensation made by Stuart Vaccaneo.

2. [2]
   In his application for compensation, made to WorkCover Queensland ("WorkCover") on 23 September 2010 (Exhibit 1), Mr Vaccaneo described the nature of his injury as "Psychological system in general, Reaction to stressors – other, multiple" and stated that the injury happened at his normal workplace and was "Work related stress."  According to the compensation application, the injury did not happen over a period of time but happened at 12.00 am on 11 August 2010.  On that date, Mr Vaccaneo was employed by the CFMEU as the Queensland District Executive Vice President.

3. [3]
   On 12 April 2012, WorkCover issued a decision in which it rejected his application for compensation.  Mr Vaccaneo appealed that decision and, in a decision dated 4 September 2012, Q-COMP set aside the decision of WorkCover and substituted it with a decision to return the matter to WorkCover with appropriate directions.

4. [4]
   By letter dated 27 November 2012, WorkCover advised Mr Vaccaneo that it had decided not to accept his application for compensation as he did not sustain an "injury" as outlined in s 32 of the Act (Exhibit 2).  Mr Vaccaneo made an application for claim review dated 22 March 2013 (Exhibit 3).  By letter dated 3 May 2013 he was advised that a Review Officer of the Regulator had set aside the decision of WorkCover and had substituted it with a decision to accept the claim for compensation in accordance with s 32 of the Act (Exhibit 4).  It is against that decision that the current appeal is made by the CFMEU.

Background to the proceedings

5. [5]
   Organisation of Queensland District Branch of the CFMEU:  Under the Queensland District Branch Rules for the Union's Mining and Energy Division ("the District Branch Rules"):

1. (a)
   the District Branch Executive consists of the President, Executive Vice-President, Vice Presidents and the Secretary; and

2. (b)
   the District Branch Executive Committee comprises the President, Executive Vice-President and Secretary (Exhibit 9).

Executive officers are elected by the membership of the District Branch every four years.

6. [6]
   The District Branch Rules provide that the Executive Vice President "shall act in conjunction with the President and the Secretary" in transacting the general business of the District Branch.  In the absence of the President, the Executive Vice President performs the duties of that position and deputises for the President (Exhibit 9).

7. [7]
   The District Branch Rules also provide for three District Union Inspectors to be elected every four years and whose functions include inspecting coal mines in Queensland, recording the results of those inspections, and providing "general advice and guidance to members of the District Branch on matters relating to occupational health and safety."  At the relevant dates for the Stressors in these proceedings, those District Union Inspectors were Timothy Whyte, Steven Smyth (until November 2009) and Gregory Dalliston.

8. [8]
   The role of IHSRs:  Each District Union Inspector is also known as an Industry Health and Safety Representative ("ISHR").  That is a statutory position under the Coal Mining Safety and Health Act 1999 ("the CMSH Act").  Each ISHR is appointed by the Union after a ballot of its members.  An ISHR is appointed for a four year term.  The Minister may terminate an appointment if the Minister considers that the ISHR is not performing their functions satisfactorily.^[1] 

9. [9]
   Mr Vaccaneo and the CFMEU:  Mr Vaccaneo became a member of the CFMEU in 1982 and held his first position in the Union (as a local inspector at an underground mine in Collinsville, North Queensland) from about 1998.  Apart from a 12 month period when he was at college, Mr Vaccaneo was a member of the Union continuously until he finished employment there.  He was an IHSR for some years. 

10. [10]
    In 2006, Mr Vaccaneo became Executive Vice President.  At that time, Andrew Vickers was the District President and he looked after the legal functions in relation to the Union.  When Mr Vickers became a national official, Greg Betts (at that stage, the District Secretary) was elected unopposed as District President.  Mr Betts introduced a different arrangement whereby Mr Vaccaneo, who continued as Executive Vice President, assumed the role in relation to the legal department, which he was to fill until the election of the next District President.  In 2006, James Valery was elected the District Secretary, and continued in that role until Mr Vaccaneo left the Union.

11. [11]
    In late 2009, after Mr Betts retired, there was an election at which Stephen Smyth and Mr Vaccaneo stood for the presidency.  Mr Smyth had been an ISHR since 2001, (Exhibit 8) but resigned that role in November 2009.

12. [12]
    After the election, Mr Smyth became District President and Mr Vaccaneo continued as Executive Vice President.  They would have regular contact with each other; sometimes face-to-face but more often (given that Mr Smyth lived in Mackay and Mr Vaccaneo in Brisbane) by telephone or email.  According to Mr Smyth, the relationship between them became strained following the elections; indeed he said that "everything went south between Stuart and myself" after Mr Smyth was elected President (Exhibit 8), and their relationship was poor.

13. [13]
    The executive usually met monthly.  They would deal with safety issues, negotiating enterprise agreements and dealing with disputes arising under industrial instruments and other industrial issues.  Mr Vaccaneo's position was a busy, full-time job and he worked long hours, as did other members of the executive.  The executive was responsible for managing the Union's affairs under the relevant rules, and dealt with external organisations such as employers as well as members of the Union.  Each executive member was expected to be familiar with the legislation that governed matters that they had to look after.  Vice Presidents were located across the state.  Delegates who wanted an issue dealt with were encouraged to contact first their local Vice President with responsibility for their mines.  Depending on the issue and their availability, a Vice President might refer the matter to someone else within the executive.

14. [14]
    Mr Vaccaneo took over the responsibility for the CFMEU's legal department.  Although that was usually the role of the District President, Mr Smyth seems to have accepted Mr Vaccaneo performing it, both because Mr Vaccaneo had been filling the role for some time and because some others apparently thought that Mr Smyth lacked the experience to look after the legal department.  The role involved supervising a legal unit which, when Mr Vaccaneo was elected, comprised two full-time legal officers who were practising solicitors and a paralegal assistant.  Mr Vaccaneo attended weekly meetings to review the progress of existing matters and deal with any new issues, ensuring that they were allocated properly.  Mr Vaccaneo said that he took that role "very seriously."  He explained that the Union had finite financial and personnel resources and they had to ensure that the appropriate resources were allocated to appropriate cases.  In relation to the volume of litigation, Mr Vaccaneo gave evidence that:

"Unfortunately dealing with major companies that are taking disciplinary and flagging dismissal against their members, it's miles more litigious than I would like."^[2]

15. [15]
    From 2008 to 2010, Mr Vaccaneo was the coordinator of the Health and Safety Division of the Union.  According to Mr Whyte, that role involved gathering resources and assisting the ISHRs do their work, for example where there was a serious accident or a fatality and the ISHR had to visit the relevant mine site.  Mr Vaccaneo gave evidence that the role had been filled by Mr Vickers but when Mr Betts became the District President, it "made more sense" for Mr Vaccaneo to take over that role because Mr Betts did not have a background in underground matters and Mr Vaccaneo was an ISHR and still a member of the Coal Mining Safety and Health Advisory Council. 

16. [16]
    Mr Dalliston confirmed that Mr Vaccaneo, like other Union officials, took his job seriously.  He also noted that Mr Vaccaneo had been an ISHR first and had dealt with a couple of fatalities.  So far as Mr Vaccaneo was concerned, the Union came first. 

17. [17]
    It is clear from Mr Vaccaneo's evidence and his demeanour when giving evidence that he was a dedicated member and officeholder of the CFMEU.  He was passionate about his work, and devoted his time and energy to the Union and its members.  He upheld the positive values which he considered the Union embodied.

18. [18]
    Mr Vaccaneo agreed, in cross-examination, that although he did not have any expectation that he could please all members of the Union all the time, he expected "to be able to do our level best" to please most of the people most of the time.  He also agreed that during his time on the executive (from 2006 until he finished work at the Union) the members of the executive were people with different personalities and approaches.  When asked if he was a cautious and conservative person, Mr Vaccaneo said that he liked to "think issues through where possible," "take a methodical approach" and "try and give it my best."  In his view "there would be people who would be more cautious than me and less cautious."  He agreed that he and other executive members would not see eye to eye on every issue, and that on occasions there would be disagreements and robust debate within the executive about a particular issue. 

19. [19]
    Mr Smyth, who had been a member of the Union since 1988 and an officeholder since 2000, said that it was "not all smooth sailing" within the Union and "it can be challenging at times."  There were strong willed people who were strong in their beliefs, and personalities contributed to working relationships.  It was not unusual for there to be tension, even conflict, from time to time between Union members or officers.

20. [20]
    Mr Valery worked in the same office building in Brisbane with Mr Vaccaneo and Mr Dalliston.  Mr Valery said that he had a good working relationship with Mr Vaccaneo, and there were times when they socialised outside office hours, including at staff functions, travelling together to various events and time away from the office such as catching up for a beer on a weekend.

21. [21]
    Mr Dalliston had almost daily contact with Mr Vaccaneo as they were in adjoining offices and were sometimes away from the office together on work-related matters.  Mr Dalliston gave evidence that there was a factional split between the officials with those based in Brisbane (Mr Dalliston, Mr Valery and Mr Vaccaneo) being in one group and those based in Mackay (Mr Whyte and Mr Smyth) being in another, with the Vice Presidents being variously aligned.

22. [22]
    Timothy Whyte: Another key witness in these proceedings was Mr Whyte, who was an ISHR for six years before June 2013, when he was elected District Secretary after a contest with the incumbent Mr Valery.  While he was an ISHR, Mr Whyte was not a member of the executive committee of the Union.  As an ISHR, he was responsible for inspecting coalmines and giving advice on health and safety matters to members.  In that role he was answerable to the Minister for Mines and could be directed by the Union's Board of Management.  While Mr Vaccaneo was the coordinator of the Health and Safety Division, Mr Whyte was not answerable to him but Mr Vaccaneo would coordinate resources if they had a major issue or fatality.  (Exhibit 8)

23. [23]
    According to Mr Whyte's written statement (Exhibit 8), he did not know Mr Vaccaneo before the work environment and initially had "no problems with him in a professional manner."  Indeed, prior to the incident in December 2008 referred to in Stressor 1 and the other issues that followed, they had a "very good professional and social relationship."  In his oral evidence Mr Whyte agreed that he completely lost trust in Mr Vaccaneo from the time of the Stressor 1 incident onwards.

24. [24]
    Mr Vaccaneo's decompensation: Following a series of incidents in the workplace (details of which are set out below) Mr Vaccaneo decompensated on 10 August 2010.  The incident which gave rise to his decompensation was a telephone call from a delegate regarding a worker who had been reprimanded for using a work email to access pornographic material.  Mr Vaccaneo consulted the worker to clarify details of the allegations and to try to provide some help, but he was met with an angry and rejecting response with the worker stating that the CFMEU was doing nothing for him or other workers. 

25. [25]
    On 11 August 2010, Mr Vaccaneo went to work in a distressed state and was taken home that morning.  He did not return to work after that date, and left his employment with the Union on 28 August 2011 having signed a deed of settlement and release.

Nature of Mr Vaccaneo's injury

26. [26]
    There is no dispute that Mr Vaccaneo has been diagnosed as suffering a psychiatric or psychological disorder which constitutes an injury for the purpose of s 32 of the WCR Act.  He was examined by two psychiatrists, Dr Michael Likely and Dr John Chalk whose diagnoses were respectively:

1. (a)
   a generalised anxiety disorder;

2. (b)
   an adjustment disorder with depressed and anxious mood.

27. [27]
    The symptoms which gave rise to those diagnoses and aspects of the diagnoses are considered later in these reasons the decision. 

Stressors

28. [28]
    Mr Vaccaneo listed the following four stressors in relation to his claim for compensation:

1. (a)
   defamatory emails sent by Mr Whyte just before Christmas 2008;

2. (b)
   phone call from the District Secretary in January 2010;

3. (c)
   Mr Whyte advised he was going to shut down BHP; and

4. (d)
   in August 2010, Mr Whyte engaged in a guerrilla campaign against Mr Vaccaneo.

29. [29]
    Mr Vaccaneo gave evidence that he did not list specific stressors in his workers' compensation application because they were relevant to active court and Fair Work Australia cases, and he was "not willing to share that confidential information" with someone he did not know at WorkCover.              

30. [30]
    In cross-examination, Mr Vaccaneo agreed that at the time of his decompensation he considered that the three main things which contributed to his condition were:

1. (a)
   misuse of the Union's email system that included arguably clearly defamatory comments made about many people, continued sniping via email and discussing topics that should never be discussed via email despite training and repeated warnings of dangers of discovery, etc.;

2. (b)
   the Goonyella Riverside Mine OSPAT action; and

3. (c)
   Mr Whyte's BMA fitness for duty directive.

31. [31]
    Those matters were apparently listed in a letter from Mr Vaccaneo to Mr Valery, as the District Secretary, on 8 August 2011 in connection with negotiations about a termination or severance package for Mr Vaccaneo. 

32. [32]
    On 28 November 2011, Mr Vaccaneo lodged with WorkCover a notice of claim for damages (Exhibit 30).  That document was apparently prepared with the assistance of a solicitor.  At the hearing, Mr Vaccaneo confirmed the passage describing the details of events resulting in his alleged injury.  However, given the errors that Mr Vaccaneo identified in another similarly worded document sent to WorkCover on 23 February 2012 (Exhibit 31), some of the details in the previous document must be taken to be incorrect.  For present purposes, it is sufficient to note that Exhibit 30 described the symptoms as commencing in December 2008 and the period of the events ceasing on 28 August 2011, the date when Mr Vaccaneo ceased employment with the CFMEU.  The document refers to, and effectively incorporates by reference, the details of the major stressors set out on page 2 of the report of Dr Likely dated 31 October 2011 (Exhibit 6).  In summary, the four stressors listed in Exhibit 30 were:

1. (a)
   the "defamatory email" sent by Mr Whyte just before Christmas 2008 and the "vexatious and ill-advised emails" that continued to be sent by Mr Whyte notwithstanding that the protocols and etiquette of the use of emails was the subject of a meeting;

2. (b)
   a phone call from the District Secretary to Mr Vaccaneo in about January 2010 in relation to the Goonyella Riverside Mine, which involved a CFMEU delegate advising Union members to refuse to undertake pre-shift assessment of the worker's fitness to work prior to the commencement of the shifts, and workers being stood down in circumstances where Union members blamed the CFMEU for causing this situation;

3. (c)
   Mr Whyte advising in February 2010 that he was going to "shut down BHP," and the "potentially disastrous consequences" that the CFMEU faced; and

4. (d)
   Mr Whyte being found guilty of "exceeding his powers" by the Mines Department and the subsequent "guerrilla campaign" engaged in by Mr Whyte against Mr Vaccaneo by means of "vexatious and derogatory emails" around August 2010.

33. [33]
    That statement of stressors provides the basis on which evidence was given in these proceedings.  Evidence was also given in relation to the circumstances in which Mr Vaccaneo decompensated on 10 August 2010.  There was some contention about whether those events constituted a separate Stressor 5.

 Preliminary issues in relation to the nature and conduct of the appeal

34. [34]
    Detailed written submissions were made in relation to the following aspects of the appeal:

1. (a)
   what is the applicable statutory definition of "injury"?

2. (b)
   what is the nature of the hearing of the appeal?

3. (c)
   which party bears the onus of proof?

 Each issue can be dealt with relatively briefly. 

35. [35]
    The relevant definition of "injury": The case falls to be determined by reference to the meaning of "injury" in s 32(1) of the WCR Act.  That subsection, as amended from 29 October 2013, provides: 

 “An injury is personal injury arising out of, or in the course of, employment if-

(a)for an injury other than a psychiatric or psychological disorder-the employment is a significant contributing factor to the injury; or

(b)for a psychiatric or psychological disorder-the employment is the major significant contributing factor to the injury.”

36. [36]
    Before it was amended, and both at the time of the injury to Mr Vaccaneo and at the date of his workers' compensation application, s 32(1) provided:

“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.”

37. [37]
    Mr Vaccaneo’s injury is a psychiatric or psychological disorder.

38. [38]
    The threshold question is: which wording of s 32(1) applies in these proceedings?  Depending on the answer, it will be necessary to show that Mr Vaccaneo’s employment was either “the major significant contributing factor to the injury” or “a significant contributing factor to the injury”.

39. [39]
    Although detailed written submissions, particularly on behalf of the Appellant, were made in relation to this issue, the position is clear.  Section 680 of the WCR Act, which commenced in October 2013, states:

'680Injuries sustained before commencement

1. (1)
   This section applies if a worker sustained an injury before the commencement.

2. (2)
   The pre-amended Act continues to apply in relation to the injury as if the amendment Act had not been enacted.

3. (3)
   Without limiting subsection (2)-

1. (a)
   the amount of compensation payable in relation to the injury must be worked out under the pre-amended Act; and

2. (b)
   chapter 5 of the pre-amended Act applies in relation to damages for the injury.

4. (4)
   In this section-

injury has the same meaning given by section 32 of the pre-amended Act."

40. [40]
    That section is sufficient to resolve the issue.  The applicable definition of "injury" is the definition in s 32(1) of the WCR Act immediately before the 2013 amendment.  Accordingly, it is not necessary to consider the other legislation^[3] and decision^[4] quoted in the written submissions made on behalf of the Regulator.

41. [41]
    Nature of the hearing of the appeal: The relevant legislative provisions provide the starting point in deciding the nature of the hearing in relation to the appeal.  In summary, the Act provides that:

1. (a)
   a claimant, worker or employer aggrieved by a review decision may appeal to an appeal body against the decision of the Regulator (ss 548, 549); and

2. (b)
   for this purpose, the Commission is an appeal body (ss 548A(1)).

42. [42]
    In deciding an appeal, the appeal body may -

1. (a)
   confirm the decision; or

2. (b)
   vary the decision; or

3. (c)
   set aside the decision and substitute another decision; or

4. (d)
   set aside the decision and return the matter to the respondent with the directions the appeal body considers appropriate (s 558(1)).

If the appeal body acts under s 558(1)(b) or (c), the decision is taken to be the decision of the insurer (s 558(2)).

43. [43]
    There are numerous decisions of the Commission and the Industrial Court in relation to the nature of an appeal in cases such as the present case.  The parties provided detailed written submissions in relation to this issue.  It is not necessary to set them out at length here.  In the end the parties agreed, correctly, that an appeal against the decision of the Regulator is by way of a hearing de novo. It is not a review of the reasons for decision of the Regulator. 

44. [44]
    The Commission considers the evidence and submissions provided to it by the parties, rather than reviewing the material before the Regulator.   Indeed it is usually the case that the Commission has evidence that was not available to the Regulator.  The Regulator proceeds primarily on the papers, that is, on material put before it.  Although the applicant has a right of appearance (s 543), the Regulator does not obtain evidence orally from witnesses and the parties do not have an opportunity to examine and cross-examine such witnesses.  Sometimes documents that are tendered in the appeal proceedings were not before the Regulator.  Sometimes documents that were considered by the Regulator are not tendered in evidence to the Commission.  The Commission decides the appeal by reference to evidence admitted and submissions made in the hearing.

45. [45]
    Although, in that sense, the hearing is conducted on a de novo basis, the starting point is that it is an appeal from a decision of the Regulator.  Without that decision, there would be no proceedings in the Commission.  The Commission's jurisdiction is attracted by the making of an appeal against the Regulator's decision in accordance with the Act.  As noted above, the appeal body may do one of four things in deciding an appeal, but each potential outcome relates to "the decision" against which the appeal is made.  If, for example, the appeal is unsuccessful, and the Commission confirms the decision, the Regulator's decision will stand.  In that sense, the status quo is the decision of the Regulator.^[5] 

46. [46]
    The nature of the Regulator's decision will determine who are the parties to any appeal.  So, for example:

1. (a)
   if the decision is that the claim for compensation is rejected, the appellant will be the worker and the respondent will be the Regulator, and the employer may but might not seek leave to be heard the proceedings;

2. (b)
   if the decision is that the claim for compensation is accepted, the appellant will be the employer and the respondent will be the Regulator, and the worker may but might not seek to be a party to the proceedings (s 549).

47. [47]
    In either of those circumstances, the Regulator will be the respondent^[6] and conduct its case as it sees fit to defend its decision, including calling relevant witnesses for that purpose.  Where the employer or the worker respectively does not have leave to appear or is not a party, it would be wrong to think that the Regulator will conduct its case as if it were acting on behalf of, or in the interests of, the absent party.^[7]  For completeness, I note that the scheme prescribed in the Act is sufficiently different from the statutory scheme considered by the New South Wales Court of Appeal in Turnbull v New South Wales Medical Board.^[8]  Consequently, the passages from the judgements in that case relied on by the CFMEU are distinguishable for the purposes of this appeal.

