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Lawton v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 99

Lawton v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 99

 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Lawton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 99

PARTIES:

Lawton, Kym Louise

(Appellant)

v

Simon Blackwood (Workers' Compensation Regulator)

(Respondent)

CASE NO:

WC/2014/248

PROCEEDING:

Appeal against decision of Regulator

DELIVERED ON:

27 May 2015

HEARING DATES:

15, 16, 17, 18 and 19 December 2014

Respondent's submissions filed 24 March 2015

Appellant's submissions filed 31 March 2015

Respondent's submissions in reply filed 9 April 2015

MEMBER:

Deputy President O'Connor

ORDERS:

  1. The appeal is dismissed.
  2. The decision of the respondent dated 18 July 2014 is affirmed.
  3. The appellant is to pay the respondent's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission. 

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF REGULATOR - Where it was accepted that the appellant was a worker and suffered a psychological or psychiatric personal injury - Whether management action was reasonable management action taken in a reasonable way - Management action found to be reasonable management action taken in a reasonable way -  Appeal dismissed

CASES:

Workers' Compensation and Rehabilitation Act 2003, s 32

Keen v Workers' Rehabilitation and Compensation Corporation (1998) 71 SASR 42

Prizeman v Q-COMP (2005) 180 QGIG 481

Qantas Airways Limited v Q-Comp (2006) 181 QGIG 301

Sabo v Q-COMP (C/2010/46) - Decision

WorkCover Queensland v Kehl (2002) 170 QGIG 93

APPEARANCES:

Ms S.D. Anderson, Counsel instructed by Shine Lawyers, for the Appellant.

Mr J.W. Merrell, Counsel directly instructed by the Workers' Compensation Regulator.

   Decision

  1. [1]
    This is an appeal by Kym Louise Lawton ("the appellant") to the Queensland Industrial Relations Commission ("the Commission") against the decision of the Review Unit of the Workers' Compensation Regulator ("the respondent") in a letter dated 10 July 2014, rejecting her application for compensation.  The appeal is made under the Workers' Compensation and Rehabilitation Act 2003 ("the Act").
  1. [2]
    The appellant was employed by Klayland Pty Ltd trading as Maguire Coaches and Travel ("the employer") in Chinchilla from September 2012 to April 2013.
  1. [3]
    The appellant was initially employed on a salary of $45,000 but on 4 January 2013, the appellant entered into a contract of employment as a Team Lead Safety/HR - Employment & Training and Indigenous Participation, on a minimum salary of $55,000 per annum.

Statutory Provisions and Onus of Proof

  1. [4]
    The appeal has to be decided by reference to s 32 of the Act which, at the time material to the appellant's application for compensation[1], relevantly provided:

"32 Meaning of injury

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

…

  1. (3)
    Injury includes the following -
  1. (a)
    a disease …
  1. (b)
    an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation -
  1. (i)
    a personal injury;
  1. (ii)
    a disease;
  1. (iii)
    a medical condition if the condition becomes a personal injury or disease because of the aggravation;

…

  1. (4)
    For subsection (3)(b) to remove any doubt it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.
  1. (5)
    Despite subsection (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. [5]
    As with any appeal to the Commission against a decision of the Regulator, the nature of the appeal is by way of hearing de novo.  To establish her claim, the appellant must satisfy the Commission, on the balance of probabilities, that:
  1. (a)
    she was a worker;
  2. (b)
    she suffered a psychiatric or psychological injury;
  3. (c)
    the injury arose out of, or in the course of, her employment;
  4. (d)
    her employment was a significant contributing factor to the injury; and
  5. (e)
    the injury did not arise out of, or in the course of, any of the circumstances set out in s 32(5).
  1. [6]
    It is accepted by the respondent that:
  1. (a)
    the appellant was a 'worker' within the meaning of section of the Act;
  2. (b)
    the appellant suffered a personal injury, namely, an adjustment disorder with mixed anxiety and depressed mood; and
  3. (c)
    the appellant's injury arose out of or in the course of her employment as a Human Resources Advisor with the employer.
  1. [7]
    It is agreed between the parties that the Commission need only determine whether the injury is removed because of the reasonable management action provision contained within s 32(5)(a) of the Act.

 The Appellant's Case

  1. [8]
    The appellant's case is that over a period of six months she suffered a psychiatric injury which arose in the course of her employment with her employer, as a consequence of the lack of safety systems in place and the lack of concern shown by the management of her employer for those safety systems.
  1. [9]
    In examination-in-chief, the appellant was asked to identify, during her period of employment, the largest contributors to her psychiatric injury:

"I asked you questions about the stressors that you spoke with your doctor about on the 8th of April.  I’d like to ask you about now your (sic) thinking back to your time - you had time to formulate a statement of stressors that you filed in this tribunal about things that were troubling for you and caused you a psychiatric injury.  When you think back on those - your work time over that six odd months of employment, what were the most serious - the largest contributors of stress to your psychiatric injury?  ---The HPLI.  The maintenance on the vehicles and the incidents.  Just the general wellbeing and safety of all employees, including myself, as a bus driver.  Going to whistleblow to QGC was a huge stress without my employer knowing."[2]

  1. [10]
    In accordance with the further directions order issued by the Commission on 26 August 2014, the appellant filed the following Statement of Stressors:

No.

