Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2015
  4. French v Simon Blackwood (Workers' Compensation Regulator) - [2015] QIRC 95

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

French v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 95

French v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 95

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

French v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 095

PARTIES: 

John Wayne French

(Appellant)

v

Simon Blackwood (Workers' Compensation Regulator)

(Respondent)

CASE NO:

WC/2011/110

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

21 May 2015

HEARING DATES:

24-28 February 2014, 29 and 30 April 2014

28 May 2014 (submissions of Respondent)

12 June 2014 (submissions of Appellant)

20 June 2014 (submissions of Respondent in reply)

MEMBER:

Industrial Commissioner Neate

ORDERS:

  1. The Appeal is dismissed.
  2. The decision of the Regulator is confirmed.
  3. The Appellant is to pay the Respondent's costs of and incidental to the appeal to be agreed or, failing agreement, to be subject of a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION – Psychological injury arising out of or in the course of employment – whether injury arose out of, or in the course of, reasonable management action taken in a reasonable way – Appellant bears onus to establish that the Regulator's decision was wrongly made – Appellant to establish that the elements of s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) are not satisfied

CASES:

Workers' Compensation and Rehabilitation Act 2003 ss 11, 32

Avis v WorkCover Queensland (2000) 165 QGIG 788

Blackwood v Adams [2015] ICQ 001

Bowers v WorkCover Queensland (2002) 170 QGIG 1

Chattin v WorkCover Queensland (1999) 161 QGIG 531

Davis v Blackwood [2014] ICQ 009

Delaney v Q-COMP (2005) 178 QGIG 197

Dickinson v The Motor Vehicle Insurance Trust (1987) 163 CLR 500

Gregory Versace v Ronald Braun (2005) 178 QGIG 315

Labaj v WorkCover Queensland (2003) 174 QGIG 370

Lackey v WorkCover Queensland (2000) 165 QGIG 22

Mason v WorkCover Queensland (2002) 170 QGIG 376

Mayo v Q-COMP (2004) 177 QGIG 667

Prizeman v Q-COMP (2005) 180 QGIG 481

Q-COMP v Foote (2008) 189 QGIG 539

Q-COMP v Glen Rowe (2009) 191 QGIG 67

Q-COMP v Green (2008) 189 QGIG 747

Q-COMP v Hetherington (2004) 176 QGIG 493

Q-COMP v Hohn (2008) 187 QGIG 139

Re Yu and Comcare [2010] AATA 960

Sheridan v Q-COMP (2009) 191 QGIG 13

State Government Insurance Commission v Stevens Brothers Pty Ltd & Anor (1984) 154 CLR 552

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

Svenson v Q-COMP (2006) 181 QGIG 629

WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6

WorkCover Queensland v Heit (2000) 164 QGIG 121

WorkCover Queensland v Kehl (2002) 170 QGIG 93

APPEARANCES:

Mr P. O'Neill, counsel for the Appellant, instructed by Sciacca's Lawyers

Mr R. Clutterbuck, counsel for the Respondent, directly instructed by the Workers' Compensation Regulator

Decision

  1. John Wayne French ("the Appellant") applied in August 2010 to WorkCover Queensland for compensation in relation to an injury described as psychological stress which he alleges occurred as a result of workplace bullying.  On 5 November 2010, WorkCover decided to not accept the application on the basis of the operation of s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 ("the Act") because it deemed that reasonable management action was taken.  The Appellant sought a review of that decision from Q-COMP.
  1. In a decision dated 15 March 2011, a review officer of Q-COMP confirmed the decision by WorkCover to reject the application for compensation.  It is against that decision that the appeal was made to the Queensland Industrial Relations Commission ("the Commission") on 6 April 2011.  As a result of amendments to the Act, Q-COMP was abolished and replaced by Simon Blackwood (Workers' Compensation Regulator) who, as a consequence, is the Respondent in these proceedings.

Background

  1. At all relevant times, the Appellant was employed by Rio Tinto Aluminium Limited ("Rio Tinto") as a process technician at the Rio Tinto Alcan Yarwun Refinery (Exhibit 15).  He commenced work there as a process technician (job grade G2) in September 2007, having decided to transfer from ERA for work, health and family reasons, and having had discussions with the then Superintendent at Yarwun, Mark Jenner.  According to the Appellant:
  1. Mr Jenner indicated to him that, given his experience and knowledge, there was no reason why the Appellant should not progress through the ranks in the company if he worked hard; and
  1. he took a substantial reduction in income when he transferred to Rio Tinto.
  1. The letter of offer from Rio Tinto to the Appellant (Exhibit 15) contained the terms and conditions for his full-time appointment transfer.  The following are relevant to issues in this appeal.
  1. "You are required to perform all tasks that you are assigned, to the full extent of your capability.  Your duties may change from time to time as required by the Company.  You will only be required to perform tasks that are legal, safe and within your competence."
  1. "The Company is committed to excellence in managing health, safety and environmental responsibilities, and sees it as essential to our long-term success.  The Company believes, and we want every employee to behave in accordance with this belief, that every injury, occupational illness, safety incident, and environmental incident is preventable.  Our goal for them is zero.  Each workplace has formal systems in place to achieve these objectives.  You are actively required to promote and encourage safety in the workplace by your participation in, and commitment to, our safety performance."
  1. "Your continued employment relies on your satisfactory performance, against criteria that will be discussed with you, and assessed by your manager.  The Work Performance Assessment process is the formal review of your performance, through which the Company rewards your efforts."
  1. "In addition to the terms and conditions contained in this Letter of Offer, there are other Company policies and procedures that apply to your employment.  It is a condition of your employment that you act in accordance with all Company policies (as amended from time to time).  Copies of policies are available from the Rio Tinto Aluminium HR Portal, or from your manager."
  1. "Staff are required to adhere to the Company's standards of conduct at all times.  These standards are set out in the Code of Conduct and are outlined in the booklet The Way we Work.  Both documents have previously been provided."
  1. "If you believe that you have been unfairly treated, you can have this action reviewed.  You should first discuss the issue with your manager, unless this is inappropriate, in which case you should first discuss it with your manager's manager.  The Company also has a Fair Treatment System, which is available to you.  It is designed to provide you with access to a formal review where you feel that a decision or behaviour that affects you is unfair.  This does not replace the normal discussion and work review between you and your manager.  Your manager will discuss this system with you when you start work.  It can also be found on the Rio Tinto Aluminium HR Portal."
  1. "The Rio Tinto Speak-OUT programme has been set up to enable staff who may have concerns (or ideas) regarding regulatory, criminal, community, ethical, environmental or safety issues, to have them brought to the attention of senior managers in an anonymous fashion.  Details of the system are available from your manager and the Rio Tinto Aluminium HR Portal."
  1. From late 2007 onwards, the Appellant applied for, or provided expressions of interest in relation to, G3, Control Room Operator ("CRO") or relief CRO positions, and Team Leader positions when they were advertised.  The Appellant was unsuccessful in relation to each application or expression of interest that he lodged. 
  1. In relation to the initial applications, the Appellant received and accepted an explanation that the successful applicants had been there for a longer time than himself and were more experienced.  According to the Appellant, he elected to work harder, undertake any training that was available to him, and assist in the training and mentoring of more junior process technicians, in order to reinforce his commitment to the company and his commitment to team work.  Despite this, from about August 2008 the Appellant was unsuccessful in either obtaining an interview or the position for which he applied.  He also noted that there was an increasing number of occasions where positions were not advertised either internally or externally and the positions were filled from outside the company.
  1. The Appellant gave evidence that:
  1. personnel that he had assisted in training were selected for promotion over him;
  1. training that he required to advance was cancelled or postponed by his employer, in one instance as a consequence of incorrect information being supplied by another employee;
  1. he was required to shift crews, with the effect that he was placed at the bottom of the list for some training.
  1. In June 2009, Donald Ney was appointed as Production Superintendent at Yarwun.  Around that time, on a global basis, Rio Tinto was changing the basis upon which it employed workers from the G2 to G5 rating scale to a universal banding scale.  The Appellant was uncertain about how this change would affect him.
  1. The Appellant spoke with, and then sent correspondence to, Mr Ney in relation to his disquiet about the change and his failure to advance within the business.
  1. Over the following year there were specific incidents in relation to which the Appellant was criticised by his managers, the Appellant applied unsuccessfully for promotion, the Appellant was on a period of sick leave and he made a Fair Treatment System application in relation to numerous concerns about his employment circumstances, and he continued to have communications with Mr Ney about his behaviour, attitude prospects for advancement within Rio Tinto.
  1. On 16 August 2010, the Appellant and some other staff in his team were instructed to perform the task of a burner front clean on a boiler.  The Appellant asked whether they would be getting assistance from appropriate trades persons (in accordance with what he understood the authorised best procedure to be) and was informed that they would not.  A series of discussions ensued involving the Appellant, his Team Leader Tony Phillips and Mr Ney.  Later that day, Mr Ney and others prepared a Performance Improvement Plan ("PIP") for the Appellant.
  1. On 17 August 2010, in the afternoon, the Appellant attended a meeting with Mr Ney, Mr Phillips and an officer from HR at which the Appellant's behaviour was discussed and he was presented with the PIP.  After that meeting, the Appellant was upset, shaking, had a headache and felt dizzy.  Mr Ney agreed to him leaving.  The Appellant drove to his sister's place.  She arranged for him to see a doctor the following day.
  1. The Appellant did not return to work.
  1. On 24 August 2010, the Appellant lodged an application for compensation dated 20 August 2010 with WorkCover (Exhibit 1).

Nature of appeal and onus of proof

  1. This appeal is to be determined by reference to s 32 of the Act.  During the period when the Appellant allegedly suffered the injury, and at the date of his WorkCover claim, relevant parts of that section stated:

  "Meaning of injury

  1. (1)
    An injury is a personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.

 …

  1. (5)
    Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances-
  1. (a)
    reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
  1. (b)
    the worker's expectation or perception of reasonable management action being taken against the worker;
  1. (c)
    action by the Authority or an insurer in connection with the worker's application for compensation."
  1. The Appellant bears the onus of proof to establish his entitlement to compensation.[1] The standard of proof is on the balance of probabilities.[2]
  1. The hearing of the appeal from the Respondent's decision was conducted as a hearing de novo.  In other words, the Commission does not review the reasons for the Respondent's decision but decides the matter afresh on the evidence before it.[3]  According to the Appellant's submission, the Commission has the benefit of a far greater amount of evidence than was before the Respondent's Review Unit when that Unit determined the review application.

Issues

  1. It is apparent from the Respondent's outline of submissions that there is no dispute that the Appellant is a "worker" within the meaning of s 11 of the Act or that he suffered an injury within the meaning of s 32 of the Act. 
  1. The issue to be decided on this appeal is whether the injury arose out of or in the course of:
  1. reasonable management action taken in a reasonable way by the employer in connection with the Appellant's employment;
  1. the Appellant's expectation or perception of reasonable management action being taken against him.

 Nature of the Appellant's injury

  1. Medical evidence was given in relation to the injury by Dr John Chalk, a psychiatrist, called by the Appellant.  His evidence was not contradicted.  Dr Chalk examined the Appellant on 24 November 2010 on the referral of the Principal Medical Advisor to Rio Tinto Alcan Yarwun.  He took into account a range of documents including a psychologist's report.  In his report dated 26 November 2010 (Exhibit 17), Dr Chalk provided the following diagnosis:

"Mr French has a chronic adjustment disorder on a background of significant personality traits in the obsessive and passive aggressive spectrum."

  1. Dr Chalk also wrote:

"This 39-year-old man appears to have developed a chronic adjustment disorder with depressed mood in the setting of his perception of workplace difficulties.  …"

  1. He explained that the adjustment disorder was an adjustment to a set of circumstances or a situation that leads to the development of psychiatric symptomology and causes clinical distress.  Dr Chalk stated that, although the Appellant might take things out of proportion, the Appellant was not in any way delusional and did not misperceive things.
  1. I accept that the Appellant suffered an injury in the form of psychiatric or psychological disorder which was a chronic adjustment disorder.
  1. As to whether the Appellant's injury arose out of, or in the course of, his employment and whether that employment was a significant contributing factor to the injury, Dr Chalk wrote:

"It is work related in the broadest sense in that there do not appear to be other significant issues in his life that have led to the development of his problems.

…  Mr French's perception is certainly that work is the primary cause of his problems.  However, I think that his current difficulties need to be seen as a complex interaction of personalities, coupled with a well-developed sense of responsibility."  (Exhibit 17)

  1. In his written report, Dr Chalk noted that the Appellant had given an account of there being "a chain of events in the workplace over a period of time."  The Appellant had "a litany of complaints about how he has been treated in the workplace," and his Fair Treatment claim in March 2010 (described later in these reasons) cited some 16 issues.  Dr Chalk recorded a number of the incidents referred to by the Appellant, as well as the Appellant's concerns and perceptions in relation to them.
  1. In his oral evidence, Dr Chalk confirmed that the Appellant did not identify any non-work related stressors that had caused the development of his condition.  He had given a history of difficulties in the workplace over a lengthy period of time, and his symptoms had arisen over that period and not in response to one event such as the meeting in August 2010.  On the basis of the evidence he had been given and the clinical examination of the Appellant, Dr Chalk expressed the view that the Appellant's employment was a significant contributing factor to his adjustment disorder.
  1. Dr Chalk expressed the view that the fact that the Appellant had been required to take some sick leave because of stress in March 2010 (and consulted a psychologist Tania Gorton) probably left him in a more vulnerable state to decompensate later in the year.  Dr Chalk said it was hard to know from the material how well the Appellant was when he went back to work after that leave.  His impression was that the Appellant's difficulties had not resolved, and the workplace had not changed, but the Appellant decided to try and "soldier on" possibly for, in part at least, economic reasons.               

The Appellant's personality and credibility as a witness

  1. In his written report about the Appellant, Dr Chalk observed that he "has always been a somewhat orderly and meticulous man and certainly the clinical impression was of a rigid personality with significant obsessive traits."  During the mental state examination, the Appellant "was quite obsessive and somewhat over inclusive in his history and at other times somewhat labile."  Dr Chalk expanded on that statement in his oral evidence when he said that:
  1. the Appellant "tended to get bogged down in some of the details about his history" that Dr Chalk did not particularly want to know, and "we would go over and over the same material;"
  1. lability refers to a range of quite rapid changes in mood during an interview. 
  1. Dr Chalk described the development of the Appellant's psychiatric condition as having occurred "against a background of a personality with some clearly obsessional features and certainly a degree of rigidity."  Elsewhere he referred to the Appellant's "somewhat black and white approach."  He noted that the Appellant "rightly or wrongly, considers that it is others who have the problem and not he.  Indeed he was, throughout this interview, quite critical of management both from a style and content perspective."  Dr Chalk described the Appellant's condition as being "on a background of significant personality traits in the obsessive and passive aggressive spectrum."
  1. In his oral evidence, Dr Chalk said that his clinical impression of the Appellant was that he was a man "who tended to see things in black and white," that he "wasn't someone who coped particularly well with shades of grey" and that he had a very "right and wrong approach to things."  That was "reflected in his difficulty in adapting to the circumstances in which he found himself."  In Dr Chalk's opinion, obsessive traits (which tend to have a degree of meticulousness or perfectionism) are not necessarily a bad thing, but the trait can become counter-productive if there is not a degree of flexibility with it.  The passive aggressive component described someone who did not seek conflict but would react to events with which he was having difficulty by being passive (by withdrawing from the situation) but at the same time quite angry.
  1. Those observations are consistent with characteristics that Mr French displayed at times in the course of giving evidence in these proceedings.
  1. Dr Chalk agreed that people who display both the obsessive traits and a rigid personality (including the Appellant) are more prone to decompensate or develop some form of psychiatric or psychological symptomatology in circumstances where they may be subject to change or things are not to their liking.  He explained:

"It also comes down to an issue, in some sense, of control over your own destiny.  But … if you feel that that situation is getting out of control or … you lack any control over it then that, in fact, can lead then to development of quite significant depressive illnesses." 

  1. Detailed submissions were made on behalf of the Appellant about his credibility as a witness.  In summary, those submissions were that:
  1. the Appellant gave lengthy evidence setting out his recollections of the events giving rise to his injury, and his demeanour in giving that evidence indicates that he was an honest witness who was doing his best to assist the Commission;
  1. although the Appellant had some difficulty on occasions focusing on the questions being asked, and understanding those questions, the Commission should take into account that:
  1. the Appellant was clearly not familiar with giving evidence;
  1. he was and is a relatively unsophisticated person who had limited education (which was evident from his oral evidence and documents written by him, for example Exhibits 11 and 22); and
  1. he had sustained a significant psychiatric injury which was clearly still affecting him at the time he was giving evidence. 
  1. I accept generally the submission in relation to the Appellant's credibility as a witness.  But the implications of that conclusion must be understood in light of Dr Chalk's assessment of the Appellant's personality which, in turn, is relevant to findings in relation to specific events and interpersonal issues considered below, and the Appellant's perception of them.  Also, as will be apparent later, I have preferred other witnesses' accounts of some events involving the Appellant where their more detailed recollections are supported by contemporaneous notes.

Overview of the Appellant's case

  1. Unlike the practice in relation to subsequent appeals of this type, the Appellant's case commenced without the identification of specific stressors to mark the boundaries of the appeal.[4]  The Notice of Appeal lodged with the Industrial Registrar on 6 April 2011 did not list any grounds of appeal. 
  1. By letter dated 22 February 2013, in accordance with a direction of Vice President Linnane dated 30 January 2013, the solicitors for the Appellant advised that their client:

"sustained the injury for which he claims compensation as a result of a series of circumstances occurring within his workplace from February 2008 culminating in the Appellant lodging a fair treatment review process in March 2010.  Those events related to the Appellant receiving a lack of opportunity in being considered for promotions or other relieving positions within the organisation and a failure to provide appropriate feedback to the Appellant about the recruitment process.  The Appellant also relies upon the employer denying him training opportunities that were afforded to his co-workers which also inhibited his progression within the business.  The Appellant alleges that in the period after raising his concerns using the Speak Out process he was targeted by management."

  1. The letter summarised a series of events by month or date between February/April 2008 and 5 May 2010, and continued:

"When the Appellant returned to work after this fair treatment process in May 2010 he was of the understanding that he would be given a fair go and that there would be a 'fresh start' between himself and his employer.  The Appellant contends that his treatment by management thereafter was the exact opposite of a fresh start and a clean slate."

The letter then listed a series of events between 9 July 2010 and 17 August 2010. It contended that the meeting on 17 August 2010, including the issues raised in the meeting and the manner in which the meeting was conducted, "contributed further to the Appellant's injury."

  1. Evidence was given in relation to the events and actions listed in that letter.
  1. The Appellant's written submissions  made following the hearing refer to the reasons for decision of WorkCover dated 5 November 2010 (Exhibit 2) which noted that the Appellant relied on the following stressors:
  1. Factor one: unfairly targeted by managers Don Ney and Tony Phillips
  1. Factor two: lack of professional development and direction from management
  1. Factor three: required to attend meetings relating to performance and attitude.
  1. The Appellant's submission then states that the Appellant maintains these grounds but notes that the appeal has been broadened to include the events prior to 2010 where the Appellant has been disadvantaged in training opportunities and in seeking advancement.  The Respondent notes that the factors listed are not dissimilar from the factors considered in the Respondent's reasons for decision, and that the proceedings before the Commission are little different from the matters considered upon review.  The present case involves a more lengthy consideration of matters alleged to have occurred over a period of time.
  1. Given the way in which the appeal was formulated, and the Appellant's case and Respondent's case were presented, it is necessary to deal with each of those incidents or events in order to ascertain whether the Appellant has discharged the onus that he carries.  In particular, those events will be assessed to ascertain whether the Appellant has proved on the balance of probabilities that any or all of them occurred and gave rise to his injury and that his claim for compensation should be accepted because s 32(5) of the Act does not apply.
  1. It is appropriate to deal with the events or incidents in chronological order, both as a means of assessing their impact on the Appellant and to gain an appreciation of the overall or cumulative effect of them on him.
  1. Various managers at Rio Tinto were mentioned, or gave evidence, in these proceedings.  Their respective positions in the corporate structure, in ascending rank, were:
  1. process technician: John French (the Appellant);
  1. Team Leader of the team that from time to time included the Appellant: successively Rebecca Smith, Gavin Maines, Bevan Williams, and then Tony Phillips (for about six weeks during the final period of the Appellant's work at Rio Tinto); 
  1. Production Superintendent: Mark Jenner, Rob O'Shea, Rob Hocking (for a couple of months); and then Don Ney (from June 2009) - who supervised the four teams, and to whom the Team Leaders reported;
  1. Superintendent's manager: Pat Fordyce, Dane Linforth;
  1. General Manager: Mike Dunstan.

Appellant's unsuccessful application for positions: 2007 to 2009

  1. The Appellant commenced at Rio Tinto as a G2 process technician in September 2007. He gave oral evidence that he lost $71,000 transferring to Rio Tinto. (It was not clear how that figure was calculated or the period to which it applied.)  He said that Mr Jenner gave him a pay base rate start and, according to the Appellant, could not understand why the Appellant could not advance through the levels because of the experience and knowledge that he brought to the company (Mr Jenner did not give evidence in these proceedings).  The Appellant also said that, during his period of employment with Rio Tinto at Yarwun, his pay was increased following performance reviews.
  1. In late 2007, the Appellant put in expressions of interest for G3 roles, but not for Team Leader because he felt at that stage he was not well equipped to handle a position while he was still becoming familiar with the plant.  In about February 2008 he applied for Team Leader and G3 positions, but not for relief CROs as he did not have his advanced Boiler Ticket.  The Appellant was unsuccessful with those applications but was informed, and accepted, that other people who had been there before him and had more skill sets than he would be appointed to those positions.  He described this as "continual succession." 
  1. In 2007-2008, the Appellant moved between teams so that his skills could be used in relation to particular tasks (such as calcination) until the number of employees with relevant experience increased.  He provided some technical training to members of his team.  He recalled that one person who he trained and who had not been there as long as he, Tammy Gatlin, was appointed to a G3 role.   
  1. The Appellant made inquiries of his managers about getting training qualifications and other training.  For various reasons, including his transfer between teams with different training dates, some training was postponed or cancelled on several occasions, including in 2010, and he did not undertake it.  Although he obtained an Advanced Boiler Ticket in May 2009, and received some training (e.g. in Microsoft Word and Microsoft Excel), the Appellant considered that the consequential delays in opportunities for other training set back his opportunities to obtain higher positions at Rio Tinto.
  1. Documents containing assessments of the Appellant's work performance in the period between August 2008 and the end of 2009 include observations in relation to the Appellant's technical proficiency and aspects of his behaviour.  Because there is no issue in this case that the Appellant was competent in the performance of his duties and had the necessary skills to do the work for which he was employed, it is not necessary or appropriate to review in detail those aspects of the exhibited documents.  Given the focus in these proceedings on the Appellant's career aspirations and his personality and behaviour in the workplace (in particular whether he was suitable for promotion to a leadership position), it is relevant to focus on those aspects of the assessment documents.
  1. A Work Performance Review dated 19 August 2008 and signed by the Appellant and his leader (Exhibit 6), recorded the stages before, during and after their discussion in relation to his work as a G2 process technician.  The Discussion Notes included the following:
  1. Health & Safety: "Good level of safety awareness and commitment, demonstrated in Safety improvement projects, team safety representative and Emergency Response Team member."
  1. People Commitment: "Generally a strong team player with high output level however tends to prefer to work alone.  Cares for his team mates and shares communication on safety issues in our area.…  John's priorities have a tendency to supersede the teams/personal development priorities.  Discussed the need to keep open communication with each other in order to have clear expectations on work/personal development priorities."
  1. Operational Excellence: "consistently strives for optimum efficiency from equipment.  Has begun to priorities (sic) maintenance notifications.

Maintain thorough plant checks and continue to show initiative in completing Primary maintenance.

  Continue attention to detail on plant operation and anticipate faults.…

Demonstrated area ownership and urgency in returning plant to service by performing minor maintenance tasks that would not have been completed by Reliability until scheduled.  I.e., temporary repairs, valve change outs.

Discussed recent lack of motivation towards completion of MIO[5] required training and we agree that John requires further administrative support in order to complete this training.  Therefore no completion date has been set in order to allow John to complete at his own pace to a required standard."

  1. Training requirements: "To assist with MIO training provide administrative support; Microsoft Word, Microsoft Excel, Permit and Isolation update.

  Continue with MIO training at self pace.

Graeme Clark to notify when next booking available for Element training." 

  1. Future direction: "Complete training requirements to meet G3 qualifications.  Future aspirations as a Team Leader."
  1. RTAY Values: "Commitment to plant operation and maintenance is of high standard.  Works hard to ensure equipment and areas are handed over in satisfactory condition.

Maintain prompt reporting of maintenance, environmental and operational incidents.

At times has not used the correct hierarchy of communication to address issues, generally in regards to training.  Has agreed to communicate through Team Leader to allow for planning and team management and request meetings with Team Leader and other parties if required."

  1. Ideas for improving work performance (Team Member behaviour): "Initiative to maintain plant optimum operational efficiency.

Maintain transparent communication within appropriate channels of hierarchy.

Set no deadlines on completing remaining training requirements.  Concentrate on delivering high standard of work and confidently."