48. [48]
    The employer, the injured worker and the Regulator are parties to the present appeal. Each played an active role in the proceedings.  Given the statutory functions of the Regulator and its role in proceedings such as these, and the different interests of the employer and worker respectively, it is important for the conduct of the hearing, and potentially the outcome, to understand which party bears the onus of proof.

49. [49]
    Onus of proof: The appellant in this case was Mr Vaccaneo’s former employer.  The Regulator submits that, in determining what an employer appellant is required to prove, it is essential to note the distinction between an appeal by a worker and that of an employer.  In the Regulator’s submission, it is well established that:

1. (a)
   when a worker appeals against a decision of the Review Unit, he or she bears the onus of satisfying the elements of s 32(1) of the WCR Act and, where reasonable management action is involved, to show that the injury is not excluded by the reasonable management action provisions of the Act;^[9]

2. (b)
   where an employer appeals against a decision of the Review Unit, the employer would have to disprove the worker’s claim.

50. [50]
    Again, detailed submissions were made in relation to this issue, and numerous decisions of the Commission and Industrial Court were cited or quoted.  It is not necessary to set out the submissions at length or refer in detail to the authorities.

51. [51]
    On the current state of the authorities it is clear that in cases such as the present case, where the employer is the appellant and the decision appealed against is a decision to accept the claim for compensation, the employer bears the onus of proving on the balance of probabilities that the claim is not one for an acceptance.^[10]  In some cases it would fall to the employer appellant to prove that:

1. (a)
   the person claiming compensation was not a "worker" within the meaning of the Act at the relevant time; or

2. (b)
   the person claiming compensation did not sustain an "injury" within the meaning of the act at the relevant time; or

3. (c)
   if they did sustain an injury, the injury either did not arise out of or in the course of the person's employment or the injury was one to which employment was not a significant contributing factor.

 Issues in this appeal

52. [52]
    In the present case, there is no dispute that Mr Vaccaneo was a worker at the relevant time, that he suffered an injury or that his injury arose in the course of his employment.  The only issue is whether his employment was a significant contributing factor to the development of his injury.  To succeed in this appeal, the CFMEU must prove on the balance of probabilities that Mr Vaccaneo's employment was not a significant contributing factor to his psychological injury.

 Medical evidence

53. [53]
    As the Regulator submits, the question of whether or not a worker has sustained an injury arising out of, or in the course of, employment and whether employment is a significant contributing factor to an injury, is a question of mixed law and fact to be determined by the court or Commission.^[11]  In reaching that determination, ordinarily emphasis is placed on the opinions of medical practitioners.^[12]

54. [54]
    Mr Vaccaneo was examined separately by two psychiatrists:

1. (a)
   Dr Likely who examined him on 31 October 2011 and provided a report dated 31 October 2011 (Exhibit 6); and

2. (b)
   Dr Chalk who examined him on 16 February 2012 and provided a report dated 21 February 2012 (Exhibit 5).  In preparing his report, Dr Chalk had access to, among other things, the report of Dr Likely.

55. [55]
    According to Mr Vaccaneo, he gave each doctor "as full a response as I could" to their questions. 

56. [56]
    Each psychiatrist also gave oral evidence in the course of the hearing.  The following paragraphs draw on their written and oral evidence in relation to a set of common topics or issues.  The description and analysis of Mr Vaccaneo's symptoms and injury referred to the key event in the chronology, namely the event on 10 August 2010 when he decompensated while at work.

57. [57]
    Symptoms:  In his written report, Dr Likely set out in detail a long list of symptoms experienced by Mr Vaccaneo after 11 August 2010.  These included the onset of acute and intense symptoms of anxiety (such as acute and intense anxiety, symptoms of autonomic arousal describing cardiorespiratory distress, gastrointestinal distress flushing, tremulousness, light-headedness, stuttering with an inability to communicate clearly and a fear of losing control or dying, apprehension and worry combined with a subjective sense of being unable to control the worry, muscle tension, poor sleep, poor concentration, difficulty making decisions, procrastination, and low self-esteem).  Mr Vaccaneo had experienced "a pervasive depressed and dysphoric mood with anergia, amotivation, anhedonia, social withdrawal …, frequent episodes of tearfulness, a desire to be alone, and feelings of hopelessness (although these never coalesced into any formal suicidal ideation)."  (Exhibit 6)

58. [58]
    When Dr Chalk examined Mr Vaccaneo more than three months later, he noted that Mr Vaccaneo described feeling "considerably better than he did previously" when he had experienced significant anxiety, depression and panic attacks.  When he saw Dr Chalk, Mr Vaccaneo reported having adequate sleep, and average appetite, and energy levels that were "slowly improving" although his concentration remained "indifferent."  Mr Vaccaneo described some enduring irritability but not pervasive guilt or tearfulness.  Although he remained more emotional than he had been in the past, he was not "pervasively sad, hopeless and helpless" but feelings of anger about the ways in which he was treated remained.  There was no evidence of any obsessive-compulsive symptomology.  (Exhibit 5)

59. [59]
    Both doctors noted that Mr Vaccaneo began drinking alcohol heavily in the aftermath of the initial events but, by the time he saw Dr Chalk, his alcohol consumption appeared to have moderated and there was no diagnosis of alcohol abuse or dependence.  (Exhibit 5, Exhibit 6)

60. [60]
    Diagnosis: Dr Likely diagnosed Mr Vaccaneo as having "Generalised anxiety disorder (arising as a result of an accumulation of circumstances at work resulting in an acute decompensation on the 11^th of August 2010) – partially remitted."  Having described specific areas of functional impairment, Dr Likely assessed Mr Vaccaneo as having a Whole Person Impairment ("WPI") of 17 per cent.  In the course of his written report, Dr Likely quoted the diagnosis of "acute stress disorder and major depressive episode" made by a clinical psychologist, Brenda Muller, on 10 September 2010.  (Exhibit 6)

61. [61]
    In his written report, Dr Chalk stated that Mr Vaccaneo "has symptoms of an adjustment disorder with depressed and anxious mood" following a breakdown in August 2010.  He assessed Mr Vaccaneo as having a WPI of 4 per cent.  (Exhibit 5)

62. [62]
    The doctors' diagnoses and their respective assessments of Mr Vaccaneo's WPI were considered in the course of the doctors' oral evidence.

63. [63]
    Dr Chalk said that there were no significant differences between his diagnosis and that of Dr Likely.  Dr Chalk suggested that he was probably more impressed with some depressive symptoms exhibited by Mr Vaccaneo.  Dr Likely said that the symptoms reported to both Dr Chalk and himself by Mr Vaccaneo seemed to be "entirely consistent" and the apparently different diagnoses could be explained on the basis that (having regard to the relevant Diagnostic and Statistical Manual of Mental Disorders, DSM-5) if the symptoms for an adjustment disorder persist for longer than six months then the disorder should be reclassified.  According to Dr Likely, "essentially, it's a matter of semantics."  Both doctors believed that Mr Vaccaneo has a clinically significant psychiatric condition and relied on essentially the same symptoms when preparing their diagnosis.

64. [64]
    Dr Chalk also suggested that, although he did not think that Mr Vaccaneo had a degree of psychiatric illness that would warrant a 17 per cent permanent impairment, the different percentages of WPI assessed by him and by Dr Likely were comparable. 

65. [65]
    Factors giving rise to condition:  Dr Likely recorded Mr Vaccaneo's description of a series of events from approximately 2008 which culminated in an "acute decompensation" in his mental health on 11 August 2010, forcing him to cease work on that date.  (Exhibit 6) Dr Likely concluded that Mr Vaccaneo's psychological injuries began with a "full blown panic attack" on 11 August 2010, and that they arose "as a result of an accumulation of circumstances at work."  In the course of his oral evidence, Dr Likely referred to the "cumulative effects of the stressors" outlined in his report, and described the event in August 2010 as "one too many" for Mr Vaccaneo to bear.  In his oral evidence, Dr Likely described the symptoms between 2008 and 2010 as "evanescent" during that period, in that there would have been times when Mr Vaccaneo was reasonably well and unencumbered and other times where symptoms were present and caused him distress.  It is also relevant to note that, although he reported that Mr Vaccaneo had dealt with seven fatalities in the course of his work, Dr Likely noted (and apparently accepted) Mr Vaccaneo's statement that none of these tragedies had any enduring effect on his mental health.  (Exhibit 6)

66. [66]
    In his report, Dr Chalk wrote "It would appear that this man developed psychiatric symptoms as a consequence of a number of difficulties that had been developing over a period of some 12 to perhaps 18 months" in the workplace.  Although "it would appear that there was some indication of symptoms developing over a period of time", Mr Vaccaneo described the "fairly sudden onset of a psychiatric symptomology" in August 2010.  In his oral evidence, Dr Chalk described that incident as the "final straw" that broke the camel's back.  In Dr Chalk's written opinion, "the work related events as described, were a significant contributing factor in the development of his psychological condition."  That conclusion is consistent with Dr Chalk's note that Mr Vaccaneo described "becoming increasingly preoccupied with 'internal bullshit'" and that his "difficulties revolved around matters essentially within the union rather than his interaction with external employers."  Dr Chalk recorded other traumatic experiences in Mr Vaccaneo's life but noted that there is "no relevant pre or post accident psychiatric history" and "no evidence of a pre-existing psychological or psychiatric illness."  He concluded that "there is in my view, no clear evidence that this man had pre-existing significant psychiatric symptomology."  That conclusion is consistent with his note that it did not appear from Mr Vaccaneo's account that there are "matters outside of work related issues that are of significant moment in the development of his symptoms."  (Exhibit 5)

67. [67]
    Prognosis:  The prognosis proffered by each doctor was somewhat different from that proffered by the other.  Those differences seem to reflect the improvement in Mr Vaccaneo's condition in the period between his examination by Dr Likely and his examination by Dr Chalk.  Having examined Mr Vaccaneo on 31 October 2011, Dr Likely reported that Mr Vaccaneo's generalised anxiety disorder had caused him a "permanent psychiatric incapacity" and he would require ongoing psychiatric treatment.  Given that Mr Vaccaneo had been "significantly symptomatic for some three years, despite appropriate treatment," Dr Likely stated that it was "difficult to see an endpoint in his treatment regimen."  He also stated that Mr Vaccaneo was unable to work in his pre-injury position, and his work-related future "is highly dubious at present."  (Exhibit 6)

68. [68]
    However, more than three months later, Dr Chalk noted that Mr Vaccaneo described feeling "considerably better than he did previously."  (Exhibit 5) In Dr Chalk's opinion, Mr Vaccaneo would ultimately return to work although not to his previous job.  More specifically, Dr Chalk wrote:

"I think his psychiatric symptoms, such as they are, are likely to continue to improve and I would expect that once this litigation is resolved and he has returned to some form of appropriate employment, that he is likely to continue working and his working life will not be impeded by significant ongoing psychiatric symptomology."  (Exhibit 5)

69. [69]
    He confirmed that opinion in his oral evidence when he stated that Mr Vaccaneo would appear to have a very strong work history and "work is good for people, and I think that returning to work is likely to assist him.  And when I saw him I didn't think that his symptoms were of such moment as to prevent him from returning to work down the track."

70. [70]
    Each doctor described the further medical treatment that, in his opinion, Mr Vaccaneo should receive.  (Exhibit 5, Exhibit 6)

71. [71]
    Other parts of their evidence will be considered in respect of each Stressor.

Approach to dealing with the Stressors

72. [72]
    Stressors are not the creatures of, or required by, the Act.  However, in the absence of pleadings, they define the case mounted by the worker and it is by reference to them that the other party or parties engage in the proceeding and that the Commission decides whether an appeal succeeds.^[13]

73. [73]
    In dealing with each Stressor it is appropriate to adopt an approach along the lines suggested by the CFMEU, namely:

1. (a)
   determine what happened, i.e., what events occurred;

2. (b)
   determine the effect of the event or stressor on Mr Vaccaneo's psychological state, in particular whether it was manifested in symptoms of a diagnosable psychiatric or psychological disorder; and

3. (c)
   determine whether the medical evidence addresses the events and their effects and, if so, whether the effects were the result of those events or stressors or something else.

74. [74]
    The CFMEU submits that the events listed in stressors 1, 2 and 4 (which the Regulator found were substantiated) did not occur in the way described by Mr Vaccaneo or other witnesses called on his behalf, and have been exaggerated, and were not a significant contributor to his injury. 

Stressor 1

75. [75]
    The stressor: This stressor relates to the "defamatory email" sent by Mr Whyte just before Christmas 2008 and the "vexatious and ill-advised emails" that continued to be sent by Mr Whyte notwithstanding that the protocols and etiquette of the use of emails was the subject of a meeting;

76. [76]
    To make a determination in relation to Stressor 1 it is necessary to consider the context, chronology and content of the subject emails; action taken in response to the emails; their effect on Mr Vaccaneo; and the medical evidence about whether the emails caused or contributed to Mr Vaccaneo's injury.

77. [77]
    The evidence: Context and chronology of emails:  The emails complained of were sent by Mr Whyte on 15 and 16 December 2008.  In order to understand and assess the strength of Mr Vaccaneo's concerns in relation to those emails, it is necessary to outline the background to them and quote some preceding emails sent by other people.

78. [78]
    In summary, concerns had been expressed by the ISHRs about the safety of a polyurethane product promoted by ResCo Services Pty Ltd ("ResCo") being used as a strata consolidator in the roof of underground coalmines.  The product is injected into broken ground to assist in consolidation.  Apparently it had been used in mines in America and was known to cause fires.  According to Mr Whyte, the product had potential to self-ignite and to give off high carcinogens.  It had not been approved at the German testing laboratory and was not given approval for use in New South Wales mines.  He and Mr Smyth met with the company's representatives who were unable to provide specific documents which the Union's representatives wanted.  Subsequently, Mr Smyth issued a directive that the product could not be used in the Queensland mines.  He was contacted by the CEO of ResCo, Craig Ransley, about allowing the product to be used, and by Peter Murray, who was the General Secretary of the CFMEU.  Apparently Mr Murray was endorsing the product being used in the mines.  According to Mr Smyth, Mr Murray's position was "in conflict to the Union interests and against me personally."  (Exhibit 8)

79. [79]
    On Monday 15 December 2008 at 9.20 am, Mr Smyth sent the following email:

"Greg & Peter,

I was wondering have you blokes heard any thing from the jokers at RESCO about this crap with their products being stopped from being used?  I got a E mail today from a supplier of a product who informs me that RESCO are going to take the NSW DPI to court over the 'restriction of trade' on them?

If you have any information in relation to this or in fact what they have been saying would be good.  For the record this group are a bunch who do not want to follow a due process and will do anything to get what they want.  They wouldn't lie straight in bed.  In simple terms why would you want to use a cavity filled product in your coal mine if it catches on fire?  I don't understand that.

Any way if you have any info that would be good."

Although the exhibited copy of the email bears no additional reference to the names of the addressees, it appears they were Greg Betts (the then District President) and Mr Murray.

80. [80]
    At 2.31 pm that day, Mr Ransley sent the following email to Mr Smyth (cc'd to, among others, Mr Betts, Mr Murray, Mr Dalliston, and Mr Whyte):

"Stephen – I refer to your email below.  I note its contents and in particular the criticisms you make of RESCO, its Directors, Executives, and its products and services which are, in every respect, utterly without foundation.  I also note with great interest that you have included an EX official as well in your email.  I will be referring this email to RESCO's legal advisers immediately." 

81. [81]
    At approximately 6.12 pm that day, Mr Whyte sent the following email to Mr Smyth:

"Smythy

As I would be sure you are asking the same question, was (sic) sort of low life scab, grub, Judas, Benedict Arnold would be responsible for Resco being able to obtain your e-mail?  A question that will be answered in time with the responsible low-life snake being flushed out and exposed.  It appears that a Union (and I use that term loosely in this case) person has done this, if this is proved correct then the entire rank and file WILL be informed as well other avenues of information dissemination.

You are Union and Proud mate, and I count you as one of the true stalwarts of this movement and a bloody good friend.  I am totally disgusted that this so-called company are pushing their wares, knowing that they have a less than adequate product.  That pales into insignificance with this revelation that one of our supposed brothers has seen fit to pass this on to these grubs.  You don't have to be Bill Gates to work out email sent and received – if you know where to look.  The world had water-gate and now we have SCAB-GATE - pitiful!

Keep your head up mate, the persons responsible for this crap will pay dearly. 

yours in safe mining."

82. [82]
    Although the email was addressed only to Mr Smyth, it was apparently copied to others whose names do not appear on it.  At 6.30 pm that day, Keith Shaw, a Union Official in the northern districts of New South Wales, sent the following email in response to Mr Whyte and Mr Smyth (cc'd to others including Mr Betts, Mr Murray and Mr Dalliston):

"Tim,

Delivered with true dignity.  Here, here.

Shawry."

83. [83]
    Mr Vaccaneo gave evidence that he first became aware of the emails while he was on annual leave.  The District Secretary, Mr Valery, was made aware of the email exchange and contacted Mr Vaccaneo by telephone indicating that there was a major problem with some emails sent by Mr Whyte to the National Secretary.  Mr Vaccaneo said he realised that this was "an extremely serious matter" and returned to the office in his capacity as acting District President. 

84. [84]
    Although he was not directly involved in the issue, Mr Valery as Secretary sent an email expressing concerns in relation to the content of some of the emails, asking people to refrain from sending emails of this nature on the email system.   

85. [85]
    Andrew Vickers, who by that time was General Vice President of the Union's Mining and Energy Division, sent an email dated 16 December 2008 (at 8.52 am) to 14 named addressees (including Mr Vaccaneo, Mr Valery, Mr Whyte, Mr Smyth, Mr Dalliston, Mr Murray and Mr Betts).  The email was headed "Email content" and stated:

"All

Can I please request some calm and decorum and propriety and better still, a refrain from communicating widely, if indeed at all, via email or other written form, in relation to ResCo or any other matter that people may feel offended by.

As Qld Secretary Jim Valery has pointed out, again apparently, overnight, emails and letters have a half life second only to Plutonium and can be the subject of "discovery" orders by Courts in legal proceedings.

I also point out, that this union has a set of Rules which binds all of its members AND officers.  I expect all members and officers to abide by those Rules and to process any complaint in accordance with them - not stoop to needless name calling and vilification via email.

I asked everybody to consider the Union first and foremost and conduct themselves accordingly.

Vickers"

86. [86]
    In the meantime, at 7.10 am on 16 December 2008, Mr Murray sent an email to Mr Whyte and Mr Smith (copied to seven others including Mr Betts, Mr Dalliston and Mr Shaw).  The email stated:

"For the information of all I contacted Resco as I have another issue on the boil with them and questioned them as to the validity of their claims that their product has been approved and I stand by what I done.

If we are going to challenge issues such as this then back door tactics are not my go if we are prepared to take on an issue as important as this then let's have the courage of our convictions and attack it head on and in the open.

Peter Murray"

87. [87]
    On 16 December 2008 at 5.27 pm, Mr Whyte sent an email to Mr Murray headed "It Is My Belief":

"P. Murray,

It is my belief that the following applies to yourself – do the right thing and call the dogs off Smythy!

Murray's 30 Pieces of Silver

'Then one of the CFMEU Executive Officials, called Peter Murray, went unto the chief bidders, and said unto them, 'What will ye give me, and I will deliver him unto you?'  And they bought him for 30 pieces of silver."

88. [88]
    According to Mr Whyte, he took it upon himself to write to Mr Murray advising him to back off as mining health and safety was not his area.  The correspondence was sent solely to Mr Murray, who then "copied in just about everyone in the Organisation about what I had sent him in a derogatory form.  Various exchanges took place from there."  (Exhibit 8)

89. [89]
    On 17 December 2008, Mr Whyte sent the following email to Mr Vaccaneo with the "30 pieces of silver" email:

"Stu.

Please find below as requested, obviously the man has a habit of passing mail all around the shop.  My main concerns are:-

1. The Union movement.

2. Smythy's impending legal concerns instigated by the same man.

3. The current National executive being more concerned about the mail than the cause of this whole rot.

Cheers

Goran

yours in safe mining."  (Exhibit 8)

90. [90]
    Mr Vaccaneo said that he was "incredulous" and couldn't believe that Mr Whyte had sent such an email on 16 December (which was "arguably worse" than his email of 15 December) after the email from Mr Vickers.  Mr Vaccaneo said there was no doubt that the Union had to seek its own legal advice about the Union's exposure to a defamation action.  He sought that advice in relation to the email of 15 December from an external legal practitioner, Cate Hartigan, who apparently advised that the Union did have some exposure and that Mr Whyte had personal exposure.^[14]  According to Mr Vaccaneo, the matter was sufficiently serious that they had to involve as many full-time officials in the discussions as possible.  A telephone hook-up of all available officials across the state was organised.  The position of the district executive was that the Union had its legal advice, Mr Whyte had to obtain his own legal advice, and the Union would not pay for his personal legal advice. 