DATE - (dd/mm/yy)

EVENT - Short description of the work events including the name of the person involved that caused your psychiatric/psychological injury

  1.  

From approximately September 2012 onwards to approximately 24 April 2013 inclusive

I started working for Maguires Coaches in approximately September 2012.

My employer Kaye Maguire was aware of my previous history of depression.

The business was expanding very rapidly and was providing transport to a number of large corporate clients in the Coal Seam Gas industry.

I was required to undertake four different roles, namely Safety/HR, Employment, Training, Indigenous Participation and Driving.

I was the company's 'reasonable responsible officer' for safety under the relevant workplace health and safety legislation and as such, I had civil and criminal liabilities in relation to safety in the workplace.

I was required in my role to prepare tender documents and to represent to prospective clients and employees that the workplace was compliant with applicable safety standards.

As a provider of coach transport, I had to ensure compliance with a large number of relevant vehicle, transport and driving/licensing regulations.

However, upon starting my employment, I discovered that the employer did not have a compliant safety management system, despite the fact that they had previously represented that they did have such a system.

I found that the employer did not have very basic safety systems in place, for example vehicles did not have first aid kits and electrical testing and tagging had not taken place in the workplace.  The depot had a number of safety issues, including vehicles being jacked up on wet dirt, hoists and ladders being used on wet dirt, power leads being used outdoors in wet weather, inadequate lighting and no system of separation between heavy vehicles and pedestrians.

I expressed my concerns to Kaye Maguire and she told me that the company was to relocate to a new Depot in a matter of weeks.

I attempted to identify and address the risks and hazards that were apparent in the workplace, but found that I had insufficient time and resourcing to remedy these issues.

My employer continued to represent to clients that it was compliant with safety and training requirements, in circumstances where I knew this to be untrue.

I continued to advise Kaye Maguire of my concerns and she would repeatedly promise that improvements would be made, but in the meanwhile, I was left without adequate support over an extended period of time.

I discovered a number of systemic safety failings, including mechanical vehicle repairs being undertaken by an unqualified person, vehicles being driven by an unqualified person, drivers exceeding their permitted hours and no alcohol/drug monitoring or fatigue management plan for drivers.

In addition to the safety responsibilities, I was tasked to manage complex HR issues and was given a number of "return to work" and performance management/disciplinary tasks in relation to which I had no qualifications or experience to manage.

I refer to my statement dated 6 February 2014 which sets out further particulars of the relevant workplace events.

2

Approximately September 2012 (QGC) and end January/beginning of February 2013 (Santos)

I was required to work very long hours and under pressure of time to assist in the completion of QGC and Santos tender documents.  I estimate that for the QGC tender, I worked approximately 15 hours per day for a period of approximately one week in Brisbane, culminating in working overnight to the final day.  For the Santos tender, I had attended my GP on 11 January 2013 and had advised my employer that I was feeling overwhelmed with my workload, but despite this I was asked by my employer to attend and work on the tender documents.

3

5 & 6 February 2013

A High Potential Incident occurred on 5 February 2013 and I was required to attend an all-day investigation meeting in relation to this on 6 February 2013, which added to my workload and increasing by anxiety, as it was an example of the type of risk of death/serious injury that I considered existed for drivers and passengers using our transport service.

4

March/ April 2013

I felt that I had no option but to act as a "whistleblower" and directly approach one of our major clients Queensland Gas Company along with my colleague Lana Killen to report safety noncompliance issues in the workplace.  I had to deal with the repercussions of exposing my employer's safety failings, which included being sworn at by the unqualified mechanic who was stood down from his position and the fact that QGC terminated its contracts with my employer.

5

April 2013

I reported to my employer that I was not coping mentally with my workload, but despite this I was tasked to prepare position descriptions and contracts for approximately 60 members of staff.  I was not qualified or experienced in this type of work and I felt that this was the "final straw" which caused me to suffer a breakdown.

  1. [11]
    Later in her evidence, the appellant was asked:

"What about your own situation, that you had been told that you'd be making 75,000 a year and now someone else was put in - someone without qualifications - put into an admin position, making that salary.  Was that a major stressor for you?  ---Yes."[3]