  1. Ideas for improving work performance (Leader behaviour): "Maintain my levels of transparency in communication."
  1. In March 2009, two G3 process technician positions were filled from outside the company.  The positions were not advertised within Yarwun and the Appellant expressed concern about how they were filled.
  1. A Discussion Planner for Interim Review in relation to the Appellant was completed by Gavin Maines, the Utilities Team Leader of the Quoin crew, and dated 16 June 2009 (Exhibit 8).  The Interim Review provided feedback to team members on their performance in relation to both the objectives and behaviours that were agreed at the beginning of the year.  The document included the following statements:
  1. HSE: "Displays a personal commitment to HSE and care for self and others

Proactively contributes to discussions in start-of-shift and safety meetings - raises safety issues and contributes to solutions

  Provides improvement ideas as a recipient to safety interactions

Identifies unsafe acts and conditions in the workplace, however needs to take owner ship and follow through with some of these ideas."

  1. Operational Excellence: "Escalate critical issues with appropriate level of urgency and to relevant stakeholders (eg Shift Controllers/Team Leader)

Work with maintainers to assist equipment problem solving and improvement

Isolate and de-isolate equipment to schedule and prepare the handover in a clean and tidy state"

  1. Achievements for 2009: "Achieved 5 safety observations per month.

  Calciner MIO's completed and has participated as MIO.

  Certificate 3 in Process operations.

  Advanced Boiler ticket.

  Boiler and Calciner control room training completed to element 4.

  Relief CRO for Boilers and Calciners.

  Relief Team leader."

  1. Among the matters listed as "working well" or "opportunities for improvement" were the following:
  • "I have requested further training SLDP, Work place Trainer but have been unable to get approved.
  • I am prompt on CRO requests when requested to attend faults or process trips.
  • I assist in other areas when needed or directed and offer assistance where needed."
  1. In relation to future improvements, the Appellant wrote:

"My personal improvements would be my management group whom would mentor and assist myself in my continual improvement goals e.g. SLDP training & work place trainer.  So I can develop my gaols of perusing management training.

THANK YOU: JOHN FRENCH 2009-10-01." (Errors in original)

  1. The agreed actions to be taken were:
  1. "Needs to take owner ship and follow through with ideas/notifications/CMR raised.
  1. Need some re-fresher training on Lean principles[6] and how they apply to work team."
  1. The Appellant gave evidence that in 2009 he sought to challenge his Work Performance Assessment.  After making the then Superintendent (Mr Hocking) aware of his achievements, including having successfully completed virtually all his training and achieved his advanced Boiler Ticket and having acted as relief Team Leader and as a CRO, his overall assessment was elevated from "satisfactory" to "good."  The Appellant stated that he was happy with the overall "Good Performance" assessment. 
  1. According to the Appellant he was performing at least at G3 level by 1 July 2009.  A G3 position involved a higher level of duties, and that person normally acted in the relief role as Team Leader.
  1. The Appellant gave evidence that he acted as a relief Team Leader, in the absence of the Team Leader, on about 50 or more occasions between September 2007 and August 2010, both before and after he achieved the Boiler Ticket.  That role involved a range of duties, including completing Utilities Handover Notes (see Exhibit 7).  The duration of his acting in that role varied, and included periods of one or more hours when the Team Leader would be in a meeting or had to go off site.  On "several occasions" (a "fair few") he worked a complete shift as acting Team Leader.  The Appellant said that before April 2010 he had not received any suggestions that he was not doing the role capably.  Two of the achievements listed in Exhibit 8 ("Relief CRO for Boilers and Calciners" and "Relief Team leader") confirm and corroborate his evidence that he had been relieving as both a CRO and a Team Leader before June 2009.
  1. The Appellant gave evidence that he acted as a relief Team Leader to prove that he could do that work quite capably and to assist his ability to fill a position when it became available.  In his words, he took on those high duties "to prove that I was … willing and capable and had the mindset and the skill set to do that job." 
  1. The G3 position was abolished on 1 July 2009 when another rating system was introduced.  The process technician positions remained, and progression was through the ranks of a process technician.  The Appellant asserted that, although he attended at least one group meeting about implementation of the new system, he did not completely understand the new system and that his subsequent complaints about not progressing to a G3 level reflected that.  He noted that his base pay did not change when the new system was introduced, and agreed that concerns about not being promoted to G3 were of no relevance or concern to him after 1 July 2009.  However he was concerned about the "grey areas that were involved" if someone was ready for promotion after that change.
  1. In June 2009, Mr Ney commenced as Superintendant.  In early August 2009, the Appellant had a discussion with Mr Ney in which he enquired about a possible increase in pay.  According to the Appellant, Mr Ney told him that he was not "going to be increased."  However, Mr Ney did make some notes about the Appellant's behaviour and performance.  At the hearing, Mr Ney said he did not recall the conversation and did not have his diary notes for 2009 with him.
  1. On 9 August 2009, the Appellant wrote to Mr Ney (Exhibit 9) and referred to their recent discussion about his enquiry for a pay increase on the basis that he felt "qualified as a G3 and above."  The Appellant wrote that he had been working hard and continued to become more competent above his G2 role, and had been ready for a G3 position since April-May 2008.  Four positions had been allocated to people who had been with the company for shorter periods than he had and who were less qualified than he, with no expressions of interest being advertised internally.  The Appellant stated that in 2009 he had been asking for an increase in pay equal to a G3 position.  He had been filling several roles and was "not rewarded for (paid) at the level I feel it is fair."  The Appellant also stated that "with the new global banding of ITMS[7] I feel I will be disadvantage on a long-term basis."  He felt that "drawing this matter out till December will not be reflected in ITMS" and he wanted to address his base rate to reflect a G3 pay rate higher than his present base rate and not by his annual performance rating score.  According to the Appellant, he received no response from Mr Ney in relation to his written request.  At the hearing, Mr Ney said he had no recollection of what he did in relation to the email message.
  1. The RT Performance document completed by Mr Maines in relation to the Appellant for the period 1 January to 31 December 2009 (Exhibit 10) included a final appraisal of performance as "Good Performance".  It concluded with the following Leader's comments:

"HSE Commitment - John, you've done some very good work with hazard identification however you need to follow through with these to completion. 

Operational Stability - throughout the year you have offsided the fitters and you are always looking to improve in different areas.  You have offered your thoughts on improving mill shutdowns and other issues in the boilers.

Business Improvement - You have assisted in achieving the 3 green milestones however you are not sold on the concept of lean and 5S.[8]  This area requires some development.

Cost Reduction - You are aware of the cost reduction on site however you need to be more involved in this area by being personally accountable for cost and expenditure in Utilities.

Behaviours - At times you can be perceived to be very negative and you can sometimes struggle with what has happened in the past.  You need to focus on the situations that we can control and positively influence.

  Overall I have assessed your behaviour as good."

  1. In relation to the statement that at times he "can be perceived to be very negative," the Appellant submits that the statement must be seen in the context that, by the end of 2009, he had been unsuccessfully seeking advancement in the organisation for 2 ½ years, he had sent the request for advice and assistance to Mr Ney in August 2009 (Exhibit 9), and he had received no response from Mr Ney in relation to that request.

Appointment of Bevan Williams as Team Leader in January 2010

  1. In January 2010, Bevan Williams, a process technician, was appointed as a Team Leader.  The position was not advertised, and the Appellant expressed his concerns to Mr Ney about that.  According to the Appellant, Mr Ney responded that the appointment was made to meet the company's requirements and it was not the Appellant's business who they appointed as Team Leader.  Mr Ney recalled discussing the Appellant raising the matter with him but did not recall the date or content of the discussion. 

Appellant's use of Speak Out process in February 2010

  1. The Speak Out system allows Rio Tinto employees to place telephone calls to speak about the company on a confidential basis and raise any concerns about the company not acting in a proper manner.  The Appellant said that he used the system twice.
  1. On 7 February 2010, the Appellant used the Speak Out process to raise concerns about roles not being advertised, not having access to training, and fairness of selection process/decisions. 
  1. The Appellant was not aware of anything being done as a consequence of his Speak Out call.  However, he said that a couple of shifts after making the call he was issued with a written warning about an incident (considered below).  He had a conversation with Mr Fordyce, the Area Manager in charge of Mr Ney, who was apparently aware that the Appellant had made the call. 

Control Room Safety Incident and investigation in early February 2010

  1. The Appellant's account: The Appellant recounted that while on a night shift he had returned to the Control Room to relieve another person (Brad Ryalls, a senior CRO) at a time when the Team Leader, Gavin Maines, was not in the room.  There had been a change involving the boilers in the Control Room, and the Appellant tried to contact Mr Ryalls on the radio.  Both Mr Ryalls and Mr Maines had their radios turned off.  The Appellant opened the door and saw both men outside.  He "popped" his head out the door and yelled to Mr Ryalls to come inside because there was a major event happening in the boilers.  Mr Ryalls was in charge and needed to know what was happening. Les Ogden was around the corner from the door. Mr Maines was under stress from a motor vehicle accident on the previous night and was "very volatile."  He told the Appellant he was not to walk out of the Control Room.  The Appellant agreed and said that is why he was in the doorway.  Somebody reported that he had left the Control Room.  The Appellant said that he had not left and could not understand how someone would think he had.  He kept the door open and could hear the panel and see the panel clearly.
  1. According to the Appellant, when he came in on his shift on 9 February 2010, he was told by Mr Ney in his office that he would be getting a written warning for leaving the Control Room.  The Appellant had received no notice of the meeting and was not afforded an opportunity to have a support person present even though the meeting was about a written warning.  The Appellant explained to Mr Ney that he did not leave the Control Room but remained in the doorway.  He did not shut the door and remove himself from the panel.  According to the Appellant, Mr Ney said he had been told something different and the Appellant did not have an excuse that was good enough. 
  1. The Appellant's evidence identified his four concerns or perceptions about this management action:
  1. the Appellant felt that he was being targeted or victimised as he had not left the Control Room;
  1. in any case others had left the Control Room (e.g. to go to the toilet) and had not been disciplined;  
  1. Mr Ney did not attempt to investigate what the Appellant had said or talk to anyone else, such as Mr Ryalls; and
  1. the Appellant received a written warning which was later withdrawn, because the Appellant did not have a support person present at the meeting.
  1. The Appellant then made a second Speak Out call in respect of the written warning being provided, which he viewed as being retaliation for his original Speak Out call some two days previously.
  1. Mr Ney's account: Mr Ney gave evidence that, on 3 February 2010, Mr Maines alleged that the Appellant had left the Control Room the previous night.  Mr Maines indicated that he had been stressed from being undermanned and as a result of a recent vehicle accident, and that he was upset about the way he had sworn at the Appellant in an aggressive manner.  Mr Ney recorded that he was happy with Mr Maines' approach to the Appellant as it was a safety breach and the Appellant needed to understand his action, though he counselled Mr Maines about his inappropriate way of speaking to the Appellant.  Mr Ney spoke with the Appellant about this matter twice on 9 February 2010.  Apparently the four day shift roster explains why he did not follow-up earlier.  It also provides an answer to the Appellant's first concern that he was being targeted following his Speak Out call (a matter also dealt with in the Fair Treatment process in relation to Issue 4, discussed below).
  1. Mr Ney spoke with Sarah Dundas from HR before the meeting.  Ms Dundas was present in the first meeting, that morning.  Mr Ney acknowledged that he did not give the Appellant prior notice of the meeting or what was to be discussed, and did not offer him the opportunity to have a support person present.  Mr Ney stated that the first meeting was not a disciplinary action but was an explanation of what he found.  He confirmed that the Appellant denied leaving the Control Room and had said, in effect that he opened the door to the Control Room, stood in the doorway and called out to Mr Ryall. 
  1. Mr Ney also said that he spoke to Mr Ryalls and Les Ogden about the incident (apparently after the first meeting).  Although he suggested that they confirmed that Mr Maines had correctly stated that the Appellant walked out of the Control Room, his notes of those conversations indicate that:
  1. Mr Ogden did not view the incident; and
  1. Mr Ryalls confirmed that the Appellant left the panel for a short time, which is consistent with the Appellant's explanation that he wanted to get Mr Ryalls' attention and came to the door. 
  1. Mr Ney called the Appellant into a meeting at 3.15 pm that day.  Again the Appellant was not provided with any prior notice of the meeting or an agenda, and was not given the opportunity to have a support person present.  Ms Dundas was present in accordance with company policy.  By that stage, Mr Ney had formed the view that it was appropriate for the Appellant to receive a written warning.  At that meeting, the Appellant raised concerns that the process was not fair.  Apparently he was given a written warning.  However, because Mr Ney stepped outside company policy in relation to the second meeting, Mr Fordyce "ripped up the written warning and took it off his record."  Mr Fordyce told Mr Ney what he needed to do in the future and follow the process.
  1. Mr Ney subsequently made inquiries in relation to allegations by the Appellant that two other CROs had left the Control Room unattended on occasions.  Mr Ney spoke to the team leaders of the persons nominated by Mr French, and was satisfied that they did not leave the panel (e.g. to go to the toilet) before ensuring that someone else was at the panel.  Had a team leader reported that any CROs stepped outside, he would have gone through the same process as he did with the Appellant.  By that evidence he explained why, in his opinion, he had not treated those employees differently from the Appellant.
  1. Mr Ney's evidence includes, in effect, responses to each of the Appellant's four concerns, and addresses those of his perceptions that were based on lack of information and incorrect assumptions.
  1. Although it was appropriate for Mr Ney to investigate the allegation made against the Appellant, there were a number of aspects of the way in which management dealt with the matter that were unsatisfactory.  By their actions, senior managers acknowledged and accepted those criticisms. Mr Maines apparently expressed regret to Mr Ney about having sworn at the Appellant in an aggressive manner and Mr Ney counselled him about that (although that exchange appears not to have been conveyed to the Appellant).  The procedural defects surrounding the way in which the Appellant was given a written warning were recognised, if not remedied, by the withdrawal of the warning and instructions given to Mr Ney to follow the appropriate process in the future.

Appellant applies for Team Leader and Control Room vacancies in March 2010

  1. In early March 2010, six CRO positions were advertised and a Team Leader position was to be filled.  The Appellant applied for a Team Leader role but was not interviewed. He applied for a CRO position and was one of eight applicants selected for interview.  He was unsuccessful.  On 4 March 2010 he had a feedback session with Stephen Austin who was in charge of the Control Room and who had conducted the interview.  The Appellant wanted to know why he missed out on a CRO position given his qualifications, knowledge, background history and seniority. 
  1. The Appellant's account: Although the Appellant's evidence on this point was unclear, it appears that Mr Austin indicated that the Appellant's personality traits, such as not listening, were relevant to that decision.  The Appellant stated that Mr Austin "highlighted the same criteria that Don highlights to me all the time."  The Appellant also spoke to Mr Ney who apparently gave a similar response.  However, the Appellant contended that he did not get a clear understanding of why he missed out on that position. 
  1. Mr Austin's account: Mr Austin gave evidence that he met with the Appellant in the company of a person from HR.  Consistently with company practice, he had discussions separately with the Appellant and the other unsuccessful candidate about why they had been unsuccessful.  He made notes of each discussion a few hours after its conclusion.  Mr Austin did not provide a copy of those notes to the Appellant to check whether he agreed with them.
  1. Mr Austin stated that each of the eight applicants who were interviewed, including the Appellant, was technically competent and trained appropriately for the CRO position, although none of them was at the level required for the position and each successful applicant would need to be trained to that level.  Some applicants had obtained their qualifications shortly before the interview and had worked for Rio Tinto for shorter periods than the Appellant.  The areas where the Appellant "not the best" were:
  1. his ability to listen: in the interview he struggled to answer some questions and would give an answer about something else, e.g. he would divert to the technical issue, particularly when talking about the teamwork aspect; and
  1. teamwork: in discussion the Appellant said that he wanted to get into the CRO role because he would be in control of it, indicating that "it's all about him" even though the critical part of that role is teamwork and integrating the team.
  1. According to Mr Austin, the Appellant was obviously and understandably upset, and wanted to talk through and argue about matters in a lot of detail.  His strong focus was on the technical aspects of the role and appeared to be comparing his technical capability with what he perceived to be the technical capability of some of the successful applicants to show why the outcome was unfair to him.  Mr Austin stated that the Appellant was "just missing the point" and perhaps had given no consideration to the other selection criteria.  He was focussed on technical capability, and Mr Austin kept reminding him that he was technically proficient but that was only one of the selection criteria.  Teamwork capability and communication were where the Appellant "fell down." Mr Austin said that teamwork is required for the operation of a refinery. If you don't have a team working environment and are not able to work with others as a team, it can be a very dangerous environment.  
  1. Two other matters were raised in the course of that discussion.
  1. The Appellant said that he was starting to get feedback about his communication and his teamwork, and he referred to things that Mr Ney or Mr Fordyce had said to him relatively recently.  Mr Austin said that maybe he was finally getting some good feedback and he could improve.  He suggested to the Appellant that if he was getting such consistent feedback, this is something that he may need to work on.  The Appellant said that he wanted to take this up with Mr Dunstan, the General Manager at the time. 
  1. The Appellant had been relieving as CRO for periods (say between 10 minutes and one hour) since obtaining his Advanced Boiler Ticket in about May 2009.  Toward the end of the discussion, the Appellant said that he was not paid extra for the work and responsibility of providing supervision while the dedicated CRO would have a brief break.  Mr Austin reminded him that this was a development opportunity, but that if he did not want to do that he could make sure that the Appellant did not have to do it again.  The Appellant replied that he was grateful for the opportunity, but Mr Austin thought that he was getting frustrated and disappointed about not getting the role.
  1. Mr Austin also gave evidence that:
  1. before the interview process, he and Mr Ney had to make a business case to convince Mr Fordyce and Wayne Glasrin (to whom Mr Austin reported) that there should be an additional six CRO positions;
  1. before the interview process he did not discuss it or individual candidates with Mr Ney, but Mr Ney knew that six of his team members would be selected for the CRO positions; and
  1. he had never been the Appellant's supervisor and after the interview process was complete he would have had discussions with relevant senior managers (Mr Fordyce, Mr Ney and Mr Ogden) about the applicants and the impressions he formed about them at their interviews.
  1. Mr Ney's account: Mr Ney's evidence was, in effect, that he would have known which process technicians were shortlisted for interview and which of those Mr Austin was considering taking as CROs.  Mr Ney agreed that he had previously commenced discussions with the Appellant indicating that he did not believe that the Appellant was suitable leadership material.  However, he did not agree that he expressed that view to Mr Austin in relation to who was likely to be appointed, and  he drew a distinction between a leadership position and a CRO position.
  1. The Appellant submits that, had there been a fair process for the selection of the six employees to fill the CRO positions and had the Appellant missed out on a merit-based application process, there could be no complaint that the process was unfair or unreasonable.  However, the Appellant submits that the process was not fair because there had been some involvement or influence exercised by Mr Ney or Mr Fordyce. 
  1. The Appellant notes that it seems that he was the longest serving of all the applicants for the positions, and that some of the successful applicants had only obtained their boiler ticket some weeks previously.  The Appellant submits that responses to questions about teamwork provide a very narrow basis to knock out one of the most senior applicants for the CRO role.  On that basis, and given that there was no evidence of any appeal or review mechanism in relation to the appointment process, the Appellant submits that the Commission is entitled to make a finding that the recruitment process was flawed and that the Appellant was entitled to feel a sense of disquiet about his failure to secure a position.  If such a finding is made, the Appellant submits that it is open to find that management action was not reasonably taken.
  1. Conclusion: Having considered the Appellant's detailed submissions in light of the totality of the evidence, I am not satisfied that the recruitment process was unfair or unreasonable.  It is clear that the Appellant and all the other candidates had the relevant minimum level of technical capability for the position and the successful candidates were selected by reference to that and other criteria relevant to the CRO role.  The evidence does not suggest interference by Mr Ney or Mr Fordyce in the selection process. Just because the Appellant felt an understandable sense of disquiet about his failure to secure a position does not mean that the process was fundamentally flawed.

Appellant on sick leave in March 2010

  1. Shortly after the interview with Mr Austin, the Appellant saw a doctor at the work site and commenced a period of sick leave related to stress.  The period of leave was about three to four weeks.  The Appellant also made use of Rio Tinto's Employee Assistance Program and was referred to a psychologist, Tania Gorton because he was having trouble dealing with issues and felt that he was at fault for everything.  He saw Ms Gorton "frequently" and over time became "a lot better" and "more productive."
  1. Mr Ney recalled a discussion with the Appellant who expressed concerns about missing out on the CRO position, and that soon afterwards the Appellant was on "stress leave" and was seeing a company psychologist.  Indeed, Mr Ney had encouraged the Appellant to go to the medical centre.  He contacted the Appellant by phone on 15 March 2010, during the period of stress leave, inquiring about his well-being.
  1. Although the Respondent submits that there is no medical evidence attendant to this particular incident, and it is not known what caused the Applicant to leave work at that time,  I am satisfied that the Appellant was on sick leave in relation to work related stress.
  1. As noted earlier, Dr Chalk gave evidence that it was hard to know from the material available to him how well the Appellant was when he returned to work after that leave.  Dr Chalk expressed the view that, as the Appellant had been required to take sick leave because of stress in March and he had consulted Ms Gorton, he was probably in a more vulnerable state to decompensate later in the year.

Fair Treatment System application

  1. The Appellant initiated a Fair Treatment Review by lodging a Fair Treatment System Issue Statement dated 15 March 2010 with Rio Tinto (Exhibit 11).  Thirty pages of documents were attached to it.  The following is a summary of the issues raised (many of them in the form of questions) and the preferred outcomes identified by the Appellant.
  1. The issues were, in essence:
  1. why he had not advanced within the company since 17 September 2007 even though he filled a Team Leader relief position and Control Room relief position;
  1. why he had been disadvantaged with role level classification, internal advancements, internal positions, internal promotions and role band changes Stratum to ITMS;
  1. why he had not had fair and equal opportunity with positions (e.g. no advertising of and for roles) and personal advancement;
  1. why, after three years with Rio Tinto, he was told "I don't listen to question for a reason not to obtain a CRO position recently since I asked question about unfair treatment is happening in work group;"
  1. he had no training for 12 months (or his courses were cancelled which would have enabled his skills and qualifications to progress internally);
  1. why he had been disadvantaged with RD and Band change;
  1. why he was subjected to less favourable treatment in the workplace just after using the Speak Out system;
  1. why, having been trained in Rio Tinto systems, policies and procedures, and having been relieving in Team Leader and CRO positions, he did not meet the qualifications to fill a CRO position after two years of interviews (and having been told recently he was not suitable because he doesn't listen);
  1. his role description had changed four times with no communication of the changes and why they were made.
  1. The Appellant wrote that his reason for invoking the Fair Treatment system was that he had again missed out on internal advancement for a Team Leader role (for which he was not interviewed even though he had filled the role "continuously" over a two-year period) and for a Control Room position (because "I don't listen").
  1. The following passage illustrates the basis of the Appellant's concerns.  When asked about the misconduct referred to in (c), he said:

"I worked hard to advance.  I've done the extra hours.  I've come in for over time.  I've taken work home.  I had a young family.  I was planning to build a house and I helped other people and yet they - they got advancement over me."

  1. His aspirations and expectations of promotion to a managerial position within Rio Tinto, and the effort he was willing to put in to achieve that goal, are illustrated in the following passages drawn from Exhibit 11:
  1. "I wanted to be with this company for a long time and make a difference and progress with distinction."  (page 2)
  1. "I have transferred internally for the company needs at the time for my skill in certain areas.  I am an employee who wishes to have a long term career with aspirations of becoming a manager with Riotinto one day through commitment, meeting company needs & requirements that are so my attributes and skills that do benefit Riotinto and I had hoped long-term they would meet my aspiration in developing me to for fill my long term ambitions with Riotinto."  (page 2)
  1. "I did take on duties outside of my role description to meet company needs on the hope this would assist in my advancement in the company and be recognised for the positive attributes I have."
  1. "My training was intense when I started I focused what was required, I took work home to become competent in less time as this would help the company when I was competent in my areas … Calcination and boiler with in 6 month (I even had my wedding in this duration and didn't go on our honeymoon so I could get back to work)."  (page 4)
  1. "I still for fill my role and duties with a resolved that things will be addressed and a fair resolve granted to my disposition of other unfair situations, because I have career aspirations to continue to work for this company and act in the best interest of this company because I am a stake holder also of this business and a long term employee."  (pages 6-7) (errors in original)
  1. The Appellant listed eight points as the preferred outcome of his Fair Treatment case.  As I understand them, they were in summary:
  1. admission that the CRO positions were coached and pre-empted to disadvantage him on the basis of a personal opinion, rather than qualifications and company commitment and values, as he had been doing the job as at March 2009;
  1. review of his unfair treatment and action on the unfair actions that had occurred, so that the personnel management team could comply with the company's values, code of conduct, equal opportunity and policies;
  1. an apology letter from the company for the misconduct in relation to his treatment in this matter;
  1. an increase in pay in his base rate to the top of his band to equal where he would have been if opportunities were settled, and because he had been relieving as Team Leader and CRO without remuneration for duties since early 2008 and because he had been disadvantaged since transferring to Rio Tinto;
  1. an equal opportunity to progress on merit without management influencing the positions and outcomes negatively based on the beliefs or opinions of the few who could have departmental influence on the futures of personnel;
  1. a guarantee of a CRO position as soon as a possible because the role position was influenced by management;
  1. no further acts of malice and belittling of him in the future by his management team;
  1. personnel are treated with dignity and respect, and are valued for their skills and qualifications and commitment to the company.
  1. He said that on occasions he acted in higher positions without remuneration, but did so to show his ability to perform those positions "knowing over time that it would be possible that I would fulfil one of these positions if I'm trying to show that I'm a valued company employee."
  1. The Appellant seemed to think that, given enough time, his undisputed technical competence, loyalty and diligence would be rewarded with a promotion.  He was excited when six CRO positions came up "that there was a possibility … I would fulfil the position finally" particularly as he was the "senior long-term employee at the time."  In his words:

"I have a lot of dignity.  I mean, I've worked very hard.  I had worked very hard.  I continue to work very hard.  I don't act disgruntled where I don't want to do it at all.  I'll still do the job 'cause I know I have a job.  I valued Rio Tinto.  I was proud to work for a Rio Tinto.  …  Just at the last year, I just couldn't understand why I was being treated the way I was, why I was missing out on things.  I couldn't understand.  Nobody can give me a decent answer.  I felt it was just victimisation of me.  …  I'd become a target."