91. [91]
    Mr Valery gave evidence that Mr Whyte's emails contained matters "that we were quite concerned of obviously, seeing as there's a comment to take legal action against the union.  They're things that you have to take quite seriously, so they were definitely things that we were quite concerned about."  He was aware that Mr Murray threatened to take legal action against individuals and the Union, and those threats "further compounded the concern in relation to the whole matter." 

92. [92]
    It fell to Mr Vaccaneo, as the acting District President, to contact Mr Whyte and inform him of the decision of the executive.  After he arrived home that afternoon, Mr Vaccaneo contacted Mr Whyte by telephone and informed him of the decision, including that they would not be providing him with a copy of the legal advice that the Union had received.  Mr Vaccaneo described it as a "strained conversation without being heated", and without either of them resorting to foul language.  According to Mr Vaccaneo, Mr Whyte was not happy and had a "strong reaction".  He was "extremely disappointed" that the Union was "leaving him hanging," and that so close to Christmas it was up to him to find a suitable legal practitioner to give advice.  Mr Whyte was "very bitter" that the Union was not going to pay for that advice.  Furthermore, at that stage, Mr Whyte would not or could not recognise the problems with that email.  Rather, he considered that he was totally justified in sending that email to the District Secretary, Mr Murray.

93. [93]
    In his evidence, Mr Whyte referred to correspondence around Christmas 2008 from Mr Murray's lawyer stating that he would be receiving correspondence for workplace bullying.  Mr Whyte confirmed that he was told of the Board of Management's decision that the Union would not be supporting him on the matter, and strongly advising him to obtain his own legal advice.  (Exhibit 8)  Mr Vaccaneo expressed his concerns about the liability of the Union being sued for Mr Whyte's actions.  Mr Whyte obtained advice, though with difficulty given the time of year, and was upset that he was being dealt with for the email when the real issue was the safety of the ResCo product. 

94. [94]
    Mr Vaccaneo contacted Mr Whyte after the Christmas/New Year shutdown.  Mr Whyte informed him that he had obtained legal advice, but he was still not impressed that he had to pay for that advice and continued to think that the Union was hanging him out to dry. 

95. [95]
    Actions taken as a consequence of the emails: Mr Vaccaneo gave oral evidence that, after the email concerning Mr Murray, he had continuing concerns that people within the CFMEU had sitting on the Union's server "defamatory, insulting, disgusting emails" that had been pointedly directed to a national official.  Mr Vaccaneo was "very concerned" about a number of things, including the active threat of defamation proceedings being taken by Mr Murray, and he considered that the Union had to take steps to ensure that it was not going to be similarly exposed again. 

96. [96]
    As a consequence, Mr Vaccaneo was given authority by the district executive to engage Ms Hartigan to develop a formal training package to demonstrate that they had been trained and understood the material that had been provided to them.  A copy of the PowerPoint presentation, Pitfalls of written communication, made to the CFMEU Board of Management on 3 August 2009, around a board meeting in Rockhampton, is Exhibit 11 in these proceedings.  As far as Mr Vaccaneo was concerned, that training had legally protected the Union from people who had undergone the training but continued to flout the rules or policy.

97. [97]
    The wide-ranging presentation made by Ms Hartigan covered topics relevant to these proceedings and included statements to the effect that:

1. (a)
   written communication includes letters, faxes and emails which can be relied on by the person who sent it and the person who received it;

2. (b)
   parties involved in litigation have a duty to disclose all relevant documents;

3. (c)
   material that is offensive, derogatory or a lawful should not be circulated by email;

4. (d)
   communication should be written in an appropriate tone as if it were going to be read by the recipient(s) and a third person (i.e. a court);

5. (e)
   written communication should avoid matters which lessen the credibility of the writer (e.g. defamatory matters and threats),

and information about the nature of defamation and matters relevant to defamation actions.  The summary at the end of the presentation included:

"Remember your communication may be disclosed in the course of a court proceeding or tendered into evidence - always write as if your communication will one day be viewed in court."

98. [98]
    Content of the emails: Some stages of the hearing could be described as a tutorial in the taxonomy of traducing.  Terms of abuse were identified, and the circumstances when they are used and their intended effect were described.  In relation to Stressor 1, those terms included "low life scab," "grub," "Judas," "Benedict Arnold" and "low life snake."  Other terms were mentioned in relation to other Stressors.  Not all of them are recorded in these reasons for decision.

99. [99]
    In the first email relevant to Stressor 1, perhaps the most familiar of these terms is "scab" which has a long history in the lexicon of Australian vernacular.^[15] 

100. [100]
     In his evidence about the upset he experienced by having a Union official describe the National Secretary as, among other things, a "scab," Mr Vaccaneo said:

"I don't know of any greater attack you could make on a union official, and especially the word scab, you know.  For people who like to throw that word around, there is not a bigger insult and people who throw that word around should have a look at the actual dictionary definition of it."^[16]

101. [101]
     Among the definitions of "scab" in the Macquarie Dictionary are:

"4. someone who continues to work during a strike, takes a striker's place or refuses to join a union, etc.; blackleg … 5.  Colloquial a despicable person, especially one who is disloyal."^[17]

102. [102]
     In cross-examination, Mr Whyte, the author of the email, agreed that calling someone a "scab" is the worst thing you could do to another unionist.  It is defamatory of a person to call them scab and is also highly offensive. 

103. [103]
     It is clear from the evidence that the word "scab" used by one unionist in relation to another as in Mr Whyte's email of 15 December 2008 could only be characterised as being, and intended to be, derogatory and offensive.

104. [104]
     Although not integral to the reasoning or conclusion in this case, I note that in judgments delivered after the hearing of this appeal, the Federal Court of Australia and the High Court of Australia have considered the use of "scab."

105. [105]
     In Fair Work Ombudsman v Maritime Union of Australia,^[18] Siopis J accepted that a poster which described five named persons as "Scabs in Fremantle" carried imputations that the named employees were disloyal, immoral and of a "low life status."  His Honour found that the language of the posters cast aspersions on the honesty, integrity and reputation of each of the named employees and that the words were defamatory.^[19]  Having noted, among other things, the effect of the poster on the persons named in it, his Honour stated that the poster was "particularly obnoxious because in inviting the reader to treat the named employees as devoid of human dignity, it thereby marginalised them and licensed the co-workers to treat them as less than human."^[20]

106. [106]
     In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd,^[21] the High Court heard an appeal concerning the termination of employment of an employee who, in the course of a protest, held and waved a sign which had been supplied by the CFMEU and which read "No principles SCABS No guts." Hayne J wrote:

"There can be no dispute that, as the trial judge found, the sign … was offensive and abusive and that 'the whole point of calling someone a scab was to offend and to belittle them.'."^[22]

107. [107]
     For completeness, I note that each of the other terms ("low-life," "grub," "Judas," "Benedict Arnold" and "thirty pieces of silver") used in the emails of 15 and 16 December 2008 was, and was intended to be, disparaging and contemptuous of the person to whom they referred.  In particular (although it is, perhaps, unnecessary to do so), I find that:

1. (a)
   "low life" refers to "a despicable person; a scumbag" or can be used in relation to such people e.g. a low-life scum,^[23] or low-life scab, low-life snake;

2. (b)
   "grub" has various meanings (e.g. the bulky larva of certain insects, and colloquially a person covered with dirt or poor personal hygiene, or a non-union worker who enjoys benefits provided by the union)^[24] none of which, in the context of the subject email, is complementary;

3. (c)
   Judas (i.e., Judas Iscariot)^[25] was the disciple of Jesus Christ who betrayed Jesus by identifying him to those who took ultimately secured his crucifixion;^[26]

4. (d)
   30 pieces of silver was the sum paid to Judas Iscariot to betray Jesus Christ;^[27]

5. (e)
   Benedict Arnold was a general during the American Revolutionary War who originally fought for the American Continental Army but defected to the British Army. Because of the way he changed sides, his name became a byword in the United States for treason or betrayal.

108. [108]
     In cross-examination in relation to the "30 pieces of silver" email, Mr Smyth agreed that loyalty and solidarity are important to the CFMEU and someone who breaches solidarity has potentially betrayed its values.  Mr Murray was being portrayed as having betrayed those values.  However, Mr Smyth asserted that the 30 pieces of silver email was not offensive, derogatory, ill-advised or improper.  He was not upset by it.

109. [109]
     Mr Whyte agreed that the reference to 30 pieces of silver maintained the Judas theme of the 15 December email, and characterised Mr Murray as a traitor, treacherous, and a "rat in the ranks".  But he was unrepentant for those emails because the safety issue was uppermost in his mind and he was justified in saying such a thing about Mr Murray.  Mr Whyte agreed that the reason for his role as an ISHR was to save lives and prevent injury, and that no stone should be left unturned to prevent fatality or injury.  As he put it, "safety is paramount," and that justifies any measure to prevent a death or injury.  He saw that any support for the ResCo product was a major risk to health and safety and that Mr Murray's support of it, at the highest level of the Union, was an act of betrayal. 

110. [110]
     Mr Whyte was unforgiving of Mr Murray at that time and, on 18 August 2010 (some 20 months after the event and soon after Mr Vaccaneo's decompensation), sent an email with information about Mr Murray to five people within the Union.  The subject of the email was "Super super sewer SCAB!!!!".  When asked about that email, Mr Whyte said that he was happy to circulate it and did not think it was in breach of the training provided by Ms Hartigan.  He said that the email was not offensive to himself and was not derogatory of Mr Murray.  When asked whether he considered the expression "super, super sewer scab" to describe a former senior union official was slanderous, Mr Whyte replied:

"I don't believe so.  Considering the situation that was at the time, and he was trying to push for a product that was going to cause ill health effects and dangerous conditions for coal mine workers."^[28]

111. [111]
     He conceded that were someone to circulate an email in the same terms about him he would probably find it slanderous at the time, "but I'd get over it."

112. [112]
     Effect of Mr Whyte's emails on Mr Vaccaneo: Mr Vaccaneo gave evidence that he was offended by both of Mr Whyte's emails, especially the one that was sent after the email from the national Vice President, Mr Vickers (which Mr Vaccaneo assumed Mr Whyte read).  Mr Vaccaneo said:

"after all that, and the calling for calm, etcetera, etcetera, … I was horrified, mortified, disgusted, angry that within hours of receiving that it's quite obvious that Mr Whyte had ignored it, and was not going to stop, by the look of things."^[29]

113. [113]
     Mr Vaccaneo said that he was incredulous and could not believe that, after Mr Vickers' email, Mr Whyte would ignore the advice of a national official and then send something "probably arguably worse." 

114. [114]
     Mr Dalliston, whose office was next to Mr Vaccaneo's, said that Mr Vaccaneo was "pretty heated" after a discussion with Mr Whyte about his email, saying that Mr Whyte wouldn't listen to anything.  According to Mr Dalliston, Mr Vaccaneo was "pretty angry, because everyone was concerned about what it could do to the union if it … got any further out of hand."

115. [115]
     Mr Vaccaneo said that his other concerns were that:

1. (a)
   despite the verbal assurances he had given, and the warnings or suggestions he had received, Mr Whyte had sent these types of emails on a Union email system and there was a possibility of legal action by one Union official against another - and where that would inevitably "play out," and the attendant publicity, could be nothing but detrimental to the Union as a whole;

2. (b)
   it was possible, and probable, that the email would cause some dysfunction within the organisation as a whole;

3. (c)
   Union resources would be spent in relation to some sort of legal action rather than servicing the membership of the Union; and

4. (d)
   Mr Whyte was leaving himself very exposed to being sued for defamation. 

116. [116]
     Mr Vaccaneo said that after the incident involving Mr Murray, he was concerned that the Union was going to get dragged into a "protracted, very ugly, very public fight" that would expose, in particular, the "totally inappropriate content" of some of the emails on the Union's system, and that would "drag the good name of the union down irreparably."  In his view, it was "painfully, painfully obvious" from Mr Whyte sending these emails and having a "totally unrepentant attitude" towards Mr Vaccaneo, that the Union had a "very, very serious issue."  Mr Vaccaneo expressed his fear that Mr Whyte would continue sending these types of emails and that at some point someone would take legal action against the Union and Mr Whyte. 

117. [117]
     Mr Vaccaneo also suggested that the emails continued to concern him because Mr Whyte had sent out emails previously using the Union's email system and the Union's logo stating exactly the position he held.  Mr Vaccaneo referred specifically to the "very serious incident" involving the email to the then Chief Inspector of Coal Mines, Brian Lyne.  One evening Mr Vaccaneo saw a "very, very active email exchange" taking place between Mr Whyte and Mr Lyne.  Other mines inspectors and people not connected to the Union had also contributed to the exchange.  The thrust of these "quite pointed exchanges" was along the lines that Mr Lyne was not performing his role.  Mr Vaccaneo said that he contacted Mr Whyte and Mr Smyth via email and telephone to ask them to "cease and desist immediately."  He persuaded Mr Whyte to do so, and thought that he had learned his lesson.  Mr Whyte's evidence was that he did not recall such communications. 

118. [118]
     Others’ views: There was evidence that not all those involved in the email exchanges understood or shared, Mr Vaccaneo’s concerns.

119. [119]
     In his written statement, Mr Smyth expressed the view that he could not see how Mr Vaccaneo could have taken offence at the 30 pieces of silver email as it was not addressed to Mr Vaccaneo, there was nothing in the email "that could have caused Stuart grief," and the exchange that followed was not directed at Mr Vaccaneo.  (Exhibit 8)  The email related to a product that was unsafe and being used in mines.  (Exhibit 8)  Mr Smyth's oral evidence was that, at the time, he did not believe the 30 pieces of silver email was offensive.  He was not upset by it in any way and did not find anything improper about sending it.  He acknowledged, however, the potential liability of the Union in respect of the statements about Mr Murray by Mr Whyte because defamation action was threatened.  Mr Smyth knew that Mr Vaccaneo, in his legal role, was tasked with dealing with that issue.  However, Mr Smyth was unhappy with the position taken by the national officials in not supporting Mr Whyte (and him) in relation to the ResCo issue. 

120. [120]
     Mr Whyte stated that he told Mr Vaccaneo that the email was sent directly to Mr Murray and was for his information only.  Although Mr Vaccaneo was arguing about this going on with the Union, Mr Whyte "could not see why Stuart behaved the way he did."  (Exhibit 8)

121. [121]
     There was no direct evidence about the effect of the emails on Mr Murray.

122. [122]
     Mr Valery said that Mr Murray provided an email in which he expressed concern because other people had opened the email addressed to him.  However, Mr Murray did not say to Mr Valery that he was personally offended by the email. 

123. [123]
     In cross-examination, Mr Vaccaneo acknowledged that Mr Murray, in his email of 16 December, did not appear to express umbrage or offence at Mr Whyte's email.  However, Mr Vaccaneo gave evidence that he spoke to Mr Murray that day and Mr Murray said he was seeking legal advice and was considering legal action.  According to Mr Vaccaneo, Mr Murray went on stress leave and did not return to work but reached a mutual separation agreement with the Union.  There was documentary evidence to suggest that Mr Murray retired from the Union in December 2008, and became a consultant (Exhibit 27).  Apparently, he did not bring any proceedings against Mr Whyte or the Union.

124. [124]
     To the extent that it might be thought to counter Mr Vaccaneo’s claim, that evidence merely illustrates that different people respond differently to the same set of circumstances.  That evidence does not contradict Mr Vaccaneo’s reaction to Mr Whyte’s emails.  Indeed it confirms that he did react. Nor does it provide a reason to call into question the impact they had on him.

125. [125]
     Medical evidence: The two psychiatrists gave opinion evidence about this stressor.  In his report, Dr Chalk wrote:

"Essentially Mr Vaccaneo describes ongoing difficulties with one of the CFMEU officials, Tim White (sic), who was an industrial safety health representative, a job that Mr Vaccaneo had previously had.  There seemed to have been issues in regards to emails and the appropriateness or otherwise with how these were dealt.

…  Mr Vaccaneo does not say why the sending of this email particularly impacted upon him.  However, it would appear that this brought him into conflict with Mr White …" (Exhibit 5)

126. [126]
     Dr Chalk described Mr Vaccaneo's symptoms of an adjustment disorder with depressed and anxious mood which appear to have arisen as a consequence of a number of conditions.  However, Dr Chalk was "not persuaded that the defamatory emails of Christmas 2008 were instrumental in the development of condition."  (Exhibit 5)

127. [127]
     When questioned about that conclusion, Dr Chalk said that he had tried to understand why that particular email had more impact than other emails that were defamatory and vituperative.  He was not trying to downplay the impact of the email, but was unpersuaded that at that time Mr Vaccaneo was developing a psychiatric illness.  Dr Chalk said that, in retrospect, "it probably was of some significance" particularly as Mr Vaccaneo viewed things over time.  Dr Chalk thought that Mr Vaccaneo was "clearly very concerned and rightly so about the impact" of the email, and it was the factors and issues that developed over time rather than that specific incident that led to the development of a clear illness.  According to Dr Chalk, Mr Vaccaneo "may have had some symptoms at that time" but he was not persuaded that Mr Vaccaneo had a "clear illness" at that point in time.  However, Dr Chalk said that he would accept that the email incident "may have contributed to the development of his symptoms later on."  Dr Chalk also stated that the gap between the first stressor around Christmas 2008 and the other stressors in 2010 was of no relevance to the opinion he expressed about Mr Vaccaneo's illness.

128. [128]
     Dr Likely did not share the view expressed by Dr Chalk in his report about the impact on Mr Vaccaneo's mental health of the emails before Christmas 2008.  According to Dr Likely, Mr Vaccaneo's mental health had not been affected until just before Christmas 2008 and from that time onwards he suffered some symptoms primarily of anxiety.  The "culmination of circumstances" referred to in Dr Likely's written report began around Christmas 2008, from which time Mr Vaccaneo had "apparently significant symptoms" which were severe enough to cause him distress (including panic attacks) or impairment in one or more aspects of his functioning.  Dr Likely expressly stated that he was not implying that the symptoms were so severe in 2008, but expressed the opinion that they had their onset at that time and progressively deteriorated between then and August 2010, although they may have fluctuated in their severity. 

129. [129]
     Dr Likely understood from what Mr Vaccaneo told him that the defamatory nature of the emails regarding the national Secretary of the Union was distressing to Mr Vaccaneo "from a subjective point of view."  Mr Vaccaneo was sufficiently concerned at that time that he felt obliged to seek legal advice.  Dr Likely expressed the view that Mr Vaccaneo was not affected because he had to seek legal advice, but he sought legal advice because "the symptoms had such an effect upon him … such was the nature of the anxiety." 

130. [130]
     Submissions: The Union's submission observes, in relation to the evidence, that:

1. (a)
   Mr Vaccaneo said that he was concerned about Mr Murray suing for defamation, and spoke with Mr Murray who said he was considering legal action - however Mr Murray retired from the Union in December 2008, did not bring any proceedings, and later went to work for ResCo;

2. (b)
   there was support among the ISHRs for Mr Smyth's opposition on safety grounds to the use of the ResCo product in Queensland mines, and there was a serious safety issue underlying the emails;

3. (c)
   Mr Whyte's position was that he was justified in sending the email to Mr Murray because of the safety issues, and he regarded Mr Murray's support for the ResCo product as an act of betrayal in circumstances where safety was paramount;

4. (d)
   the email sent to Mr Murray at 5.27 pm on 16 December 2008 appears to have been sent only to Mr Murray - it could not have been the subject of defamation proceedings because it was not published to anyone else, and it was not the subject of any legal advice sought by Mr Vaccaneo whose concern seems to have been that it was sent after Mr Vickers' email;

5. (e)
   Dr Chalk was unpersuaded that the emails of Christmas 2008 were instrumental in the development of Mr Vaccaneo's condition, stating that difficulties around that time sensitised Mr Vaccaneo to problems rather than being causative of problems;

6. (f)
   the symptoms Mr Vaccaneo described were not prominent at that time and developed subsequently over a period, and Dr Chalk was not persuaded that Mr Vaccaneo was developing a psychiatric illness at that time - an opinion supported by the evidence of others about Mr Vaccaneo's development of symptoms;

7. (g)
   Dr Chalk's opinion should be preferred to Dr Likely's opinion that Mr Vaccaneo was experiencing panic attacks around Christmas 2008, which opinion is not supported by the evidence.