  1. [12]
    Notwithstanding the evidence given by the appellant that the "promise" to be paid $75,000 was a major stressor for the appellant, she did not nominate it as one her stressors in the list of stressors filed in the Commission.
  1. [13]
    In the appellant’s list of stressors she stated that she was the employer's "responsible officer" under the relevant workplace health and safety legislation and as such, she had civil and criminal liabilities in relation to safety in the workplace.
  1. [14]
    In cross examination, the appellant agreed that she had never been part of any investigation by any Government Department during her period of employment in relation to workplace health and safety matters[4]; she had never been involved in any criminal or civil proceeding under any safety legislation[5]; she claimed that she would face liabilities to a $300,000 fine for negligence and five years' imprisonment but acknowledged that she was not a director of her employer nor was she its operations manager.  The appellant claimed that she was told by Mrs Maguire that the appellant was the responsible officer.[6]  I do not accept that the appellant was ever told by Mrs Maguire that she was the responsible officer.
  1. [15]
    It is accepted by the respondent that the evidence before the Commission discloses that there were safety issues concerning the operation of the employer at the time the appellant was employed.[7]
  1. [16]
    It is further accepted by the respondent that the safety issues at the appellant's employer caused her some concern in her role of Safety Advisor from September 2012 and when she was employed as a Safety Advisor/HR Advisor from 4 January 2013.[8]
  1. [17]
    In light of the admissions of the respondent regarding the safety issues concerning the operation of the employer, it has not been necessary for me to traverse that evidence in my written reasons.  Nevertheless, I have accepted the admission of the respondent and the evidence to conclude that there were safety issues concerning the operation of the employer during the time the appellant was employed.
  1. [18]
    From 18 February 2013, with the employment of Ms Lana Killen as the Safety Advisor, the appellant's position with the employer changed to that of Human Resources Adviser.[9]
  1. [19]
    The respondent accepts that the appellant suffered a personal injury as diagnosed by Dr Estela Papier, Consultant Psychiatrist in her report dated 24 January 2014, namely, an adjustment disorder with depression and anxiety.[10]
  1. [20]
    On 3 January 2013, the appellant had a meeting with Mrs Kaye Maguire, the Managing Director of the appellant's employer.  Mrs Maguire evidence was that the appellant was finding it difficult to live on $45,000 per annum.  She told the Commission that the appellant was quite distressed and wiping tears from her eyes.  Mrs Maguire recalled that the appellant told her that she had received a telephone call, which she didn't answer because she thought it was from the real estate, as she was behind in her rent.  The appellant also mentioned that she had attended a wedding in late 2012 and felt obliged to put in the same amount of money as others were putting in, and, as a consequence, she was left short, and was struggling to survive.[11]
  1. [21]
    On 4 January 2013, the appellant entered into a contract of employment with her employer on a salary of a "minimum of $55,000 gross per annum for 3 months with KPI's discussed and agreed upon and superannuation."[12]  On the same day, the appellant emailed to Mrs Maguire a draft contract of employment in which the following was inserted: "You will be paid a salary of $75,000 gross per annum."  It was Mrs Maguire's evidence that the inclusion of the $75,000 in the draft was an error because at the bottom of the draft was the name of a different employee. 
  1. [22]
    In the cross-examination of Mrs Maguire, the following exchange took place:

"You see, if you look at the - the part that is written next to 'remuneration', it does not mention a three month review with KPIs discussed and agreed upon, does it?  ---That's correct.

 It simply says that: 

 You will be paid a salary of $75,000 gross per annum.

 Correct?  ---Yes.

And that was because when Ms Lawton first came to speak to you, she was telling you, "I would like a pay increase to $75,000 a year"?  ---No, she did not.

Your response to that was, "Look, Kym, we'll look at it again in three months' time.  We'll take you up to 55,000 now and we’ll put some KPIs in place so that we can then review your salary in another three months' time"; that's right, isn't it?  ---No."[13]

  1. [23]
    It was further put to Mrs Maguire:

"Now, you've suggested that you thought that Ms Lawton made a typographical error when she presented a draft contract to you.  I suggest to you that the contract that she presented as a draft to you was her telling you that she would like to be paid $75,000; that's right, isn't it?  ---No."[14]

  1. [24]
    Mrs Maguire was further asked:

"… in Ms Lawton's case, the discussion that you had with her was that if she met her key performance indicators, she would get a pay increase to $75,000 in three months' time, correct?  ‑‑‑No."[15]

  1. [25]
    The appellant attended at the Chinchilla Medical Centre on 11 January 2013.  The note contained in Dr Yang's clinical records[16] was as follows:

"2. Feeling overwhelmed at work   depression getting worse   wants some time off work   to increase Effexor to 150mg daily."