  1. The Appellant seemed not to appreciate or accept that the positions of Team Leader and CRO required more than technical qualifications, and included skill in management such as the ability to look after people and control them.  When it was put to him, in cross-examination, that people in those positions would be assessed on the basis that they had those leadership skills, he said:

"No.  You get issued a ticket.  You're qualified to operate an advanced boiler."

When he was then asked: "But I'm talking about the positions of supervision and management?" the Appellant replied:

"Yeah. When I was on the panel, I was calling up operators all the time to ask them to do jobs outside. I'm able to instruct them because they're competent in the area."

The Appellant's return to work

  1. The Appellant continued seeing his psychologist during the Fair Treatment process as he said he was worried that something might happen to him as a result of how he was being treated.
  1. The Appellant recalled a discussion on 22 April 2010 with Mr Ney and Ms Dundas of HR about his condition on his return to work, and what he could or could not do.  At that time, he was also apparently still receiving treatment for an arm injury that occurred in October 2009 which led to a frozen shoulder.  He had been on light duties on day shift for about four or five months following that injury.
  1. Mr Ney, however, agreed that the discussion on 22 April 2010 would have been about mental health issues.  That was confirmed by his contemporaneous note.  Mr Ney was aware that even after returning to work, the Appellant was continuing to see a psychologist.
  1. The Appellant was put on day shift and had to perform to a particular level (including not disrupting the crew) before he would be allocated to night shift.  He stated that he was not disrupting the crew but was helping them and mentoring them on every shift.  He continued to act as a relief CRO and relief Team Leader for a while after he returned to shift work.

Fair Treatment Review and outcome

  1. Richard Smallcombe, the HR Manager of Rio Tinto based in Brisbane, was appointed as Review Manager in relation to the Appellant's Fair Treatment application.  He spoke to the Appellant by telephone about the process and the issues that would form the basis of the investigation.  After several interviews, and when the Appellant had confirmed his chronology of events, Mr Smallcombe conducted interviews by phone with Mr Ney, Mr Phillips, Mr Fordyce, Mr Glasirin, Mr Hocking, Mr Maines, Mr Ryalls (CRO) and Mr Clark (Training).  The investigation process took several weeks.
  1. Mr Smallcombe provided the outcome of the Fair Treatment Review in a document dated 5 May 2010 (Exhibit 12).  That document set out the background to the Review and the investigation process.  It then set out the four issues to which the Appellant's concerns related and which formed the basis of the review.  Those four issues were prepared following discussions between the Appellant and Mr Smallcombe.  It is relevant for the purpose of this appeal to set out the issues and the key findings and recommendations in relation to them.
  1. Issue 1 - Having a fair and reasonable opportunities to complete training - in particular, core technical skills training required for progression to G3 classification (such as Master Isolation Officer (MIO) and Advanced Boiler Ticket): On the basis of the information gathered, Mr Smallcombe was satisfied that the Appellant had been provided with fair and reasonable opportunities to complete core skills training, and he found no evidence to suggest that decisions as to who and what training would be provided were not based on merit and business needs.  He was also satisfied that training requirements and skills pathways were explained to the Appellant on several occasions.  He gave as an example the steps followed resulting in the Appellant passing out on his Advanced Boiler Ticket in a timely manner (May 2009).  There was evidence to suggest that, on occasions when there was a change to the Appellant's training plan, the reasons for the change were generally communicated to him by his leader in a timely manner. 
  1. Mr Smallcombe recommended that the Appellant and his leader review and agree on a proposed training plan for 2010 based on identified development needs (if that had not already been done).  The first priority was to agree the technical and behavioural requirements for the Appellant to be effective in his current role.  The Appellant's aspirations to progress to a CRO or Team Leader role should be discussed as part of the review process.  In relation to that, Mr Smallcombe wrote:

"John's leader is accountable for providing honest and constructive feedback on what is required to be considered for a CRO or team leader role and current gaps in John's capability;

John is accountable for listening and accepting coaching and feedback when provided and taking responsibility for addressing the skills gaps identified.  John is also accountable for proactively seeking out coaching and feedback from his leader and Superintendent."

He also recommended steps to be taken in the event that there are changes to the training/development plan.

  1. Issue 2  - Fairness and transparency of advertising and selection processes - including progression from G2 to G3 Process Technician classifications: In relation to the advertising of vacancies, Mr Smallcombe found that:
  1. in the majority of cases, vacancies were advertised internally in the interests of fairness and transparency;
  1. in those instances when roles were not advertised internally and staff were appointed at the discretion of a Superintendent or Manager, the decisions to appoint staff were based on merit and were within the scope of Rio Tinto's recruitment and selection policy;
  1. the process and recruitment for G3 opportunities to be advertised (and the company's right to appoint or progress staff to G3 without advertising) was not well understood or communicated, and it was understandable that the Appellant felt that some selection decisions may not have been fair or transparent;
  1. however, when the Appellant raised the issue with Mr Glasirin and Mr  Hocking in early 2009, they sought to clarify these issues with him (specifically, that progression was not an automatic entitlement and that appointments could be made without advertising at a Manager's discretion).
  1. In relation to the selection process, Mr Smallcombe found that:
  1. on several occasions there was "a failure of the recruitment processes" when the Appellant had applied for internal vacancies and received either no feedback or feedback which was not provided in a timely or open, honest and constructive manner;
  1. there was no evidence to suggest that selection decisions were unfair or not based on merit;
  1. most recently (March 2010), the Appellant's leaders had endeavoured to provide timely and constructive coaching and feedback following him being advised he was unsuccessful for roles.
  1. Mr Smallcombe made no particular recommendations, but outlined the respective roles of those responsible for recruitment (including to ensure that candidates receive timely and constructive feedback on their application) and stated that, when feedback is provided, it is a team member's "accountability to listen and respond appropriately to coaching provided."
  1. Issue 3 - Fairness of remuneration compared to peers:  Mr Smallcombe stated that he had reviewed the Appellant's base salary compared to his peers and was satisfied that it was "appropriate taking into consideration skills, performance and time in role at YAR."  Accordingly, no action was recommended.
  1. Issue 4 - "Victimisation" as a consequence of raising a Speak Out call on 7 February 2010, in particular, the investigation and disciplinary process arising from an alleged safety breach on 9 February 2010:  Mr Smallcombe found no evidence to suggest that the Appellant had been victimised as a result of using Speak Out.  Nor was there evidence to support the Appellant's allegation that the safety incident investigation (on 9 February 2010) and subsequent disciplinary process was motivated by him raising a Speak Out call on 7 February 2010.  In particular, he noted that, as Mr Dunstan and Mr Fordyce were the only YAR leaders aware of the Appellant's Speak Out call on 7 February, it was not possible that Mr Ney's actions were motivated in any way by the Appellant's decision to use Speak Out.  Mr Smallcombe found that there was no evidence to support the Appellant's allegation that he had been "victimised" or subject to a "witch hunt" as a consequence of using Speak Out or subsequent Fair Treatment Review.  Accordingly no action was recommended. 
  1. Mr Smallcombe was cross-examined closely in relation the investigation process and aspects of his findings.  Although he conceded that some of the Appellant's allegations could have been investigated more extensively, he did not resile from his conclusions or the reasons for them.  For example, he agreed that if it was established that scheduled training was cancelled (or at least postponed) on one occasion because of a rumour that the Appellant was leaving, he might have interviewed additional informants to establish whether it was a reasonable management response to cancel that training.  However, Mr Smallcombe said that there was a significant amount of evidence to suggest that the training requirements were explained to the Appellant on several occasions and efforts were made to give him a development plan.  Mr Smallcombe did not accept that the Appellant was fundamentally denied opportunities to train or was not informed about what was required to complete that training.  He noted that training was cancelled or rescheduled for a number of people, not just the Appellant, in relation to change in operational requirements and for other reasons.  That was a known issue of frustration for many staff, and the Appellant was not singled out.

Briefing about the Fair Treatment Review outcome

  1. Mr Smallcombe spoke to the Appellant in person at work (possibly for one to two hours), gave him a copy of the report and told him that there was no evidence to support his 16 points.  He asked the Appellant what he wanted to get out of the process.  According to the Appellant:

"I just said I wanted to get a fair go.  I wanted the opportunity to prove myself, because I wasn't getting paid for the maintenance.  And he said, well, you're not a maintenance fitter, so you're not to do maintenance.  You're employed as a process technician, so you're in the - you're in the process.  And from that conversation, I believe there was - there was going to be a, you know, a fair go for me to have a chance for advancement again."

  1. The Appellant reiterated that Mr Smallcombe told him that he was not to perform maintenance because he was not classified as an operator maintainer but was employed as a process technician.
  1. Mr Smallcombe said that he did not recall indicating to the Appellant that there was no requirement for him to perform maintenance duties.  Nor did he tell the Appellant not to do any maintenance.  However, he recalled the Appellant raising concerns with him about the reasonableness of him being required to undertake maintenance duties and whether that was fair and reasonable in accordance with his job.  They had discussions about what was reasonable and within his role requirements.  Mr Smallcombe did not recall specific discussions about the Appellant's job description, and said that he focused the Appellant on the four agreed issues which formed the basis of the review.  His purpose was to explain the outcome of the investigation and the allegations they agreed he would investigate.
  1. Conclusion: Having considered how the Fair Treatment Review was conducted, I conclude that the process was reasonable and the findings and recommendations reflect a fair assessment of the circumstances applying to the Appellant before May 2010.  Indeed, the ongoing concerns which prompted his Fair Treatment System application were dealt with in the Review process, and the findings and recommendations were provided to him by way of the report and were explained to him by Mr Smallcombe.  The Appellant gave evidence to the effect that he was satisfied with how the Review was conducted and the outcome was explained to him, and that upper management would become aware of what middle management were doing and that the situation would be rectified.
  1. However, the Fair Treatment Review and report did not resolve the Appellant's concerns.
  1. Mr Ney confirmed that he was aware of the scope of the Appellant's Fair Treatment claim.  Mr Smallcombe interviewed him and contacted him by telephone in relation to it.  Mr Ney was made aware of the outcome.  That outcome would have informed the discussion between Mr Ney and the Appellant after he returned to work following his period of leave.

Appellant's conversation with Mr Ney on 10 May 2010

  1. Mr Ney's account: Mr Ney gave evidence of a conversation with the Appellant on 10 May 2010 in relation to the Appellant's desire to progress into a leadership role.  He described the meeting as being "about coaching" and "developing a person."  Mr Ney said that he explained to the Appellant that he had to change to be able to move into one of those roles.  Mr Ney listed four concerns he had with the Appellant: that he would not listen, that he was very argumentative, that he became very negative, and that he would not accept direction from leadership.  According to Mr Ney, the Appellant basically agreed with him about displaying these behaviours.  Mr Ney gave him examples of how the Appellant kept going back to what had happened in the past, in particular not being promoted to a G3 role, and Mr Ney explained that this was out of his hands.  Mr Ney "wanted to close the chapter on that and open a new one and where we leave this to yesterday and today we have a positive person that accepts the change and move forward." 
  1. Mr Ney also gave the Appellant a return to work plan and agreed to his requests in relation to which shifts he would work, but told the Appellant that if he displayed the behaviours identified earlier, he would be put back on to day work.  The Appellant was taken off Mr Maine's crew and allocated to Mr Williams' Heron crew to allow the Appellant "to have new start with a new team leader, start fresh and give him every opportunity we could."  In Mr Ney's opinion, it gave the Appellant "the best opportunity to progress forward, to wipe the slate clean and say, right, this is what he's capable of, this is what he can prove, this is what he can to."  Mr Ney agreed that he wanted the Appellant to support Mr Williams in the Team Leader role as Mr Williams was new to the area, and the Appellant agreed to do that.
  1. Mr Ney recalled that the Appellant then questioned the relief Team Leader position and said that he would struggle if Alex (another process technician who had not been there as long as the Appellant and probably did not have as much experience in relation to boilers) was given the position over him.  Apparently Mr Ney said that Mr Williams was his Team Leader and the Appellant needed to accept whoever Mr Williams put into that position.  In cross-examination, Mr Ney agreed that he told the Appellant that Mr Williams would make the call about who the relieving Team Leader was going to be and that Mr Ney would support Mr Williams in relation to the person he picked.  However, Mr Ney added that (as with managers above him) he had the right to "overthrow that decision."
  1. Mr Ney said that the appointment of anyone to a Team Leader position was based on their leadership capacity (including on safety issues), not necessarily their technical experience.  Sometimes the best process technician does not make a good leader.  He explained to the Appellant that, although he understood that the Appellant had a lot of technical knowledge, "leadership is a key criteria for myself."  Mr Ney also advised the Appellant that it would be best for him to accept and support whoever Mr Williams chose, as the Appellant "would look worse if you didn't support it and that it would be hard to give [him] this position in the future if he did not accept the decisions made by his leader."
  1. The Appellant's account: The Appellant recalled that conversation and said that Mr Ney had more frequent issues with him after the Fair Treatment process.  He agreed that Mr Ney discussed with him things such as his need to listen and to accept instructions, and not being negative and argumentative, and that Mr Ney said he wanted to close the chapter and wanted the Appellant to be a positive person and accept changes and move forward.
  1. According to the Appellant:

"He wanted me to move on.  …  My understanding would be to allow me to prove myself to him; give me an opportunity to do so like team leader relief or control room relief - that can continue on; show my commitment towards the company; mentor my team members; be part of the team … ensure the safety of all my peers around me; communicate with other areas in relation to my area - other customers."

  1. The Appellant recalled questioning Mr Ney about relief work for a Team Leader position, but did not recall saying to Mr Ney that he would struggle if Alex was given relief team leadership.  However, the Appellant said that Alex was a junior trainee with no experience and there was "no way he could be a team leader relief."
  1. The Appellant did not recall Mr Ney saying that his key requirement was leadership and that boiler experience was not part of that.  He said he did not recall some other aspects of the advice given to him by Mr Ney.
  1. When it was put to the Appellant that Mr Ney's goal was to progress the Appellant's career path and that there were some issues that he needed to work on, the Appellant replied:

"If there was a progression, there would've been some writing about a progression, then a training plan or a goal plan.  …  So I got the material to follow…  [and] we've both got something to refer to later on down the track to see where we're at, not just assuming on verbal conversation … It was only verbal."

Yet he seemed to recall receiving a return to work plan.  As will become apparent, the Appellant relied on the absence of a written record of their conversation as a basis of criticising management action, or at least his perception of what Mr Ney should have done.

  1. The Appellant said that when he went back onto shift work, he complied with those requirements and "was positive to continue and to give it another go."
  1. He was allocated to Mr Williams' Heron crew.  The Appellant asked if Mr Ney still wanted him to do Team Leader relief, and Mr Ney explained that Mr Williams would make the call and that Mr Ney would support him on whoever he picked.
  1. The Appellant submits that the net outcome of the Fair Treatment process and the meetings with Mr Smallcombe and Mr Ney was that the Appellant understood that he would be afforded a "fair go" by management and allow both parties to "make a fresh start."  That characterisation is supported by the evidence of the Appellant that Mr Smallcombe had told him that things would change for him now that his issues had been investigated and addressed, particularly if he accepted the outcome of the Fair Treatment process and worked harder. 
  1. The Appellant submits, however, that although he set about doing exactly what he was requested by Mr Ney on 10 May 2010, he was then subject to further disadvantage and was singled out for no good reason.

Appellant's conversations with Mr Ney on 15 June 2010

  1. Near the end of the hearing, Mr Ney gave evidence in relation to conversations he had with the Appellant on 15 June 2010 in relation to acting arrangements, the Appellant's behaviours and remuneration.  In summary, relevant parts of the evidence about the morning conversation were that:
  1. he explained to the Appellant that it was his decision (not Mr Williams') to have Mark Barr cover for Mr Williams;
  1. leadership ability is the most important quality in appointing someone to these positions;
  1. at this stage, he had not seen that ability in the Appellant;
  1. however he had seen a "massive turnaround in behaviours" and was happy with what he had seen so far;
  1. the Appellant said that he understood that was Mr Ney's decision and that if he kept being overlooked for this position he would just have to move on;
  1. the Appellant said he had the ability to do the job and in the past had performed jobs higher than Mr Ney's;
  1. Mr Ney explained that the Appellant needed to bridge the gap between what he is saying and what others see.
  1. Mr Ney also noted in his diary that the Appellant referred to recent meetings the Appellant had with General Manager Mike Dunstan, the contents of which were not disclosed to Mr Ney.  Later in his evidence, Mr Ney said that if there were things that the Appellant could not discuss with him, he should have gone through the chain of command.  That is, he should have spoken to his Team Leader who then should have gone up the ladder to Mr Ney or to his manager.
  1. Following a conversation with Dane Linforth about how to "win the battle with John" and "bring him back to us" (including a possible pay increase), Mr Ney rang the Appellant at 4.30 pm.  Mr Ney said that he wanted to touch base with him to ensure that everything was okay, as what he had spoken about this morning was probably not what the Appellant wanted to hear.  Mr Ney explained again about leadership, not technical reasons, being why he appointed a Team Leader and a relief Team Leader.  He asked the Appellant what was motivating him.  Was it money or stature?  The Appellant stated that he had dropped a lot of money and that he wanted to move up the ladder to earn more.  Mr Ney said he would go into bat for the Appellant as he was "very happy with where he has come from and the fact that he has a lot of knowledge in the area."  However the Appellant had to understand that they had "a long way to go" before Mr Ney could consider him a Team Leader.  The Appellant also needed to remain focused on the behaviours they had discussed previously, before allowing him back on shift.
  1. In defence of his decision not to make the Appellant a relief Team Leader, Mr Ney said:
  1. he put someone more capable in the role;
  1. the Appellant did not have the capacity to be a Team Leader; and
  1. he had taken away the opportunity for the Appellant to put the rest of the team at risk. 
  1. The Appellant notes that the only file note of various discussions not disclosed to the Respondent or the Appellant by Rio Tinto and Mr Ney was the file note of the conversation between Mr Ney and the Appellant on 15 June 2010.  The Appellant submits that their failure to disclose this diary note reflects poorly on both of them and supports a submission that both Rio Tinto and Mr Ney have been less than forthright and have attempted to create a false impression of there being significant and ongoing behavioural issues involving the Appellant when in fact that was not correct.  It was also submitted that, because the diary note was not disclosed, the Commission was prevented from hearing the Appellant's version of this conversation.
  1. Although I note the Appellant's concerns, I accept that the evidence of that conversation is relevant to the overall assessment of this appeal.  It is consistent with other evidence summarised in these reasons in relation to the issues discussed by the Appellant and Mr Ney.  I note also that, when making submissions in relation to later events, the Appellant placed considerable reliance on Mr Ney's statement that he had seen a "massive turnaround in behaviours."  The Appellant cannot expect that I would rely on this evidence for one purpose but accept that it otherwise creates a false impression.

Appellant removed from acting as relief Team Leader on 9 July 2010

  1. The Appellant gave evidence that a couple of days before Friday 9 July 2010 his team leader, Mr Williams, asked him to fulfil the duties of Team Leader for the shift because Mr Williams had suffered a burn injury in the course of his duties and no one else would come in.  The Appellant agreed and came in to work as the Team Leader, and fixed the isolation problem as well as looking after the crew.
  1. According to the Appellant, Mr Williams asked him to take over the crew on the morning of 9 July 2010 while Mr Williams did an accident incident report.  Mr Ney spoke to him at approximately 1.00 pm and removed him from the Team Leader role.  When the Appellant asked Mr Ney why he had been removed from this role, Mr Ney replied that he had not authorised the Appellant to be the Team Leader for the day, and the Appellant was not Team Leader material.  Mr Ney commented on the Appellant's performance and behaviour, including that he was not listening.  The Appellant was upset by this decision.  He did not again act as a Team Leader or relief CRO.
  1. In his oral evidence, given by reference to his diary entry for 9 July 2010, Mr Ney stated that he had asked Mark Barr to cover for Mr Williams as Team Leader and that he (Mr Ney) went and told the Appellant that Mr Barr was to cover for Mr Williams.  He recalled that the Appellant was upset about that and said that he would never cover again because Mr Ney kept taking that away from him.  The Appellant said that Mr Ney was the only one who believed that he was not a good leader.  Mr Ney told the Appellant to sit down and they discussed why Mr Ney had made the decision.  Mr Ney agreed that he probably told the Appellant that he was not team leader material.
  1. Mr Ney gave evidence that, although Mr Williams made the decision about who should be the acting Team Leader, he had "a right to overrule him" and had done so despite his statement on 10 May 2010 that he would support whoever Mr Williams chose.  Mr Ney referred to the "bigger picture" beyond Mr Williams' small team.  Mr Barr was released from the Control Room for this purpose.
  1. Mr Ney refuted the suggestion that he was taking a personal shot at the Appellant by taking away whatever opportunity he had to act as a relief Team Leader or in the Control Room.  He stated that:
  1. the Appellant's attitude and behaviours had taken him out of the Team Leader position; and
  1. as a consequence of the appointment of six CROs, relief CROs were not required.

He also stated that he had removed other people from their roles and denied having animosity towards the Appellant.  Mr Ney outlined the need for Team Leaders with small teams to be positive and lead their team safely.  In his view, the Appellant could not do that role.  The decision to appoint additional CROs was a business decision to make for a smooth running of the boilers.  It was not to stop the Appellant from going on.

  1. The Appellant criticises the action of Mr Ney on the basis that:
  1. the Appellant had shown a "massive turnaround" in his behaviour;
  1. no complaint had been made about the Appellant in the period from his return from sick leave until 9 July 2010;
  1. there was no performance, behavioural or attitudinal reason to justify the decision to remove the Appellant from acting as the relief Team Leader on that day, or permanently;
  1. on 10 May 2010, Mr Ney told the Appellant that he would support whatever decision Mr Williams made about who should be relief Team Leader and so should the Appellant;
  1. yet when Mr Williams chose to place the Appellant in the relief Team Leader role, Mr Ney overrode that decision and had the Appellant replaced and told him that he was not team leader material;
  1. this was another example of the shifting goal posts being placed in front of the Appellant at his work;
  1. the decision was not justified and constitutes unreasonable management action.
  1. Conclusion: Even if the thrust of that criticism (though not necessarily each element) is accepted, that does not mean that Mr Ney's actions were not justified or were unreasonable.  While I accept that the Appellant would have been concerned or upset by this turn of events, his perception of them does not mean that they were unjustified.  To the contrary, Mr Ney's decision is defensible:
  1. because he had authority to make it;
  1. by reference to the overall approach he was taking to the management of teams including his treatment of other workers in them; and
  1. because, although the Appellant's behaviour and attitude had improved in the previous two months, the Appellant's leadership capacity had not yet been demonstrated to the Superintendent's satisfaction.

Appellant's email to Mr Ney on 11 July 2010

  1. After that conversation the Appellant took another step in his attempt to develop and demonstrate leadership capacity.  On Sunday, 11 July 2010, at 11.48 am, he sent the following email titled "What is required of me to lead a team?" to Mr Ney.

"Good morning Don,

As per our discussion Friday afternoon I was just wondering if possible.

I would like to know what you feel I would need to do, so I have a clear understanding of what it is, you require from me to enable me to act as a Team leader or become a Team Leader in utilities in the future.

Could you please let me know what more I would need to do?  To be able to lead a Team.

This will enable me to focus on my deficiencies and build / develop so they become my strengths.

Thank you for your time once again Don.

John French."  (Exhibit 13)

  1. The Appellant contends that he did not receive a written response to this email and it was some weeks before Mr Ney spoke with him about his request.
  1. Mr Ney explained why he took more than two weeks to respond.  He said that he spoke first to his manager, Dane Linforth, on 15 July 2010 and then to the HR representative, Sarah Dundas, on 20 July 2010 about what he wanted to discuss with the Appellant.  He then scheduled a meeting with the Appellant for 28 July 2010.  The following two events occurred before that meeting.

The radio incident and reprimand of the Appellant by Mr Phillips in July 2010

  1. On or about 19 July 2010, the Appellant was in the field. He could not call the Control Room because his radio battery became flat. He walked to the Control Room (some 15 to 20 minutes away).  At some stage while the Appellant was away, Tony Phillips (who had replaced Mr Williams as Team Leader because Mr Williams had been injured) had attempted unsuccessfully to contact the Appellant.  Later in the day, Mr Phillips reprimanded the Appellant, saying that he should be contactable at all times.  The Appellant described the manner in which Mr Phillips spoke to him as "Very abrupt.  Very specific," as well is loud and aggressive in tone.
  1. The Appellant explained that his radio was off because the battery had gone flat.  He agreed to always carry a spare battery in the future.  Although it was out of his control, and he could have been contacted on his mobile phone, the Appellant was still reprimanded by Mr Phillips.
  1. Mr Phillips said that he recalled the incident.  Although he did not remember whether he reprimanded the Appellant, Mr Phillips said he would have spoken to him because it was a safety issue.  He accepted that he would have told the Appellant that he needed to be contactable at all times.  He did not recall the Appellant telling him that he could have been contacted on his mobile phone, but stated that it was not common practice to use mobile phones.  That is what the radio is for.
  1. This was the first incident in which the Appellant criticises what Mr Phillips did and how he conducted himself.  The Appellant's submission in relation to this management action is considered, together with related submissions, later in these reasons.