131. [131]
     Accordingly, the Union submits that Stressor 1 has not been substantiated.  Dr Chalk's evidence should be accepted.  This incident was not causative of any psychiatric condition, and was not instrumental in the development of Mr Vaccaneo's condition.  Mr Vaccaneo's employment, so far as it involved this Stressor, was not a significant contributing factor to his injury. 

132. [132]
     The submission on behalf of Mr Vaccaneo is that, as Mr Vaccaneo's job at the time was to superintend legal issues for the Union, his role in this event was squarely within that job.  He had the responsibility of dealing with the issue arising from Mr Whyte's offending emails.  There was conflict between the two men on the issue.  Mr Whyte was and remains resolute in his lack of repentance.  He did not see a problem with what he had done, whereas Mr Vaccaneo did see a problem with potential legal liability arising as a consequence of the emails.  Mr Vaccaneo's evidence of his concerns about the legal exposure of the Union and the potential for reputational damage is unchallenged.  Defamatory comments about a person of the type contained in the emails exposes the commentator and those on whose behalf it is sent to both litigation and potential general opprobrium should the facts of what occurred be published outside the Union.

133. [133]
     It is also submitted that Mr Vaccaneo's evidence about his two telephone calls with Mr Whyte should be accepted because:

1. (a)
   there was an undoubted divergence of views between two strong willed men;

2. (b)
   Mr Whyte strongly held the view that he was justified in what he did;

3. (c)
   Mr Vaccaneo strongly held the view that Mr Whyte was not justified and had exposed the Union to risk;

4. (d)
   Mr Whyte was annoyed at having to fund his own legal advice; Mr Whyte had antipathy towards the National office, in whose camp Mr Vaccaneo appeared to be;

5. (e)
   in cross-examination Mr Whyte initially said he could not recall either of the conversations;

6. (f)
   Mr Vaccaneo gave clear, consistent and detailed evidence about the conversations.

134. [134]
     Mr Vaccaneo's continuing concerns about the next eruption of such an email attack from Mr Whyte can be explained by reference to the material produced by Mr Whyte in December 2008, including after the instruction from Mr Vickers.  That is reinforced by the previous event involving a personal attack on the then Chief Inspector of Coal Mines, Mr Lyne.

135. [135]
     Mr Vaccaneo had a continuing fear that Mr Whyte would continue sending inflammatory emails resulting in legal action against the Union and Mr Whyte.  It was obvious that the Union had a very serious issue because Mr Whyte was unrepentant.  Tested objectively, Mr Vaccanoe's concerns were well grounded and not idiosyncratic.  He was not alone in his concern, as Mr Murray's threats of legal action compounded concerns within the Union.

136. [136]
     Both doctors attributed a role, to varying degrees, to this factor. 

137. [137]
     Further, Mr Vaccaneo submits, to the extent that the Union challenges the reasonableness of his concerns, that challenge is misplaced in the context of the relevant legislative test.

138. [138]
     On that point, the Regulator submits that the Union has attempted to introduce a "reasonable person" test by submitting that Mr Vaccaneo had no basis for his concerns and the contributor to his injury is his subjective belief about events rather than the actual events associated with his employment.  In reply, the Regulator submits that such a test has long been abandoned in Queensland workers' compensation legislation to escape liability.  He notes that when the WorkCover Queensland Act 1996 was introduced, it included a provision that a psychiatric or psychological injury did not include such an injury arising out of, or in the course of, circumstances in which a reasonable person, in the same employment as the worker, would not have been expected to sustain the injury.  That provision was removed by amendments introduced to that Act in 1999 because the provision was difficult to interpret and apply.

139. [139]
     The Regulator quotes the statements of President Hall in Sheridan v Q-COMP^[30] and Q-COMP v Rowe^[31] to the effect that (apart from s 32(5) of the WCR Act) a psychological injury arising out of interaction between a worker's personality and the work environment would be compensable.  So long as the events within the workplace are real rather than imaginary, it does not matter that they impact upon the claimant's psyche because of a flawed perception of events attributable to a disordered mind. 

140. [140]
     The Regulator submits that the circumstances giving rise to Mr Vaccaneo's injury are real, and it does not matter how Mr Vaccaneo's personality may have played in his reaction to the events.  Because of his employment, Mr Vaccaneo was exposed to the events which caused his injury.  Irrespective of whatever view individual witnesses may have about such things as the nature of the correspondence and the actions of the Union, there is no fiction and Mr Vaccaneo's claim is one for acceptance.

141. [141]
     The submission also notes that this incident marked the beginning of the conflict between Mr Vaccaneo and Mr Whyte and, it seems, the beginning of a broader factional rift within the Union.

142. [142]
     Consideration and conclusion: Because the evidence and submissions have been set out in some detail, I can record my conclusions relatively briefly. I find that the emails sent by Mr Whyte on 15 and 16 December 2008 contained offensive material and were intended to severely criticise Mr Murray.  They were probably defamatory of him.  In his role as acting District President and the Union official with oversight of the Union’s legal department, Mr Vaccaneo had a range of concerns and felt various emotions (such as incredulity, horror, disgust and anger) in relation to the emails.  He was concerned, and had reason to be concerned, that the emails posed potential risks for the Union and for Mr Whyte.  Based on Mr Whyte’s unrepentant attitude about the two emails, the fact that Mr Whyte had sent the second email after Mr Vickers’ (and Mr Valery’s) emails urging caution and restraint, and Mr Whyte’s history of problematic email exchanges, Mr Vaccaneo had reason to feel seriously concerned about the potential implications of those emails and the possibility of similar emails being sent in the future.

143. [143]
     I accept the effect of the medical evidence taken as a whole that, at the very least, these emails were of some significance to Mr Vaccaneo's ultimate injury.  They were factors that did not of themselves cause the illness, but contributed to some extent to the development of his psychiatric symptoms. Accordingly, I find that the emails sent by Mr Whyte on 15 and 16 December 2008 contributed to Mr Vaccaneo’s injury. 

144. [144]
     The emails were work-related, and the events in relation to them took place in the course of Mr Vaccaneo's employment.  His employment was a significant contributing factor to the development of the symptoms.

Stressor 2

145. [145]
     The stressor: This stressor relates to a phone call from the District Secretary to Mr Vaccaneo in January 2010 in relation to the Goonyella Riverside Mine, which involved a               CFMEU delegate advising Union members to refuse to undertake a pre-shift assessment of the workers' fitness, and workers being stood down in circumstances where the Union members blamed the CFMEU for causing the situation.

146. [146]
     The evidence: In essence the dispute was about when workers at the Goonyella Riverside Mine would test themselves for fitness for each shift using the hand-eye co-ordination test on an OSPAT machine.  The test takes about two minutes to complete.  The Union took the view that the testing should occur once the shift had commenced but before the commencement of work (as had previously been the case under the 2003 Fitness For Work procedure), and the mining company took the view that the testing should occur before each shift commenced. 

147. [147]
     The dispute was apparently prompted by changes to the Fitness For Work document in 2009.  Mr Smyth gave evidence that, although the workers had voted against the change to the Fitness For Work document in relation to the timing of OSPAT tests, that change had been approved by the Inspector with authority to do so.

148. [148]
     On four occasions on Tuesday, 26 January 2010, Mr Smyth spoke with Site Senior Executive Steve Rae about the issue at the mine site.  Mr Smyth had received calls from members about stand downs and dockings.  His notes record that he discussed with Mr Rae the changed wording of the Fitness For Work procedure, what was happening at the site (including the stands down of about 20 workers, apparently for not following a lawful direction, without written notice or reasons being given), an issue about sign on/sign off sheets, the relevant process for dealing with the stand down issue, and the options which the Union might consider including escalating the matter (Exhibit 10). 

149. [149]
     Mr Smyth's oral evidence was to the effect that practice varied among workers about when they would undertake the OSPAT testing.  There would be about 60 men on a crew and, on this day, about 20 decided to undertake the test after the shift had commenced but before working.  That was their decision, and the company took exception to it.

150. [150]
     Mr Smyth's typewritten notes of his conversations with Mr Rae include:

"SR- believes that the workers have refused to follow the SHMS & refused to follow their obligations.  He also mentioned that someone in the state is giving direction & advice on this matter.  He asked was it me.  I didn't answer him."  (Exhibit 10)

When cross-examined in relation to that passage, Mr Smyth agreed that Mr Rae was alleging that he was giving directions to the workers in this action and that he did not answer Mr Rae although it would have been simple to deny it.  His position was that he gave advice to the workers in relation to the matter and that the employees made a decision, either collectively or individually, to undertake the OSPAT test in accordance with the 2003 Fitness For Work document.  The individuals "were well aware of the advice given and the potential consequence" and that he "supported them on the advice given."  However, Mr Smyth did not agree that he was behind the decision to take action at the Goonyella Riverside Mine.

151. [151]
     On 26 January 2010, Freehills, the solicitors for BHP Coal Pty Ltd ("BHP") wrote to Mr Smyth (as Queensland District President) and to the National Secretary of the Union about what was described as unprotected industrial action at the Goonyella Riverside Mine.  The solicitors stated that they were instructed that:

1. (a)
   employees at the Goonyella Riverside Mine customarily perform an OSPAT test before the commencement of each shift; and

2. (b)
   "at the direction of the CFMEU" industrial action was occurring at the mine in the form of refusal by employees there to continue the customary performance of an OSPAT test before commencement of shift.

152. [152]
     The letter was sent by fax and was attached to an email at about 6.00 pm.  It required that, by 9.30 am on 27 January 2010, the CFMEU would provide immediate written withdrawal of the "directive/instruction to refuse to perform an OSPAT test before the commencement of each shift" and an undertaking that the CFMEU would immediately communicate the withdrawal of the "directive/instruction to refuse to perform an OSPAT test before the commencement of each shift" to mine workers at Goonyella Riverside Mine who are members or eligible to be members of the CFMEU (Exhibit 8).

153. [153]
     Within a few minutes of receiving it, Mr Smyth forwarded the email from Freehills to Jennifer Hobson and Amanda Threlfall in the Union's legal department, and copied it to Mr Vaccaneo and Mr Valery (Exhibit 8).

154. [154]
     At 10.35 pm that day, Mr Smyth sent a further email to the same addressees and two others providing an update.  He stated, among other things, that BHP had stood down 20 Union members without pay and would not provide written reasons why it had done so.  (Exhibit 8)

155. [155]
     Mr Vaccaneo gave evidence that on the morning of 27 January 2010 he was informed that employees had been stood down over the OSPAT testing issue.  Disciplinary action had been taken against them.  Before travelling to the Moranbah union office to interview the members, Mr Vaccaneo spoke to Mr Smyth who said that he had given the Lodge advice but had not directed them to take any action.

156. [156]
     Mr Smyth's statement is reflected in correspondence signed by him that day.  In a letter to Freehills that morning (apparently drafted by a member of the Union's in-house legal team), Mr Smyth referred to the solicitors' letter dated 26 January which raised issues in relation to the practice and procedures adopted in relation to the OSPAT test.  Mr Smyth's letter included the following paragraph:

"Your correspondence of 26 January 2010 suggests that the union is in a position to issue directives to our members.  We wish to make clear that the union is not in a position to issue directives to our members.  The union does, however, make recommendations and gives advice to its members."  (Exhibit 21)

157. [157]
     In another letter later that day to Freehills (also apparently drafted by a member of the Union's in-house legal team), Mr Smyth responded to a letter from the solicitors dated 27 January 2010 regarding Goonyella Riverside Mine.  He wrote, among other things:

"We confirm that at no stage has the CFMEU directed members to engage in unprotected industrial action."  (Exhibit 22)

Mr Vaccaneo gave evidence that these letters were before his trip to Moranbah on 27 January 2010.

158. [158]
     Also on 27 January 2010, a letter about the alleged unprotected action at Goonyella Riverside was addressed to Fellow Members and was signed by Mr Valery, Mr Smyth and Mr Vaccaneo.  The letter referred to "a number of issues that have been affecting members" and advised that Union would "look to resolving those issues with the company on behalf of our members."  It concluded:

"In the meantime, we would recommend that members:

• Do not engage in unprotected industrial action in relation to this matter; and

• Undertake the OSPAT test prior to commencement of shift."  (Exhibit 24)

159. [159]
     Mr Vaccaneo went to Moranbah with Ms Hobson to meet with the Union members.  According to Mr Vaccaneo, when he interviewed them most of the members said they were acting under the "blessing … guidance and advice of the Union."  Mr Vaccaneo spoke with Ian Mitchell, the acting chief delegate, who had followed Mr Smyth's advice but was concerned that Mr Smyth not get into trouble.  Apparently a Mr Ogden confirmed what had been said by Mr Smyth.  In light of this, Mr Vaccaneo said that he felt "Lied to, betrayed" by Mr Smyth and that the Union was "between a rock and a very hard place."  BHP had alleged that there was an unprotected industrial action, and Mr Vaccaneo thought that it was "quite obvious" that the local delegates and a number of rank and file members were going to say that they were acting under the instructions of the Union.  In particular, he anticipated that Mr Mitchell would say that he was acting under the instructions of Mr Smyth.   

160. [160]
     Mr Smyth gave evidence that he did not recall Mr Vaccaneo telling him that he was getting information that Mr Smyth was directing industrial action.  Rather, Mr Smyth recalled a discussion with Ms Hobson to the effect that in the statements she had taken there were some differing views.  Although he did not recall the message that employees were under the impression that their action had his full support, Mr Smyth said that he provided advice to assist the employees and he supported what they did on that advice.  He continued: "But as to say directing industrial action… I don't for one minute believe it's industrial action."

161. [161]
     It appears that Mr Whyte had no direct involvement in this dispute as it was an industrial dispute.  However, in his written statement, Mr Whyte referred to a Union delegate advising members to ignore meeting the fitness requirements prior to work without being paid for it.  He was not aware of who the Union delegate was that gave that advice.  (Exhibit 8)

162. [162]
     Mr Valery was not directly involved in this industrial matter.  Although he was aware of concerns raised by Mr Vaccaneo and Ms Hodson about the possible involvement of the District President "from an early stage," Mr Valery was unable to say anything about Mr Smyth's actual involvement.

163. [163]
     In addition to his concerns about whether members thought they were acting under directions from the Union, Mr Vaccaneo was concerned about possible disciplinary consequences for the members of their actions.  The BHP Coal Pty Ltd Workplace Agreement 2007 ("the Workplace Agreement") (Exhibit 8) includes a four step disciplinary process to be applied in instances other than serious misconduct.  Steps 1 to 3 to provide for different levels of counselling and warning, and step 4 provides for disciplinary action to be taken.  Where an employee receives a warning under step 1, 2 or 3 but receives no further warning under one of those steps for a period of 12 months, the severity of the warning reverts to the previous step, if any, in the disciplinary process.  When no further warnings are issued in the proceeding 12 months, then any remaining warnings under Steps 1 or 2 will be removed.  Consequently, employees had an increased risk of dismissal by being on a step for 12 months.

164. [164]
     Mr Vaccaneo was concerned that more than 20 members were on step 2 or step 3 of the disciplinary procedures.  If they were on step 3, they could be sacked for a further mistake.  As he put it:

"A number of these people had never been in trouble at the mine site before, at all.  They had followed what they thought was proper advice and from the Union and now found themselves in a position where their continuing employment was threatened through following what they believed was a proper direction of the Union."^[32]

165. [165]
     Mr Valery recalled that both Mr Vaccaneo and Ms Hodson were "very concerned" about the issue, particularly as about 30 people were facing disciplinary actions.  He was sure that they had "various levels of stress."  Mr Valery recalled discussions in which Mr Vaccaneo was involved about the potential implications for the Union of this matter. 

166. [166]
     Mr Dalliston recalled Mr Vaccaneo expressing concern that if the Union had been seen to have told people to take industrial action, the Union could be exposed to some comeback from a company.  He also recalled that Mr Vaccaneo's main concern was that a lot of people had worked there for a long time and should not have to take the blame (in particular, being put on discipline steps) if they had been told to take certain actions.  Mr Vaccaneo was concerned that some of those people could potentially lose their jobs if the dispute kept going. 

167. [167]
     Mr Vaccaneo said that he reported to the executive committee on at least two occasions about the matter and received approval to obtain legal advice.  He also suggested that there were two ways to deal with the situation, namely:

1. (a)
   the "easy way", which involved "a bit of honesty" by admitting that, perhaps through mistakes, it was the Union's fault that this had happened rather than the fault of the individuals; or

2. (b)
   the "hard way", which was to continue with the dispute following the appropriate procedures in the relevant forum.

168. [168]
     In his opinion, the Union would have been "miles better off" by adopting the former approach - potentially "wearing" a fine involved in a finding of unprotected industrial action, and hence getting the members off the steps that they should not have been on.  Time was a major factor with that approach, being faster than the other approach.  However, in Mr Vaccaneo's words, the majority approach was to "protect the interests of the Union by denying unprotected industrial action had taken place rather than look after the interests of the members." 

169. [169]
     Mr Smyth said he could not recall the "easy way" being put to the executive, but it could have been a suggestion.  Various people had various views on the matter.  He agreed, however, that had that course been followed it would have taken the heat off the employees and they would not have had to go through the long process that occurred. 

170. [170]
     Mr Vaccaneo described his feelings in response to that decision, and the reasons for those feelings in the following terms.  He was in "great conflict … torn and conflicted."  He felt that he was lying.  The reasons he experienced those feelings were that:

1. (a)
   he had to follow a course of action that would leave the members "hanging in the breeze" for at least a year, possibly two years, while the dispute was fought out in the legal system, and it would not address the day-to-day problems that the members faced;

2. (b)
   he believed that "being upfront is the best method to resolve issues"; and

3. (c)
   "You do not expose other people to danger," yet the members had been exposed to danger and they (not the Union) were paying the penalty. 

171. [171]
     Mr Vaccaneo said that he felt "continual disappointment" towards Mr Smyth both because he would not make a confession about what went on, despite the evidence gathered from the people who had disciplinary action taken against them, and because the interests of the Union were more important than the interests of the members who had been exposed to this. 

172. [172]
     In cross-examination, however, Mr Vaccaneo expressed uncertainty as to how the Union could direct members about such things as when to do the OSPAT test, especially as each mine was legislatively required to have a Safety and Health Management System.  It is also standard practice for workers to arrive ready to work.  He said that it would be "very dangerous" for the CFMEU to direct its members to engage in the alleged action.

173. [173]
     On 28 January 2010, Mr Smyth wrote to BHP's solicitors in response to their correspondence of that date.  That letter was apparently sent by email at about 3.23 pm. Mr Smyth confirmed that "at no stage have our members refused to participate in the Ospat test" and advised that all members who were stood down on the night shift of 27 January 2010 arrived at work ready, willing and able to commence their shift.  He continued:

"We note that it was agreed that the application for orders to stop industrial action would be withdrawn this morning in the event that all members, who were stood down, undertook the Ospat test prior to the commencement of their night shift on 27 January 2010.  We confirm that our members, who were subsequently stood down, willingly participated in the Ospat test prior to the commencement of their shift on 27 January 2010 as agreed between the parties to resolve the matter."  (Exhibit 32)

174. [174]
     Mr Smyth also advised that the Union's members who were stood down complied with a direction to attend meetings with Mark Townsend after the commencement of their shift.  They were not advised of the purpose nature of the meeting.  At the meeting, the members stated that they intended to cooperate fully and to answer all questions in relation to the investigation, but requested that they first be provided with the terms of reference of the investigation together with a copy of any questions to be put to them.  That request was rejected.  Mr Smyth requested, among other things:

1. (a)
   a copy of the questions that Union's members were required to answer;

2. (b)
   the purpose of the investigation, including whether it is under the CMSH Act or the disciplinary procedure; and

3. (c)
   confirmation of the withdrawal of the application for orders to stop industrial action.  (Exhibit 32)

175. [175]
     On 28 January 2010, the solicitors for BHP replied by letter and stated, among other things that:

1. (a)
   it was not alleged that employees refused to participate in the OSPAT test on the night shift of 27 January 2010;

2. (b)
   BHP would confirm the reasons for stand down with its individual employees;

3. (c)
   employees were advised of the purpose or nature of the meetings and were afforded employee representation;

4. (d)
   ongoing site level processes would continue (and employees would be afforded the opportunity to have an employee representative present if an employee so requested); and

5. (e)
   the application for orders to stop industrial action filed on 27 January 2010 had been withdrawn.  (Exhibit 33)

BHP brought no other proceedings in relation to those events.  However, the site level grievance procedures continued and Mr Vaccaneo referred to "an active dispute onsite" with proceedings commenced by the Union on behalf of its members. 