  1. [26]
    The appellant told the Commission that she had been on different antidepressants for a long time and accepted in cross-examination that when she told Dr Yang on the 11 January 2013 that her depression was getting worse, she was, in effect, saying to him: "look, I've been depressed for some time, but it's getting worse;  it's getting more acute".[17]  The appellant has been suffering from this form of depression since the mid 1990's.
  1. [27]
    It was submitted by the appellant that the clinical records of Dr Yang were made at a time before the appellant had the expectation or was told that her salary would not be increased to $75,000 per annum.[18]
  1. [28]
    I am of the view that at the meeting with Mrs Maguire held on 3 January 2013, the appellant wanted to be paid $75,000 or, at the very least, had an expectation that after three months she would be paid $75,000.[19]  Indeed, it was put to Mrs Maguire in cross-examination by Counsel for the appellant that the draft contract that the appellant presented was the appellant telling Mrs Maguire that the appellant would like to be paid $75,000.
  1. [29]
    It was agreed between Mrs Maguire and the appellant that she would be paid a "minimum of $55,000 gross per annum for 3 months with KPI's discussed and agreed upon and superannuation."[20]  The appellant altered her earlier draft contract to delete the $75,000 and it was resent by her for signature.[21]
  1. [30]
    The evidence of the appellant was that she was never informed by Mrs Maguire that she proposed employing Mick Smith as the Safety Advisor with a salary of $75,000. Mr Smith commenced duties with the appellant's employer on 1 March 2013.  The appellant was aggrieved by the decision to employ Mr Smith as the Safety Administrator. In the email dated 28 March 2013 under the heading "Discrimination", the appellant stated:

"(a)  Could we please have discussions around roles and responsibilities e.g. an employee seen by myself as favoured more in the same or similar role of hirer income with no KPI's or Qualifications in a specialised area or pay increment standards (sic)"[22]

  1. [31]
    In cross-examination, whilst the appellant admitted that her email was directed at Mr Smith, she denied that she was angry that he had been engaged on $75,000 where she was only being paid $55,000.  Notwithstanding the denial, the appellant still regarded the appointment on Mr Smith on $75,000 as a major stressor for her.[23]

 The Meetings

  1. [32]
    In her email of 28 March 2013, the appellant sought a meeting with management to discuss "… the following concerns of my employment since September 2012 and I seek consultation around these issues".[24] The issues identified by the appellant in her email did not specifically deal with the stressors contained in her list of stressors.
  1. [33]
    The first meeting was held on 3 April 2013 at the employer's Heeney Street office and attended by Kaye Maguire, Lana Killen, Trudy Tronc and the appellant.  The principal concern identified by the appellant during the first meeting related to her concerns over her level of remuneration.
  1. [34]
    The appellant was seeking an answer from Mrs Maguire concerning her level of remuneration otherwise the appellant had indicated that she would consider leaving her employer.  The appellant was asked in cross-examination:

"Now, that passage that I've just read out, am I correct in suggesting this:  what you were saying to Mrs Maguire was I want an answer about what my level of salary would be, otherwise I'm going to consider leaving the organisation, and if I do, I want someone to be a referee for me.  And Mrs Maguire's response was, well, I'll be able to have an answer for you mid next week, Tuesday or Wednesday.  Is that, in essence, what that passage was about?  ---That's correct."[25]

  1. [35]
    The meeting concluded on the basis that Mrs Maguire would undertake some further investigation in relation to the employment of a Human Resources Manager and levels of remuneration.
  1. [36]
    The second meeting was convened on 9 April 2013.  In attendance was Mrs Maguire, Lana Killen, the appellant, and her support person, Trudy Tronc.  It was at this meeting that Mrs Maguire advised the appellant that she proposed employing a Human Resources Manager.  Mrs Maguire told the Commission that, after undertaking some research, she had found that an appropriate rate of salary for a Human Resources Manager would be in the vicinity of $65,000.
  1. [37]
    Mrs Maguire said that in the 9 April meeting, the appellant had indicated to her that the level of salary that she wanted to be paid was $75,000.[26]  Mrs Maguire told the Commission that she could not justify that level of salary for the appellant as the Human Resources Manager would receive a salary of $65,000.  No agreement on salary was reached at the meeting and Mrs Maguire denied that the appellant had been offered $75,000.
  1. [38]
    As the transcript reveals, the second meeting ended abruptly.[27]  The appellant was under the belief that she had been misled as to the level of remuneration that she would be paid.  The transcript of the meeting of 9 April 2013 reveals the following exchange:

"Kym - I feel that I have been groomed to work to KPI's of 75k to being misled than is that correct to even that figure, Kaye - no you were not misled we have discussed your expertise of where you are, Lana - where does that figure come from, Kaye - with the HR manager or 75k, Kym - that was between Kaye and I we had 45k, 55k and 3 months 75k KPI's were 75k because I originally put in a letter, Kaye - a letter I don't believe we have discussed 45k 55k 75 I said you were worth more than that Kym but as I didn't say that I would be paying you 75k in 6 mths time I don't believe that, Kym - it wasn't 6 months it was 3 months but anyway we will leave it at that, Kaye - ok, Lana - I guess that is what we need to clarify you both agree to disagree, Kym - no I would like to cease the meeting …"[28]

  1. [39]
    On being advised by Mrs Maguire that she would not be given the level of remuneration that she had hoped to receive, she stated: "ok I think that I will end this meeting now and um take that medical week off and I will seek some other advice as well because yep …"[29]
  1. [40]
    Mrs Maguire was told by the appellant that she had a medical certificate and that she would take the week off.  The appellant never returned to work following the meeting of 9 April 2013.  The appellant's employment was not terminated.
  1. [41]
    The appellant told Mrs Maguire that she felt kicked in the guts because she did not feel appreciated for the work that she had done and by the decision to pay someone else above her $75,000, the amount of remuneration that she believed that she had been promised.[30]
  1. [42]
    Immediately following the second meeting, the appellant attended on Helen Druce a Clinical Psychologist from Centacare.[31]  In cross examination, the appellant said that prior to that date she had not seen a clinical psychologist in respect of any work issues.[32]
  1. [43]
    On 15 April 2013 she attended on Dr Mohammed Eisa.  In his clinical notes he records:

"Not feeling good.  Anxiety side of things getting worse.  Palpitation.  Went to consuler (sic) today.  Wants to have some time off again.  Went to see doctor at Kingaroy, High BP was 3 times.  C/o Headaches.  Dizzy."[33]

  1. [44]
    The clinical records of Dr Eisa records that he prescribed for the appellant Effexor XR (75 mg) to be taken daily.
  1. [45]
    The appellant attended on Dr Yang at the Chinchilla Medical Centre on 25 March 2013.  The clinical records of Dr Yang record "Off Effexor 6 weeks ago - feeling fine".
  1. [46]
    In the clinical notes of 8 April 2013, Dr Eisa records that the appellant "was on medication" and further notes, "Not on medication at this stage".
  1. [47]
    The appellant submits that the Commission should not accept the notation contained in the medical records.  It is the appellant's argument that in light of her evidence that she cannot remember a time when she was not taking anti-depressants that "… it does not make sense to accept that one piece of evidence as demonstrating that she had gone off anti-depressants which she had been taking for some long period of time."[34]
  1. [48]
    I accept the clinical notes of Dr Yang and Dr Eisa as contained within the patient health summary of the Chinchilla Medical Practice of 25 March and 8 April 2013.  The evidence, in my view, supports the conclusion that from mid February 2013 to 15 April 2013 the appellant was not taking Effexor or any other medication for depression or anxiety.
  1. [49]
    On 11 April 2013, the appellant made a complaint to the Fair Work Ombudsman[35] in particular, in relation to not getting the salary increase that she wanted.
  1. [50]
    The appellant told the Commission that in late April 2013, she made a complaint to the Anti-Discrimination Commission in which she alleged that she had been promised a pay increase; that she would receive a pay increase following a restructure; and that another staff member undertaking a similar role was placed on a higher salary. Further, it was alleged by the appellant to the Anti-Discrimination Commission that the appellant had received unfavourable treatment by her employer on the basis of race.[36]
  1. [51]
    The complaint was not accepted by the Anti-Discrimination Commission.[37]
  1. [52]
    On 2 May 2013, the appellant made an on-line complaint to Workplace Health and Safety Queensland.[38]  Notwithstanding her evidence before the Commission that she was concerned by the lack of compliance with safety requirements at her employers, she conceded in cross-examination that she could have made a complaint to Workplace Health and Safety at any time prior to 2 May 2013, but didn't.
  1. [53]
    On 3 May 2013, the appellant sent an email to Mrs Maguire outlining the various workers' compensation claims and complaints to the Anti-Discrimination Commission, the Fair Work Ombudsman, Workplace Health and Safety Queensland and Queensland Gas Company.[39]
  1. [54]
    I accept that the reason why the appellant sent the email to Mrs Maguire advising her of all of the complaints and steps that the appellant had taken to notify a range of government agencies was to try to put pressure on her employer to give the appellant a pay increase that she thought she deserved.

Medical Evidence

  1. [55]
    In the report of Dr Papier dated 24 January 2014 she states:

"16.What is the work related diagnosis?  Is this an aggravation of a pre-existing condition?  What are the stressors causative of Ms Lawton’s work related injury?  Do you consider employment to have been a significant contributing factor to Ms Lawton’s personal injury?

The work related diagnosis is an adjustment disorder with depression and anxiety.  This is not the aggravation of a pre-existing condition, although there were elements of depression that existed beforehand.  Despite this, Ms Lawton was actively working in a full-time capacity and was able to gain qualifications and awards.

She was caring for her son successfully and pursuing interests and work successfully.  The causative stressors are to do with the lack of due care and responsibility by Maguire’s in terms of the care of their staff and their equipment.

The persistent and escalating workplace injury is a result of the lack of appropriate safety and health processes, the lack of appropriate procedures is present, the overwork and undue stress which Ms Lawton found herself, the knowledge that the company was applying for contracts with no formal infrastructure or occupational and health safety features present.

Ms Lawton's personal injury is entirely related to the conditions under which she found herself working."[40] 

  1. [56]
    In cross examination, Dr Papier was asked:

"Am I correct in suggesting this, that from what she told you the pay issue was the straw that broke the camel's back in terms of her anxiety or depression? 