The gas turbine incident in July 2010

  1. On 20 July 2010, the Appellant was undertaking the second day of gas turbine training.  He was not familiar with the equipment or the area.  The CRO directed him to relieve the pressure on the gas turbine, but the Appellant indicated that he was unable to do so because he was still in training and was not familiar with the equipment.  He had not read the material on the operational conditions of the turbine or studied the process instrument design drawings.  The man who was giving the training performed the task.
  1. The Appellant gave evidence that, about 15 minutes later, at 1.05 pm, Mr Phillips (in the company of Mr Williams and Steve Boyer) called the Appellant over to where he was.  Mr Phillips reprimanded the Appellant in quite harsh terms for not following directions.  According to the Appellant, he explained to Mr Phillips that he was not competent, and had no training in the area.  But that excuse was not good enough.  Mr Phillips used abusive language, swore and was using a very loud, yelling tone.  He was "standing over" the Appellant, who was getting a bit worried and started to remove himself from the situation.  Mr Phillips then stated that he would discuss the Appellant's performance and attitude with him and Mr Williams at a later date (which he did). 
  1. Mr Phillips gave evidence that he had no recollection of the conversation and had no diary note about it.
  1. The Appellant also recalled asking Mr Boyer whether a person who is not competent on the plant should not operate it until they are deemed competent.  Apparently, Mr Boyer replied that it depended on the Team Leader.
  1. The Appellant gave evidence that a couple of days later he was walking past Mr Phillips' office and was called in to talk about his behaviour, his performance, not listening and not doing tasks that were asked of him.  The Appellant reiterated that, by reference to the company's policies and procedures, he was not competent in relation to that plant.  He did not feel secure in that meeting, even with Mr Williams present, and removed himself from the room.
  1. The Appellant's submissions in relation to this management action is considered later in these reasons.

 The Appellant's conversations with Mr Ney on 28 July 2010

  1. On 28 July 2010, the Appellant had two conversations with Mr Ney:
  1. at about 8.30 am concerning an alleged isolation incident;
  1. at about 11.10 am concerning Mr Ney's response to the Appellant's email of 11 July 2010.

Isolation incident on 28 May 2010

  1. The Appellant's account: The purpose of an isolation is to remove all energy sources to a piece of equipment so that maintenance people can work on the equipment safely.  According to the Appellant, he was acting as Team Leader and hence was responsible for looking after any maintenance of machinery and the associated isolation procedure.  He had been given an isolation plan and isolation points and went down to isolate the plant in accordance with the isolation paperwork.  He found a sulphuric acid valve in the tank that could not be drained.  The ball valve had to be replaced.  That meant that the Appellant could not deem it safe enough to be isolated so that maintenance could be performed on that equipment.  He was accompanied by Alex (because the Appellant had a frozen shoulder).  The Appellant stayed beyond the end of his shift to try to complete the work but could not do so.  He saw the Team Leader on the other crew and handed over to him, advising why he could not prove the isolation and hence could not sign off on it at the end of his shift.
  1. Apparently, the practice is that an isolation officer completes an isolation and then the confirmation officer comes at a different time to check the isolation and ensure there is no energy source.  If they are together, it is more likely that a mistake will be made.  The Appellant explained that "it's a double check system so you've ensured that there's no fault. 
  1. Mr Ney had information that, contrary to the practice, the Appellant (as confirmation officer) and Alex (as information officer) were standing beside each other while performing an isolation. 
  1. The Appellant recalled that, on 28 July 2010, Mr Ney approached him to go into his office and informed him that he had caused an isolation breach.  The Appellant explained to Mr Ney that he had not signed off on the paperwork and it was the responsibility of the person who performs the isolation and deems it complete and safe to sign off on the paperwork.  Mr Ney indicated that the Appellant was to receive a written warning.  The Appellant was not given any notice of the meeting nor an opportunity to have a support person or witness at the meeting.
  1. Mr Ney's account: Mr Ney, however, described the meeting as a means of informing the Appellant about what had occurred.  It was not a counselling session.  He said that he explained to the Appellant why the process was followed and how important it is to keep people safe.  He also explained to the Appellant that he (Mr Ney) had not followed up on the investigation and, for different reasons, had left it too long.  Had he completed the investigation within the timeframe, he would have seriously considered issuing a written warning to the Appellant.
  1. According to Mr Ney, the Appellant said that the isolation list was incorrect.  Mr Ney explained that it is an uncontrolled document when printed and it is the responsibility of the isolation officer to confirm all sources of isolation.  That is, the isolation officer has to go through the Process and Instrument Drawings ("PIDs") and go into the field, walk the isolation and confirm that the isolation list is correct.  If it is not correct, the officer has to write on it what other isolation points are required.  Mr Ney said that the Appellant told him he and Alex stood together because they were short of people.  Mr Ney explained that it was better to stop the job than rush through and take shortcuts, because the Appellant would put people at risk if he did this.  The Appellant said he did not finish the isolation and passed it on.  Mr Ney said that was fine, but the process is to walk the isolation and not stand beside each other to do the isolation.  Mr Ney asked the Appellant to attend isolation training again.  The Appellant said he would do that and asked if he could still isolate.  Mr Ney said he could.  
  1. In cross-examination, Mr Ney said that he spoke to the Appellant (but not the co-worker who was with him at the time) because it was the Appellant's responsibility as a confirmation officer not to stand aside the isolation officer.  When the confirmation officer takes a shortcut, as the Appellant had admitted to doing, it was up to management to talk to them and change that.  Had Mr Ney followed due process and investigated the matter when it occurred, there would probably have been a counselling session for the Appellant and a file note to Alex.  As things transpired, Mr Ney suggested to the Appellant that he should undertake some further master isolation training and he agreed to do that and undertook the training a short period after that meeting.
  1. Conclusion: Having considered the two accounts of the conversation between the Appellant and Mr Ney, it appears that the Appellant's focus was on the reason why he did not complete the isolation before the end of his shift whereas Mr Ney's focus was on the way in which the two workers conducted the isolation procedure.  I conclude that it was appropriate for Mr Ney to discuss the alleged isolation incident with the Appellant.  I am satisfied that, although Mr Ney referred to considering issuing a written warning, he had not done so for procedural reasons.  That is consistent with Mr Ney having learned from his experience in relation to the Control Room incident in February 2010 the importance of following appropriate procedures in relation to the issue of warnings.  It is also clear that the Appellant accepted that the isolation process is a double check system to ensure that there is no fault.  He was willing to attend relevant training, and did so in a short period after the meeting, and that he was not prevented from performing isolations subsequently.

 Mr Ney's response to the Appellant's email of 11 July 2010:

  1. The second meeting occurred about 11.10 am in Mr Ney's office and was Mr Ney's response to the Appellant's email of 11 July 2010 (Exhibit 13).  Mr Ney discussed the reasons behind his decision not to allow the Appellant to act as relief Team Leader. 
  1. Mr Ney's account: In summary, Mr Ney's account of the conversation (based on his diary notes) is that:
  1. Mr Ney asked the Appellant if he could recall a conversation they had regarding his behaviours and what he needed to focus on to assist him to progress;
  1. the Appellant said he could not remember that conversation as Mr Ney had not sent them to him in an email;
  1. Mr Ney said that he did not need to do that, and it was a concern that the Appellant could not recall these as it displayed to Mr Ney that the Appellant did not listen or take it on board;
  1. the Appellant said he had a lot on his mind and that he could not recall a conversation because it was Mr Ney's responsibility to have this down on paper;
  1. Mr Ney explained that it was not his responsibility and that the Appellant had taken notes in a notebook or diary on the day;
  1. Mr Ney drew a chart on a whiteboard (the same chart as he had drawn at the conversation in May) to outline where they were at that stage, how Mr Ney wanted to progress the Appellant and how the Appellant had to work on his behaviours (as part of the team leadership and team membership concept);
  1. the Appellant tried to go back to why he could not remember this information;
  1. Mr Ney brought the Appellant back to where they were in the discussion, and explained that the four behaviours they had discussed were not listening, not accepting, being argumentative and being negative;
  1. Mr Ney then explained another important issue that he considered would require work before the Appellant could assist in a Team Leader's role - that the Appellant needed to take into consideration other people and his impact on them rather than being too focused on himself;
  1. the Appellant said "What a load of shit" and asked when Mr Ney became a psychologist;
  1. the Appellant said "That isn't a problem" and his psychologist did not believe it either;
  1. the Appellant then got upset and stood up, and said that Mr Ney would never give him a chance and that Mr Ney did not appreciate him and what he does for Mr Ney and the company;
  1. Mr Ney said that annoyed him because one month previously he went out of his way and recommended a pay increase for the Appellant outside the normal path (something he had not done for anyone else), so it was disappointing that the Appellant was saying this;
  1. the Appellant said that that was given to him because he deserved it and that other process technicians were starting on more money than him;
  1. Mr Ney told the Appellant it was none of his business what other people started on, but that the Appellant was now one of the highest paid process technicians;
  1. the Appellant said that was rubbish and that he was given the pay increase because Mr Ney, Mr Fordyce and Mr Austin "got our heads together to make sure he didn't get a CRO position;"
  1. Mr Ney replied that Mr Fordyce and he had nothing to do with that and that it was insulting is to suggest that they had;
  1. the Appellant asked why Mr Austin said the same thing as Mr Ney and Mr Fordyce had told him a couple of days before the interview;
  1. Mr Ney suggested that if more than one person is saying it then it may be the truth;
  1. the Appellant disagreed and stated that Mr Smallcombe said that Mr Ney and Mr Fordyce had been involved in the process;
  1. Mr Ney said that was a total lie and that he was going to talk to Dane, Mike and Richard because he was upset that Richard had said that as it was totally untrue;
  1. Mr Ney said that he would ring Richard now to clear it up, and the Appellant started to backtrack and said that Mr Ney was just trying to turn the matter around on him;
  1. the Appellant said that he wanted to end the conversation because it was a waste of time and he realised he would never get an opportunity under Mr Ney;
  1. Mr Ney said that if the Appellant focused on the four behaviours they had talked about, then he would consider the Appellant;
  1. the Appellant asked how he could remember them because Mr Ney would not send him an email about them;
  1. Mr Ney said that it was funny that the Appellant could remember what Mr Jenner said when the Appellant was employed, but could not remember four behaviours from May;
  1. (aa)
    the Appellant said Mr Ney was turning it around on him again;
  1. (bb)
    Mr Ney said that he stood by that and the Appellant had to focus on those four behaviours and show that he understood them before Mr Ney would consider him for such a position;
  1. (cc)
    the Appellant said that he remembered and was just wanting to see if Mr Ney knew them;
  1. (dd)
    Mr Ney said that was a "cop out," and that the Appellant should not disrespect him as he was showing the Appellant respect by being honest with him;
  1. (ee)
    the Appellant said that it was discrimination to not send him the information by email, and that Mr Ney was required to give him a development plan but was not doing so;
  1. (ff)
    Mr Ney asked the Appellant whether he had any training at all and the Appellant said no;
  1. (gg)
    they discussed training that the Appellant had been booked to undertake in September and the Appellant said that he should have been on training in August and that he needed it for his role;
  1. (hh)
    Mr Ney told him that he did not require that training for his role, and that this highlights what Mr Ney meant about everything being about the Appellant;
  1. (ii)
    the Appellant explained that this was not helping and he wanted to end the discussion.
  1. In cross-examination, Mr Ney acknowledged that the Appellant had maintained better attitude and behaviour since their meeting on 10 May and that his note of 15 June stated that there had been a "massive turnaround" in the Appellant's behaviour.  By his account, the Appellant had started to do what he had to do to be put in a leadership position.  However, given the long period during which the Appellant had displayed the behaviours about which Mr Ney had expressed concern, Mr Ney said that he needed some evidence over "a long period of time" (i.e., longer than three months) to prove that the Appellant had the ability to act up into that position.
  1. Appellant's account: The Appellant's brief oral evidence in relation to the conversation is consistent with aspects of Mr Ney's account.

"Okay.  In the course of the discussion that you had with Mr Ney where you say that he raised issues about your attitude, your performance, not listening: in that meeting, did you ask him about the email that you'd sent?  --- Yeah.  In that evening, I did ask him what he wanted to me to do.  It was just verbal.  I never got anything in documentation that I could follow.  There was just him and what he wanted out of me.

Even orally, did he provide you with any guidance as to what you had to do to get back to acting team leader?  --- Do as I'm told, don't bring up safety issues that impede the workplace.  There's a few other items I'm trying to recall now.

Just do your best?  --- My behaviour, my performance.  They were all in question all of a sudden.  I couldn't understand why.  I hadn't changed my mind set on how I wanted to perform.

Other than a very broad generalisation about that, did he provide you with specific examples?  --- He wrote them on the board, but I can't recall them.  He didn't give me any documentation to follow that I'm aware of."

  1. In cross-examination, the Appellant reiterated that he needed something in writing from Mr Ney as "reference material" so that he could recall the issues identified in their conversations and "could meet his requirements" on a daily basis.  The Appellant did not take notes during those conversations.  However, he recalled Mr Ney referring to team membership and the need to take into consideration other people and what is important to them, and discussions with Mr Ney about the Appellant not listening, not accepting management demands a leadership, being argumentative and being negative.
  1. The Appellant did not recall some other aspects of the conversation set out in Mr Ney's account.  For example, he did not remember using "improper" language to Mr Ney or referring to a psychologist.  Nor did he recall Mr Ney saying that he had gone out of his way to recommend a pay increase for the Appellant, or the Appellant saying that he deserved it or that three managers got together to make sure he did not get a CRO position.
  1. The Appellant submits that:
  1. Mr Ney expressed the criticism despite Mr Ney's diary entry of 15 June 2010 that the Appellant had not been displaying those behaviours and there had been a "massive turn around" in the Appellant's behaviour and attitude;
  1. it would be difficult to avoid a conclusion that the Appellant faced an ever shifting goalpost in terms of what he had to do to advance at Rio Tinto Yarwun, particularly with Mr Ney as Superintendent.
  1. Conclusion: I do not accept the Appellant's submission.  The more detailed and, in my view more reliable, account of the conversation was presented by Mr Ney.  It is clear from that account and his oral evidence in cross-examination summarised above that he was attempting to reinforce the points made at their meeting on 10 May 2010 and give an appropriate response to the Appellant's email of 11 July 2010.  Rather than shifting the goalposts, Mr Ney seemed to be reinforcing them and indicating to the Appellant that, if his behaviour continued to improve and the Appellant continued to do what he had to do to be put in a leadership position, he might be considered for such a position.

Emergency response incident in late July or early August 2010

  1. Toward the end of July or in early August 2010, the Appellant responded to an emergency call that a substation fire alarm was sounding.  As a member of the Emergency Response Team he used a buggy to reach the incident some kilometres away from the boilers where he was working.  He took on the role of a breathing apparatus coordinator.  Another worker from his area, Tammy Gatlin, also attended as an emergency response officer.  They and others dealt with the incident.  The Appellant sent Ms Gatlin back to her duties.  He returned about an hour later, having attended to the equipment and filled out a report to security about the incident.  According to the Appellant, Mr Phillips was "ropable," and "abused" him about taking the buggy and the length of time he was away, and took issue with the fact that he was away longer than the other worker.  The Appellant described Mr Phillips as being verbally aggressive and "very loud, very direct."  He did not accept the Appellant's explanation. 
  1. When giving his oral evidence, Mr Phillips had no recollection of the incident.  He had no diary note of it.
  1. This was another instance where the Appellant criticised what Mr Phillips did and how he conducted himself.  The Appellant's submission in relation to management action is considered later in these reasons. 

The boiler incident and the meeting on 16 August 2010

  1. The Appellant's account: The Appellant gave evidence that, on 16 August 2010, he and some other staff were instructed to perform the task of a burner front clean on a boiler.  He asked Mr Phillips if they would be getting assistance from appropriate tradespersons, the maintenance staff.  The Appellant was informed that they would not be getting assistance and that he was to perform the maintenance with other staff.  
  1. There was a dispute between the Appellant and Mr Phillips.  In essence, the Appellant told Mr Phillips that he was not employed as a fitter and that the ABP for Coal burner removal clean and reinstall required both a rigger and a fitter to remove the boiler fronts.  Mr Phillips did not accept that the Appellant was correct.  The Appellant then obtained a printed a copy of the mechanical ABP for the removal of burners from Documentum (see Exhibit 23), and pointed out to Mr Phillips what it said about the personnel required to do the task.  According to the Appellant, Mr Phillips took the document to Mr Ney in his office.
  1. Later that day, Mr Phillips approached the Appellant and told him that if he could not do as he is told he would need to look for another job. The Appellant was disappointed and replied "You're kidding."  Mr Phillips told him that they were looking at getting a fitter and a rigger to undertake the job.
  1. The Appellant said that he did not refuse to remove burner fronts but requested that tradesmen do the task.  This was a safety issue and, although he was trained in relation to boilers, he was not competent to remove burner fronts, and did not have access to the equipment and tools.  He said he was going to do the job if they had a fitter and a rigger as per the ABP.  He was a heavy earthworks diesel fitter (dealing with engines and earthworks machinery), not a mechanical site fitter.  Nor was he competent to do maintenance on that site.  He was, however, willing to remove a strainer for cleaning or tighten loose gland packing, jobs which he described as "minor stuff" and "part of what you had to do." 
  1. The Appellant gave evidence that he had never removed the burner fronts previously, although he had cleaned them once they were on the floor.  He also said that he would have been unable to do the job because of a condition with his hands, subsequently diagnosed as carpal tunnel syndrome.  Although he could isolate the plant, a fitter and rigger and personnel from another work group would remove the burners.  He had always worked with a team of a fitter and a rigger to dismantle a burner for the purpose of cleaning.  He had never dismantled the burner himself.  After the burner fronts were cleaned, the maintenance team would put on new gaskets and fit them to the boiler.
  1. The Appellant also gave evidence that, after their discussion about who should perform the task, Mr Phillips had asked him to rewrite the ABP.  The Appellant walked towards the Health and Safety unit to ask:
  1. how he should rewrite the ABP so that he could perform maintenance on the burners as a maintenance fitter; 
  1. whether he was a person to do that or whether the rewriting should be done at a more senior level; and
  1. about concerns he had in relation to health and safety with him performing maintenance of that type.
  1. The Appellant did not reach his destination because he was called into a room by Mr Phillips and Mr Williams.  Mr Phillips told the Appellant that his attitude needed adjusting and that he was always arguing with the instructions of management and complaining about policies and procedures.  The Appellant insisted that he did not do anything wrong and was not looking to argue.  By his account, he "walked out of the meeting.  I was not happy with what they had done; pulled me into a room without no prior knowledge of what was the intent of my purpose of being there."
  1. The Appellant gave evidence that after that meeting, and before lunchtime at about noon, Mr Phillips told him to sit at a computer terminal and not to communicate with anyone until he was called for.  The Appellant stayed sitting there for the rest of the day.  After his finishing time (some time between 6.30 and 6.50 pm), he approached Mr Phillips and asked whether he could go home.
  1. At 2.41 pm on 16 August, the Appellant sent the following email message to Tania Gorton, his psychologist.

"Hi Tania, sorry to both you again ..  I feel a bit dishearten with my self, got some stuff happening to me at work ,, I am getting told several things that are making me feel pretty up set ..  I asked a question got abused, then come back and changed view with apologies given, then got pulled into a room for meeting got segregated from support, I had two team leaders conditioning me.  I stopped and walked out as I felt very victimised, I was told in my role description I am to do everything I am told/instructed with out questioning.. I only asked about the safety aspect of having trained personal to-do required tasked .. I got told I am a fitter and my new role says I am to operate and maintain and all instructions by team leaders.. I was going to do the job.  Now I am told I am argumentative, not excepting, disruptive,

I then was told I was told in march  I was not to do any of these things .. Now I am told because of these things I problem will now go back to day work… well talk about coping it I only asked a safety question and turned into giving me situations .. and the T/L was wrong and changed events to suit the situation .. I didn't ask for any of this I am doing my job , but they are making sure I am discredited in management views… I am to do what ever I am told with out questions even if it compromises my safety and safety of others .. I am rambling and shaking but I guess its my fault.. I did say nothing for months, when I asked 1 question in the task assignment I am made to be the one at fault..

So Sorry I tried to make an appointment again today and you are not there.. wish I knew what was the right thing I comply with the companies guides and some people breach them to suit situations .. Changing the rule to suit them sleeves then lie about it all to upper management.. They won't let me go to manager as I have to follow chain of command.. now I am sitting around wondering what is to become of me as I been told its not the end of it … not far off walking out of here…

Thank you for reading hope to chat one day soon … John French."  (Exhibit 22, errors in original)