176. [176]
     On 1 February 2010, the Union wrote to the Department Manager of the BMA^[33] Riverside Mine formally disputing the stand down of approximately 18 employees on 26 January 2010 and nine employees on 27 January 2010 (Exhibit 34).  The Union stated its belief that the stand down was in breach of the Workplace Agreement.  Having set out the basis for that belief, the latter advised that if a response was not received as a matter of urgency, the Union would automatically escalate the dispute in accordance with clause 31 of that Agreement.

177. [177]
     It appears that Mr Vaccaneo had carriage of the matter, moving it through the dispute resolution process.  He was assisted by others including Ms Hobson, from the Union's legal department.  Mr Vaccaneo returned to the Goonyella Riverside Mine site to conduct interviews as part of a grievance/dispute resolution process under the Workplace Agreement.  He called a halt to the interviews after the second one and put to the representatives of the mining company that they would be satisfied that the relevant clause had been complied with, and the Union would be looking to the next step.  In his oral evidence, Mr Vaccaneo explained that the Union had carefully selected the first two witnesses.  The first handled himself very well and the second "not so well", and Mr Vaccaneo thought it was "quite obvious" that the company would be provided with information if these were the best two witnesses the Union could provide.  Anything further "was only going to be very detrimental to our case, such as it was", so the Union elevated it to the next level in the dispute resolution procedure.  The matter of the stand downs remained unresolved as at August 2011 when Mr Vaccaneo ceased employment at the Union. 

178. [178]
     Having visited the mine site with Ms Hobson and interviewed members affected by the dispute, Mr Vaccaneo sent an email to Mr Smyth on 14 February 2010 setting out some procedural options, including going to Fair Work Australia. 

179. [179]
     The email commenced: "Jennifer may provide a more detailed answer, and again given issues with emails I will be brief."  (Exhibit 38)  Mr Vaccaneo explained that he kept the contents brief as he was aware that such a document could be subject to a discovery or disclosure process.  He was concerned about Mr Smyth's involvement and was particularly concerned not to disclose the contents of interviews he had conducted with individuals, some of whom indicated that they knew Mr Smyth by name.  A number of them also said they had been told that "the union was fully behind this and to do this." 

180. [180]
     The email concluded: "I agree that the most important issue is to get the membership off the disciplinary steps they are currently on.  How we do that will be guided by our legal advice based on what information is at hand."  (Exhibit 38) 

181. [181]
     There was subsequent correspondence between the company and the Union in relation to the disputes settlement procedure set out in clause 31 of the Workplace Agreement (extracted in Exhibit 8).  Although only part of that correspondence is in evidence (see Exhibits 35, 36, 37), it seems clear that there was an issue about whether the disputes settlement procedure could be invoked only by individual employees.  Mr Vaccaneo acknowledged that was an issue.  The company asserted that its actions were taken in relation to individual employees on a case-by-case basis and that it could only meaningfully consider and respond to a grievance about those actions for employees who raised the grievance in the context of their individual circumstances.  Mr Vaccaneo wrote two letters to different representatives of the company on 15 March 2010.  The first took issue with the company's interpretation of the Agreement that it required an individual employee to invoke the disputes settlement procedure (Exhibit 36).  The second comprised a formal request for an urgent State level meeting in relation to the dispute (Exhibit 37).

182. [182]
     In his oral evidence, Mr Vaccaneo expressed his concerns that the first stages of the disputes settlement procedure might not have been taken in the early days of the dispute and that failure to comply with the initial steps at the outset might have impeded its resolution. 

183. [183]
     When pressed about what he felt about the strength of the case that would be advanced by the Union on behalf of the stood down employees in relation to their dispute, Mr Vaccaneo said that:

1. (a)
   there were very strong arguments that people should not have been progressed up the steps the way they were; and

2. (b)
   some people had been prevented from getting to their homes; but

3. (c)
   there were some dangers, or at least issues, in relation to what evidence 17 individual witnesses might give under oath (particularly given their ages and range of educational backgrounds) including that they were acting under the instructions of Mr Smyth in relation to when they should take the OSPAT test. 

184. [184]
     Effect of events on Mr Vaccaneo: The effect on Mr Vaccaneo of the way in which the Union dealt with the Goonyella Riverside Mine issue is set out above.  In summary:

1. (a)
   having spoken to affected Union members at the mine site, Mr Vaccaneo felt lied to and betrayed by Mr Smyth about the role of the Union in what the members had been told as to when OSPAT tests should be done, and he felt continual disappointment towards Mr Smyth because he would not make a confession about what went on and because he considered the interests of the Union or more important than the interests of the members who had been exposed to this situation;

2. (b)
   Mr Vaccaneo was concerned about the implications for the Union if there was an unprotected industrial action and members said that they were acting under the instructions of the Union, or Mr Smyth;

3. (c)
   after the executive committee decided to continue with the dispute, Mr Vaccaneo felt in great conflict, torn and conflicted because he had to follow a course of action that, in his view, would leave the members "hanging in the breeze" for one or possibly two years while the dispute was fought out in the legal system;

4. (d)
   Mr Vaccaneo was also concerned because he felt that he was lying to members in relation to these matters.

185. [185]
     Those feelings and concerns continued to affect Mr Vaccaneo in the months following the events of late January and February 2010.

186. [186]
     Mr Vaccaneo gave oral evidence about a barbecue held at Moranbah one evening in August in conjunction with a Board of Management meeting.  The barbecue was organised by local lodges mostly for the visiting officials and anyone from the Board was invited to attend.  Mr Vaccaneo was aware that quite a number of the Goonyella Riverside Mine rank-and-file members would be there including the 20 or more who were on step 2 or step 3 of the disciplinary procedures.  He was informed during the day that the men were expecting a report about where the Union had got in progressing their dispute.  Mr Vaccaneo said that he went to the barbecue relatively late:

"I was in a real spin at this time because I just didn't know what I was going to tell these blokes.  I couldn't tell them the truth, and I just honestly didn't know what I was going to tell them, and when it became quite obvious that it was getting around about that time of the day, I just couldn't do it and I very quickly made my excuses and left the barbecue.

…

I just couldn't work out what I was going to tell them.  I could not work out how I was going to tell them anything that wasn't going to be a lie and I just could not do that.  In hindsight, by this stage I was in a lot worse condition than what I had recognised that time and it's been with the help of my psychologist that I've been able to look back on this time and come to  - try and come to terms of what I was going through."^[34] 

187. [187]
     Others' views: Mr Whyte noted that the 20 Union members involved in the dispute were not sacked and continue to work at the mine.  He had "no idea why Stuart would have been affected by this."  (Exhibit 8 para 32)

188. [188]
     In a written statement provided to a firm acting as investigators on behalf of WorkCover at an earlier stage in these proceedings, Mr Smyth was highly critical of Mr Vaccaneo's behaviour in relation to the Goonyella Riverside Mine issue, stating that Mr Vaccaneo "imposed himself" on the issue and for three months "did nothing to sort the matter out," and did not handle it appropriately.  Mr Smyth became involved and told Mr Vaccaneo "he had to do something about it." (Exhibit 8) 

189. [189]
     According to Mr Smyth's written statement, Mr Vaccaneo attended a meeting involving members of the mine and was abused by the members, who did not want to see him back there again.  In his opinion:

"Being blamed by members for action taken or not taken is part of being a Union official.  It is the responsibility that goes with the position.  As a member of the Executive you are accountable on behalf of the Union to the members.  And this is entirely appropriate. …

Stuart put himself in charge of the Legal Department, self-appointed, and when things started going bad he couldn't handle it."  (Exhibit 8)

190. [190]
     Mr Smyth stated that he had known Mr Vaccaneo since Mr Smyth was 13 years of age, and knows him very well.  According to Mr Smyth, Mr Vaccaneo "doesn't handle confrontation very well, which is why he would have struggled with the Goonyella incidents when the members were very vocal about how that matter was handled."  Mr Smyth said that he was aware that Mr Vaccaneo had trouble dealing with members at meetings.  But, as Mr Smyth put it, Mr Vaccaneo was elected to the office of Vice President, this was the role he chose to run for and with that office comes the responsibility and obligations to the members and the organisation.  (Exhibit 8)

191. [191]
     The evidence critical of Mr Vaccaneo does not suggest that his concerns were imaginary.  Rather, it confirms that he held those concerns and was affected by the events, including confrontation about how the matter was handled.  The fact that Union members provided witness statements in the subsequent hearing before Fair Work Australia^[35] does not detract from Mr Vaccaneo's genuinely held concerns in late January and February 2010 about what those members might have said at that time in relation to the involvement of the Union in the dispute about OSPAT testing.

192. [192]
     Medical evidence:  The evidence of the psychiatrists in relation to the stressor can be summarised briefly.  Dr Chalk said that Mr Vaccaneo explained that this incident was one where he felt that the actions of another member were placing the union at some peril.  Mr Vaccaneo, in his position as Executive Vice President, "felt a clearly overriding responsibility towards the union." 

193. [193]
     In his written report, Dr Likely records Mr Vaccaneo telling him that a CFMEU delegate advised the workers to wait for the commencement of their shift prior to performing the test and that the workers who complied with this advice were stood down by BHP (Exhibit 6).  Dr Likely recalled Mr Vaccaneo's concerns about the incident, including that workers were being stood down which, Dr Likely said, "led him to feel that he had failed" because he had been unsuccessful in preventing that occurring.  He added that if there was a difference of views between Mr Vaccaneo and Mr Smyth about the dispute, such dissent would have served to exacerbate Mr Vaccaneo's condition.  Dr Likely also said that because the subsequent court case occurred after Mr Vaccaneo had vacated his position on stress leave, that case was not instrumental in the deterioration of Mr Vaccaneo's symptoms. 

194. [194]
     Submissions: The Union submits that:

1. (a)
   having regard to the oral evidence and letters signed by Mr Smyth alone or with others on 27 January 2010, there is no basis for concluding that Mr Vaccaneo was lied to by Mr Smyth and no basis for Mr Vaccaneo to have concluded that he was thereby betrayed;

2. (b)
   the evidence (including a subsequent decision of Fair Work Australia) points to the stood down workers having acted on their own initiative, rather than being directed by Mr Smyth or anyone else, and the basis for Mr Vaccaneo's belief that Mr Smyth lied to him (i.e., Mr Vaccaneo's interpretation of what the workers had told him) was unfounded;

3. (c)
   although Mr Vaccaneo's concern was that the Union was implicated in the unprotected industrial action because Mr Smyth had encouraged or directed workers to do the OSPAT test after the commencement of the shift, that was not a concern after 28 January 2010 when BMA withdrew its application to stop industrial action;

4. (d)
   thereafter, the priority was getting workers off the disciplinary steps and, although Mr Vaccaneo perceived there to be an easy way and a hard way to do that:

1. the easy way was a way forward if BMA was pursuing proceedings for taking unprotected industrial action, but it was not pursuing such proceedings; and

2. the hard way (to pursue the stand downs through the dispute procedures under the Workplace Agreement, either before Fair Work Australia or the Federal Court) was the only way forward in reality (and proceedings were commenced in Fair Work Australia after Mr Vaccaneo had left work in August 2010), and was only hard in the sense that it had timing implications;

5. (e)
   hence it is difficult to understand Mr Vaccaneo's evidence about the approach of a majority of the Union executive being to protect the interests of the Union by denying unprotected industrial action had taken place rather than looking after the interests of its members;

6. (f)
   what Dr Likely understood to be instrumental for this Stressor was that Mr Vaccaneo was unsuccessful in preventing workers from being stood down which led Mr Vaccaneo to feel that he had failed. 

195. [195]
     Accordingly, the Union submits, Stressor 2 has not been substantiated.  There is uncertainty about how this factor affected Mr Vaccaneo.  Neither Dr Likely nor Dr Chalk has considered, in expressing their opinion, what Mr Vaccaneo says is the effect on him of being lied to and feeling betrayed by Mr Smyth.

196. [196]
     The submission on behalf of Mr Vaccaneo is that, as part of his job and within his ordinary duties, he was in charge of the issue for the Union.  When 20 or so employees were stood down and incurred a disciplinary penalty because they changed their work practices in relation to an OSPAT fitness for work test, the Union responded by placing the disciplinary penalties into the dispute resolution framework under the Workplace Agreement.  Mr Vaccaneo's role included conducting interviews of members, representing members at site meetings and coordinating the legal advice and representation of members.  The dispute resolution process was extant at the date he left work.

197. [197]
     Mr Vaccaneo learned from interviews with participants in the action, including Mr Mitchell and Mr Ogden, that they were acting under the blessing and with the guidance and advice of the Union, specifically Mr Smyth.  This was despite Mr Smyth advising Mr Vaccaneo before he left for Moranbah for the interviews that he had given advice to the Lodge but had not directed them to take any action.  This exposed the Union on account of unprotected industrial action.

198. [198]
     It was submitted that Mr Smyth was evasive about his role in the action, and that his evidence had a symmetry to his self-recorded responses to the Site Senior Executive Mr Rae (when, rather than give a denial, Mr Smyth did not answer).  Nonetheless, Mr Smyth admitted to providing "advice" to the employees about when they should undertake the OSPAT test.  In the context of Mr Smyth's answers, Mr Vaccaneo submits that his use of "advice" is simply an exercise in semantics.  There was enough evidence to found a reasonable suspicion that Mr Smyth did direct or counsel members in the action they had taken.

199. [199]
     Mr Vaccaneo felt lied to and betrayed by Mr Smyth, and he felt bad because he was lying and complicit in a course of action that was going to leave the members "hanging in the breeze."  He felt torn and conflicted, having exposed other people to danger, and he had increased stress levels as a result.  In his submission, it is difficult to imagine any reasonable Union official, concerned for the welfare of members, not to be concerned and worried about members' increased exposure to termination of employment.

200. [200]
     Mr Vaccaneo recommended that the members would be best protected by an admission of Mr Smyth's role and accepting the consequences for the Union.

201. [201]
     The submission notes that the dispute resolution process continued up to Mr Vaccaneo's last day at work in August 2010.  As evidence of his concern about the fate of those members (who had been placed on steps under the disciplinary process, some with the risk of dismissal), he gave unchallenged evidence about why he abandoned any idea of speaking to the workers at a barbecue at Moranbah in August.  He was upset about the matter in a conversation with Mr Dalliston on the day before his last day at work. 

202. [202]
     In his submission, the Commission should find that Mr Vaccaneo developed symptoms in the course of carrying out his duties for members at Goonyella Riverside and arising from carrying out those duties, and that those symptoms continued through to the date he stopped working in August 2010.

203. [203]
     Consideration and conclusion: Again because the evidence and submissions have been set out in some detail above, I can record my conclusions reasonably briefly.

204. [204]
     There is sufficient evidence to support a finding that:

1. (a)
   Mr Vaccaneo experienced a sense of betrayal and having been lied to by a senior Union official about the Union's role in relation to some members' actions, and held serious concerns in relation to the members affected by the stand down and to the Union;

2. (b)
   his feelings and concerns were not imaginary but were based on what he had been told by Union members at the mine site about the role of the Union (and in particular Mr Smyth) which did not accord with what he understood the Union's role had been, as explained to him by Mr Smyth;

3. (c)
   Mr Smyth had given "advice" to Union members about when they might undergo OSPAT testing and, although he might not have described that as a direction (and the Union was not in a position to give such a direction), he clearly indicated that he supported members who followed that advice;

4. (d)
   Mr Vaccaneo's feelings and concerns were compounded by subsequent events, including the decision by a majority of the executive to take proceedings under the Workplace Agreement, which continued for the remainder of his time at the CFMEU (and culminated in a hearing before Fair Work Australia after he left the employ of the Union).

205. [205]
     There is some, albeit limited, medical evidence to the effect that:

1. (a)
   Mr Vaccaneo expressed his concern to Dr Likely that the actions of another member (i.e. Mr Smyth) were placing the Union at some peril;

2. (b)
   a difference of views between Mr Vaccaneo and Mr Smyth about the dispute would have served to exacerbate Mr Vaccaneo's condition;

3. (c)
   this Stressor is one of what Dr Chalk described as "a number of difficulties" that led to Mr Vaccaneo to develop psychiatric symptoms.

206. [206]
     Accordingly, I find that the feelings experienced and concerns held by Mr Vaccaneo as a result of the Stressor 2 events contributed to some extent to his psychiatric symptoms, and arose in the course of his employment, and that his employment was a significant contributing factor to the development of those symptoms.                                  

Stressor 3

207. [207]
     The stressor: This stressor relates to the occasion in February 2010 when Mr Whyte advised he was going to shut down BHP, and the potentially disastrous consequences that the CFMEU faced.

208. [208]
     The evidence: The statutory context: The actions were taken by Mr Whyte as an ISHR under s 167 of the CMSH Act.  That Act provides that an ISHR must work full-time performing the functions of an ISHR, which are directed towards ensuring the safety and health of coal mine workers.^[36]  The powers of an ISHR are set out in s 119(1).  An ISHR must not perform a function or exercise the power for a purpose other than a safety and health purpose.^[37]  When performing those functions and exercising those powers, an ISHR must not unnecessarily impede production at a coal mine.^[38]

209. [209]
     Subsection 167(1) empowers an ISHR to give a directive to any person to suspend operations in all or part of a mine if the ISHR "believes risk from coal mining operations is not at an acceptable level."  The concept of risk from coal mining operations being at an acceptable level is dealt with in s 29 of the CMSH Act.  Subsection 29(2) provides that, to decide whether risk to a person from coal mining operations is within acceptable limits and as low as reasonably achievable, regard must be had to:

1. (a)
   the likelihood of injury or illness to a person arising out of the risk; and

2. (b)
   the severity of the injury or illness.

210. [210]
     An application may be made to the Chief Inspector of Mines for review of a directive issued by an ISHR, and the Chief Inspector may confirm, vary or set aside the directive appealed against.^[39]

211. [211]
     The reason for the s 167 directives: Mr Whyte recounted that he and Mr Smyth had been in discussions with BHP about their fatigue management and hours of work for about two years before this incident.  A document relating to hours of work and fitness for duty had come from Brad Crompton, President of Norwich Park mine, and Mr Whyte had concerns that if it was implemented it would have health and safety impacts on all the Union's workers.  In particular, he was concerned that the corporate procedures had not been developed within the relevant legislation and that they provided for series of 14 hour shifts.  Various communications with BHP and the Mines Department followed, and Mr Whyte was apparently advised that the company wanted to roll this out through all its mines.  (Exhibit 8)

212. [212]
     On Friday 19 February 2010, Mr Whyte issued a directive in relation to the Goonyella Riverside Mine.  That directive is not relevant to Mr Vaccaneo's claim for compensation.

213. [213]
     A written announcement that day from the CEO of BMA, Marcelo Bastos, recorded that the directive stated that the reason for ceasing operations was that the OCEs^[40] had not been "involved in the development of all JSEAs^[41] at the mine that relate to mining activities in and around the mine evacuation."  The announcement referred to the company's widespread practice across the entire Queensland coal industry of involving the workforce in the development of JSEAs, and expressed the company's view that "if this is an issue for Goonyella Riverside Mine then it is an issue for other open cut coal mines in Queensland."  (Exhibit 14)

214. [214]
     Telephone conversation between Mr Vaccaneo and Mr Whyte on 19 February 2010: Mr Vaccaneo gave oral evidence about a telephone conversation he had with Mr Whyte on Friday 19 February 2010 while Mr Vaccaneo was travelling with his partner, Glenda Robertson, in a motor-vehicle provided by the Union.  The conversation was conducted on a hands-free speakerphone, and in robust language.  Mr Vaccaneo recalled Mr Whyte commencing the conversation by saying "How the fuck did you find out?"  Mr Vaccaneo replied that it did not matter how he found out, the topic was what he was proposing to do.  At that point Mr Whyte asked whether he was informed by a named man, who was engaged on a contractual basis to be a media consultant.  