---Yes.  I think that that can be inferred from the information I was given."[41]

  1. [57]
    Dr Papier was further asked to assume the following four facts:
  1. (a)
    that at the meeting of 9 April 2013 (the second meeting), the appellant was informed that she was not going to get the pay increase that she wanted;
  1. (b)
    that the appellant went off sick after the second meeting and never returned to work;
  1. (c)
    that the appellant was not taking any medication (Effexor) at the time of the second meeting; and
  1. (d)
    that six days after the second meeting, the appellant saw a Clinical Psychologist for anxiety and was prescribed Effexor by her general practitioner for anxiety.[42]
  1. [58]
    The evidence of Dr Papier was:

"In fact, she hadn't been taking that medication for some weeks at that time.  Now, if you can assume those four matters, and having regard to everything that Ms Lawton told you, would that - would that tend to indicate to you that the pay issue was a more significant issue causing her distress?  ---As a result of the four things you've asked me to assume ---   

Yes?  ---the fourth point that you bring up about her not having been on medication for some time ---      

Yes?  ---and then following the mediation she saw a psychologist and had medication prescribed ---      

Yes?  ---I guess from my point of view I would have then assumed that during the time when she was not taking medication for however long it was that she would have been much more vulnerable to be stressed and becoming depressed and anxious.

Well, my question is if you assume those four things would it be more likely in your opinion that the more significant issue, leaving aside whether she was vulnerable or not because of not taking medication, but assuming those four things, would that indicate to you that the pay issue was a more significant issue causing her distress in early April of - or in April of 2013?  ---My difficulty is that the absence of medication after many years of taking it and the history of the original traumas that she experienced would have a very significant impact on that whole scenario and my sense is from what you've said, if we take those assumptions      

Yes?  ---then that would have a much greater impact on her than it might have otherwise.

What would have a much greater impact?  ---The not being given the pay rise and following a number of meetings if that's the - that was the import of the meetings."[43]

  1. [59]
    Dr Papier confirmed that she was not in possession of all the information.  She did not have the appellant's health summary from the Chinchilla Medical Centre; the transcripts of the April 2013 meetings and, as a consequence, was not informed about the nature of the meetings; and she was unaware of the complaints made to the Fair Work Ombudsman and the Anti-Discrimination Commission.
  1. [60]
    The appellant has a long history of depression.  She told Dr Papier that she had felt depressed since her parents had both died.  Her mother died in 1993 when the appellant was 15 years old.  Her father died in 1995 when the appellant was 17 year old.  In 1994 the appellant witnessed her boyfriend's death in a motor vehicle accident. The appellant told Dr Papier that all of those factors had led to her depression.[44]
  1. [61]
    I am of the view that the appellant decompensated on or about 9 April 2013 as a result of her failure to gain the pay increase that she had sought.  It was this failure that was the dominant cause of her decompensation.  It was, as Dr Papier accepted in her evidence, "the straw that broke the camel's back".

Reasonable Management Action

  1. [62]
    The appellant submitted:

"… that if the Commission were to find that failing to receive her pay increase was a stressor, it is not possible to find that it was reasonable management action taken in a reasonable way to employ someone with less experience and fewer qualifications at a higher rate of pay to replace Ms Lawton.  This is so particularly in circumstances where evidence from Ms Maguire was that she did not discuss putting Mick Smith into the position of safety advisor with Ms Lawton before she did it.  She did not reveal to Ms Lawton that she had hired Mick Smith as the safety administrator with a view to her feeling like Lana Killen was likely to leave.  She did discuss with Ms Lawton the fact that Mr Smith had no workplace health and safety qualifications.  She had discussions with Ms Lawton regarding Mr Smith's lack of administrative abilities.  She also did not explain to her why it was that she was not worth $75,000 but Mick Smith was."

  1. [63]
    I do not accept the appellant's submission.  It is the right of an employer, within the bounds of the law, to hire its own employees and to fix their remuneration.  The determination of the qualifications and fitness of workers for hiring are exclusive prerogatives of management.  The employer is free to determine, using his or her own discretion and business judgment, all elements of employment, "from hiring to firing," except in cases of unlawful discrimination, or those which may be provided for by law.
  1. [64]
    In determining the reasonableness of the management action, reference is made to the reasoning of Hall P in Sabo v Q-COMP[45] his Honour President Hall wrote:

"In the absence of argument, I do not accept that the exercise of determining whether a managerial decision is 'reasonable' and 'taken in a reasonable way' is so like an exercise of discretion that an appellant seeking to reverse a decision of a tribunal of first instance, should be required to meet the standard set by the principles in House v The King at 505 per Dixon, Evatt and McTiernan JJ; compare Macauslane v Fisher Paykel Finance Pty Ltd (a 'reasonable notice' case). However, the exercise of assessing 'reasonableness' for the purposes of s. 32(5) (a) of the Act, is evaluative as well as judgmental. There is room for difference of opinion. The judicial officer dealing with the matter at first instance should be allowed a measure of latitude; compare IOOF Building Society Pty Ltd v Foxeden Pty Ltd at 554 to 556 (a 'reasonable notice' case)."[46]