  1. In relation to the penultimate sentence, the Appellant gave evidence that he was told that "They were working out how they were going to deal with me."
  1. That email provides contemporaneous evidence in support findings that the Appellant was feeling upset after his meeting with Mr Phillips and Mr Williams and that the Appellant was sitting at his computer at that time.
  1. Mr Phillips' account: Mr Phillips referred to his contemporaneous diary note.  He said that he approached the Appellant to inform him of the task and the Appellant asked whether a fitter and rigger would be available to do the task.  Mr Phillips informed him that, as a result of a task review, risk assessment and equipment modifications, a fitter and rigger were no longer required to perform the task and that the change and been in place for at least four months. The Safety Department had conducted that review and Mr Phillips expected that it would have been documented, although he did not know whether it had been documented.
  1. The Appellant became upset and stated he was not employed as a fitter and this was not a requirement of his job role.  The Appellant continued to argue with Mr Phillips, who felt that the discussion was not progressing.  According to Mr Phillips, they had all done burner front cleans even though they were not fitters. He finally told the Appellant that he was not asking him to do anything they had not done before, and if he felt that strongly about what he was being asked to do, then he should give some thought as to whether he really wanted to be there in that role.  Mr Phillips then advised the Appellant that if he had any objection to what Mr Phillips had said he should escalate it to Mr Ney.  Mr Phillips also said to the Appellant that every time he asked him to do a task that he didn't want to do, or did not think was his job, he would argue and try to make it a safety issue.  The Appellant disagreed.
  1. According to Mr Phillips, the Appellant did not print the ABP and give it to him.  Rather, Mr Phillips offered to review the procedure with the Appellant and he declined.  Mr Phillips did not recall taking the ABP to discuss with Mr Ney. Phillips did not agree that Exhibit 23 was the ABP in August 2010.  He agreed that, at that time or subsequently, he could have obtained the applicable ABP from Documentum. 
  1. Mr Phillips said that the procedure had changed from the requirement to have a qualified rigger operate the block and tackle so that anything less than a tonne could be removed with a chain block by a process technician shown how to use that equipment.  However, because none of the team were signed off to do that, he agreed with the Appellant to have a rigger for that job.
  1. Mr Phillips initiated a second conversation within hours of the first conversation, and noted that they had both becomes frustrated in the earlier discussion.  He apologised for his part.  The Appellant immediately became argumentative about what he was asked to do and said that it was not his job.  Mr Phillips explained to him that, due to his concerns, he would arrange for a rigger but would not be providing a fitter as members of the team were quite capable of removing the bolts and burners.  Mr Phillips said that he had worked with the Appellant on this job on a number of occasions and therefore knew the Appellant was competent at this task.  The Appellant refused to listen and argued again that he was a process technician not a fitter.  The Appellant then produced a job role description for a utilities process technician (Exhibit 5).  Mr Phillips showed him where it stated that the Appellant was expected to "operate and maintain" the utilities equipment.  The Appellant continued to argue that the company had changed the job role requirements and that he was not informed or consulted and did not agree with this description.  He again stated that he was not paid as a fitter.  Mr Phillips told the Appellant that he was not going to ask or argue any more about this.  He expected the Appellant to perform the task or take it up with Mr Ney.
  1. Later that day, after a discussion with Mr Ney and Mr Williams, and on Mr Ney's instructions, Mr Phillips had a further discussion with the Appellant.  Mr Williams was present.  (The Appellant was not provided with any information about what was to be discussed at the meeting nor was he offered a support person.)  The discussion concerned the Appellant's job description and expectations, arguing (about policies, procedures and tasks), negative attitude and listening.  Each item, other than listening, was discussed separately and, according to Mr Phillips "it wasn't received well at all."  The Appellant stated that he did not wish to proceed with the conversation without representation and walked out.
  1. Mr Phillips did not recall telling the Appellant that he was to sit at a computer terminal until he returned, and suggested that the Appellant would have been given work to do.  He disagreed with the proposition that the Appellant stayed at that terminal until about 6.30 pm, but did not know when he released the Appellant from a direction to stay inside.
  1. Mr Ney's account: Mr Ney gave an account of a meeting with Mr Phillips that day about the Appellant refusing to do the burner front clean because he was not paid in a maintenance position, even though Mr Phillips considered it was part of his role.  Mr Ney and Mr Phillips opened the Appellant's job description and Mr Ney pointed out that it required process technicians to operate and maintain equipment.  Mr Ney had a subsequent discussion with Mr Phillips and Mr Williams who had spoken with the Appellant.  Apparently there had been a discussion with the Appellant about his role description having changed without consulting him.
  1. Mr Ney said that he discussed the Appellant's behaviours with HR personnel.  As he was walking to the HR office, the Appellant approached him and asked to talk in a quiet room.  The Appellant explained that he had raised an issue about doing the work and if he took it to the Health and Safety and Environment team then they would stop the job.  Apparently the Appellant expressed concern that Mr Ney made him do things then turned around on him.  Mr Ney explained to him that the issue was his behaviours as identified in their May discussion, and he was not seeing a change in the Appellant's behaviours.  The Appellant said that every time he raised safety concerns management would use this to get what they wanted, and that before Mr Ney came along he did not have a problem.  The Appellant said that his role description had changed three times without consulting him and he would go to the commission to see people outside about that matter and Mr Ney.  Mr Ney replied that he did not like being threatened and he wanted to stop the conversation and talk to HR and his manager, Dane Linforth.  If the Appellant did not want to do the burner fronts, he should not do them but should do his normal routine.  That was the end of the conversation.  Mr Ney then spoke to HR personnel.
  1. Mr Ney later spoke to the Appellant in his office.  The Appellant explained that he was not going to do the job but was concerned that it was necessary to have a mechanical tradesperson and a rigger and that they were putting themselves at risk.  Mr Ney asked to see the ABP, which the Appellant had.  Mr Ney reviewed it and said there was no mention that a rigger was required and he could not see why they needed a mechanical person.  When he was shown Exhibit 23, Mr Ney recognised it but said that was not the same document he was shown by the Appellant.  Exhibit 23 is for a mechanical tradesperson.  Rather, he thought he would have seen another ABP (Exhibit 21) but he could not recall.  His notes of the meeting on 16 August say that the ABP did not have a tradesman or rigger in it.  He said that he explained to the Appellant that he could not see any reason why a fitter was required for the task.  The Appellant said that the job involved undoing bolts and it was putting people at risk.  The Appellant replied that it was the same old story, that he was trying to do the right thing and it got thrown in his face.  It was not fair as he is good at what he does.  However he gets overlooked.  They discussed why he had not been given leadership positions.  Mr Ney said that the Appellant did not understand that the leader's role is to lead the team and not have all the knowledge of the boilers.  The Appellant started talking about how he was a mechanical tradesperson and was not being paid for that skill.  Mr Ney brought him back to the burner clean issue.  The Appellant said he was concerned about not using a tradesperson, but stated that he had never said he would not do the job.  He meant it was unsafe because people would undoing bolts.  The conversation continued around those issues.
  1. Counsel for the Appellant objected to the evidence from Mr Ney regarding his discussion with the Appellant on 16 August 2010 on the basis that Mr Ney's version of the conversation was not put to the Appellant.  Indeed it was not put to the Appellant that he had any conversation with Mr Ney on 16 August 2010.  Accordingly, that evidence should not be given undue weight.  I note, however, that it is not inconsistent with other evidence.  Rather, it accords with other evidence from both the Appellant and Mr Ney about their other conversations.
  1. Mr Ney noted that Exhibit 21 stated that there had to be a mechanical technician and a scaffolder.  He said that what occurred with the old burner fronts was that they got a rigger to set up so that they could pull out the burner fronts.  A mechanical person would assist them.  He said that they modified the practice (in ways he described) so that process technicians could do the task without the assistance of a rigger.  The ABP was changed so that the operators could do the job.  According to Mr Ney, the only person who had a problem doing that was the Appellant, because he believed he was not being paid as a fitter.  Those changes were not apparent on Exhibit 21, but are consistent with Mr Ney's notes of August 2010 that there was no indication that a mechanical person was required.
  1. Mr Ney was aware that on 16 August 2010, Mr Phillips spoke to the Appellant and said, in effect, that if the Appellant was concerned about safety he should review the ABP and they would “go through it then.” Indeed, Mr Ney suggested that his Team Leader at the time asked the Appellant to go through and review the ABP and he would not do that.  When it was put to Mr Ney that it was not up to an employee of the Appellant's level to be changing ABPs, he replied that the Appellant "was a very experienced boiler technician so if he hasn't got the skills to go through and update an ABP doesn't that indicate that he probably hasn't got skills to be a leader?"
  1. Mr Ney gave evidence, by reference to his diary note of 16 August 2010, that he, Mr Phillips and Mr Williams had a meeting with Ms Dundas and Ms Christie Brown at HR to discuss what had occurred with the Appellant.  Mr Williams and Mr Phillips were asked to write diary notes of what had occurred that day.  The HR representative suggested that the Appellant was not to return to work because he may not be in the right frame of mind.  Mr Ney's diary note records "We should get John to stay inside, just in case his head is not right."  His oral evidence was that it was probably Mr Phillips, as Team Leader, or Mr Ney who would have given the instruction to the Appellant.  The instruction was given out of concern about the Appellant's wellbeing at the plant, and so that he would not put himself or someone else at risk.
  1. The issues arising from events of 16 August 2010: The Appellant submits that it was entirely appropriate for him to raise, at the task assignment meeting with Mr Phillips, the issue that the burner front removal task required the presence of both a fitter and a rigger because:
  1. although the Appellant had previously worked on cleaning burner fronts, he had never been involved in their removal or installation;
  1. the Appellant was not familiar with the procedures, he was not site assessed as a fitter to undertake that task, and he did not have the necessary tools to undertake the task;
  1. given that his role description required him to perform his work according to the ABP, it was entirely appropriate for him to raise a concern that the ABP specified that both a rigger and a fitter were required.
  1. Accordingly, the Appellant submits that:
  1. the Appellant was entirely correct to raise his concerns about what was being proposed;
  1. it was an unreasonable management request to seek to have the Appellant perform the task in a manner that did not comply with Rio Tinto's ABP;
  1. it was an unreasonable request for Mr Phillips to seek to place the Appellant in a position where he was acting in a way that did not comply with the Appellant's position description;
  1. Mr Phillips did not give a lawful direction when he sought to have the Appellant undertake the task in a manner that breached the ABP; and
  1. as a consequence, it was not reasonable management action.
  1. It is also part of the Appellant's case that, although the Appellant was correct about the company policy, Mr Phillips said to him that if he could not accept instructions then maybe he should be looking for another job.  According to the Appellant, he felt that his job was threatened by that comment.
  1. The Appellant submits that:
  1. to take him to task through a number of meetings on 16 August 2010; and
  1. to then instruct him to sit at a computer terminal for the balance of his shift until he received further instructions from Mr Phillips;

 was not reasonable management action.

Assessing the boiler incident on 16 August 2010

  1. In order to assess the events described and whether the Appellant should have complied with a direction to perform the task of cleaning a burner front on a boiler,  it is appropriate:
  1. to review aspects of the role descriptions for the process technician position occupied by the Appellant and, in particular, the meaning of "maintain" and "maintenance" in relation to the Appellant's work; and
  1. to consider the status of ABP documents in relation to tasks such as cleaning a burner front on a boiler.
  1. Role descriptions for process technicians: As noted earlier, the letter of offer from Rio Tinto to the Appellant (Exhibit 15) contained the terms and conditions for his appointment.  It advised that his "duties may change from time to time as required by the Company."  There was evidence that the role description for process technicians changed between 2007 and 2010.  Indeed it was one of the Appellant's complaints that with changes to his role description came changes to the interpretation by his Team Leader of the scope of the word "maintain."
  1. The Appellant said that there had been approximately five changes to his role description during his period of employment at Rio Tinto.  He was not able to be specific about the content of those changes, and said he became aware of them at the review meetings with his Team Leader every six months.
  1. Four role description documents are exhibits in these proceedings:
  1. Role Description Process Technician - Calcination & Steam (G2) for Comalco Alumina Refinery, undated but indicated to have been in operation for the period 2004-2007 (part of Exhibit 16);
  1. Role Description - Process Technician (G2), undated but indicated to have been in operation for the period 2007-2009 (part of Exhibit 16);
  1. Role Description - Technician: Process (G2), undated with a reference to G2 (which was discontinued and replaced from 1 July 2009) (part of Exhibit 16); and
  1. Role Description - Technician Process, dated 15 December 2009 with a reference to role band N (Exhibit 5).

It is appropriate to refer to extracts from each document said to be relevant to the dispute on 16 August 2010.

  1. The first document referred to 12 process technician positions (four crews of three people each) and stated that the role "involves operating and monitoring of equipment."  The purpose was to "monitor, operate and maintain your plant in a manner which achieves ongoing safety, quality, production and cost objectives" (emphasis added). 
  1. The Organisation Chart indicates that a Process Technician would report to the Officer Control Room who in turn would report to the Team Leader.  The items listed under "Accountability" include:
  • "Ensure all high-risk safety and environmental activities are identified and controlled prior to commencing work.
  • Identify opportunities for improvement in processes in your areas of direct accountability.  Take action to exploit these opportunities.
  • Make sound judgements to ensure plant integrity is maintained at all times and that short term imperatives do not put the plant at risk or reduce long term asset utilisation.
  • Ensure plant and equipment is clean and isolated prior to scheduled reliability activities.
  • Perform your work according to the documented Authorised Best Practice (ABP's).  Identify opportunities to improve best practice and communicate to your leader.
  • Conduct routine field inspections to confirm that the plant operations are normal.  Identify any issues that could affect plant reliability, communicate to your leader and raise requisitions for repair."  (emphasis added)
  1. It listed the qualifications (Boiler Ticket desirable but not essential) and skills and experience for the position.  These did not include having mechanised tradesman or fitter qualifications.
  1. The second document also stated that the role "involves operating and monitoring of equipment."  The Primary Purpose of the role was to "monitor, operate and maintain the plant in a manner that achieves ongoing safety, quality, production and cost objectives" (emphasis added).  A process technician reported directly to the Team Leader - Production and was "responsible for achieving tasks assigned to them by their leader."
  1. The Strategic Accountabilities included:
  • "Perform your work according to the documented authorised procedures (ABP's, single point lessons std work etc).
  • Conduct routine inspections and tasks in your areas to maintain equipment in operational condition.  Identify any issues that could affect equipment reliability and communicate to your leader.

  …

  • Ensure equipment integrity is maintained at all times and that short term goals do not put the equipment at risk or reduce long-term asset utilisation.
  • Ensure all operational areas, tools and equipment are maintained and operated in line with the principles of 5S.[9]

  …

  • Ensure equipment is handed over for maintenance at the agreed times and in a clean state." (emphasis added)
  1. The document also stated that:

"This role requires a working understanding of the refinery's operations, such as process flows and equipment to anticipate problems in their area of work and seek to rectify the issue before it increases risk.  Following approved procedures and escalating as appropriate should resolve issues.

…

The requirements and responsibilities contained in this job description … are not meant to be all-inclusive.  The role manager may change them during employment on an as-needed basis."

  1. The document listed the qualifications (Boiler Ticket and other specified Tickets essential for specific work), technical competencies and skills, and experience that were essential for or relevant to the position.  It expressly stated that leadership accountabilities were not applicable to this position.  Mechanical tradesman or fitter qualifications were not specified.
  1. The third document included each of the passages quoted above from the second document.
  1. The fourth document (Exhibit 5) states:

"The Process Technician reports directly to the Team Leader and is responsible for achieving tasks assigned to them by their leader.  The Team Leader is a member of the relevant output team within Site Services."

  1. The Primary Purpose of the role is:

"To monitor, operate and maintain the plant in a manner that achieves ongoing safety, quality, production and cost objectives.  To isolate and de-isolate the plant for maintenance and other work."  (Emphasis added)

  1. The Accountabilities listed include:
  • "Conduct routine inspections and tasks in your areas to maintain equipment in operational condition.  Identify and rectify any issues that could affect equipment reliability and communicate to your leader, where appropriate.

…

  • Conduct operational activities including start-up, monitoring and shut down of equipment.

…

  • Ensure equipment integrity is maintained at all times and that short term goals do not put the equipment at risk or reduce long term asset utilisation.
  • Ensure all operational areas, tools and equipment are maintained and operated in line with the principles of 5S.
  • Ensure equipment is handed over for maintenance at the agreed times and in a clean state."  (Emphasis added)
  1. The section of the document dealing with Key Relationships states:

"Liaise with key stakeholders; other Production areas, Control Room, Maintenance, Contracts team, Suppliers and relevant Contractors, and other relevant department's (sic) to optimize the performance of the refinery."  (Emphasis added)

  1. In relation to ABPs, the Accountabilities include:
  • "Perform your work according to the documented authorised procedures (ABP's, single point lessons standard work etc).
  • Ensure all work is conducted in accordance with the relevant procedure
  • Assist in the ongoing improvement of procedures."
  1. The meaning of "maintain" and "maintenance": Much evidence and detailed submissions were directed at the issue of what activities are or are not within the scope of the words "maintain" and "maintenance" as those words are used in the role descriptions for process technicians set out above.
  1. The Respondent refers to the Oxford Dictionary definition of "maintain" as "keep (a building machine or road) in good condition by checking or repairing it regularly."  That definition does not necessarily resolve the present issue.  What has to be determined is how the word "maintain" and variations on it are used in the context of the relevant Rio Tinto documents.
  1. The Appellant gave evidence that, although the role description for process technician changed several times during his employment at Yarwun, he was not required to "perform maintenance" by Mr Maines or Mr Williams.  He said that he understood, and had been told, that "maintain" was different from "perform maintenance."  When asked what he understood "maintain the plant in the manner that achieves ongoing safety" meant, the Appellant gave evidence that it was to "maintain the equipment in an operational standard of safety."  For example, if equipment was leaking, he was to defect that equipment and put it in the system for repairs.  However, he had undertaken minor maintenance such as changing out valves because they had a limited number of maintenance fitters on shift.  The Appellant was concerned about the interpretation of the description of his position, particularly as Mr Phillips said that "maintaining" included performing maintenance.  Although Exhibit 5 was effective from 15 December 2009, he was given this by Mr Phillips on 16 August 2010.
  1. As the passages quoted above, read in context, indicate, the word "maintain" and variations on it appeared to be used in slightly different ways in the role descriptions.  For example, a process technician was required to operate and maintain the plant in a certain manner or condition, and was to take action in relation to plant for maintenance and other work.  A process technician was to ensure that equipment is maintained and also to ensure that equipment was handed over for maintenance at the agreed times and in a clean state, presumably for work by others including the Maintenance team.  Those and other references to "maintain", "maintained" and "maintenance" suggest that there were differences between what a process technician might be expected to do and work that might be performed by other people, but the various role descriptions did not set out clear categories of work. 
  1. Because the precise meanings or scope of those words do not emerge from a textual or contextual analysis alone, it is appropriate to ascertain how they are understood by those who write or revise relevant documents and deal with these matters on a daily basis. 
  1. Submissions made on behalf of the Appellant note that:
  1. none of the Position Descriptions required a process technician to have any mechanical qualifications or to be a fitter;
  1. Rio Tinto Yarwun had specific sections with qualified and site competent fitters and operator maintainers to undertake maintenance and repair work;
  1. the Work Performance Review of the Appellant in August 2008 (Exhibit 6) recorded that the Appellant had "begun to prioritise maintenance notifications" and that he had demonstrated area ownership and urgency in returning plant to service by "performing minor maintenance tasks that would not have been completed by Reliability until scheduled" (i.e., temporary repairs, valve change outs);[10]
  1. the Discussion Planner for Interim Review in relation to the Appellant in June 2009 (Exhibit 8) recorded "Work with maintainers to assist equipment problem solving and improvement;"
  1. the RT Performance document completed in December 2009 (Exhibit 10) listed that the work of operators (rather than maintainers) includes to "Work with maintainers to assist equipment problem solving and improvement," and recorded that the Appellant had "offsided the fitters."
  1. The Appellant submits that the matters noted in (c) and (d) above support a finding that it was not part of the process technician's role to undertake repair/maintenance work, nor was there an expectation that process technicians would do that work.  Rather, consistently with the Appellant's evidence:
  1. "maintenance" is performed by people who have trained and have relevant qualifications to perform maintenance on high-risk plant equipment; and
  1. a person "maintains" that equipment in an operational and safe condition by defecting and reporting that equipment once it has faults, or keeps it in "a state of purpose," its "design state."            
  1. The Appellant said that although he is a tradesperson he was not employed as one.  He was not paid to perform maintenance on site, and the company had a separate classification called operator maintainer.  The Appellant described an operator maintainer as someone on a crew who performs minor maintenance work that did not need a full team, for example, isolating and changing out a ball valve and replacing the other pieces of minor equipment.  He did not perform that role.
  1. However, according to Mr Phillips, the "A burner front clean is to maintain the equipment in operational condition, it's not a maintenance." 
  1. In Mr Ney’s opinion, the removal of the burner clean element from the boiler was a “medium-rated job” which was an aspect of maintaining the machine. It did not involve a repair, so this was not a matter for which a process technician would put in a requisition for maintenance or repair. It involved the removal of a build-up of pulverised coal. According to Mr Ney, “to maintain boilers in an operating condition you have to clean the burners. So that’s part of [the Appellant’s] role.” In describing the task he said, “You pull it out, you unblock it, you put it back in. ... It’s maintaining your equipment.” He agreed, however, that Mr French was obliged to perform his work in accordance with documented authorized procedures.
  1. The Respondent submits that:
  1. simply as a rule of construction of the document, it makes significant sense to include in the role of process technician the aspect of maintenance or to maintain the plant in a manner that achieves safety, quality and production;
  1. the removal for cleaning of the coal burner would fall into this category;
  1. it would be nonsense to consider otherwise as the quality and production would best be achieved by decoking the boiler burning system; and 
  1. although an important meeting took place involving the Appellant's interpretation of the term "maintain and/or maintenance", in reality the Appellant refused to follow instruction despite his job description.
  1. It was apparent from the evidence, considered as a whole, that any distinction between the use of "maintain" and "maintenance" in the role description documents and the practice in at Rio Tinto's operations was one of degree rather than kind.  Indeed, it was apparent that different views could be and were held as to whether a particular task involved maintaining equipment in operational order or performing maintenance operations.  In relation to some tasks, the issue could be resolved by direct reference to the relevant ABP to identify the category (or categories) of persons assigned to perform specific tasks individually or as members of teams.
  1. Status of Authorised Best Procedure documents: The Appellant placed considerable emphasis on the requirements of the ABPs and his compliance, or intended compliance, with them.  That is not surprising, given that:
  1. the letter of offer from Rio Tinto to the Appellant stated that it was a condition of his employment that he "act in accordance with all Company policies (as amended from time to time)" and that he would "only be required to perform tasks that are legal, safe and within your competence;" and
  1. the role descriptions for process technicians referred to above included among the Accountabilities, statements that process technicians perform their work "according to the documented authorised procedures."
  1. In essence, the Appellant referred to ABPs as fixed reference points for how work was to be done and who could do it.  He appealed to them in order to explain some of his behaviour to which, apparently, management took exception. 
  1. By contrast, evidence was given by witnesses called by the Respondent, to the effect that ABPs are not fixed but are "living" documents that are revised as appropriate, even in the course of performing a task to which an ABP applied.  For example, Mr Phillips gave evidence that:
  1. he could make changes to the ABP;
  1. although the Safety Department had done a review, and could be present at the request of the team, it was not necessary that the Safety Department sign off on any changes to an ABP;
  1. although the ABP was "there for reference," the team did not have to refer to it every time they did the task;
  1. as he had performed the task numerous times previously, he had the prerogative to lead his team safely and as Team Leader to perform the task without reference to the ABP each time he did the task;
  1. an ABP could be taken down, the job could be done, changes could be noted on the ABP, and those changes submitted for change on the day of the task by a Team Leader, who (together with the Superintendent) could give that approval on the same day, and that "living document" would be re-typed and go into Documentum and be edited and stored for other teams to access.
  1. Although Mr Ney agreed that ABPs were produced so that tasks involving dangerous equipment could be done using the safest and most efficient methods, he described an ABP as the “medium instruction” and a “live document” that is reviewed and updated to improve it.  Process technicians, Team Leaders and superintendents have licence to continuously review them.  If improvements can be made, any changes are marked on the relevant ABP (e.g. by a team in the course of a task).  If the Team Leader agrees with them, the document is considered by others and if they are happy with the changes, the document is signed off. According to Mr Ney, Rio Tinto does not expect employees to comply with an ABP, but rather to go to a task with the document as a “guide” and “scribble on the improvements.”  The employees in the field are technically competent and experienced, and “we need to empower them to make a difference ... [and] we give them a licence to improve the process.”
  1. He noted that the process technician role description which operated from 2004 to 2007 not only provided for a process technician to work in accordance with authorised best practice but also to identify and improve (e.g. Exhibit 16 provides "Identify opportunities to improve best practice and communicate them to your leader"). He stated that “Rio Tinto is based on continuous improvement.” If an ABP or similar document is not up to standard, staff such as process technicians “are responsible to highlight the issues, mark them up, and go through the review process.”  According to Mr Ney, "It is all about improving the process to make people safer and to make the job safer and even do the job quicker.  So if that means we've got to do modifications to it on the run, we do modifications on the run."  He continued:

"[E]veryone has an obligation under the Workplace Health and Safety to do things safely and to make sure their people are doing things safely.  So … if that means they have to change a procedure to make it safer or to make it better, then they need to do that. …  And then … they bring it towards me or bring it towards their leader and we sign off it."

  1. The Respondent submits that the essential characteristic of an ABP is that it is updated and presented on the basis that those at the coalface determine on-site methodology for the performance of a task.
  1. The evidence just summarised provides a setting for the conflict between the Appellant and his supervisors.  On the one hand, the Appellant said he acted on the basis that he and others should comply with the relevant ABP.  On the other hand, his immediate supervisors were willing to proceed, and did proceed, on the basis that ABPs are not fixed documents but are "live" documents that provide guidance until they are revised.  Understood in those terms, the evidence disclosed not only different recollections of specific events but different approaches that gave rise to conflicting expectations of the participants about how to proceed in the circumstances of 16 August 2010.
  1. Significantly, there was also an issue about which document was the relevant ABP on 16 August 2010 and which document was shown to Mr Phillips.  The following documents were in evidence:
  1. Reliability Authorised Best Procedure 720BN10445, 10450, 10455, 10460 Coal Burner Integrity Inspection, issue date 20 September 2007 and marked to be reviewed annually with the review date being 12 September 2008 (Exhibit 21);
  1. Reliability Authorised Best Procedure Coal burner removal clean and reinstall, issue date 23 August 2007 and marked to be reviewed annually with the review date being 18 April 2009 (Exhibit 23).

The second document was found about four days into the hearing.

  1. The Appellant's account: The Appellant gave evidence that:
  1. Exhibit 21 was not the relevant ABP for the task he was asked to perform (e.g. because the pictures were different and that this was an integrity inspection document); and
  1. there were several ABPs in relation to burner integrity, clean, inspection and removal.

Exhibit 21 included an entry that it was to be reviewed annually and the next review due date was 12 September 2008.  Nonetheless, the Appellant was asked questions about equipment listed in that document that was required to remove the burner fronts and do the burner clean process (toolkit-mechanical and chain block), which he said only tradespeople have and maintenance people would bring to the job.  He was also referred to aspects of hazard control set out in the ABP which required training or equipment which he did not have, and to other steps which he said had not been taken or which he was not qualified to perform. 

  1. That ABP identified who was to perform each task in job planning, job preparation, remove burner, reinstall burner and job completion.  Most of the tasks were assigned to mechanical technicians while others were for the team, Team Leader, scaffolder or rigger.  The Appellant described the difference between a mechanical technician (fitter) and a process technician and operator maintainer.
  1. The Appellant gave evidence that Exhibit 23 was the document that he arranged to be printed on 16 August 2010 to show Mr Phillips that he was unqualified to perform the job.  The Appellant's handwriting appears on page 2 of the document that was tendered.
  1. The relevant statements in the document are:
  1. Document Description: "Removing burners whilst boiler is on line off-line"
  1. Audience: "Mechanical Tradesperson"
  1. Purpose: "Remove and replace coal burner for cleaning with boiler online or offline"
  1. Required competencies: "Qualified Mechanical Tradesperson"
  1. Labour:  four people - one "fitter working" and three stand by people
  1. Special Tools/Equipment; and
  1. Procedure steps each of which was to be performed by "M/TECH."
  1. According to the Appellant, on 16 August 2010 the relevant boiler was to be online which meant that the risk was "a lot higher" The Appellant was not a qualified mechanical tradesperson and did not have most of the special tools/equipment listed for this task, though most of them could be obtained from the store in the maintenance building if required.  However, the Appellant said that there were shift crew fitters, known as mechanical technicians, for each shift at Rio Tinto.
  1. The Appellant described a process for changing an ABP and the approval process in relation to such changes.  He said he was not aware of any changes to the relevant ABP to remove the requirement for a rigger or a fitter to be present.  However, on 16 August 2010, Mr Phillips suggested that the Appellant rewrite the relevant ABP to suit the Appellant doing the job.  The Appellant thought he was not qualified to rewrite the procedure because he had never removed the burner bin and the mechanical fitter.
  1. Mr Ney's account: Mr Ney gave evidence that Exhibit 23 was not the ABP in place as at August 2010 for the task of coal burner removal, clean and reinstall.  He said that the ABP shown to him on 16 August 2010 did not have a qualified mechanical tradesperson or rigger on it.  He had not heard of A Gardner, whose name is listed as the person who approved the ABP in August 2007 and April 2008, and the document did not contain changes that would have been documented.  In any case, it was dated 18 April 2008 so it would have been out of date and would not have been the ABP that would have been used in August 2010.
  1. Mr Phillips' account: Mr Phillips noted that Exhibit 23 was to be reviewed on 18 April 2009.  He identified Alan Gardner as an area superintendent and Aubrey Tarr (listed as the review team leader for the ABP for revisions in August 2007 and April 2008) as a maintenance Team Leader.  He confirmed that team leaders were a part of the review process.  Mr Phillips, also
  1. noted that the date of last review of that document was 18 April 2008;
  1. questioned where the 2010 ABP was;
  1. disagreed that Exhibit 23 was printed by the Appellant on that date and shown to him.
  1. The Appellant submits that:
  1. the Commission should accept the Appellant's evidence that Exhibit 23 was the current ABP in place in August 2010 and that he printed that document from Documentum and showed it to Mr Phillips and Mr Ney to confirm his concerns that the job was not being done in accordance with Rio Tinto policies;
  1. failure by the employer to provide the Respondent with any other amended or updated/reviewed ABP relating to the Boiler Burner Front Removals and Cleans reinforces the evidence that the Appellant printed out the correct document; and
  1. in the absence of any other document being tendered as the amended or updated ABP, the Commission should reject the evidence of Mr Ney and Mr Phillips that the process had been changed and was somehow different from that outlined in the Exhibit 23.
  1. The Appellant also submits that the Commission should reject any suggestion that the ABP could be ignored or some new process adopted and scribbled on the ABP for subsequent approval.  In support of that submission, the Appellant points to page 1 of Exhibit 23 which sets out the fairly intensive review process that had to be undertaken to have the ABP for Coal Burner Front Removal Clean and Reinstall approved.  Such a process is in contrast to a suggestion that a process technician could rewrite the ABP and initiate a revised scheme.
  1. Conclusion: The ambiguous nature of the evidence in relation to the events of 16 August 2010 means that it is difficult to make clear findings in relation to the dispute.  Although the participants gave similar accounts of the conversations in which the dispute arose and was continued, the evidence in relation to the subject of the dispute was unclear.  There was no common understanding of which documents applied to the Appellant on that date, and there was disagreement as to the scope of a process technician's role to "maintain" equipment.  Although it would have been useful to have any updated ABPs in evidence, the Appellant bears the onus of convincing the Commission that the document on which he relied was the ABP in operation on 16 and August 2010.  The evidentiary bonus did not shift to the Respondent to prove otherwise. 
  1. Having considered the evidence carefully, including evidence based on reasonably detailed contemporaneous notes, I conclude that:
  1. the scope of tasks that a process technician was expected to do to "maintain" equipment was not clearly specified in the role descriptions;
  1. the Appellant had a narrower understanding of the scope of "maintain" than his managers, possibly influenced by the fact that he considered that he was not being paid to do work that he thought other technicians should be doing;
  1. if the ABP that was printed for the Appellant on 16 August 2010 was Exhibit 23, that document was out of date;
  1. the relevant procedures had been revised some months previously and the Appellant was unaware of those changes;
  1. although the Appellant believed that the applicable ABP required a fitter and rigger to perform the removal of the burner front, he was mistaken as the relevant ABP had been amended to allow that work to be undertaken by process technicians with the relevant skills;
  1. Mr Phillips agreed to engage a rigger because no members of his team were signed off to do part of the task;
  1. the Appellant was directed by a manager, probably Mr Phillips, to sit at his desk that afternoon and, although that management action could have been delivered with more sensitivity or explanation, it was for a sound reason namely to protect the Appellant (and possibly his co-workers) given his state of mind following the conversation with his supervisors.