215. [215]
     When questioned by Mr Vaccaneo about his intention concerning directions under s 167 of the CMSH Act, Mr Whyte said that he was going to shut down all the BMA coal operations in the State.  As Mr Vaccaneo considered that he was the person likely to end up having to defend the action, he put a number of threshold questions to Mr Whyte to ascertain whether he could justify issuing such directions.  Mr Whyte answered each with "No", but contended that all he required was a belief.  Mr Vaccaneo replied that more than a belief was required and referred to a provision in the CMSH Act to the effect that a person would be immune from prosecution only if they acted in good faith.  Mr Vaccaneo told Mr Whyte that he was going to act as the Devil's advocate and suggested that Mr Whyte was a long way from being able to issue this directive.  He discussed with Mr Whyte "quite extensively" the risk involved in taking the proposed action, including:

1. (a)
   the risk of the directive being overturned and an investigation being conducted;

2. (b)
   a great risk of having himself removed from the ISHR position by the Minister;

3. (c)
   exposing himself and the Union to potential damages action because he would not be able to demonstrate due diligence;

4. (d)
   giving the coal companies ammunition to knock back a proposal for a fourth ISHR and to have the s 167 powers removed from the District Check Inspectors.

Mr Vaccaneo also reminded Mr Whyte that he was a custodian of the position in the Union and he had no moral authority to endanger that position.

216. [216]
     According to Mr Vaccaneo, Mr Whyte dismissed all his arguments on the basis that he held the relevant belief and that was enough.  The conversation concluded with Mr Whyte saying that he was not going to take any notice of Mr Vaccaneo.  The only person he would take any notice of was Mr Smyth.  Mr Vaccaneo informed Mr Whyte that Mr Smyth would be the next person he would ring.

217. [217]
     Mr Vaccaneo described the conversation as heated at various stages and cordial at others.  At the outset, he had to remind Mr Whyte that he was on speakerphone and that Mr Vaccaneo's partner was in the car.  Strong, robust language was exchanged and there was a deal of swearing by both men.  Mr Vaccaneo said that he was leaving Mr Whyte in no doubt as to what he thought about what Mr Whyte was proposing to do. 

218. [218]
     Ms Robinson gave oral evidence in relation to the telephone call which corroborated Mr Vaccaneo's account, both as to tone and content.

219. [219]
     Mr Whyte's accounts of this conversation were more benign.  In his written statement he recorded that he told Mr Vaccaneo he would send out a directive to all mines to cease operations until they rescinded the document.  Mr Vaccaneo said he didn't think that was a good idea as all hell would break loose.  Mr Vaccaneo told him that if the document went in it would jeopardise the health and safety of the coal mine workers.  According to Mr Whyte, "there didn't appear to be any animosity between the two of us.  I told him I would think about it over the weekend and thanked him for his time."  (Exhibit 8)  In his oral evidence, Mr Whyte said he was unable to recall most of the details of that conversation, in particular whether Mr Vaccaneo put specific concerns or issues to him.  However, he did recall the discussion about BMA's fatigue policy which was potentially going to lead to an increase in working hours and hence worsen fatigue for workers.  Mr Vaccaneo asked whether the policy was in place and Mr Whyte said "No." 

220. [220]
     In cross-examination, Mr Whyte agreed that he knew that making the series of directives involved high-risk for him as an ISHR, including possible termination of his employment.  He also agreed that on 19 February 2010 Mr Vaccaneo had, in effect, warned him that all hell would break loose if he issued the directive, and that subsequently proceedings were commenced in the Federal Court against the Union, Mr Whyte and Mr Smyth claiming in excess of $2 million.

221. [221]
     Telephone conversation between Mr Vaccaneo and Mr Smyth on 19 February 2010: Mr Vaccaneo gave evidence that, after the conversation with Mr Whyte, he spoke with Mr Smyth who initially supported Mr Whyte's position.  Mr Vaccaneo recounted the conversation he had with Mr Whyte, especially in relation to the threshold questions and that Mr Whyte had informed him that Mr Smyth was the only person he was going to listen to.  Mr Smyth acknowledged that Mr Vaccaneo's concerns were valid and said he was going to speak to Mr Whyte to try and get Mr Whyte to change his mind.

222. [222]
     Ms Robinson gave evidence that it took some time for Mr Vaccaneo to convince Mr Smyth that Mr Whyte had no grounds for the directive.

223. [223]
     Mr Smyth's account of this conversation was limited as he said he could not recall the conversation in detail.  He confirmed that Mr Vaccaneo expressed concern in relation to the potential liability that would arise from the action and that Mr Vaccaneo's view was that Mr Whyte did not have grounds to form the requisite belief.  However, Mr Smyth could not recall whether those and other matters were discussed in the conversation with Mr Vaccaneo on 19 February.

224. [224]
     Further communications before s 167 directives:  Late in the afternoon of Sunday 21 February 2010, Mr Whyte sent Mr Smyth an email asking whether the text message to "go out behind the 167 tomorrow" was OK by Mr Smyth.  The draft statement asserted that Mr Whyte's directive was issued due to his belief as ISHR that there exists "an unacceptable level of risk" in the minimal requirements of the BMA Fatigue Management Standard that applies to all BMA operations in the state.  The draft message included the statement that, as a duly elected District Union Inspector, Mr Whyte would "do everything in my power to put a halt to working shifts greater than 12 hours, for the safety and health of our coal miners and the mining community."  (Exhibit 15) There followed an exchange of emails that evening between the two men, including a suggestion from Mr Smyth that one mine might be selected (as they had provided the documents and evidence to demonstrate what is wrong). Mr Whyte replied "All or none brother - we'll try em all."  (Exhibit 15)

225. [225]
     Conversations following s 167 directives: Shortly after 5.00 am on Monday,  22 February 2010 Mr Whyte issued a series of directives against all BMA operations on the basis that he believed that risk was at an unacceptable level through the introduction of a risk standard by the BMA dealing with Fatigue (BMA RISK STD 0034 KM#6327109) (see Exhibit 8). 

226. [226]
     Early that morning, Mr Dalliston advised Mr Vaccaneo that some directives had been issued.  As he was travelling by car to his office, Mr Vaccaneo had a robust conversation with Mr Whyte and asked him to send the directive to the office so that they could have a look at it.  Mr Vaccaneo was "very upset at that point in time." 

227. [227]
     Mr Whyte's account of that conversation confirms that it was robust and that each man swore at the other.  He did not send Mr Vaccaneo anything at that stage, but did so after Mr Vaccaneo contacted Mr Smyth who told him to send the directive through.  Mr Vaccaneo rang Mr Whyte after the initial phone call and again there was a robust exchange in which, according to Mr Whyte, Mr Vaccaneo said "you've over stepped the mark you got away with the Murray affair and this time you will burn and I will make sure of it."  Mr Whyte hung up the phone.  (Exhibit 8)

228. [228]
     By the time he arrived at his office, Mr Vaccaneo had formed the view that it was "totally inappropriate an impossible for me to have any carriage of this matter, defending it."  Mr Vaccaneo considered that he had a great conflict of interest because he could not, in all good conscience, have any part in defending the matter because of the conversations he had with Mr Whyte previously.  Accordingly, when he arrived at the office, he absented himself and advised that he was having nothing to do with the matter.  Mr Vaccaneo said that he then filled out a draft statement about the conversations he had with Mr Whyte and with Mr Smyth, and provided it to Ms Hartigan.  He did not take a copy of that statement when he left the Union.  The statement was not in evidence in these proceedings.

229. [229]
     Effect on Mr Vaccaneo of issue of s 167 directives: Mr Vaccaneo described his feelings as a result of the issue of the directives in the following terms:

"They were many.  Angry, frustrated, unbelieving, betrayed; many feelings, many, many feelings.  I could not believe after the discussions I had had with Mr Whyte and then the discussions I had had with Mr Smyth, I could not believe Mr Whyte had issued the directive exactly how he said he was going to issue it."^[42]

230. [230]
     Mr Dalliston gave evidence that Mr Vaccaneo was "pretty upset", especially when he said that he had asked Mr Whyte not to issue the directive.  Mr Vaccaneo's concern was that if it could be shown that Mr Whyte had had misused his powers, Mr Whyte could lose his job and the Union might not get the fourth ISHR that it was seeking. 

231. [231]
     The issue of 10 directives to the 10 BMA mines on 22 February was what caused Mr Vaccaneo concern or distress.  In his view, "it was going to be very hard to justify even one mine let alone 10."  There were fatigue management health and safety issues involved with the proposed introduction by the company of longer shifts.  Mr Vaccaneo expressed the Union's criticism of the proposal in a radio interview on 25 February 2010 (Exhibit 40).  However, Mr Vaccaneo considered that the matter should have been dealt with at "an appropriate time … when the appropriate triggers are in place."  He was concerned that the appropriate triggers were not in place to allow Mr Whyte to issue an appropriately worded directive.  Indeed, Mr Vaccaneo recalled that when he questioned Mr Whyte about that on the previous Friday, Mr Whyte could not demonstrate that the relevant things had happened.  Hence Mr Vaccaneo concluded that the "thresholds had not been crossed."  In reaching that view he drew on his own experience of issuing directives as an ISHR. 

232. [232]
     Mr Valery had no direct involvement in this matter until it was discussed at a board meeting.  He recalled discussions with Mr Vaccaneo who expressed concerns that the directives had the potential of overstepping the powers of the District Check Inspectors.  Mr Valery described a breakdown in relationship between Mr Vaccaneo and Mr Whyte around that time, and referred particularly to the email from Mr Whyte of 9 March 2010 in relation to the Dalby meeting (considered in relation to Stressor 4).

233. [233]
     Mr Valery also observed that Mr Vaccaneo was "certainly very, very concerned… probably on extreme of concerned" about the matter.  There was, and continued to be, plenty of commentary from people within the industry about the powers of District Check Inspectors to shut down a site and whether they should have those powers.  Mr Vaccaneo was part of conversations where concern was expressed in relation to that. 

234. [234]
     Other view: In his written statement, Mr Smyth explained why he disagreed with Mr Vaccaneo.  In summary, Mr Smyth's opinion was that Mr Whyte's actions related to safety matters (rather than industrial matters) and were taken pursuant to his statutory powers and responsibilities.  Mr Smyth recalled lengthy discussions with Mr Vaccaneo and said that they were "miles apart on the subject."  At that stage, Mr Smyth was looking after the legal department as Mr Vaccaneo had removed himself from any of the contentious matters.  Mr Smyth could not see how this would have been stressful for Mr Vaccaneo as others were involved in the matter and handled it okay.  He also noted that the working relationship between Mr Whyte and Mr Vaccaneo "wasn't working that well."  (Exhibit 8)

235. [235]
     Subsequent events in relation to the s 167 directives: After the s 167 directives were issued, an Inspector reviewed all relevant documentation and issued a Mine Record Entry ("MRE") to all BMA sites informing that he had withdrawn the directive under s 174(5)(a) of the CMSH Act.  Senior representatives of BHP Billiton and BMA then made representations to the Minister for Mines and Energy, expressing their concern over the issuance of the directives and, in particular, the validity of their issuance.  The Minister then requested the Chief Inspector of Coal Mines, Gavin Taylor, to investigate the matter and report to him the findings (see Mine Record Entry dated 18 May 2010 in Exhibit 8). 

236. [236]
     Mr Taylor, subsequently conducted an investigation. On 8 March 2010, Mr Taylor sent an email to Mr Whyte in relation to a proposed interview on 16 March.  Mr Taylor referred to representations made by BMA to the Minister regarding:

1. (a)
   the directive in relation to the Goonyella Riverside Mine which required the involvement of OCEs in the "development of the mines safety and health management system"; and

2. (b)
   the directive in relation to all BMA mines stating that "an unacceptable level of risk exists due to the requirements of" the identified BMA Fatigue Management Standard.

The interview was to be directed towards the issues the Minister had requested Mr Taylor to investigate, namely the circumstances surrounding the issuance of those directives and whether their issuance was in accord with legislative requirements, obligations and powers.  (Exhibit 25)

237. [237]
     There is no evidence to suggest that Mr Taylor ever sought to interview Mr Vaccaneo. 

238. [238]
     However, Mr Vaccaneo recalled Mr Taylor going to the Union's office as part of that investigation.  As he entered the office, Mr Vaccaneo left through the fire escape.  Mr Vaccaneo said that he had no involvement in relation to the investigation and "just kept my mouth totally shut."  Mr Vaccaneo gave evidence that he was concerned that, if Mr Taylor had become aware of the contents of his conversation with Mr Whyte or his views about the directive, Mr Taylor would have formally interviewed Mr Vaccaneo and would have used his powers of compulsion so that Mr Vaccaneo would have told him exactly what occurred.  However, "for the good of the union and Mr Whyte, I just kept my mouth shut."  Vaccaneo also referred to his "conflict of interest" in relation to the matter. 

239. [239]
     Mr Vaccaneo gave evidence that, even though he kept his distance from the investigation, he:

1. (a)
   "had great fears that the directive and the investigation" would potentially lead to Mr Whyte being removed from office;

2. (b)
   was worried that the Union and Mr Whyte would face the prospect of damages actions;

3. (c)
   was concerned that, after the investigation, mining companies would use the situation as justification for their continuing campaign to dilute the powers of District Check Inspectors, in particular to remove those Inspectors' powers of stoppage. 

240. [240]
     After the investigation was carried out, Mr Taylor submitted a report to the Minister.  In his findings, he wrote:

"In the second matter, the issuance of the directive expressing the belief that an unacceptable level of risk exists "due to the requirements of BMA Fatigue Management Standard (BMA RISK STD 0034 - KM#6327109)", … the Chief Inspector can not support the issuance of that Directive.

Support could not be given to the issuance of the Directive as there was no objective evidence that the "Standard" had in fact been introduced at any BMA operation.  Indeed, there had been no amendment to shift rosters or patterns and no introduction of any new fatigue policy under s 42 of the Coal Mining Safety and Health Regulation 2001 … at any BMA operation in Queensland.

It was the Chief Inspector's opinion that insufficient due diligence had been applied in ensuring that evidence was available to support the "belief" that risk was not at an acceptable level.  Evidence to the contrary existed in that there had been no alteration or change at any operation due to the existence of the document.  Therefore, risk would remain at the same level."  (Exhibit 8)

241. [241]
     Consistently with one of his recommendations, on 29 April 2010, Mr Taylor sent Mr Whyte a letter requiring him to attend a Level 5 Compliance Meeting on 18 May 2010 to answer questions about Mr Whyte's actions.  Mr Taylor also stated that an invitation to attend that meeting would be extended to Mr Smyth as the senior CFMEU (Mining and Energy Division) representative in Queensland.  (Exhibit 26)  Four actions were agreed by the Union representatives and the Chief Inspector so that the legislation as it applies to an ISHR's powers functions and obligations in the issuance of a directive will be met. 

242. [242]
     Following the Compliance Meeting on 18 May 2010, Mr Taylor prepared an MRE intended for all nine operations which he provided to Mr Smyth and Mr Whyte for comment (Exhibit 16).  The MRE was issued on 26 May 2010.

243. [243]
     Mr Vaccaneo suggested that those conclusions were consistent with his view and what he had told Mr Whyte.  Although he acknowledged that Mr Whyte was not sanctioned (specifically, that he was not prosecuted or dismissed), Mr Vaccaneo suggested that had he told Mr Taylor about his conversation with Mr Whyte before the s 167 directives were issued, Mr Whyte would have been exposed to a greater risk of prosecution.  Mr Vaccaneo reiterated that "for the good of the union and for the good of Mr Whyte, I didn't tell anybody anything." 

244. [244]
     Mr Whyte had a different opinion about the outcome.  In cross-examination, Mr Whyte confirmed his view that in issuing the directives all he had to have to satisfy the statutory requirement was a "reasonable belief."  Despite the findings of the Chief Inspector and the corrective actions agreed in light of his report and recommendations, Mr Whyte did not share the Chief Inspector's view.  Rather, in Mr Whyte's opinion, what he did in relation to shutting down the BMA mines was perfectly correct.  As he put it, his "major concern was the safety of my workers" and that overrode everything. 

245. [245]
     On 21 April 2011, BM Alliance Coal Operations Pty Ltd and others instituted proceedings in the Federal Court of Australia claiming damages under s 82 of the Competition and Consumer Act 2010 ("CC Act") against the CFMEU, Mr Whyte and Mr Smyth for contraventions of ss 45D and 45DB of the CC Act.  The applicants discontinued those proceedings by filing a notice of discontinuance on 29 October 2012 (Exhibit 7).

246. [246]
     According to Mr Valery, the money claimed in those proceedings was in relation to lost production resulting from the directive to stop work at those mines. 

247. [247]
     Medical evidence:  The evidence of the psychiatrists in relation to Stressor 3 can be summarised briefly.  In his report, Dr Likely recorded that Mr Vaccaneo realised the "potential disastrous consequences" of Mr Whyte's actions "which could in Mr Vaccaneo's mind have led to a total bankruptcy of the union."  (Exhibit 6) Dr Likely expanded on this in his oral evidence and said that Mr Vaccaneo thought that the potential disastrous consequences could also include a significantly serious effect on the workers in terms of redundancy, financial worries, family commitments and so forth.  In other words, Mr Vaccaneo anticipated disastrous consequences for those workers who he represented, and for the Union about whose future he had concerns. 

248. [248]
     Dr Likely's report also states that, after an "animated discussion" with Mr Whyte and the involvement of the District President of the Union, Mr Vaccaneo removed himself from the situation as he did not wish to be involved in any potential damage to the CFMEU.  (Exhibit 6)  In his oral evidence, Dr Likely described Mr Vaccaneo's action as a defence mechanism to cope with stress.  It was an adaptive action to remove himself from a stressful situation, and was consistent with Dr Chalk's diagnosis of adjustment disorder.  In Dr Likely's words, Mr Vaccaneo said that he "removed" himself from the situation:

"to indicate that he was using that as a defence mechanism to continue to function on some level rather than being overwhelmed completely by his other deterioration symptoms."^[43] 

249. [249]
     In his report, Dr Chalk outlined Stressor 3 by reference to Dr Likely's report, (Exhibit 5) and explained in his oral evidence that Mr Vaccaneo was clearly very concerned about what had occurred and that there was "a significant conflict" with Mr Whyte who had "clearly caused him some considerable angst over a lengthy period of time." 

250. [250]
     Submissions: The Union submits that:

1. (a)
   the directives which Mr Whyte issued related to fatigue management (which was a legitimate safety concern related to the BMA corporate policy that sought to introduce 14 hour shifts);
2. (b)
   Mr Vaccaneo and Mr Whyte disagreed about whether the appropriate triggers existed for issuing directives;
3. (c)
   following their issue, the directives were reviewed and set aside by the Chief Inspector of Mines who, after an investigation, issued Mine Record Entries which record that he could not support the issue of the second directives as there was no objective evidence that the corporate standard had in fact been introduced at any BMA operation, and the Chief Inspector's opinion that insufficient due diligence had been applied in ensuring evidence was available to support the belief that the risk was not at an acceptable level.  A number of corrective actions were identified and agreed;
4. (d)
   although Mr Vaccaneo was concerned that if he spoke to the Chief Inspector, Mr Whyte would have been exposed to a greater risk of prosecution, the Chief Inspector made no attempt to interview Mr Vaccaneo as part of the investigation and hence there was no basis for Mr Vaccaneo's concern;
5. (e)
   Mr Vaccaneo also expressed concern (in re-examination) about the Union and Mr Whyte facing the prospect of damages action, and the mining companies using the incident as justification for their continuing campaign to dilute the powers of ISHRs, however neither concern had been expressed before re-examination;
6. (f)
   Dr Likely's report refers to Mr Vaccaneo's realisation of the potentially disastrous consequences of shutting down BHP which could have led to a total bankruptcy of the Union, and his evidence was that Mr Vaccaneo had referred to the sacking or making redundant of workers, the effect on workers in financial worries and family commitments, and a consequential loss of Union membership which could lead to a total bankruptcy of the Union. 

251. [251]
     Accordingly, the Union submits that Stressor 3 has not been substantiated.  There is again a mismatch between the basis of the psychiatric opinions and what is now said to have been the effect of events on Mr Vaccaneo. 
252. [252]
     The submission on behalf of Mr Vaccaneo traverses in some detail the evidence of the conversation between Mr Whyte and Mr Vaccaneo on Friday 19 February 2010 in which Mr Vaccaneo argued that Mr Whyte did not have a sound basis to issue the directives and raised with Mr Whyte the potential liability and risks that would attend issuing those directives, including legal action by BMA (which came to pass) and the risk to Mr Whyte's ISHR authorisation.  After Mr Whyte advised him that Mr Smyth was the only one to whom he would listen, Mr Vaccaneo spoke to Mr Smyth and asked him to intervene.  That evidence demonstrates not only that Mr Vaccaneo was going about his job and the performance of his duties, but also that he pursued his concern to protect the Union, and Mr Whyte, from liability. 