  1. [65]
    In Keen v Workers' Rehabilitation and Compensation Corporation[47], Lander J, in dealing with s 30A of the Workers' Rehabilitation and Compensation Act 1986 (SA), and discussing whether "the administrative action was reasonable and, if reasonable, whether it was taken in a reasonable manner by the employer", wrote:

"Both of these further matters will be an inquiry of fact to be determined objectively.  Whether the administrative action is reasonable is simply a matter of fact.  Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administrative action was taken in a reasonable manner by the employer."[48]

  1. [66]
    Commissioner Blades in Qantas Airways Limited v Q-Comp[49] wrote:

"There must have been some connection between the injury and the management action.  It may have been that had he attended the meeting and decompensated after being confronted with accusations and harassment complaints without warning (an ambush), it may have been argued that the management action was not taken in a reasonable way. But it will depend on circumstances. What management must do is be reasonable, not perfect, and if it be that before a meeting can be held with a worker, he has to be told specifically what it is about, I think it is placing too high a duty upon management. Surely management asking a worker what happened in an incident is not in breach of the principles of natural justice. Each case depends on its own facts and circumstances but what is "reasonable" is "reasonable in all the circumstances of the case" and "reasonableness" does not necessarily equate with "industrial fairness" although considerations of "fairness" will always be relevant - Delaney v Q-Comp Review Unit (2005) 178 QGIG 197."[50]

  1. [67]
    In WorkCover Queensland v Kehl[51] his Honour President Hall said that "reasonable" should be treated as meaning "reasonable in all the circumstances of the case".[52]  It is thus the reality of the employer's conduct and not the employee's perception of it which must be taken into account.[53]
  1. [68]
    Management action need only be reasonable; it does not need to be perfect.  Instances of imperfect but reasonable management action may, in the appropriate circumstances be considered a "blemish".  Management action does not need to be without blemish to be reasonable.
  1. [69]
    In my view, the evidence supports the conclusion that the appellant's psychiatric injury arose out of the appellant not attaining the pay increase that she sought.  Whilst her concerns regarding safety were not inconsequential, they were secondary to her primary concern over her remuneration.  In coming to my conclusion, I accept that the appellant was never promised by Mrs Maguire a pay rise to $75,000.
  1. [70]
    The appellant's position changed after 18 February 2013 when Ms Killen was appointed as the new Safety Adviser on a salary of $65,000.  Thereafter, the appellant took on the role as the Human Resources Advisor.  In that role, the appellant was to be supervised by Ms Killen.  Indeed, that is what the appellant wanted.[54]
  1. [71]
    I accept that the appellant did not have the experience or qualifications to perform the larger human resources role that was required of her by her employer.  In those circumstances, it was not unreasonable for the employer to take the view that the appellant should not receive the $75,000 that she sought.  It would have been extraordinary to have a situation where the Human Resources Advisor, a subordinate position to her supervisor, would receive a higher level of remuneration.
  1. [72]
    The appellant's employer attempted to restructure the management of the business by bringing in Mr Smith as the Safety Administrator and Ms Killen as Safety Adviser.  It was an attempt by the management to deal with the obvious shortcomings in the operation of the business.
  1. [73]
    In response to the email request of the appellant of 28 March 2013, representatives of the employer held two meetings with the appellant.  Ms Tronc acted as a support person for the appellant at both meetings.  The appellant's focus throughout the two meetings was squarely on securing a salary increase to $75,000.  At the conclusion of the first meeting, Mrs Maguire took advice on the appointment of a Human Resources Manager and the appropriate levels of remuneration for such a position.  The transcripts of the mediations reveal a genuine attempt by Mrs Maguire to deal with the issues raised by the appellant in her email.[55]  Mrs Maguire did advise the appellant during the second meeting that she was considering appointing a Human Resources Manager.  It was appropriate to do so as it would be to the Human Resources Manager that the appellant would be required to report.
  1. [74]
    It was, in my view, reasonable for Mrs Maguire not to discuss with the appellant the appointment of the Mr Smith as the new Safety Administrator or his level of remuneration.  Such an appointment comes within the scope of the management prerogative; the appellant would not be supervised by or report to him; and, in any event, by the time Mr Smith had commenced with the employer, the appellant had assumed the duties as the Human Resources Advisor.
  1. [75]
    I am satisfied on the evidence before the Commission that the appellant's injury arose out of or in course of reasonable management action taken in a reasonable way and accordingly, s 32(5)(a) of the Act operates to remove the psychological or psychiatric  disorder from the statutory definition of "injury".

 Orders

  1. [76]
    I make the following orders:

  1.   The appeal is dismissed.

  2. The decision of the respondent dated 18 July 2014 is affirmed.

  3.   The appellant is to pay the respondent's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission. 

Footnotes

[1] Exhibit 14.

[2] T1-82 Ll. 24-34.

[3] T.1-81 Ll. 4-6.

[4] T.2-23 Ll. 29-33. 

[5] T.2-22 Ll. 20-21; Ll. 23-24.

[6] T.2-23 Ll. 34-35.

[7] Submissions of the respondent dated 24 March 2015 at [17].