The meeting on 17 August 2010

  1. On 17 August 2010, the Appellant went to work at about 6.30 am for handover before the 7.00 am start of his shift.  He worked throughout the day and apparently no one spoke to him about the events of the previous day or gave him any notice that there was to be a performance improvement meeting that afternoon. 
  1. That afternoon, the Appellant attended a meeting with Mr Ney, Mr Phillips and Ms Brown (also known as Ms McIntosh-Brown).  Relatively detailed accounts of that meeting were given by each person.  The Appellant's account comprised oral evidence based on his recollection of the events of that day.  Mr Ney also gave an oral account based on his diary notes and his recollections of the meeting and events surrounding it.  Ms McIntosh-Brown's oral evidence was based entirely on her notes of that meeting (comprising handwritten notes recorded as the meeting progressed and typewritten notes prepared immediately after the meeting) as she had no independent recollection of what was said at that meeting and little memory of the dynamics of the interaction between the participants.  Not surprisingly, there are some differences between the participants' recollections of what was said and aspects of the conduct of the meeting.  Consequently, it is appropriate to set out the key features of each person's recollections or record.
  1. The Appellant's account: In his evidence in chief, the Appellant said that shortly before 3.00 pm, Mr Ney informed him that he was required for a meeting starting in five minutes' time.  The Appellant asked Mr Ney what the meeting was in relation to, and Mr Ney replied that that he would find out in the meeting.  In cross-examination, however, the Appellant said he did not ask what the meeting was about.  Although he was wondering about the purpose of the meeting, he suggested that if the meeting was about something specific Mr Ney would have told him.  In any case, he did not ask Mr Ney "Because he told me to turn up to a meeting and I was compliant to his wishes … I'm trying to follow his instructions."
  1. The Appellant asked Mr Ney whether he needed a support person and was told that he could have one if he wanted.  The Appellant was not told who would be attending the meeting.  In the short time available to him, the Appellant attempted to find a support person to accompany him to the meeting but was unsuccessful.  He asked Bob Peet, who was involved with Workplace Health and Safety, but Mr Peet declined because he was part of management and there might have been a conflict of interest.
  1. The Appellant returned to the HR area and spoke to Mr Ney, telling him that he could not find a support person and asking that the meeting be postponed.  According to the Appellant, "I specifically asked him to postpone it because I was not ready for this.  I was already worried about what was going on."  He recalled that Mr Ney said "It won't be postponed.  You'll be attending the meeting or there'll be consequences."  The Appellant stated that he was worried, nervous and scared going into the meeting, and he did not know what was going on or what he was walking into.  He said that he did not want to do this meeting but, in light of what he was told, thought that he had to attend.  Present at the meeting were Mr Ney, Mr Phillips and Ms Brown.  When asked if he was okay to proceed, the Appellant said "I guess so.  I've been made to turn up."
  1. The Appellant submits that it would be fair to characterise his continuation with the meeting as being reluctant and very much coloured by what had occurred in his interaction with Mr Ney outside.  Although the Appellant was asked in the meeting whether he was comfortable to proceed without a support person, he submits that it would be appropriate to characterise his responses as being one where he did not feel he had a genuine choice not to proceed.
  1. The Appellant gave evidence that, at the start of the meeting, Ms Brown said she had reviewed his history with the company about recent events.  The Appellant agreed that Ms Brown had referred to safety concerns he had raised and then had indicated that they were there to discuss the Appellant's behaviour and that was what they wanted to focus on.  He stated that Mr Ney said that the meeting was about his behaviour and performance, and agreed that Mr Ney said he wanted to identify those concerns and give the Appellant the opportunity to discuss those concerns and improve his behaviour.  Mr Ney said that the Appellant's behaviour of constantly arguing was what concerned him.
  1. Mr Ney gave the Appellant a draft Performance Improvement Plan ("PIP") (Exhibit 14) which was to address issues around his behaviour and attitude.  The PIP outlined that he needed to accept task allocations, stop challenging directions from his Team Leader (and listen to and accept feedback/outcomes communicated from his leader), and respond to the chain of command and reporting structure.  Mr Ney read out the plan.  Those matters were discussed in the meeting.  The Appellant gave evidence that he was told that he was to comply at all times with the guidelines in the PIP.  Non-compliance could lead to disciplinary action or his dismissal.  He was concerned and extremely anxious about that, particularly in light of his recent dealings with Mr Phillips.
  1. At the meeting, the Appellant stated that his role description had been changed many times in the past year, but he was not told about the changes.  He was not employed (or being paid) as an operator maintainer and was not classified as a fitter on site.  He was a process technician.  He had taken issue with some tasks, particularly the removal of the boilerplate, and had raised some matters with people higher in the corporate hierarchy than his Team Leader.  The PIP sought to address the matter in the following terms:

"Review the Process Technician Role Description.

Ensure you understand your role requirements and ensure compliance with full role accountabilities and performance objectives.

If unsure of task allocation, appropriately seek clarification and understanding from your Team Leader, and perform as per the Team Process Business Model."

and

"Report issues/concerns appropriately to your leader, as per the Team Process Business Model."

  1. As the meeting progressed, the Appellant became increasingly upset.  He became distressed about halfway through the meeting.  He was shaking, upset and in tears.  He was asked to sign the PIP without, he submits, being given a proper opportunity to read it or take advice about it.  He was not in a fit condition to sign it.  He specifically asked if he could sign it later and that was allowed.  He did not sign it or obtain advice in relation to it.
  1. The Appellant returned to his computer station and felt like he was going to collapse.  He was dizzy, shaking, had a headache, was not focusing and was not thinking.  He was trying to understand what was going on and knew that he was not well.  He returned to the place where the meeting had been held and said to Mr Ney that he needed to leave as he was not feeling well.  The Appellant was told to stay and finish his shift.  He replied that it would be unsafe for him to stay.  He was not in a condition to continue working that day.  Mr Ney said that he would let the Appellant leave if he returned to work the next day.  As he left, the Appellant was shaking, had a headache and his eyes were burning.  He was not focusing properly and bumped into the door on the way out of the building.  He felt nauseous.  The Appellant drove to his sister's place and she arranged for him to see a doctor the following day.
  1. The Appellant did not return to work after 17 August 2010.
  1. Mr Ney's account: In summary, Mr Ney gave evidence that having spoken to his manager, Dane Linforth, and HR officers Ms Brown and Ms Dundas, it was decided to have a meeting with the Appellant.  A PIP (Exhibit 14) was prepared after the meeting between Mr Ney and the Appellant on 16 August 2010.  Ms Brown and Mr Linforth were involved in its creation.
  1. At 2.45 pm on 17 August 2010, Mr Ney asked the Appellant to attend a meeting in the HR quiet room to discuss his behaviours (or, at least, what happened on 16 August).  He explained that the Appellant could have a Rio Tinto support person with him, and asked if he wanted to have the meeting immediately or in half an hour.  The Appellant requested it be in half an hour.  The Appellant came into the meeting room and said that he could not get anyone to support him.  Mr Ney asked if he wanted to proceed and the Appellant said "yes."  Mr Ney started the meeting by explaining that he had called the Appellant into the meeting to address some behaviours that he had been displaying over a period of time which escalated on the previous day.  Mr Ney said that in the previous meeting the Appellant had asked that he note down what the behaviours were, and he had done that on a PIP.
  1. Mr Ney explained that he had asked Mr Phillips to attend the meeting because he was part of the conversation that had occurred on the previous day, and that the PIP was being instigated by Mr Ney and not by Mr Phillips.  Mr Ney also explained that Ms Brown was present as an HR representative to ensure that it was a fair process and was mutual.
  1. Mr Ney started to go through the information on the PIP, and the Appellant began to interrupt him.  Ms Brown explained that he would have the floor once Mr Ney had finished explaining the information.  Mr Ney went through the PIP, explaining that there would be a review period each week and a full review in six months.  He handed the Appellant the role description, a team process model and a Short Term Incentive Program.  Once Mr Ney had gone through the behaviours stated in the PIP, the Appellant started talking about how he had raised the concern about safety and it had all been blown up in his face.  Mr Ney explained that they addressed the safety concerns.  The Appellant's other concern was that he was not being paid as an operator maintainer and his role description had changed without his knowledge.
  1. Mr Ney explained that the Appellant was still a process technician and that his role description required him to operate and maintain the plant.  The Appellant said that it was not fair to change a role description without notifying the employees.  Mr Ney explained that it had evolved.  The Appellant said that whenever he raises a concern, management will say that he is just argumentative and not accepting.  Mr Ney explained that was not the case, and that the problem was that every time the Appellant was asked to do a task that involves him using a tool then he raised a safety concern.  For example, the safety concern on the previous day came back to the Appellant being paid for being a tradesman.  The Appellant said he never had a concern about safety.  Mr Ney reminded him that the Appellant told him that if he took the matter to Steve Boyer he would stop job because it was unsafe.  The Appellant said that Mr Ney made that up and was lying.  Mr Ney challenged him on that, but then stopped him and explained that they were having the meeting because the Appellant was consistently challenging and not accepting.  The Appellant said that he had been at Rio Tinto for four years and Mr Ney was the only manager or superintendent who had ever had any issues with him and the way he works, and asked how that could be.  The Appellant said he had been getting good reviews each year and was even moved up from one of his reviews.
  1. The Appellant then started to go over his Fair Treatment case.  Ms Brown said that the case was closed and that they were here to address his behaviours.  The Appellant then asked her whether she knew what the case was and she responded that she had read up on it.
  1. The Appellant kept going over old ground about what had happened in the past, and Mr Ney kept bringing him back to the current situation about his behaviours.  The Appellant said that this was a result of the previous day when there was an argument.  Mr Phillips then said that this behaviour is a result of a couple of years, not just the previous day, and there was not an argument yesterday but, when asked to review the ABP, the Appellant had refused.  Mr Phillips explained that the Appellant had been arguing and would not accept what came from his leaders, e.g. in relation to the incident on 16 August.  The Appellant disagreed, because he did not argue.  Mr Ney said to him that he had a couple of conversations with him about his behaviours and each time they result in the Appellant not accepting or arguing.  The problem is that these behaviours are displayed to the team and the team leaders are spending 80 to 90 per cent of their time on the Appellant and that is unfair to the rest of the team.  The Appellant asked how he was disrupting the team.  Mr Phillips explained that when the Appellant argues in front of a team member it disrupts the team.
  1. The Appellant then spoke about "the farce" and continued to argue.  Mr Ney said that they were there to discuss the behaviours and explained that the Appellant would be reviewed weekly by his leaders.  If he could not do that, then Mr Ney would review it.  But they had reached the stage where they needed to end the meeting as they had discussed the matter and were just going over old ground and that was not constructive.
  1. The Appellant then stood up and asked Ms Brown if discipline action meant termination.  Ms Brown said it may result in that, but that was not the goal.  The Appellant asked whether that was how they were going to get rid of him.  At this stage of the meeting, the Appellant became agitated.  Mr Ney explained that was not the purpose, rather it was for them to create a happy team.  The Appellant said "Right" and walked out of the room.  He appeared to be very angry at that time.  Mr Ney approached him and said that he could have the rest of the day off because his mind was not on the job.  Mr Ney said they were worried about the Appellant's wellbeing because he was angry, upset about what he had just received, and his mind was not on the job.
  1. Mr Phillips' account: Mr Phillips referred to his notes of the meeting that commenced at approximately 3.15 pm.  Those notes were prepared within an hour after the meeting and are his recollection of the points of importance in that meeting.  On that basis, Mr Phillips gave evidence that the Appellant expressed concern that he could not find anyone to attend and was not pleased.  Ms Brown, who led the meeting, informed him that it was not compulsory to have representation.  She made some comments to the effect that she had reviewed the Appellant's history with the company and about recent events.  Mr Ney then explained that the purpose of the meeting was concerns with persistent behaviours the Appellant had been demonstrating, namely non-acceptance of job role description, attitude, non-acceptance and not following the chain of command when dealing with issues.  The Appellant stated that his job role description had been changed without him being informed.  Ms Brown informed him that this had been rolled out in January.  He argued this was not true, he was not informed and he did not accept it.  It was also pointed out to the Appellant that job role descriptions were available for all to see and read in Documentum.
  1. The Appellant stated that all this was a result of him having what he believed to be valid safety concerns on an allocated task yesterday, and had now been blown out of proportion.  Mr Phillips said that yesterday was just an example of how the Appellant argues and debates tasks that he does not want to do.  The Appellant replied he was not arguing, and again argued that it was not his job to remove burner fronts.  Mr Ney pointed out that his role description states operate and maintain.  Mr Ney also pointed out that the ABP does not state requirement for fitters.  The Appellant refused to accept that.  Mr Ney stated that the behaviours the Appellant was now displaying were the behaviours that he and previous leaders had noted and had concerns about.  The Appellant replied that he had no issues with any other leaders and nor did they with him.  Mr Phillips stated this was not the case, and that all previous leaders had made the same comments and notes.  Ms Brown and Mr Ney agreed.  The Appellant refused to accept that.
  1. From that point, the Appellant became even more argumentative and stated that both Mr Ney and Mr Phillips were no good at their jobs, and that Mr Ney was personally out to get him.  The Appellant said he was more experienced and knew the company's policies, and repeated that he had not had these issues or complaints from anyone else.  Ms Brown said this was not the case and that HR had diary notes to support that.
  1. The Appellant again brought up his previous work history, skills and experience and continued to disagree with the concerns raised.  He did not accept the requirements to follow the chain of command and that he had approached Mr Linforth in regard to his previous unfair treatment case.  The Appellant continued to be hostile and argumentative.
  1. Mr Ney gave the Appellant the PIP (Exhibit 14) and outlined its contents to the Appellant.  The Appellant argued points as they were raised.  Ms Brown then asked the Appellant to read and sign the PIP.  He asked that he be able to take it away to read first.  Ms Brown said "Yes."  The Appellant asked what would happen if he did not sign it.  Ms Brown told him he would still have to meet the required improvements by six months.  The Appellant asked what would happen if he did not improve, and Ms Brown informed him that it would lead to disciplinary action.  He asked if that meant dismissal.  Ms Brown said it could.
  1. About halfway through the meeting, the Appellant started to become a bit distressed and upset.  At this stage the Appellant became even more angry and upset and said it was the company's way of trying to get rid of him.  He then said he was shaking, did not feel well, and did not want to be there.  Mr Phillips remembered that he was in a distressed state, and suggested that he go home as he should not be out on the plant in his current state of mind.  Ms Brown asked the Appellant to take his copy of the PIP and read it, and ring her tomorrow or let her know if he was not going to sign.  The Appellant then left.  He rang in sick the following two nights.
  1. Ms McIntosh-Brown's account:  Ms McIntosh-Brown was a human relations adviser at Rio Tinto from approximately June 2010 until about February 2011.  She only met the Appellant on one occasion, at the meeting on 17 August 2010.  By reference to her notes, she said that Mr Ney contacted her at about 2.45 pm to say that he had asked the Appellant discreetly to attend a meeting in the HR quiet room regarding the PIP to discuss his behaviour. Mr Ney advised Ms McIntosh-Brown that he told the Appellant he could have a Rio Tinto support person present if he wished, and that the Appellant had requested half an hour before the meeting commenced.
  1. The meeting commenced when the Appellant arrived at 3.15 pm. Ms McIntosh-Brown noted that the Appellant did not have a support person present, reiterated that he could have one present if he chose, and said that he needed to be comfortable to continue the meeting or they would postpone it until he could find a support person.  She asked the Appellant if he was comfortable to continue without a support person and apparently he said "Yeah, I suppose."  Mr Ney then reiterated that they would proceed if the Appellant was comfortable, to which he replied "Yes."
  1. Ms McIntosh-Brown was introduced, and she outlined her role including to ensure that the meeting progressed fairly and openly for both parties.  Mr Ney stated that the discussion was an informal forum, to be frank and open around some clear concerns in regards to the Appellant's behaviour.  Mr Ney said that he wanted the Appellant to have the opportunity to discuss those concerns and improve his behaviour, with Mr Ney's goal being a productive and healthy team.
  1. Mr Ney gave the Appellant the PIP, which Ms McIntosh-Brown said she had some role in compiling, and discussed key issues regarding the Appellant's behaviour and attitude, namely: accepting task allocation, understanding and accepting role requirements, negative attitude (namely constantly challenging directions from his leader), compliance with Rio Tinto values linked to the Appellant's performance objectives, compliance with team processes, and following the chain of command (namely reporting concerns and issues to the Appellant's leader, superintendent and not another party).
  1. Mr Ney stated that, in a previous discussion, the Appellant had asked him to document concerns that he had with his behaviour.  Mr Ney pointed out that that was what he was doing now.  He then went on to detail each action and outcome was listed on the PIP and discussed examples of each.  He then provided the Appellant with copies of his role description, the team process business model, and his objectives, which he used as a reference to discuss the points he had raised.  The Appellant took those documents with him at the end of the meeting.
  1. The Appellant, who had interrupted Mr Ney earlier in the meeting, was given an opportunity to respond (e.g. by providing any mitigating factors which were leading to the behaviour discussed) or ask questions.  Apparently the Appellant said, "This makes me very sad.  How long have I been here?  Seven years.  How long have the rest of you been here?" and Mr Ney replied that that was irrelevant.
  1. Ms McIntosh-Brown's notes record that the Appellant said:

"In the last year, my role description has been changed so many times and I was never once told about any changes.  I don't know what I'm supposed to be doing, and what I get asked to do isn't said in this" (i.e. the role description document provided to him).

Ms McIntosh-Brown said that the revised role descriptions were rolled out during May/June through information sessions from managers and that the Appellant received that communication.  The objectives that he was set also reflect his role description.  The Appellant said that his role description was changed often and the jobs he was asked to do were not in the job description.  He continued to argue the point stating that he was not informed of changes to his role description.  Mr Ney confirmed that the Appellant had received communication regarding those changes, and that role descriptions were available for all to view on Documentum which could be accessed via the Rio Tinto intranet.

  1. The Appellant than said this was all because he had raised a valid safety concern on the previous day.  Mr Ney said that was not correct.  They addressed the safety concerns he raised yesterday, explained the job was safe, and the Appellant still argued and refused to accept the task.  Mr Ney continued:

"You raise safety concerns regularly when asked to do jobs on the tools; and you do not accept job allocation, although the requirements are explained to you and any safety concerns are investigated.  You argue and debate tasks that you do not want to do."

The Appellant replied:

"It is not my job to remove burner fronts.  I don't argue, but it's not my job.  Why should I have to do something that's not safe and not part of my job?"

He continued to discuss that point saying that he was not arguing yesterday and that leaders do not listen to him.  He also said he was asked to do work of a tradesman, but is not paid as a tradesman.

  1. Mr Ney explained that the Appellant's role description is to operate and maintain.  That is what he was asked to do yesterday.  The ABP does not set out the requirement for fitters.  Mr Ney stated that whenever the Appellant is asked to use a tool, the Appellant raises a safety concern and when that is addressed he then raises the concern of not being paid as a tradesperson.  The Appellant replied that he did not have a concern about safety regarding yesterday's task allocation and that he never questioned safety.  Mr Ney challenged that statement and repeated what the Appellant had said the previous day to the effect that if the Appellant took the job to Steve Boyer, the Health and Safety adviser, he would stop it because it was unsafe.  The Appellant stated that Mr Ney made that up, and returned to the argument that it was not his job to remove burner fronts.  To the extent that her recollection was prompted by the notes, Ms McIntosh-Brown suggested that the Appellant was quite agitated at this stage but Mr Ney was calm.
  1. At that stage, Ms McIntosh-Brown said to the Appellant that if he believed he had a valid safety concern he was encouraged to raise it and it would be addressed.  Mr Ney and Mr Phillips agreed.  She then said that once a concern has been addressed, the Appellant needs to accept the task.  Having referred further to safety and investigation of concerns where appropriate, Ms McIntosh-Brown said "However, we are here to discuss your behaviour and that is what we need to focus on right now."
  1. There followed a discussion about the Appellant's behaviour of constantly challenging and constantly arguing.  When the Appellant suggested that the only person who had a problem with him was Mr Ney, Mr Philip stated that was not the case, and he also had concerns about the same behaviour and that the Appellant's behaviour during the meeting was an example of how he debates and does not accept direction.  According to Ms McIntosh-Brown's notes, the Appellant then said they had no idea what they were talking about, they were not good at their jobs, and no one else had these concerns.  Ms McIntosh-Brown then stated that there was documentation around discussions that the Appellant had had with his leaders which had been referred to in the examples provided and which supported the PIP.
  1. Apparently the Appellant's demeanour at this stage was argumentative and hostile.  He did not accept the concerns that were being raised and said this was to do with the Fair Treatment case that he raised.  Ms McIntosh-Brown said that the case had been reviewed and closed, and they were not there to discuss that.  The Appellant asked whether she had read it and she replied that she had but they were not here to discuss that.  "We are here to discuss concerns around your behaviour and attitude."
  1. There was discussion about communications and the chain of command with the expectation that the Appellant would contact his leader.  However, the Appellant returned to other issues that he raised earlier in the meeting.
  1. The Appellant stated that he was one of the most experienced people and his team and asked how he could be given a PIP.  Mr Ney replied that the Appellant's experience was not in question.  It was his behaviour that was the concern.  He then said that the conversation was moving in circles.  The PIP had been developed to address the behaviours that they were trying to discuss.  The Appellant would need to demonstrate that he was consistently reaching these outlined objectives over a six-month period.  Failure to meet the required performance may result in disciplinary action.  Mr Ney said that regular weekly ongoing review sessions would be conducted with the Appellant's Team Leader or, if he was unavailable, with Mr Ney.
  1. Ms McIntosh-Brown asked the Appellant to read the PIP carefully and a few minutes later asked him to sign the document if he agreed with it.  The Appellant then asked if he had to sign it.  She replied "No, but I'll make a note that you have chosen not to sign."  The Appellant then asked if he could take the document home to review it.  She allowed him to do so, but asked that he either sign and return the document the next day on his next shift or, if he chose not to sign it, to confirm by telephone call email so that the appropriate record could be made.  The Appellant then asked what would happen if he did not sign it.  She advised him that the document would stand, but that if he has valid issues with it they could sit down and see if there was anything that they could incorporate.
  1. Ms McIntosh-Brown referred to the expectation that he would meet the requirements and weekly reviews would be conducted as per the PIP.  The Appellant asked what would happen if he did not improve, and Ms McIntosh-Brown responded that disciplinary action could be taken.  The Appellant then asked whether that could mean dismissal.  She responded that, depending on the circumstances and the actions, that might be a possibility but that was not the goal here.  The purpose of the PIP was to give him the opportunity to improve.
  1. At that stage of the meeting, Ms McIntosh-Brown observed and noted that the Appellant became very agitated, he was repeatedly standing up and sitting down, and was shaking.  She reminded him of the Employees Assistance Program that was available if he required if.  The Appellant said that this was the company's way of "trying to get me.  I don't feel well.  I'm shaking.  I don't want to be here.  I want to go home."  Mr Ney then said that it was Mr Phillips' call and Mr Phillips agreed to the Appellant going home as Mr Phillips did not want him on the plant if he was as unwell as he said.  Ms McIntosh-Brown asked the Appellant to take the PIP document (which Mr Ney had signed) with him and then review it and return it signed or notify that he would not be signing.  The Appellant left the meeting and it concluded at 4.30 pm.
  1. Ms McIntosh-Brown had no further direct communication or involvement with the Appellant, although she was involved in some of the discussions which followed when he did not return to work.  She left the employ of Rio Tinto a few months later.
  1. Conclusion in relation to the meeting: The participants' accounts of the meeting are broadly consistent although they vary in relation to some significant components.  From that evidence it is reasonable to conclude that:
  1. the Appellant had no more than half an hour's notice of the meeting, even though the other participants had more notice and two of them had prepared a PIP for the purpose of the meeting;
  1. the Appellant probably did not know the general purpose of the meeting, and certainly did not know about the proposed PIP;
  1. despite attempting to do so, the Appellant was unable to find a support person before the meeting commenced;
  1. although there is some evidence that the Appellant could have asked that the meeting be postponed, the Appellant attended the meeting because he felt obliged to;
  1. the Appellant was reluctant, apprehensive and nervous going into the meeting, particularly in light of recent interactions with Mr Phillips;
  1. the purpose of the meeting was to discuss his behaviour and performance;
  1. the Appellant was presented with a PIP, which dealt with behavioural issues that had been discussed previously with the Appellant, primarily by Mr Ney;
  1. the meeting was not a disciplinary meeting, although there might have been disciplinary consequences if the Appellant did not comply with the PIP;
  1. a range of issues was discussed, including changes to the Appellant's role description; the Appellant's work history, skills and experience; the nature of the Appellant's behaviour is in the workplace; whether leaders other than Mr Ney had issues with the Appellant's behaviour, and the circumstances giving rise to the meeting;
  1. the Appellant demonstrated argumentative behaviour and challenged aspects of what was said to him in ways that had been the subject of previous discussions with or observations by management;
  1. the Appellant became increasingly distressed and angry as the meeting continued, and was shaking, crying and feeling unwell by the end of the meeting;
  1. the Appellant was unwilling to sign the PIP at the meeting;
  1. the managers did not insist on him signing the PIP then, but agreed to him taking it away from the meeting to review and then advise them whether he would sign it.