253. [253]
     Mr Whyte knew the risks and was prepared to take them, and apparently did not cavil with Mr Vaccaneo's risk assessment.  As it happens, the predicted problems came to pass (including the court action including a claim for over $2 million against the Union, Mr Whyte and Mr Smyth), and the Ministerial direction for the Chief Investigator to conduct an investigation. 

254. [254]
     The effect on Mr Vaccaneo was that he was conflicted by a crisis of conscience.  He could not defend Mr Whyte's actions but he could not put the Union in jeopardy by taking that stance with the Chief Inspector.  His feelings as a result of this incident were mixed and included frustration, anger, disbelief and betrayal.  His interest was the good of the Union and that was best served by keeping his mouth shut.  He took steps to avoid contact with the Chief Inspector during the course of the investigation. 

255. [255]
     Consideration and conclusion:  Having considered the evidence and submissions summarised above, I conclude that:

1. (a)
   in the course of his duties, Mr Vaccaneo raised with Mr Whyte a range of concerns about the possible implications of Mr Whyte issuing s 167 directives in relation to BHP's mines in Queensland;

2. (b)
   having failed to convince Mr Whyte, Mr Vaccaneo contacted Mr Smyth to convince him of the risks associated with Mr Whyte's proposed action and to ask him to contact Mr Whyte;

3. (c)
   when, despite Mr Vaccaneo's warnings, Mr Whyte issued the directives Mr Vaccaneo was very upset and subsequently experienced anger, frustration, disbelief and betrayal;

4. (d)
   Mr Vaccaneo held a number of serious concerns for the Union and for Mr Whyte should it be shown that Mr Whyte had misused his powers; and

5. (e)
   accordingly, Mr Vaccaneo took steps to ensure that he did not participate in the Chief Inspector's inquiry.

256. [256]
     At that time, Mr Vaccaneo's concerns were real and not imaginary.  They were based on his knowledge and experience of what was required to issue a s 167 directive.  His feelings in response to Mr Whyte's actions were genuine and can be explained by reference to the concerns he held.  Although not essential to the success of his claim, subsequent events (including the setting aside of the directives, the enquiry and findings of the Chief Investigator, and the commencement of proceedings in the Federal Court of Australia) show that Mr Vaccaneo's concerns were reasonable.

257. [257]
     Accordingly, I find that the feelings experienced and concerns held by Mr Vaccaneo as a result of the Stressor 3 events contributed to his psychiatric symptoms, and arose in the course of his employment, and that his employment was a significant contributing factor to those symptoms.

Stressor 4

258. [258]
     The stressor: This stressor occurred when Mr Whyte was found guilty of "exceeding his powers" by the Mines Department and subsequently engaged in a "guerilla campaign" against Mr Vaccaneo by means of vexatious and derogatory emails from a situation which continued to persist.  That situation occurred around August 2010.

259. [259]
     Mr Vaccaneo submits that a guerrilla campaign is ordinarily understood as marked by sudden attacks, harassment and sabotage and that this was conducted by email from Mr Whyte.

260. [260]
     The evidence: It is appropriate to make two initial observations in relation to the evidence concerning Stressor 4:

1. (a)
   the respondents rely on an email sent early in the morning of 9 March 2010 and other emails referred to as the "Word of the Week" emails (most of which are not in evidence), as well as the email headed "WTF" and dated 19 December 2011; and

2. (b)
   according to Mr Vaccaneo's submission, there are relevant emails that witnesses have seen but which the CFMEU failed to discover in relation to these proceedings, and hence the respondents' case on this factor should be more readily accepted and an adverse inference should be drawn that the undisclosed emails would not have helped the CFMEU's case.

261. [261]
     I will consider first the email communications that are in evidence in relation to Stressor 4, and then consider the submissions concerning email communications that Mr Vaccaneo submits exist but were not discovered or are not otherwise in evidence in these proceedings.

262. [262]
     The 9 March 2010 email:  In order to understand the import of the 9 March 2010 email, it is necessary to provide some brief background.  As noted in relation to Stressor 3, on 8 March 2010, Mr Taylor, the Chief Inspector of Coal Mines in Queensland, sent an email to Mr Whyte (Exhibit 25) confirming that BMA had made representations to the Minister regarding two directives issued on BMA by an ISHR under s 167 of the CMSH Act. The first directive was directed to the SSE at Goonyella Riverside and the second directive was directed to all BMA mines.  The Minister had requested that the Chief Inspector "investigate the circumstances surrounding the issuance of those directives and whether their issuance was in accord with legislative requirements, obligations and powers."  Mr Taylor referred to an interview on Tuesday which would be directed towards those issues and said, before that meeting, he would appreciate reviewing the documents which led Mr Whyte to issue the directive and other related documents.

263. [263]
     On 9 March 2010 at 6.30 am, Mr Smyth sent an email (Exhibit 18) to Mr Whyte, Glenn Power, Mr Dalliston, Mr Valery, Steve Pierce and Mr Vaccaneo concerning the appropriate process for dealing with the "ISHR Complaint", including seeking legal advice.  He referred to the requirement for both Tim (Whyte) and "Dallo" (Mr Dalliston) to give an interview or statement, which he described as "strange."  The other "strange twist" was the desire to talk to the Site Safety and Health Representatives ("SSHRs") at the mine sites, something which he was not aware had happened before.  He described the request for documentation to be provided as "a little premature" and suggested that they talk to their legal people and "determine the nature of the meeting, documents required to be submitted and legally were [sic] we stand."

264. [264]
     At 7.37 am that day, Mr Whyte sent the following email to the same addressees:

"Stephen

It is odd that Taylor wishes to interview Dallo and some SSHR's considering it was only me that issued these directives.  I agree we will probably need legal assistance in this matter due to Taylors investigation.  One issue I would like to put to bed right now is those not supportive of this issue should be struck off any emails / correspondence concerning this matter immediately.  As stated previous, I only wish you as the District President to represent me in this matter and would appreciate that to be the case.  We do not need three officials and legal people engaged in this matter as it would be a waste of resources.  After being told by one of our executive members that he hopes that the full weight of the law is thrown at me, and the lack of support received from the Murray-gate affair I will only confide and trust you as the District President and as a mate.

Cheers

Goran" (Exhibit 18 emphasis added)

265. [265]
     Effect of the email on Mr Vaccaneo: Mr Vaccaneo submits that the email at 7.37 am, which was sent on the morning that the CFMEU's Board was meeting in Dalby, was sent without warning and was intended to refer to him.  It was a statement of no confidence in him, and was serious.  In an environment where solidarity was a core value, the sending of this email was an act of ostracising or isolating him.

266. [266]
     Mr Whyte agreed that the last sentence of the email was pointed squarely at Mr Vaccaneo, and that he harboured a distaste for Mr Vaccaneo over his treatment of Mr Whyte concerning Mr Murray.  Indeed it was no secret that, by that stage, Mr Whyte had a deep and abiding dislike for Mr Vaccaneo.  Although he did not agree that the email was a calculated strike at or personal attack against Mr Vaccaneo, Mr Whyte agreed that it was sent in the early morning before an executive meeting for the purpose of isolating Mr Vaccaneo.

267. [267]
     Mr Vaccaneo was one of the persons he wanted struck off from emails and correspondence, and isolated from the investigation and the group involved with information about the investigation.  In re-examination, Mr Whyte said that he wanted Mr Vaccaneo isolated from the investigation because, in his view, it was a waste of resources to have so many senior officials from the union involved when one official who had that experience could deal with it. 

268. [268]
     Mr Vaccaneo became aware of the email when he and others were getting into a car to travel to the board meeting in Dalby.  Mr Dalliston asked Mr Vaccaneo if he had seen the latest email from Mr Whyte, and Mr Vaccaneo replied that he had not.  When he read the email on his laptop computer while being driven to the meeting, Mr Vaccaneo "was absolutely filthy and livid" because Mr Whyte was "having a direct chop at me, having a direct go at me to all these people knowing damn well … that I wasn't telling anybody anything about what went on" in the conversations he had with Mr Whyte on the Friday concerning the directives.  So far as Mr Vaccaneo was concerned, Mr Whyte was using this email "to have a free chop at me that I wouldn't reply to" because defending himself would involve Mr Vaccaneo having to make known publicly his views about the directives and disclose the discussions he had with Mr Whyte about it.

269. [269]
     Mr Vaccaneo was "very angry" when he arrived at the meeting.  He said that he was:

"very, very cranky and upset because the only thing and the only person that stood between Mr Whyte getting removed from office and the union itself being in a lot of trouble was me and my continued utter silence about the matter.  …  My firm belief was if I had given evidence to the chief inspector, Mr Whyte would have had no defence, the union would have had no defence and Mr Whyte would have been removed from office, which I didn't particularly want to see happen."^[44]

270. [270]
     Most of the other full-time officials were at the venue as well as many board members and observers.  Mr Vaccaneo said very loudly, by reference to the full-time officials, "We need to get fucking outside and get outside now and discuss this shit."  Mr Valery recalled "quite a heated discussion" between Mr Vaccaneo and Mr Smyth, and the board meeting was closed for a period so that the discussion could be continued outside.  Mr Valery described Mr Vaccaneo's level of emotion at that time as "very, very heightened."  He continued: "it was a yelling match.  There was… quite a deal of yelling."

271. [271]
     Mr Vaccaneo asked Mr Smyth, because he was the District President, to "Get hold of him [Mr Whyte], tell him to stop this shit and stop it now.  I'm sick of it."  Mr Smyth then talked to Mr Whyte by telephone and told him to cease and desist as of that moment.  Mr Smyth then sent the email to that effect, and received a response from Mr Whyte.  Those emails were in evidence.

272. [272]
     At 8.30 am that day Mr Smyth sent the following email to the same addressees as Mr Whyte's earlier email:

"Tim,

We need to cease any further comments on E mail and leave it as it is.

Yours in Unity

Stephen Smyth"

273. [273]
     Mr Whyte replied at 8.34 am in an email to the same addressees:

"Stephen,

Received and understood.

yours in safe mining,

Tim Whyte"

274. [274]
     Mr Smyth gave evidence that, by the time of the Dalby meeting, his relationship with Mr Vaccaneo was very poor and that he was unhappy with Mr Vaccaneo and others on the national executive in relation to a number of issues.  He confirmed that Mr Vaccaneo was "very upset" about the email, and that the executive had met outside the meeting venue (away from board of management members and rank and file delegates) to deal with the issue.  He agreed that, in an environment where solidarity is it important, the attempt to exclude people from the group of union officials is a significant and major matter.  However, there was division within the executive at that time.  Indeed, Mr Smyth suggested that, given that there was "a lot of angst between" members of the executive, that email could have been directed to anyone on the executive who took it upon themselves to spread or leak information.

275. [275]
     The "Word of the Day"/"Word of the Week" emails: There was relatively little evidence about the authorship, frequency and contents of these emails.

276. [276]
     Mr Vaccaneo gave evidence that in 2010 up to 11 August there were "at least several emails" that were sent as a group mail out to full-time officials (including Mr Vaccaneo) which he described as "Words of the Day" or "Words of the Week."  Each would contain a denigrating word with its definition.  Mr Vaccaneo said that he was in no doubt that, given the state of his relationship with Mr Whyte at that stage, the emails were pointed at him.  He said that he spoke bluntly to Mr Whyte about this matter on at least one and probably two occasions, effectively telling Mr Whyte to stop sending such emails.  According to Mr Vaccaneo, Mr Whyte's response was "fairly non-commital," along the lines of "Oh, yeah, righto."

277. [277]
     Evidence about these emails was given by other witnesses.  Mr Valery stated that they were generally sent by Mr Whyte, but others (including Mr Powers) made some.  The emails used to be a "regular occurrence" over a period of three to six months.  His response to them was to "look at, shake your head, delete it, and move on with work."  Although he recalled such emails having been sent in 2011, he could not say if there were any prior to that including whether any were sent in 2010. 

278. [278]
     Mr Dalliston could remember such emails around the time of the BMA directive in early 2010, but not before.  Mr Whyte would, put a dictionary meaning to it, and send it to most or all of the officials in the district, "usually aiming it at one or two other … officials."  In his opinion, although the person or persons at whom the email was aimed were not usually named, certain words would be used in the course of discussion in executive and other meetings around that time and hence one might identify the subject of the email.  When asked in cross-examination whether people could interpret the emails in all sorts of different ways, he stated:

"Pretty easy to interpret when he was sitting in the meetings and some of those words were used at you or about you when - in front of you, so it's not hard work at who they're aimed at."^[45]

279. [279]
     Mr Dalliston stated that, after Mr Vaccaneo left in August 2010, the emails were aimed at him. 

280. [280]
     Mr Smyth confirmed that Mr Whyte sent Word of the Week emails quite regularly over an extended period.  Those emails would contain only one word and its meaning.  Mr Smyth said that he did not understand that the emails were directed to a particular person.

281. [281]
     The example tendered by Mr Reidy for Mr Vaccaneo was an email from Mr Whyte dated Monday, 29 August 2011 (Exhibit 20).  Its subject was "Word of the……" and it was addressed to eight other people including Mr Dalliston, Mr Valery and Mr Smyth.  The email contained the definition of "duplicitous."  Significantly for this appeal, the email was sent on the day after Mr Vaccaneo signed a deed of release and settlement with the CFMEU, and more than one year after Mr Vaccaneo decompensated and went on sick leave.  It was not addressed to Mr Vaccaneo.  It could not have contributed to his injury.

282. [282]
     Effect of the emails on Mr Vaccaneo: Mr Vaccaneo described the impact of the emails in the following terms.  On the one hand, they made him feel used, abused, denigrated and not worth anything.  On the other hand, the emails only came in spasmodically so "it wasn't something I obsessed about … it wasn't in the forefront of my mind every minute of the day."

283. [283]
     Other emails:  Mr Vaccaneo indicated that he might not have received all of the emails of this type.  He referred to one occasion in about mid-2009 when he was driving Pat Hannay, one of the Union's retired life members, who told him of a number of the emails that were "shit-canning" Mr Vaccaneo.  These emails were said to have come from Mr Smyth and Mr Whyte.  Mr Vaccaneo did not see the emails and was not shown them.  Mr Vaccaneo did not say that they are affected him in any way.  Neither Mr Whyte nor Mr Smyth were asked about these emails and they were not mentioned to or considered by the psychiatrists.

284. [284]
     In an attempt to convince the Commission to draw an inference about the likelihood of derogatory emails being directed to Mr Vaccaneo, reference was made to an email sent from a private email address apparently by Mr Whyte in May 2011 (Exhibit 29) and an email titled "WTF" sent by Mr Whyte on 19 December 2011, some 16 months after Mr Vaccaneo decompensated (Exhibit 28).  I need not record the contentions in relation to those emails, but note that I was not convinced that they were sufficient to allow the inference sought by Mr Vaccaneo to be drawn. 

285. [285]
     The "undisclosed" emails: The documentary evidence in support of Mr Vaccaneo's claim is not as extensive as his submissions suggest it could or should be.  The explanation which he advances for the relative paucity of documents is that the CFMEU failed to discover relevant documents. 

286. [286]
     In his written statement, Mr Whyte asserted:

"48. In relation to vexatious and degrading emails I have no idea what he is talking about and have gone back through the emails and cannot see anything there that is.

49. Between February and August 2010 there were a number of emails sent between different persons in relation to BMA and the fatigue Management process but again none that were sent directly to Stuart or any derogatory emails that I believe could have upset him."  (Exhibit 8)

287. [287]
     Mr Smyth's evidence was that he was not aware of any guerrilla campaign against Mr Vaccaneo.  (Exhibit 8)

288. [288]
     Mr Smyth gave evidence that he was the person in charge of the CFMEU's legal unit and worked with the Union's solicitors in relation to this appeal.  In particular he was involved in the process of disclosure of relevant documents in response to directions made by Vice President Linnane to provide a "list of documents in their possession or under their control relevant to a matter in issue in the proceedings."  The list of documents prepared by the solicitors on Mr Smyth's instructions (Exhibit 19) does not include a reference to any emails.  That is a remarkable omission given:

1. (a)
   the number of emails generated by officers of the CFMEU that were admitted into evidence in relation to each of the Stressors; and

2. (b)
   that Mr Smyth was either the author or an addressee of some of the emails exhibited on these proceedings. 

289. [289]
     Mr Smyth's explanation was, in effect, that the list comprised all the documents "that our IT people could find related to the case."  He stated that:

"whatever disclosure's required, we gave to our IT people to find and that was their job.  …  I didn't personally do the search of our system to find the emails.  We employ an IT firm to do that on the information provided.  Whatever's required, we got our IT people to do.  …  Our IT people went through our system and that's… how it operates."^[46] 

290. [290]
     When it was put to Mr Smyth in cross-examination that the CFMEU must have had the chain of emails in relation to Mr Murray (relevant to Stressor 1), he replied "I'm not the IT individual that went through the system.  If it's there, it's there in the system."  When it was put to Mr Smyth that he might have asked the IT people why they could not find documents that he knew existed, Mr Smyth said that was not his response.  Rather he volunteered:

"There's a few documents that our - that we've actually - we have gone out of our IT system quite regularly, when former people were working there, so I'm not too sure about the chain of custody with any emails, so - to be perfectly honest."^[47]

291. [291]
     Not only was Mr Smyth's purported explanation inadequate and unsatisfactory, it did not sit well with other evidence in relation to the use of emails within the CFMEU.  As noted earlier, elected officials were located at various towns and cities in Queensland and had limited face-to-face contact.  Each was busy with their work and they communicated by telephone and email.  Because the timing of telephone contact was often difficult, Mr Smyth said that email was an important method of communication "Particularly, if you've got to broadcast to a few people."    

292. [292]
     Evidence of the CFMEU's appreciation that emails could be discovered in the course of legal proceedings is found in an email (quoted earlier) sent on 16 December 2008 by Mr Vickers, to 14 named addressees (including Mr Vaccaneo, Mr Valery, Mr Whyte and Mr Smyth).  The email was headed "Email content" and stated, in part:

"Can I please request some calm and decorum and propriety and better still, a refrain from communicating widely, if indeed at all, via email or other written form, in relation to ResCo or any other matter that people may feel offended by.

As Qld Secretary Jim Valery has pointed out, again apparently, overnight, emails and letters have a half life second only to Plutonium and can be the subject of "discovery" orders by Courts in legal proceedings."

293. [293]
     The evidence of Mr Smyth is made the more unsatisfactory when it is recalled that part of the Pitfalls of written communication presentation made to the Union's Board of Management on 3 August 2009 included training on the discovery process.  The Board of Management was advised of the duty imposed on parties involved in litigation to disclose any document relevant to the proceeding.  The relevant slide concluded with the warning "Assume that any letter you write may one day be disclosed to the other side or tendered in court."  That followed the slide which advised that written communication included letters, faxes and emails, and that once sent written communication becomes a record of the communication which can be relied on by the person who sent it and the person who received it (Exhibit 11).

294. [294]
     Mr Valery gave evidence about difficulty in locating emails in relation to these proceedings.  As noted earlier, he was made aware of the email exchange which was the subject of Stressor 1.  The emails were forwarded to him by someone who thought that, as Secretary, he should be aware of what was happening.  He sent an email expressing concerns in relation to the content of some of the emails asking people to refrain from sending emails of this nature on the email system.  His email was not in evidence, but is referred to in an email from Mr Vickers on 16 December 2008.  Mr Valery gave oral evidence to the effect that, after he left the Union, he attempted to locate his email in response to a request by counsel acting on behalf of Mr Vaccaneo.  However, having searched the sent items in his email system, was unable to do so.

295. [295]
     Mr Valery said that, as Secretary, he had responsibility for the administration of the email system.  Each of the officers of the Union had their own unique email address connected to the Union's server.  In the period before mid to late 2011, Mr Valery would not have had access to other officer's emails.  Apparently the Union's email system was changed in late 2011 in relation to discovery in the BHP matter and after that time the IT people, at least could have accessed others' emails.