[8] Submissions of the respondent dated 24 March 2015 at [18].

[9] T.3-20.

[10] Exhibit 2.

[11] T.3-15 Ll. 31-36.

[12] Exhibit 10.

[13] T.3-36 Ll. 1-15. 

[14] T.3-34 Ll. 4-7.

[15] T.3-37 Ll. 6-9.

[16] Exhibit 1.

[17] T.1-94 Ll.1-3.

[18] Submission of the appellant at [15].

[19] T.1-92 Ll. 31-44.

[20] Exhibit 10.

[21] T. 3-16 Ll. 18-20.

[22] Exhibit 9.

[23] T.1-80 Ll. 4-6.

[24] Exhibit 9.

[25] T.1-105 Ll. 46-47 to T.1-106 Ll. 1-4.

[26] T.3-26 Ll. 24-25.

[27] T.3-27 Ll. 1-6.

[28] Exhibit 12.

[29] Exhibit 12.

[30] T. 3-22 Ll. 5-6; T.3-99 Ll. 1-5.

[31] T. 2-11 Ll. 5-6.

[32] T. 2-12 Ll. 14-15.

[33] Exhibit 1.

[34] Submissions of the appellant at [21] and [22].

[35] Exhibit 13.

[36] T.2-15 Ll. 33-45; T.2-16 Ll. 1-15.

[37] T.2-16 Ll. 17-18.

[38] Exhibit 15.

[39] Exhibit 16.

[40] Exhibit 2.

[41] T.3-9 Ll. 38-40.

[42] T3-9 Ll. 42-47 to T3-10 Ll. 1-33.

[43] T3-10 Ll.35-45 to T3-11 L5.

[44] T.1-93 Ll. 11-21.

[45] Sabo v Q-COMP (C/2010/46) - Decision .

[46] Sabo v Q-COMP (C/2010/46) - Decision at [21].

[47] Keen v Workers' Rehabilitation and Compensation Corporation (1998) 71 SASR 42.

[48] Keen v Workers' Rehabilitation and Compensation Corporation (1998) 71 SASR 42, 47.

[49] Qantas Airways Limited v Q-Comp (2006) 181 QGIG 301.

[50] Qantas Airways Limited v Q-Comp (2006) 181 QGIG 301, 307.

[51] WorkCover Queensland v Kehl (2002) 170 QGIG 93.

[52] WorkCover Queensland v Kehl (2002) 170 QGIG 93, 94.

[53] Prizeman v Q-COMP (2005) 180 QGIG 481.

[54] T.1-96 Ll. 43-44.

[55] Exhibits 11 & 12.

Close

Editorial Notes

  • Published Case Name:

    Lawton v Simon Blackwood (Workers' Compensation Regulator)

  • Shortened Case Name:

    Lawton v Simon Blackwood (Workers' Compensation Regulator)

  • MNC:

    [2015] QIRC 99

  • Court:

    QIRC

  • Judge(s):

    Deputy President O'Connor

  • Date:

    27 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
Cf Delaney v Q-Comp Review Unit (2005) 178 QGIG 197
1 citation
Jump To
Cite 1 - (2005) 178 QGIG 197
Keen v Workers' Rehabilitation and Compensation Corporation (1998) 71 SASR 42
3 citations
Jump To
Cite 1 - (1998) 71 SASR 42
Cite 2 - (1998) 71 SASR 42
Cite 3 - (1998) 71 SASR 42
Prizeman v Q-Comp (2005) 180 QGIG 481
2 citations
Jump To
Cite 1 - (2005) 180 QGIG 481
Cite 2 - (2005) 180 QGIG 481
Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301
3 citations
Jump To
Cite 1 - (2006) 181 QGIG 301
Cite 2 - (2006) 181 QGIG 301
Cite 3 - (2006) 181 QGIG 301
WorkCover Queensland v Kehl (2002) 170 QGIG 93
3 citations
Jump To
Cite 1 - (2002) 170 QGIG 93
Cite 2 - (2002) 170 QGIG 93
Cite 3 - (2002) 170 QGIG 93

Cases Citing

Case NameFull CitationFrequency
BHP COAL PTY LTD v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 1132 citations
Carr v Workers' Compensation Regulator [2022] QIRC 592 citations
Du Preez v Workers' Compensation Regulator [2020] QIRC 1092 citations
Lee v Workers' Compensation Regulator [2025] QIRC 1991 citation
Maher v Workers' Compensation Regulator [2021] QIRC 3132 citations
McGuigan v Workers' Compensation Regulator [2017] QIRC 362 citations
Murphy v Workers' Compensation Regulator [2022] QIRC 2643 citations
O'Neil v Workers' Compensation Regulator [2022] QIRC 3102 citations
Schultz v Workers' Compensation Regulator [2020] QIRC 2082 citations
Skinner v Workers' Compensation Regulator [2022] QIRC 192 citations
State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2020] QIRC 972 citations
Weiss v Workers' Compensation Regulator [2020] QIRC 1112 citations
1

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