The implications of the conduct of the meeting for the appeal are considered later in these reasons.

 Is the Appellant's injury work related?

  1. The Respondent's written submissions refer to the difficulty in identifying exactly the stressors upon which the Appellant relies.  The Respondent purports to be "in the dark" as to those stressors, and contends that the Appellant appears to rely upon a course of conduct commencing sometime in 2008, but without realistic evidence that identifies the actual date of clinical onset.  However, as the Respondent appears to have conceded that the Appellant's injury arose out of, or in the course of, the Appellant's employment and that his employment was a significant contributing factor to the injury, it is not necessary to deal with those submissions in detail.
  1. The Appellant made the following submissions:
  1. the only factors that the Appellant identified in his evidence and in the history provided to Dr Chalk as being causally related to his injury were work-related;
  1. in his written and oral evidence, Dr Chalk linked the injury to work-related causes and he considered the employment to be a significant contributing factor to the injury;
  1. the Respondent did not provide any medical evidence to establish that the injury did not arise out of, or in the course of, the Appellant's employment or that the Appellant's employment was not a significant contributing factor to his injury.
  1. In respect of the latter point, the Appellant refers to the decision in Q-COMP v Green[11] where President Hall noted that "significant" should not be held to mean the same as "substantial", and he agreed that an appropriate definition was "important; of consequence."  The Appellant submits that, on that definition and given the evidence before the Commission, the Commission would be satisfied on the balance of probabilities that the Appellant has sustained an injury that arose out of his employment with Rio Tinto and that the Appellant's employment was a significant contributing factor to his injury occurring.
  1. The Respondent makes submissions in relation to:
  1. whether Dr Chalk did or should give evidence relating to causation;
  1. the implications of the Appellant's personality type for this appeal.
  1. First, the Respondent submits that causation is entirely a matter for the Commission, not for Dr Chalk.
  1. The Appellant submits that the issue whether the psychiatric/psychological disorder was a compensable injury is a matter for the relevant tribunal, not for the medical profession.[12] However, in this case:
  1. the Respondent chose not to present any contradictory medical evidence; and
  1. in the absence of contradictory evidence, it is entirely appropriate for the Commission to accept and be guided by the expert evidence of Dr Chalk.[13]
  1. Dr Chalk's evidence is considered early in these reasons (see Nature of the injury).  In essence, he diagnosed the Appellant as having a chronic adjustment disorder.  In his opinion, that injury was work-related in the broadest sense in that there do not appear to be other significant issues in the Appellant's life that led to it.  Rather, the Appellant had given an account of there being a chain of events in the workplace over a period of time, and his symptoms had arisen over that period and not in response to one event such as the meeting in August 2010.  On the basis of the evidence he had been given and clinical examination of the Appellant, Dr Chalk expressed the view that the Appellant's employment was a significant contributing factor to his adjustment disorder.
  1. As both parties acknowledge, the decision about whether the Appellant's injury satisfies the criteria of s 32(1) is a matter for the Commission, not for an expert witness or witnesses.  However, the Commission is routinely assisted by the opinions of medical experts, based on relevant evidence or agreed facts, as to whether a particular injury satisfies those criteria.
  1. Second, in response to Dr Chalk's assessment that the Appellant was of an obsessive personality type with a degree of rigidity, and someone who sees things in black and white terms, the Appellant submits that an employer effectively takes their employees as they find them.  If there is a factor in their psychological make-up that leads the employees to being more susceptible to a breakdown or decompensation, that is not something that can be relied upon to avoid liability.  In support of that submission, the Appellant relies on two decisions of President Hall in Q-COMP v Foote[14] ("Foote") and Sheridan v Q-COMP ("Sheridan").[15]  Those cases involved claims for compensation for psychiatric injury in the workplace.
  1. In Foote, Hall P wrote that "a fragile psychological make-up is no more a bar to an entitlement to benefits under the Act than an eggshell skull."  Subject to the "very significant statutory qualifications" contained in s 32(5) of the Act (discussed below), "an insurer takes a worker with all his faults."[16]
  1. In Sheridan, Hall P wrote:

"In respect to psychological injury, there is an "egg-shell psyche" principle which is the equivalent of the "egg-shell skull" principle, compare State Transit Authority of New South Wales v Chelmer [2007] NSWCA 249 at paragraph 40 per Spigelman CJ.  So long as the events within the workplace are real rather than imaginary, it matters not that they impact upon the claimant's psyche because of a flawed perception of events attributable to a disordered mind, compare Federal Broome Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 643 per Windeyer J, Westgate v Australian Telecommunications Commission (1987) 17 FCR 235 and Q-COMP v Foote (2008) 189 QGIG 802 at 810."[17]

  1. The Appellant submits that the events that he has described as giving rise to his decompensation are very real, did occur and did occur to him.  It would seem that the Appellant was vulnerable to a further decompensation in August 2010 because of his innate personality traits and the fact that he had experienced a breakdown due to stress earlier in the year (and the employer knew about that breakdown).  That vulnerability, he submits, does not mean that his injury is not compensable.  If anything, it strengthens the argument that the condition arises out of his employment.  Even if his perception was being clouded by the onset of his psychological illness, that would not stop his injury being compensable.
  1. In essence, the Appellant submits that he has succeeded in satisfying the elements of s 32(1) of the Act, that is, that he sustained a personal injury which arose out of his employment and that the employment was a significant contributing factor to the injury.
  1. Conclusion: Having considered:
  1. evidence relating to events in the workplace up to and including 17 April 2010; and
  1. the unchallenged opinion evidence of Dr Chalk (which was based on evidence about events in the workplace consistent with the evidence before the Commission),

and in the absence of any contradictory evidence, I am satisfied that Appellant suffered an injury in the form of a psychological disorder diagnosed as a chronic adjustment disorder and that the injury arose out of, or in the course of, his employment and that his employment was a significant contributing factor to his injury.  The remaining issue is whether, despite that finding, the appeal should be dismissed because of the operation of s 32(5) of the Act.

 Reasonable management action: The operation of s 32(5) of the Act

  1. Central to the resolution of this appeal is s 32(5) of the Act which provides:

"(5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances-

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

Examples of actions that may be reasonable management actions taken in a reasonable way-

  • action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker
  • a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment."

The only examples relevant to this appeal relate to a decision not to award promotion, or possibly reclassification, to the Appellant.  Those examples, however, do not determine the outcome of this appeal.

  1. The appeal must be dismissed if any of the circumstances listed in s 32(5) applies.  In relation to this case, the appeal will be dismissed if the Appellant's injury arose out of or in the course of:
  1. reasonable management action taken in a reasonable way by the employer in connection with the Appellant's employment; or
  1. the Appellant's expectation or perception of reasonable management action being taken against the worker.
  1. The Appellant submits that because there was a series of fundamentally flawed and unreasonable management actions taken in connection with the Appellant's employment, it could not sensibly be found that s 32(5) of the Act is enlivened.
  1. General principles: The extent and limits of the operation of s 32(5) of the Act have been described in decisions in cases summarised below.
  1. As noted earlier, the Appellant relies on the decisions of Hall P in Foote and Sheridan in relation to claims for compensation for psychiatric injury in the workplace.
  1. In Foote, Hall P wrote that, subject to the "very significant statutory qualifications" contained in s 32(5) of the Act, "an insurer takes a worker with all his faults."[18]  In relation to those statutory qualifications, Hall P wrote:

"Where the psychological disorder develops out of a worker's perception of reasonable management action being taken against the worker, it is withdrawn from the definition of injury (see s 32(5)(b) of the Act).  Where the psychological disorder arises out of or in the course of reasonable management action taken in a reasonable way by an employer in connection with the worker's employment, the psychological injury is withdrawn from the definition of 'injury,' whatever the worker's perceptions may have been (see s 32(5)(a))."[19]

  1. In Sheridan, Hall P referred to "a statutory deviation from the general rule where the psychological disorder arises out of or in the course of a claimant's expectation or perception of reasonable management action being taken against the worker, compare s 32(5)(b) of the Act."[20]
  1. In Lackey v Workcover Queensland,[21] Hall P accepted that:

"the test posited by the words 'arising out of' is wider than that posited by the words 'caused by' and that the former phrase, although it involves some causal or consequential relationship between the employment and injury, does not require the direct or proximate relationship which would be necessary if the phrase used were 'caused by' …"

The former President repeated that statement in Avis v WorkCover Queensland ("Avis").[22]

  1. In the subsequent decision of WorkCover Queensland v Curragh Queensland Mining Pty Ltd,[23] Hall P stated that the statutory provision:

"does not withdraw from the definition of injury psychological disorders caused by reasonable management action taken in a reasonable way.  It withdraws from the definition of injury psychological disorders arising out of reasonable management action taken in a reasonable way."  (emphasis added)

He continued by reiterating that it was settled by the decision in Avis[24] that the test posited by the words "arising out of" is wider than that provided by the words "caused by."[25]

  1. However, there is also authority rejecting the proposition that once an injury was in any way "touched" by reasonable management action reasonably taken it is not compensable.[26]  More recently, Martin J expressed his agreement with the reasoning of in Q-Comp v Hohn where Hall P said that the mere occurrence of reasonable management action will not insulate a disorder from characterisation as an “injury.”[27]
  1. There is also authority in decisions of Hall P for the proposition that "reasonable" should be treated as meaning "reasonable in all the circumstances of the case," and that such circumstances can include circumstances relating to the psychological make-up of the worker where those circumstances are known to the employer.[28]
  1. The Commission's role is to embark upon the enquiry whether the psychological/psychiatric injury arose out of, or in the course of, reasonable management action taken in a reasonable way.[29]  As Martin J stated:

“The task of the Commission when applying s 32(5) does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances.  There may be any number of actions or combinations of actions which would satisfy s 32(5).  The proper task is to assess the management action which was taken and determine whether it was reasonable and whether it was taken in a reasonable way.  Sometimes, that may involve considerations of what else might have been done but that will only be relevant to whether what was done was, in fact, reasonable.”[30]

  1. In Prizeman v Q-COMP,[31] Hall P stated that in determining whether action was reasonable management action taken in a reasonable way by the employer in connection with the worker's employment, "it is the reality of the employer's conduct and not the employee's perception of it which must be taken into account."
  1. In Svenson v Q-COMP,[32] Hall P found that the appellant had "developed a propensity to perceive 'bullying' in the conduct of others and to react to it."  Hall P continued:

"Perfectly reasonable activity in the workplace may be held to be a significant contributing factor to a psychiatric injury where a claimant's perception of what has occurred is quite different to the reality of that which has occurred.  But an injury which arises out of or in the course of reasonable management action reasonably taken is not removed from the exclusion at s 34(5) because of the claimant's flawed perception, see esp. s 34(5)(b)." 

  1. In Bowers v WorkCover Queensland,[33] Hall P rejected a submission that where the work environment is found to be a significant cause of a depressive illness, the employer's system of work and its implementation cannot be found to be reasonable.
  1. Appellant's submissions in relation to specific incidents: In support of broader submissions that s 32(5) does not exclude the Appellant's claim (considered below), the Appellant made submissions about the operation of s 32(5) in relation to specific incidents between August 2009 and 17 August 2010.
  1. The Appellant submits that Mr Ney's failure to respond to his letter dated 9 August 2009 could only feed into the Appellant's feelings that he was being disregarded and overlooked by his employer.  The Appellant submits that the lack of action by Mr Ney goes beyond a blemish and constitutes unreasonable management action.  I disagree.  Viewed on its own or in the context of subsequent events (particularly the detailed way in which Mr Ney and the Fair Treatment review dealt with the Appellant's concerns), that oversight can be properly characterised as a blemish.
  1. The Appellant made detailed submissions in relation to the way in which the Control Room Safety incident was handled in February 2010.  As noted earlier, there were aspects of management's actions which were unsatisfactory but they were recognised, if not remedied, by the withdrawal of the warning and instructions given to Mr Ney to follow the appropriate process in the future.
  1. The Appellant's criticisms of the CRO recruitment process have also been dealt with earlier where I concluded that I was not satisfied that the recruitment process was unfair or unreasonable.
  1. The Appellant submits in relation to his Fair Treatment System application that:
  1. he lodged the application because of how he felt he was being treated by management in being overlooked for promotion;
  1. apparently after Mr Ney became superintendent (and primarily from the start of 2010), there was a consistent theme being voiced by management regarding the Appellant not listening, having an attitude problem and not following directions;
  1. those allegations were not previously documented by Rio Tinto, and they became more persistent after the Appellant utilised the Speak Out and Fair Treatment system processes;
  1. the Commission is entitled to conclude that, by the start of 2010, Mr Ney had effectively marked the Appellant's cards in terms of him having any further promotional opportunity and, given the Appellant's work experience and performance reviews, that was not the action of a reasonable manager.
  1. The reason for, conduct of and outcomes from the Fair Treatment System application are discussed earlier in these reasons.  I simply repeat that the process was reasonable and the findings and recommendations reflected a fair assessment of the circumstances applying to the Appellant before May 2010.  His concerns were dealt with in the Review process.  Although the evidence supports a finding that by March 2010 Mr Ney had formed the view that the Appellant was probably not team leader material, that finding does not necessarily lead to the conclusion urged on me by the Appellant.  That issue is considered later.
  1. Removal as relief Team Leader: The Appellant's criticisms of the action of Mr Ney in removing him from acting as relief Team Leader on 9 July 2010 are set out earlier in these reasons along with my conclusion that his decision was defensible (and hence not unreasonable):
  1. because he had authority to make it;
  1. by reference to the overall approach he was taking to the management of teams including his treatment of other workers in them; and
  1. because, although the Appellant's behaviour and attitude had improved in the previous two months, the Appellant's leadership capacity had not yet been demonstrated to the Superintendent's satisfaction.
  1. Radio incident: The Appellant submits that:
  1. the Appellant's evidence regarding this event and the manner in which Mr Phillips spoke to him has largely not been contradicted, and hence should be accepted;
  1. although it may be reasonable for Mr Phillips to speak to the Appellant about not being able to be contacted, it was not appropriate and not reasonable for him to do so in an aggressive and abrupt manner and in a way which was intimidating; and
  1. the management action of Mr Phillips on this occasion was not taken in a reasonable way.
  1. The Appellant relies on the decision of Hall P in WorkCover Queensland v Heit[34] for the proposition that the Commission must consider issues of Mr Phillips' language, tone of voice and demeanour in implementing the management action in relation to the Appellant's radio battery being flat.  In that decision, President Hall wrote:

"With the benefit of hindsight, the question whether the action taken by Ms James on the various occasions was reasonable management action displaced from the prominence which they should otherwise have had, the issues relating to Ms James's language, tone of voice and demeanour.  All of those matters were of course relevant to whether the action was taken 'in a reasonable way', and to the broader issue whether over a period of time Ms James had engaged in a course of conduct more likely than not to have caused Ms Heit's disorder."

  1. The Appellant also cites the decision in Gregory Versace v Ronald Braun[35] as an example of when management action was not taken reasonably and the communication of a decision of management had not been implemented in a reasonable way.
  1. Those decisions are distinguishable from the circumstances in this case, particularly as they referred to a course of conduct or a series of communications that might have been characterised as management action that was not taken in a reasonable way.  It was appropriate that Mr Phillips, as Team Leader, should speak to the Appellant about the safety issue underlying the radio incident.  Even if he reprimanded the Appellant in an abrupt, loud and aggressive manner, that interaction alone would not deprive s 32(5) of its operation.
  1. Gas turbine incident: In relation to the gas turbine incident, the Appellant again relies on the decision in WorkCover Queensland v Heit and submits that:
  1. it was not appropriate for Mr Phillips to take him to task for not following the direction given that the Appellant was not trained on the gas turbine nor had he been passed out as being competent to operate it;
  1. the manner in which Mr Phillips spoke to him was completely inappropriate, belittling and humiliating; and
  1. this was not reasonable management action.
  1. The gas turbine incident is described earlier in these reasons.  Having regard to the matter in issue, if the Appellant's account is accepted that would form the basis for a finding that the management action on that occasion was not reasonable and that, in any case, it was not taken in a reasonable way.
  1. Isolation incident: On the basis that his evidence is accepted, the Appellant submits that:
  1. Mr Ney did not afford the Appellant procedural fairness in relation to the meeting (in particular, by providing him with no notice of the meeting or an agenda and not affording him the opportunity to have a support person present);
  1. Mr Ney was aware that the Appellant had experienced stress-related psychological issues earlier in the year and was continuing to see a psychologist;
  1. Mr Ney spoke to the Appellant about a written warning but there was no warning for Alex, the other employee involved in the incident;
  1. the meeting was a further example of the Appellant being treated differentially to another employee and being singled out by Mr Ney; and
  1. that was not reasonable management action.
  1. Those criticisms were dealt with earlier in these reasons.  In essence, I have concluded that it was appropriate for Mr Ney to discuss the alleged isolation incident with the Appellant (as the confirmation officer).  Although Mr Ney referred to considering issuing a written warning, he had not done so for procedural reasons.  That is consistent with Mr Ney having learned from his experience (in relation to the Control Room incident in February 2010) the importance of following appropriate procedures in relation to the issue of warnings.  Had Mr Ney followed due process and investigated the matter when it occurred, there would probably have been a counselling session for the Appellant and a file note to Alex.  That is the reason why Mr Ney did not contact Alex.  It is also clear that the Appellant accepted that the isolation process is a double check system to ensure that there is no fault.  He was willing to attend relevant training, and did so in a short period after the meeting.  He was not prevented from performing isolations subsequently.
  1. Consequently, having regard to the content and context of that event, I am satisfied that it was reasonable management action taken in a reasonable way.
  1. Emergency response incident: In relation to the Emergency Response incident, the Appellant again relies on the decision in WorkCover Queensland v Heit and submits that:
  1. he was simply carrying out his duties as a member of the Emergency Response Team and yet he was subject to another unwarranted attack from Mr Phillips which was verbally aggressive and apparently included swear words;
  1. the Appellant was effectively being reprimanded for doing his job;
  1. the management action taken by Mr Phillips on this occasion was inappropriate and unreasonable, and was taken in an unreasonable way given the manner in which Mr Phillips spoke to the Appellant.
  1. Given that the only evidence in relation to this event came from the Appellant, and I have found him to be a generally credible witness, I conclude that Mr Phillips reprimanded the Appellant in a robust manner.  If the Appellant's account of the events is correct, Mr Phillips' actions were inappropriate both as to how he spoke to the Appellant and the basis on which he delivered the reprimand.
  1. The boiler incident and subsequent events on 16 August 2010:  The Appellant submits that it was entirely appropriate for him to raise, at the task assignment meeting with Mr Phillips, the issue that the burner front removal task required the presence of both a fitter and a rigger.  Accordingly, the Appellant submits that:
  1. the Appellant was entirely correct to raise his concerns about what was being proposed;
  1. it was an unreasonable management request to seek to have the Appellant perform the task in a manner that did not comply with Rio Tinto's ABP;
  1. it was an unreasonable request for Mr Phillips to seek to place the Appellant in a position where he was acting in a way that did not comply with the Appellant's position description;
  1. Mr Phillips did not give a lawful direction when he sought to have the Appellant undertake the task in a manner that breached the ABP; and
  1. as a consequence, it was not reasonable management action.
  1. The Appellant submits that to take him to task through a number of meetings on 16 August 2010, and to then instruct him to sit at a computer terminal for the balance of his shift until he received further instructions from Mr Phillips, was not reasonable management action.
  1. Earlier in these reasons, I set out my conclusions in relation to the events of 16 August 2010.  It is not necessary to repeat them.  In light of those conclusions, I do not accept the submission that the way in which the Appellant was treated by his supervisors on 16 August 2010 was not reasonable management action.
  1. The events on 17 August 2010: The Appellant submits that the events of 17 August 2010 should be viewed as being unreasonable management action, and management action that was taken in an unreasonable way.  In particular, the Appellant submits that:
  1. it was unreasonable management action not to give the Appellant greater notice of the meeting, particularly given the Appellant's psychological vulnerability and Mr Ney's knowledge of that, and it could be said that the Appellant was "ambushed" by his employer;
  1. given the Appellant's past history, it would have been appropriate to provide him with an agenda for the meeting;
  1. given management's knowledge of the Appellant's psychological functioning and vulnerability, it was not reasonable management action for the meeting to proceed without the Appellant having a support person present (particularly if the Appellant asked for the meeting to be postponed because he was unable to find a support person in the short time available to him);
  1. an experienced HR practitioner, upon seeing the Appellant becoming increasingly agitated as the meeting progressed, would have called a halt to the meeting;
  1. even when the Appellant identify that he was unwell and was shaking etc, none of the three management staff showed any empathy to him or suggested that he seek treatment at the medical centre on site; and 
  1. nor was there an evidentiary foundation for a PIP for the Appellant to be prepared and put in place.
  1. The Respondent submits that, in reality, it was Mr Ney who tried to assist the Appellant, even though the Appellant perceived Mr Ney's conduct as harassment and bullying.  In the Respondent's submission, the meeting of 17 August 2010 was designed to reacquaint the Appellant with his failings and once again give him the opportunity to improve.  The Appellant agreed to attend without a support person.  Objectively the PIP was an appropriate identifier of tasking.  There was no absence of procedural fairness.  Any irregularity in management practice could only be a mere blemish.
  1. There is evidence to support aspects of each submission.
  1. However, contrary to the Appellant's submissions, there was a sound basis for preparing and implementing a PIP for him.  The PIP potentially had two functions:
  1. to address behavioural and attitudinal concerns (and provide the written guidance in relation to those matters that the Appellant complained he had not been given previously); and
  1. in doing so, potentially assist the Appellant meet his aspirations of advancement within Rio Tinto.

I do not accept that the PIP was put in place solely because of the events of 16 August 2010, although the events of that day clearly precipitated its preparation and presentation to the Appellant.  At the meeting on 17 August 2010, Mr Ney said to the Appellant that in the previous meeting the Appellant had asked that he note down the relevant behaviours and he had done so.

  1. Mr Ney said that the role of the meeting on 17 August 2010 was to deliver a PIP and that he expected the Appellant would sign that and would progress on it.  It is clear from the evidence of Mr Ney and Ms McIntosh-Brown that the PIP had been drafted before the meeting without the Appellant's knowledge or input, and the Appellant was not going to be afforded an opportunity to have input into it.  Mr Ney did not tell the Appellant that there was going to be a PIP at that meeting.  He agreed that the process was flawed.
  1. In cross-examination, Ms McIntosh-Brown described the PIP as a coaching tool and said that the meeting was not a disciplinary meeting.  She understood that Mr Ney had advised the Appellant about the purpose of the meeting in advance.  In those circumstances, she considered that the opportunity for a support person and the notice given were reasonable.  She said, however, that:
  1. if the Appellant had not been told of the purpose of the meeting before it commenced, that would not be reasonable; and
  1. if the meeting had gone ahead despite the Appellant requesting that it be deferred because he could not find a support person that would not be appropriate.
  1. Ms McIntosh-Brown agreed that the documents on the Appellant's personnel file (Exhibit 18) contained no indication of there being any reports of misconduct by the Appellant or any counselling of him.  She said, however, that performance-related discussions in the workplace would constitute coaching.
  1. There appear to have been some breaches of Rio Tinto's Human Resources Policy - Performance and Conduct (Exhibit 19).  For example, there is no record of the meeting that was signed by the leader manager and the Appellant being counselled, and by other people who are present as observers (though that is not surprising in the circumstances).
  1. Mr Smallcombe gave evidence relevant to this issue.  He had been the HR manager at Rio Tinto but left that company in 2012 and was HR manager for another company at the time of the hearing.  Mr Smallcombe was asked in cross-examination whether it was usual practice to ensure that a worker who was to be the subject of the meeting and the provision of a PIP had at least some prior notice of the fact that they were going to be involved in that process.  In reply, he stated that the purpose of a PIP is not necessarily the outcome of a disciplinary process and that it was not necessarily the case that an employee would be forewarned of a discussion involving a PIP.  It was his evidence that it was entirely possible and reasonable that a leader would invite the person into have a discussion about their concerns.  The PIP would clearly articulate what was expected of the employee, and would form the basis for ongoing discussion and coaching.  It was not necessarily mandatory that the employee would be forewarned that they were about to have such a discussion with their leader.  Whether such notice would be given would be decided on a case-by-case basis having regard to the number of factors including the nature of the PIP, the person's performance and the seriousness of the issues that are being put to them. 
  1. In his experience, typically the leader would prepare the PIP, then take the employee through it, explain the basis of it, clarify exactly the performance that was required, discussed any specific development actions and then typically give the employee the opportunity to reply with any questions.  An employee would be encouraged to review the plan and have some input into it particularly by providing ideas about how to improve it.  Mr Smallcombe was referred to the statement in the Rio Tinto HR policy Performance and Conduct (Exhibit 19) that a leader/manager would "Where necessary, in consultation with the employee, develop a PIP."  When asked whether there should be some degree of communication with and input from an employee in relation to the development of a PIP, Mr Smallcombe highlighted the words "where necessary."
  1. My conclusions in relation to the meeting on 17 August 2010 are set out earlier in these reasons.  I need not repeat them.  On the basis of those findings, Mr Ney's acknowledgement that the process was flawed, and Ms McIntosh-Brown's opinion that significant aspects of the conduct of the meeting would have been inappropriate, I find that the management action on that occasion was not taken in a reasonable way.  I have come to that conclusion even though:
  1. it was reasonable management action to prepare a PIP and present it to the Appellant at a meeting; and
  1. I accept Mr Smallcombe's evidence to the effect that an employee would not necessarily be forewarned of a discussion involving a PIP or that the employee would not necessarily be involved in the development of a PIP.