296. [296]
     Medical evidence: Again, the evidence of the psychiatrists in relation to this stressor can be summarised briefly.  In his report, Dr Likely refers to "vexatious and derogatory emails," words which he explained were his expression rather than Mr Vaccaneo's.  Dr Likely was unaware of the contents of the emails, but stated that they caused Mr Vaccaneo distress and he thought that they were untrue and attacked his personal integrity.  Although Mr Vaccaneo did not tell Dr Likely how often these emails were sent, Dr Likely stated that they continued to be sent with "such a frequency as to cause him, again, clearly very significant distress and deterioration in his symptoms." 

297. [297]
     Mr Vaccaneo told Dr Chalk that the guerilla campaign began in or around August 2010.  (Exhibit 5) In his oral evidence, Dr Chalk made the same observation as he had in relation to Stressor 3 that  Mr Vaccaneo was clearly very concerned about what had occurred and that there was "a significant conflict" with Mr Whyte who had "clearly caused him some considerable angst over a lengthy period of time."

298. [298]
     Submissions: Two issues fall to be resolved in relation to Stressor 4, namely:

1. (a)
   what inferences, if any, should be drawn from the absence of some emails said to be relevant in relation to these proceedings; and

2. (b)
   what findings should be drawn from those emails that are in evidence.

299. [299]
     Undisclosed emails: Submissions made on behalf of Mr Vaccaneo refer to the paucity of emails disclosed by the Union in its list of documents (Exhibit 19), even though the issue of internal Union emails was at all times known to be live and relevant to at least two of the Stressors.  Some documents were discovered for the first time in the cross-examination of Mr Vaccaneo or were referred to in emails tendered evidence or in the oral evidence of some witnesses.  It is submitted that Mr Smyth, who had carriage of the appeal on behalf of the Union, gave unsatisfactory answers about the absence of documents and his passing of the blame to the Union's IT people was disingenuous.

300. [300]
     Mr Vaccaneo submits that the rule in Jones v Dunkel,^[48] applies to an unexplained failure to produce documents.  Accordingly, he submits that the Commission should draw the following inferences adverse to the Appellant:

1. (a)
   the case for the respondents in respect of the email guerrilla campaign should be more readily accepted because of the unexplained failure to produce emails, particularly for the period from about February 2010 until August 2010; and

2. (b)
   the emails that should have been produced would not have assisted the case for the Appellant employer.

301. [301]
     In addition, Mr Vaccaneo refers to Mr Whyte's claim to have gone back through his emails but could not see anything derogatory of Mr Vaccaneo.  It is submitted that this very much depends on Mr Whyte's definition of "derogatory" and his evidence in relation to the emails about Mr Murray shows that he has a high level of tolerance of what is offensive and defamatory and an entirely idiosyncratic view on such matters.

302. [302]
     In reply, the Union submits that the rule in Jones v Dunkel does not apply in this case in relation to an alleged failure to disclose documents.  The rule applies in other circumstances.  In this case there is an underlying assumption in Mr Vaccaneo's submission that certain documents must have existed, continue to exist, and are relevant to an issue in these proceedings.  There is an onus on the party who complains about the inadequacy of disclosure to identify a basis on which it is said to be inadequate.  Whilst there is a complaint about disclosure, there is no evidence in these proceedings which would warrant or justify the Commission concluding that the complaint is well-founded.

303. [303]
     Emails tendered or referred to in evidence and the "guerrilla" email campaign: Mr Vaccaneo submits that a guerrilla campaign is ordinarily understood as marked by a sudden attacks, harassment and sabotage.

304. [304]
     The email sent by Mr Whyte early in the morning of 9 March 2010 before the Union's Board of Management meeting in Dalby was sent without warning and was intended to refer to Mr Vaccaneo.  It was a statement of no confidence in him and, in an environment where solidarity was a core value, the sending of the email was an act of ostracising or isolating Mr Vaccaneo.  The email could be described as a sudden act of sabotaging Mr Vaccaneo with his peers.  It had an immediate and significant effect on Mr Vaccaneo, which effect was apparent to observers of Mr Vaccaneo at the time and the heated discussions which followed.

305. [305]
     Beyond that email, Mr Vaccaneo submits that Mr Whyte sent other emails in the period from January 2010 which troubled him and caused him to approach Mr Whyte and ask him to stop.  Despite the absence of such emails in evidence in these proceedings, and in the face of denials by Mr Whyte, it is submitted that such a finding can be made because Mr Whyte had a penchant for nasty emails.  Examples of such emails include those in relation to Mr Murray, and the "Word of the Week" emails with pejorative words and their meanings aimed at unnamed persons (who could be identified by reference to surrounding events) and circulated to senior officials. 

306. [306]
     It is submitted that the emails sent by Mr Whyte made Mr Vaccaneo feel denigrated and worth nothing.  He expressed his displeasure to Mr Whyte and asked him to cease.  Given Mr Whyte's approach to the impact of his email activity on others, Mr Vaccaneo's evidence that he raised the matter with Mr Whyte should be accepted.  In support of that conclusion, it is submitted that what is remarkable for an email recipient such as Mr Vaccaneo was apparently unremarkable for Mr Whyte, and it is highly likely that Mr Whyte was dismissive of Mr Vaccaneo and that it would have passed from his memory.

307. [307]
     The Union submits that Stressor 4 has not been substantiated.  In summary:

1. (a)
   although Mr Vaccaneo said that he felt "absolutely filthy and livid" when he saw the email of 9 March 2010 and there was a confrontation about that email at the Dalby Board of Management meeting, that confrontation seems to have cleared the air and it does not appear that the email had some continuing effect on Mr Vaccaneo;

2. (b)
   the "Word of the Week" or "Word of the Day" emails can be excluded as contributing to Mr Vaccaneo's injury - although Mr Vaccaneo remembers seeing a couple of the emails he said they were not at the forefront of his mind, and he did not explain to Dr Likely anything about the content or frequency of the emails;

3. (c)
   although Mr Vaccaneo said he had no doubt he was the target of the emails, he could not explain why;

4. (d)
   Mr Vaccaneo mentioned for the first time in oral evidence emails mentioned to him by Mr Hannay which were circulating in 2009 - but Mr Vaccaneo does not say that they affected him, neither Mr Whyte nor Mr Smyth were asked about them, and they were not mentioned to or considered by the doctors;

5. (e)
   Mr Whyte was the author of at least some of the emails but denied engaging in a guerrilla campaign against Mr Vaccaneo by email and was not cross-examined about the "Word of the Week" or "Word of the Day" emails;

6. (f)
   the psychiatrists did not address the circumstances revealed in the evidence, and there is no medical evidence about the effect of those circumstances.

308. [308]
     Consideration and conclusion: The case in relation to this Stressor was the most difficult to assess, primarily because of the unsatisfactory state of the evidence. 

309. [309]
     I am satisfied that the email of 9 March 2010 was directed at Mr Vaccaneo, and was a statement of no confidence in him with some serious consequences including attempting to isolate Mr Vaccaneo in an environment where solidarity was a core value.  There is clear evidence that Mr Vaccaneo was very angry with Mr Whyte about the email and had reason to be angry.  He expressed his views to the relevant people, and had Mr Smyth send a cease and desist email to Mr Whyte to which Mr Whyte replied "received and understood."  However, there is no medical or other evidence to suggest that the email had some continuing psychological effect on Mr Vaccaneo.

310. [310]
     In relation to the "undisclosed" emails, but am unable to make a finding that particular emails or a number of emails in a specified category exist.  This is not a case where I could rely on the rule on Jones v Dunkel in relation to the alleged failure to disclose document to find that Mr Vaccaneo's case about an email guerrilla campaign should be accepted.

311. [311]
     The principles covered by the rule in Jones v Dunkel are usefully summarised in the leading text Cross on Evidence.^[49] The following principles (drawn from that text, without the supporting citations) are relevant to this appeal:

1. (a)
   unexplained failure by a party to tender documents or other evidence may (not must) in appropriate circumstances lead to an inference that the missing material would not have assisted that party's case - but the rule has no application if a reasonable explanation of the failure is given;

2. (b)
   although an inference that the untendered evidence would not have helped the party who failed to tender it is permitted, the rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it;

3. (c)
   the rule only applies where a party is required to explain or contradict something.

312. [312]
     I acknowledge the Union's explanation that, in essence, such emails do not exist or if they do they could not be located by IT staff.  I will not repeat my concerns and reservations about that explanation.  It is necessary to deal with a more substantive point.

313. [313]
     In this case, the only evidence in relation to specifically identified emails which might have been, but were not, produced concerns emails such as Mr Valery's email of 15 or 16 December 2008 (referred to in Mr Vickers' email on 16 December 2008) and a reference in one document to an email in which Mr Whyte refers to Mr Murray as a "girl".  Although those emails, if they still exist, might have been produced, they would not go to the matter in issue.  They would not of themselves convince me to draw an inference that numerous other vexatious of derogatory emails existed and continue to exist and that such emails were directed at Mr Vaccaneo.

314. [314]
     There was no clear evidence from Mr Vaccaneo or other witnesses, including the doctors, about the content, number or frequency of particular emails (such as "Word of the Week" emails) during the period ending in August 2010.  Consequently, it is not appropriate to draw inferences both that the emails existed and that they were about, and denigrated, Mr Vaccaneo.

315. [315]
     I do not suggest that Mr Vaccaneo misled the doctors when he referred to such emails.  However, Dr Likely coined the phrase "vexatious and derogatory" in relation to them and said that he was unaware of their contents and the frequency with which they were sent.  In the absence of specific evidence from Mr Vaccaneo as to the contents of a particular emails, and sufficient corroborating evidence, I am unable to find how many such emails were sent, what they contained and whether they could reasonably have been said to have been directed at Mr Vaccaneo.  Furthermore, Mr Vaccaneo's evidence in relation to the "Word of the Week" emails was ambiguous.  On the one hand, he said that they made him feel used, abused, denigrated and worthless.  On the other hand, the emails only came in spasmodically.  It was not something that he obsessed about, and was not in the forefront of his mind each day. 

316. [316]
     In the absence of specific evidence about particular emails in the period before early August 2010, or copies of at least some of those emails, I find that Stressor 5 has not been proved.

317. [317]
     I am satisfied that the Appellant has discharged its onus in showing on the balance of probabilities that Stressor 5 was not a significant contributing factor to Mr Vaccaneo's injury.             

 The decompensation event

318. [318]
     On the evening of Wednesday 10 August 2010, Mr Vaccaneo took a telephone call from a Union member at a BHP site who was facing disciplinary action by his employer in relation to his alleged use of a work email to access pornographic material.  Mr Vaccaneo had held face-to-face discussions with the member previously.  Apparently, the member was disgruntled because he considered he was being set up to get the sack.  Mr Vaccaneo tried to clarify details of the allegations and to provide some help to the member, but was met by an angry response.  The worker referred to all the work that had been done on behalf of the people at Goonyella Riverside and told Mr Vaccaneo that he was doing little compared with that.  (Exhibit 6)

319. [319]
     Mr Vaccaneo gave evidence that the conversation involved a mixture of the Goonyella Riverside situation and inappropriate emails.  When the member "mentioned those things together - and in some form it has made some sort of connection in my head and don't ask me why - but when he put it to me in those terms … I felt my heart break and I heard it break."  It was then that he had his "meltdown."  Mr Vaccaneo knew that he could no longer continue the conversation, so he told the worker he would have to ring him back in the morning.  At the end of the conversation, Mr Vaccaneo "collapsed to the floor, sobbing, crying, uncontrollable."

320. [320]
     Mr Dalliston gave evidence that, late that Wednesday afternoon (which was an Exhibition public holiday), he met up with Mr Vaccaneo at the Union's car park after they had been at separate meetings.  Mr Vaccaneo spoke to Mr Dalliston about something that upset him.  He had taken phone calls from people "having a go at him," being unhappy with him and blaming him for not supporting one of the workers in the field.  Goonyella Riverside and the differences about when to take the OSPAT test was mentioned.  They discussed who would deal with the matter.

321. [321]
     Mr Vaccaneo did not have much sleep that night and was shaking and stammering.  He was incapable of driving but wanted to go to the office to "get rid of that mongrel laptop because I never wanted to see a union email ever again" and because he believed that he owed Mr Valery and Mr Dalliston some sort of explanation about what had happened and where he was.  He sent them text messages asking when they would be in the office as he needed to talk to them. 

322. [322]
     On 11 August 2010, Mr Vaccaneo's partner, Ms Robinson, drove him to work and dropped him off at or before 6.00 am.  The only person at the office at that time was Mr Valery, and Mr Vaccaneo spoke with him on the balcony outside Mr Valery's office. 

323. [323]
     Mr Valery gave evidence that Mr Vaccaneo sent him a message during the night of 10 August 2010 asking if he was going to be at work early as he had something he needed to discuss.  Mr Valery apprehended that Mr Vaccaneo was "quite upset," and when Mr Valery arrived at work the next morning Mr Vaccaneo was sobbing and crying uncontrollably.  Mr Valery found that to be "very shocking" because he knew Mr Vaccaneo and thought of him as a man's man where that is "not something that would be normal nature."  Mr Valery believed that Mr Vaccaneo "just totally broke down."  He kept sobbing, and Mr Valery organised for Mr Vaccaneo to be taken home.

324. [324]
     Having suffered a breakdown and left his workplace on 11 August 2010, Mr Vaccaneo did not return to work, and was on sick leave until he ceased employment with the CFMEU on 28 August 2011 when he signed a deed of settlement and release. 

325. [325]
     When asked why, before 11 August 2010, he had not let anyone know how he was feeling, Mr Vaccaneo said that he did not recognise the symptoms at the time and did not know he was experiencing symptoms.  He described some of his physical symptoms at that time as "embarrassing." 

326. [326]
     Mr Vaccaneo stated that, in hindsight having listened and talked to his psychiatrist and psychologists "it was probably inevitable" that he would have decompensated even without that event.  Ms Robinson, gave evidence that in the period from January to August 2010, Mr Vaccaneo started to drink more than previously and that his smoking increased from about one packet of cigarettes a day to two packets.  His sleep patterns were "all over the place" and he was not getting a great deal of sleep.  Mr Vaccaneo would wake up every one and a half or two hours and would get up to do some work or read or watch television.  According to Ms Robinson "his mind was constantly on the problems at work."  He would often get very quiet, he became less communicative, and became more agitated over small mishaps (something he had not done previously). 

327. [327]
     Medical evidence: The medical evidence in relation to the events of 10 and 11 August 2010 is set out earlier in these reasons^[50] and need not be repeated.  It is sufficient to note that Dr Chalk described the telephone conversation on 10 August 2010 as the "final straw."  It was not causative as such, but was a "tipping point."  At that point, Mr Vaccaneo became "more fulsomely symptomatic than he had been previously."  In Dr Chalk's experience, such a final incident can appear relatively minor but is not. 

328. [328]
     Submissions:  In its submission, the Union notes that:

1. (a)
   Mr Vaccaneo made no reference to this Stressor in his notice of claim to damages;

2. (b)
   the details provided to Work Cover on 22 February 2012 did not refer to this Stressor; and

3. (c)
   in its decision, Q-Comp considered this Stressor to have been unsubstantiated.

As noted earlier in these reasons for decision, the hearing of the appeal was conducted as a hearing de novo.  Consequently, the reference to the decision of Q-Comp is only relevant to demonstrate when this Stressor was separately identified in the series of events that preceded this hearing.

329. [329]
     The Union's submission, however, refers to the evidence of Dr Likely (describing the phone call) and Dr Chalk's description of the telephone conversation as the final straw or tipping point rather than causative.

330. [330]
     The Union submits that Dr Chalk's opinion should be accepted.  The incident was not causative of Mr Vaccaneo's psychological injury.  It should be concluded that this incident was not a relevant stressor which contributed to Mr Vaccaneo's injury.

331. [331]
     Mr Vaccaneo submits simply that the evidence of the telephone conversation is not contested.  The member's complaints were, to use Dr Chalk's words, the final straw.  The breakdown occurred when Mr Vaccaneo was working for a member.  It is not in contest that it occurred in the course of his duties or arose out of his employment.  The effect on Mr Vaccaneo was immediate, direct and drastic.  It was a contributing factor and significant in its immediate effect.  Mr Vaccaneo came to work the next morning, but he was a mess.  He did not last long in the office but was taken home, never to return to work.

332. [332]
     Consideration and conclusion: Whether or not this factor can be described as a stressor for the purposes of this appeal, the date of the decompensation event was identified in the original application for compensation.  The factor was apparently considered by Q-Comp in the decision against which the Union has appealed.  The evidence about it is clear and not contested.  Mr Vaccaneo decompensated at his workplace while conducting work-related activity on 10 August 2010, and it was apparent on the following day that he could not continue to work.

Conclusion

333. [333]
     Given my conclusions in relation to individual stressors, it is not necessary to make detailed general findings.  However, it is relevant to record that I agree with Mr Vaccaneo's submissions that the Union has not met its onus to displace the Regulator's decision.  In particular it has not identified any factors external to work that caused Mr Vaccaneo's injury, and has not marshalled medical evidence to contradict the evidence on which the Regulator relied, nor has it provided evidence of an alternative hypothesis of any external contributing factor, let alone a significant one.

334. [334]
     In similar terms the Regulator submits that the Union has not adduced evidence that would require a finding, on the balance of probabilities, that Mr Vaccaneo's employment is not a significant contributing factor to the injury.  I agree.

335. [335]
     It is worth noting, however, that Mr Vaccaneo's injury was not the result of any one of the nominated Stressors.  Although it has been necessary to consider each Stressor separately, the medical opinion evidence referred to earlier in these reasons draws on the series of events which preceded Mr Vaccaneo's decompensation.  In Dr Likely's opinion, Mr Vaccaneo's decompensation was the result of an accumulation of circumstances at work.  Dr Chalk referred to Mr Vaccaneo developing psychiatric symptoms as a consequence of a number of difficulties that had been developing over a period of some 12 to perhaps 18 months in the workplace, and to there being some indication of symptoms developing over a period of time.  The incident in August 2010 was the "final straw."

336. [336]
     The Union submits that if the Commission is satisfied that one or more of the Stressors have been substantiated, there is a question whether the psychiatrists have considered those Stressors and whether their opinions can be said to relate to the Stressors as found to be substantiated.  The Union submits that it might be appropriate to remit the matter to the Regulator with a direction about obtaining further medical evidence. 

337. [337]
     In essence, the Union notes that Mr Vaccaneo and the Regulator both place great reliance on the medical reports to support Mr Vaccaneo's claim for compensation being accepted.  The Union submits, however, that the medical evidence is only of value to the extent that the opinions are supported by findings of primary fact which are sufficiently like the factual assumptions which each doctor made when expressing his opinion.  If, the Union submits, the findings about particular events or Stressors did not form the basis of the doctor's opinion, then it would be appropriate to remit the matter to the Review Unit of the Regulator with a direction that medical evidence be obtained upon the facts as found to see if that would justify a conclusion that Mr Vaccaneo was entitled to compensation in terms of the WCR Act. 

338. [338]
     In reply, the Regulator submits that although he relies on the medical evidence, the distinctions which the Union seeks to draw between the evidence in these proceedings in relation to some of the Stressors and the factual basis on which the doctors expressed their opinions are of little moment.  The decided cases focus on events in the workplace that have the effect of causing an injury.  Whilst there might be some differing of emphasis that emerges from the evidence, the fact is those events have occurred and caused the injury.  In this case, the Regulator submits, the evidence before the Commission is sufficiently like the factual assumptions on which the doctors based their opinions.^[51] In particular, there is ample evidence to show that the interactions occurred and that they had the effect upon Mr Vaccaneo to cause his injury.  That requires a finding that the appeal is dismissed. 

339. [339]
     In light of the findings I have made in relation to each Stressor, I am content to adopt the Regulator's submission.  Any differences between my findings and the factual basis on which the doctors proceeded in expressing their opinions are differences of degree rather than kind in relation to specific events or interactions.  Furthermore, I am not convinced that any useful purpose would be served by remitting the matter to the Regulator. 

340. [340]
     Given the findings made above in relation to each Stressor, and the evidence of the psychiatrists in relation to each Stressor and the cumulative effect of the Stressors, I have concluded that the evidence supports a finding that Mr Vaccaneo's injury arose out of, or in the course of, his employment and that his employment was a significant contributing factor to the development of his injury.  Consequently his application for compensation is one for acceptance. 

341. [341]
     Accordingly the appropriate orders in relation to the appeal are that:

1. (a)
   the appeal be dismissed;

2. (b)
   the decision of the Regulator dated 3 May 2013 is confirmed; and

3. (c)
   the Appellant pay each 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.