However, given Mr Ney's knowledge of the Appellant's mental health issues and medical treatment, and the nature of his and other managers' discussions with the Appellant in previous months about the Appellant's performance and behaviours, I conclude that it was not reasonable to continue with the meeting when the Appellant was unable to find a support person and he was manifestly uncomfortable about proceeding with the meeting on that basis at short notice.

  1. The remaining issue is whether, in light of that conclusion, the appeal should succeed on the basis that s 32(5) of the Act does not apply.

 Reasonable management action and the totality of the evidence

  1. Given that the Appellant's case and Dr Chalk's diagnosis are based on a series of events which cumulatively led to his injury, it is necessary to consider whether s 32(5) of the Act applies having regard to the range of management action is taken in the period from August 2009 until 17 August 2010.  In other words, although the Appellant referred to and made submissions in relation to a series of incidents and interactions between the Appellant and his manager or managers, it is appropriate to look at the totality of the evidence in order to decide whether s 32(5) of the Act applies to this appeal.
  1. Respondent's submissions: The Respondent submits that, in the circumstances of this case (given the Appellant's personality type as described by Dr Chalk), management was caused to take the position of attempting to bring the Appellant back into a position consistent with the company ethos, and attempt to explain to him the difficulty that management were having with his attitude, that is, taking matters out of proportion, construing his obligations in a rigid way, arguing his rigid view, and perceiving management as bullying him.  In particular, the Respondent refers to the Appellant:
  1. not having acquired positions of greater seniority because of his rigid and unrelenting approach;
  1. perceiving that he was being passed over when he did not meet criteria necessary for the position that he was seeking;
  1. having an angry but passive (and perhaps even stubborn) approach to conflict;
  1. having a personality style that caused him to get bogged down in details, not being able to understand what others (particularly management) were trying to explain to him;
  1. perceiving that he was being singled out and unfairly bullied by management when he:
  • realistically was not an appropriate candidate for a supervisory role;
  • took constructive criticism to heart and did not learn by that criticism;
  • would go over and over the same material, time and again, and would only see something his way.
  1. The Respondent submits that if any irregularity in management practice is found to exist, it could only be a mere blemish.  On that point, the Respondent relies on statements by President Hall in Q-Comp v Hohn[36] that:

"Reasonableness does not equate with perfection.  It is also the case that reasonableness does not equate with industrial fairness.  … management action might be reasonable though blemished."

  1. Appellant's submissions:  The Appellant submits that s 32(5) of the Act does not apply to exclude the Appellant's injury from being compensable.  In particular, the Appellant submits that:
  1. the Commission would accept on the totality of the evidence that the Appellant was a person susceptible to suffering from depression or some other psychiatric illness if he was placed under stress;
  1. it was relevant for management to take into account the Appellant's fragile psychological state in determining what management action was to be taken against or in relation to the Appellant and how that management action was to be implemented, and that factor is also relevant for the Commission in determining whether the management action was reasonable and whether it was reasonably taken (particularly in relation to the events from May 2010 to 17 August 2010);
  1. rather than there being a series of blemishes in the management taken in connection with the Appellant's employment at Rio Tinto Yarwun, there was a series of fundamentally flawed management actions which could never be viewed by the Commission as being an exercise in reasonable management action;
  1. the Appellant was treated differently from other Rio Tinto employees by Mr Ney and Mr Phillips, particularly in the period commencing from January 2010.
  1. Further, the Appellant submits that the Commission is entitled to find that:
  1. there was an inappropriate focus upon the Appellant by Mr Ney and Mr Phillips;
  1. the Respondent's case theory that there was long-term performance, attitude and behavioural issues by the Appellant is not made out on a proper analysis of the evidence;
  1. the actions of the Appellant on 16 August 2010 were those of an experienced employee focused upon safety and seeking to ensure that the task of the burner front removal was done in accordance with the ABP for that task, and he was correct that the task required both a rigger and a fitter for the removal and reinstallation of the burners;
  1. the requirement of Mr Phillips that the Appellant do the task in a manner not in accordance with the relevant ABP would mean that the Appellant was breaching one of the fundamental requirements of his position description that he was to perform his work according to the documented ABP, and such a requirement could never be viewed as being reasonable management action;
  1. the PIP was put in place solely because of the events of 16 August 2010 rather than because of a set of behaviours over time, and hence there was no basis for the implementation of the PIP and that management decision was completely unreasonable in the circumstances;
  1. the manner in which the management action was implemented on 17 August 2010 was fundamentally flawed, in that it denied the Appellant procedural fairness (particularly given that management knew that he had psychological fragility).
  1. Some of those submissions are addressed earlier and it is not necessary to repeat my conclusions in relation to them.  It turn now to the remaining issues.
  1. On the basis of the medical evidence, it is apparent that the Appellant was susceptible to depression or similar psychiatric illness.  Given that, at least from March 2010, Mr Ney was aware of the Appellant's stress-related condition, it was relevant that management take his condition into account when deciding what management actions to take and how to take them.  However, the significance of those factors should not be overstated.  It is clear that the Appellant was continuing resolutely with his work and his attempts to advance his position within the company.  Management had to deal with his specific needs and aspirations as well as his overall conduct, e.g. in relation to safety issues and the scope of his role, in the workplace
  1. I agree that the evidence points to managers paying particular attention to the Appellant, but I am not satisfied that such attention was inappropriate.  To the contrary, it appears that (whatever occasional friction there might have been between some individuals) the managers, in particular Mr Ney, were seeking to manage the Appellant in ways that:
  1. encouraged him to be a positive and productive member of a team (and reduced any negative impact his behaviours might have on the work of his team); and
  1. identified aspects of his behaviour and attitude that needed improving; and
  1. provided him with means of demonstrating that improvement and potentially enhancing his prospects of advancement within Rio Tinto.
  1. Although the Appellant formed the view that he was being unfairly targeted and that his prospects for advancement were being unfairly restricted or prevented by management, the totality of the evidence suggests otherwise.
  1. It is clear from the Appellant's evidence that he had aspirations (and perhaps expectations) of promotion to a managerial position with Rio Tinto, and that he used his best endeavours to reach that goal.  However, he did not seem to appreciate or accept that a Team Leader role had a management component, although it had a higher duties component.
  1. His frustration and disappointment at being unsuccessful in achieving his goals, or at least advancing toward meeting them, in the period from September 2007 to August 2010 is palpable in his written and oral evidence.  So, too, is his difficulty in understanding why he was in that situation despite his best endeavours to do his work well, obtain additional qualifications, train others and act from time to time in supervisory roles.
  1. It is important to repeat in relation to this aspect of the case that the employer took no issue with the Appellant's technical skill or competence.  The managers were not concerned about the Appellant's technical skill but aspects of his behaviour and other personal characteristics, and whether he displayed the qualities or attributes necessary for someone to be given a leadership position.
  1. Contrary to the Appellant's submissions, at least as early as August 2008, work performance reviews had identified some of the attributes and behavioural issues which assumed greater prominence in the minds of management subsequently.  Exhibit 6 referred to the Appellant's tendency to "prefer to work alone" and his priorities having "a tendency to supersede the teams/personal development priorities."  It also recorded that "at times" the Appellant had "not used the correct hierarchy of communication to address issues, generally in regards to training.  Has agreed to communicate through Team Leader to allow for planning and team management and request meetings with Team Leader and other parties if required."  The ideas for improving work performance (Leader behaviour) stated "Maintain my levels of transparency in communication."  (Issues about chain of command communications were also identified in subsequent discussions with the Appellant).  In relation to training, Exhibit 6 reports that the Appellant's "recent lack of motivation towards completion of MIO required training and we agree that John requires further administrative support in order to complete this training.  Therefore no completion date has been set in order to allow John to complete at his own pace to a required standard."
  1. In June 2009, the Interim Review prepared by Mr Maines stated that although the Appellant identified unsafe acts and conditions in the workplace, he "needs to take owner ship and follow through with some of these ideas."  The agreed actions to be taken were:
  1. "Needs to take owner ship and follow through with ideas/notifications/CMR raised.
  1. Need some re-fresher training on Lean principles and how they apply to work team."
  1. Those matters were reiterated six months later in the RT Performance document for the period 1 January to 31 December 2009 (Exhibit 10).  Although the overall appraisal was "Good Performance," the Leader's comments included that:
  1. the Appellant needed to follow through to completion his work on hazard identification;
  1. he was "not sold on the concept of lean and 5S" and this area "requires some development;"
  1. at times the Appellant could be perceived to be "very negative" and he could "sometimes struggle with what has happened in the past."  He needed to "focus on the situations that we can control and positively influence."
  1. Mr Austin gave evidence of his discussion with the Appellant in March 2010 about teamwork and communication issues.  Mr Smallcombe's report on the Fair Treatment Review referred to the need to agree the technical and behavioural requirements for the Appellant to be effective in his current role and for the Appellant's Team Leader to provide honest and constructive feedback on what is required to be considered for a CRO or Team Leader roles.  The Appellant would be accountable for listening and accepting coaching and feedback when provided and taking responsibility for addressing the skills gaps identified.
  1. The evidence supports a finding that by March 2010, (see [83]) Mr Ney had formed the view that the Appellant was probably not Team Leader material and that on or about 9 July 2010 he had conveyed his assessment to the Appellant.  (see [139])
  1. However, I am satisfied that management attempted to assist the Appellant in his endeavours to secure advancement within Rio Tinto by identifying how he could improve aspects of his behaviour and attitudes as they involved management and fellow team members.  Indeed, on 11 July 2010, Mr Ney said that if the Appellant focused on the four behaviours they had talked about, then he would consider the Appellant.  At that stage, although he had observed a "massive turnaround" in the Appellant's behaviour and the Appellant had started to do what he had to do to be put in a leadership position, Mr Ney said that he needed some evidence over a longer period of time to prove that the Appellant had the ability to act up into that position.
  1. Despite Mr Ney's attempts to explain to the Appellant which of his behaviours and attitudes needed changing, the Appellant seemed unable to remember that guidance.  The Appellant offered as a defence or explanation that he had not been provided with written guidance on these matters.  In particular:
  1. although he received a return to work plan from Mr Ney on 10 May 2010, the Appellant said that there should have been something written for him to follow so that they both had something to refer to later;
  1. when he spoke to Mr Ney on 11 July 2010, the Appellant said that he could not remember the conversation of 10 May 2010 as Mr Ney had not sent him an email, and that it was Mr Ney's responsibility to record such things on paper (even suggesting that it was discrimination not to send him the information by email).

One of the functions of the PIP was to provide the written guidance in relation to those matters that the Appellant complained he had not been given previously.

  1. There were undoubtedly flaws in the process adopted in relation to some of the meetings between the Appellant and his manager or managers.  However, where those flaws were significant, action was not taken to the Appellant's detriment.  In relation to the Control Room incident, the written warning was withdrawn when it became apparent that Mr Ney had not followed company policy in relation to meeting with the Appellant.  In relation to the isolation incident, no warning was issued, essentially for procedural reasons.  The Appellant was not forced to sign the PIP on 17 August 2010 but was permitted to take it away to review.
  1. Having regard to the totality of the evidence, I am satisfied that, despite some acknowledged blemishes, reasonable management action was taken by the employer in relation to the Appellant in connection with his employment.
  1. The remaining issue is whether reasonable management action was taken in a reasonable way.  I am satisfied that Mr Ney, having identified aspects of the Appellant's behaviour and attitudes that affected his performance and adversely influenced his prospects of promotion, took reasonable steps in reasonable ways to assist the Appellant to make appropriate adjustments.  The fact that the Appellant criticised Mr Ney for not providing him with written guidance in relation to those matters, does not mean that Mr Ney acted unreasonably.  In retrospect, he might have done more to tailor the way in which the advice was delivered to meet the Appellant's special requirements.  But it is not clear that he was aware of that facet of the Appellant's concerns until at least late July 2010.  The fact that he might have done things differently does not mean that what Mr Ney did was not reasonable.  Although the Appellant argued with Mr Ney and became upset in the course of some meetings, that does not mean that Mr Ney was acting unreasonably.
  1. There appears to be a more significant criticism in relation to Mr Phillips' behaviour when he was the Appellant's Team Leader in the weeks immediately preceding the Appellant's decompensation.  The Appellant asserts that in relation to the radio incident, the gas turbine incident and the emergency response incident Mr Phillips spoke to him in an inappropriate way that was unwarranted having regard to the issues being discussed.  Given the lack of evidence from Mr Phillips about that aspect of these interactions, it is difficult to make firm findings.  However, having regard to the Appellant's account of these incidents, I am willing to proceed on the basis that the exchanges might have been abrupt and on at least one occasion was not reasonable.  Because those incidents and exchanges occurred relatively late in the sequence of events (well after the stress leave in March 2010), and were only a part of the factors which cumulatively precipitated the Appellant's psychological or psychiatric condition, they do not prevent an overall finding that the management actions were taken in a reasonable way.
  1. The Appellant's criticisms of Mr Phillips' behaviour on 16 August 2010 depend on the Appellant's version of events.  As noted earlier, however, I am satisfied that the Appellant was raising concerns based on a misunderstanding about the requirements of the applicable ABP.  Consequently, although the Appellant believed that he was raising a genuine issue and that what he was asked to do was inconsistent with the applicable ABP and his role description, he was incorrect.  Consequently, the dispute between him and his Team Leader was precipitated, in part at least, by a difference of understanding about what the Appellant could or could not be instructed to do.  Mr Phillips took appropriate steps to deal with the situation based on his understanding of the applicable practice and the role of process technicians.  Later that day he initiated a second conversation with the Appellant and apologised to him.
  1. Again, having regard to the totality of the evidence, I am satisfied that, despite some acknowledged blemishes, management action was taken in a reasonable way by the employer in connection with the Appellant's employment             
  1. For completeness I note briefly that, as will be apparent from the earlier analysis of the evidence, some of the Appellant's concerns arose from his perceptions about the meaning of actions taken by management (or occasionally perceived inaction) in relation to him.  Although those perceptions were based on real events which did occur to him (and hence were not imagined), some of his most significant perceptions were based on assumptions drawn from incomplete or incorrect information.  When tested by reference to what had happened, or management's rationale for acting in a particular way, those perceptions were shown to be flawed or false.
  1. In light of those conclusions, I am satisfied that:
  1. the Appellant's injury arose out of management action;
  1. the management action was reasonable; and
  1. the management action was taken in a reasonable way.

In other words, s 32(5) of the Act operates in relation to this appeal.

Conclusion

  1. For the reasons given above I have concluded that:
  1. the Appellant suffered a psychological/psychiatric injury and the injury arose out of, or in the course of, his employment and that his employment was a significant contributing factor to his injury; and
  1. the Appellant's injury arose out of reasonable management action taken in a reasonable way.
  1. Consequently:
  1. the appeal is dismissed;
  1. the decision of the Regulator is confirmed;
  1. the Appellant is to pay the Respondent's costs of and incidental to the appeal to be agreed or, failing agreement, to be subject of a further application to the Commission.

Footnotes

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

[2] Labaj v WorkCover Queensland (2003) 174 QGIG 370.

[3] Q-COMP v Hetherington (2004) 176 QGIG 493.

[4] See Blackwood v Adams [2015] ICQ 001, [17], [19].

[5] Master Isolation Officer

[6] In essence, Lean principles are a management tool for business improvement aimed at creating more value for customers with fewer resources through the ceaseless elimination of waste.  They require the participation of the whole organisation and are applied in conjunction with 5S (sort, set, shine, standardise and sustain).

[7] Integrated Talent Management System

[8] See footnote 6.

[9] See footnote 6.

[10] Exhibit 6 also states "Commitment to plant operation and maintenance is of high standard.  Works hard to ensure equipment and areas are handed over in satisfactory condition.  Maintain prompt reporting of maintenance, environmental and operational incidents."

[11] Q-COMP v Green (2008) 189 QGIG 747, 751.

[12] See Chattin v WorkCover Queensland (1999) 161 QGIG 531.

[13] See Mason v WorkCover Queensland (2002) 170 QGIG 376.

[14] Q-COMP v Foote (2008) 189 QGIG 539.

[15] Sheridan v Q-COMP (2009) 191 QGIG 13.

[16] Q-COMP v Foote (2008) 189 QGIG 539, 810.

[17] Sheridan v Q-COMP (2009) 191 QGIG 13, 16.

[18] Q-COMP v Foote (2008) 189 QGIG 539, 810.

[19] Q-COMP v Foote (2008) 189 QGIG 539, 810.

[20] Sheridan v Q-COMP (2009) 191 QGIG 13, 16.

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

[22] Avis v WorkCover Queensland (2000) 165 QGIG 788, citing State Government Insurance Commission v Stevens Brothers Pty Ltd & Anor (1984) 154 CLR 552, 555 and 559; Dickinson v The Motor Vehicle Insurance Trust (1987) 163 CLR 500, 505.

[23] WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6, 6-7.

[24] Avis v WorkCover Queensland (2000) 165 QGIG 788.

[25] WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6, 7.

[26] See Q-COMP v Hohn (2008) 187 QGIG 139, 143; Q-COMP v Glen Rowe (2009) 191 QGIG 67, 71.

[27] Davis v Blackwood [2014] ICQ 009, [51].

[28] See WorkCover Queensland v Kehl (2002) 170 QGIG 93, 94; Mayo v Q-COMP (2004) 177 QGIG 667; Delaney v Q-COMP Review Unit (2005) 178 QGIG 197. See also Re Yu and Comcare [2010] AATA 960.

[29] See Q-COMP v Glen Rowe (2009) 191 QGIG 67, 71.

[30] Davis v Blackwood [2014] ICQ 009, [47].

[31] Prizeman v Q-COMP (2005) 18 QGIG 481.

[32] Svenson v Q-COMP (2006) 181 QGIG 629, 630.

[33] Bowers v WorkCover Queensland (2002) 170 QGIG 1, 2.

[34] WorkCover Queensland v Heit [2000] 164 QGIG 121, 122.

[35] Gregory Versace v Ronald Braun (2005) 178 QGIG 315.

[36] Q-Comp v Hohn (2008) 187 QGIG 139, 145-146.

Close

Editorial Notes

  • Published Case Name:

    French v Simon Blackwood (Workers' Compensation Regulator)

  • Shortened Case Name:

    French v Simon Blackwood (Workers' Compensation Regulator)

  • MNC:

    [2015] QIRC 95

  • Court:

    QIRC

  • Judge(s):

    Neate IC

  • Date:

    21 May 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Avis v WorkCover Queensland (2000) 165 QGIG 788
3 citations
Jump To
Cite 1 - (2000) 165 QGIG 788
Cite 2 - (2000) 165 QGIG 788
Cite 3 - (2000) 165 QGIG 788
Bowers v WorkCover Queensland (2002) 170 QGIG 1
2 citations
Jump To
Cite 1 - (2002) 170 QGIG 1
Cite 2 - (2002) 170 QGIG 1
Cf Delaney v Q-Comp Review Unit (2005) 178 QGIG 197
2 citations
Jump To
Cite 1 - (2005) 178 QGIG 197
Cite 2 - (2005) 178 QGIG 197
Chattin v WorkCover Queensland (1999) 161 QGIG 531
2 citations
Jump To
Cite 1 - (1999) 161 QGIG 531
Cite 2 - (1999) 161 QGIG 531
Davis v Blackwood [2014] ICQ 9
3 citations
Jump To
Cite 1 - [2014] ICQ 9
Cite 2 - [2014] ICQ 9
Cite 3 - [2014] ICQ 9
Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500
2 citations
Jump To
Cite 1 - (1987) 163 CLR 500
Cite 2 - (1987) 163 CLR 500
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
1 citation
Jump To
Cite 1 - (1964) 110 CLR 626
Labaj v WorkCover Queensland (2003) 174 QGIG 370
2 citations
Jump To
Cite 1 - (2003) 174 QGIG 370
Cite 2 - (2003) 174 QGIG 370
Lackey v WorkCover Queensland (2000) 165 QGIG 22
2 citations
Jump To
Cite 1 - (2000) 165 QGIG 22
Cite 2 - (2000) 165 QGIG 22
Leigh Sheridan v Q-COMP (2009) 191 QGIG 13
4 citations
Jump To
Cite 1 - (2009) 191 QGIG 13
Cite 2 - (2009) 191 QGIG 13
Cite 3 - (2009) 191 QGIG 13
Cite 4 - (2009) 191 QGIG 13
Mason v WorkCover Queensland (2002) 170 QGIG 376
2 citations
Jump To
Cite 1 - (2002) 170 QGIG 376
Cite 2 - (2002) 170 QGIG 376
Mayo v Q-COMP (2004) 177 QGIG 667
2 citations
Jump To
Cite 1 - (2004) 177 QGIG 667
Cite 2 - (2004) 177 QGIG 667
Prizeman v Q-Comp (2005) 180 QGIG 481
1 citation
Jump To
Cite 1 - (2005) 180 QGIG 481
Prizeman v Q-COMP (2005) 18 QGIG 481
1 citation
Jump To
Cite 1 - (2005) 18 QGIG 481
Q-COMP v Foote (No. 2) (2008) 189 QGIG 539
5 citations
Jump To
Cite 1 - (2008) 189 QGIG 539
Cite 2 - (2008) 189 QGIG 539
Cite 3 - (2008) 189 QGIG 539
Cite 4 - (2008) 189 QGIG 539
Cite 5 - (2008) 189 QGIG 539
Q-COMP v Green (2008) 189 QGIG 747
2 citations
Jump To
Cite 1 - (2008) 189 QGIG 747
Cite 2 - (2008) 189 QGIG 747
Q-Comp v Hetherington (2004) 176 QGIG 493
2 citations
Jump To
Cite 1 - (2004) 176 QGIG 493
Cite 2 - (2004) 176 QGIG 493
Q-Comp v Hohn (2008) 187 QGIG 139
3 citations
Jump To
Cite 1 - (2008) 187 QGIG 139
Cite 2 - (2008) 187 QGIG 139
Cite 3 - (2008) 187 QGIG 139
Q-COMP v Rowe (2009) 191 QGIG 67
3 citations
Jump To
Cite 1 - (2009) 191 QGIG 67
Cite 2 - (2009) 191 QGIG 67
Cite 3 - (2009) 191 QGIG 67
Re Yu and Comcare [2010] AATA 960
2 citations
Jump To
Cite 1 - [2010] AATA 960
Cite 2 - [2010] AATA 960
State Government Insurance Commission v Stevens Bros Pty Ltd (1984) 154 CLR 552
2 citations
Jump To
Cite 1 - (1984) 154 CLR 552
Cite 2 - (1984) 154 CLR 552
State of Queensland v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447
2 citations
Jump To
Cite 1 - (2003) 172 QGIG 1447
Cite 2 - (2003) 172 QGIG 1447
Svenson v Q-COMP (2006) 181 QGIG 629
2 citations
Jump To
Cite 1 - (2006) 181 QGIG 629
Cite 2 - (2006) 181 QGIG 629
Versace v Braun (2005) 178 QGIG 315
2 citations
Jump To
Cite 1 - (2005) 178 QGIG 315
Cite 2 - (2005) 178 QGIG 315
Westgate v Australian Telecommunications Commission (1987) 17 FCR 235
1 citation
Jump To
Cite 1 - (1987) 17 FCR 235
WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6
3 citations
Jump To
Cite 1 - (2003) 172 QGIG 6
Cite 2 - (2003) 172 QGIG 6
Cite 3 - (2003) 172 QGIG 6
WorkCover Queensland v Kehl (2002) 170 QGIG 93
2 citations
Jump To
Cite 1 - (2002) 170 QGIG 93
Cite 2 - (2002) 170 QGIG 93
WorkCover v Heit (2000) 164 QGIG 121
2 citations
Jump To
Cite 1 - (2000) 164 QGIG 121
Cite 2 - (2000) 164 QGIG 121
Workers' Compensation Regulator v Adams [2015] ICQ 1
2 citations
Jump To
Cite 1 - [2015] ICQ 1
Cite 2 - [2015] ICQ 1

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.