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Galjaardt v Workers' Compensation Regulator; Ex parte Bechtel Construction Australia Pty Ltd QIRC 145
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Galjaardt v Workers' Compensation Regulator; Ex parte Bechtel Construction Australia Pty Ltd  QIRC 145
Bechtel Construction Australia Pty Ltd
Workers' Compensation Regulator
Objection to Notice of Non-Party Disclosure
20 December 2016
29 November 2016
Industrial Commissioner Black
Orders to set aside Notice in part;
Orders for disclosure no later than 31 January 2017.
APPEAL AGAINST DECISION - Psychiatric or psychological injury - Notice of Non-Party Disclosure – objections – consideration of relevance, oppressiveness, confidentiality - other bases for objection - whether documents should be disclosed.
Workers' Compensation and Rehabilitation Act 2003 s 32
Industrial Relations (Tribunals) Rules 2011 rr 64B, 64C, 64E, 64F, 64G
Mr P J Jamieson, for Bechtel Construction Australia Pty Ltd;
Mr T Galjaardt, Appellant.
- Bechtel Construction Australia Pty Ltd was served with a Notice of Non-Party Disclosure by Theodore Galjaardt on 31 October 2016. Bechtel has objected to producing some of the documents sought to be disclosed by Mr Galjaardt.
- The Notice relates to an appeal brought by Mr Galjaardt against a decision of the Workers' Compensation Regulator to reject his application for compensation arising from a psychological injury that he sustained while he was employed by Bechtel.
- The objections made were subject to a hearing before the Commission on 29 November 2016. The scope and nature of Mr Galjaardt's appeal is understood by reference to his notice of appeal in which he attributes his psychological injury to bullying and harassment by co-workers, a failure by his supervisor (Keith Rau) to maintain a stress-free working environment, aggressive behaviour by a supervisor (Chris Carter), bullying by a human resources representative (Richard Smith), and a failure by Bechtel to respond appropriately to, and to take corrective action in relation to, complaints made by him.
- In his Notice, Mr Galjaardt sought disclosure of nineteen categories of documents. To the extent that documents in categories 1, 2, 9, 10, 13, 15, 16, 17, and 18 exist and are in their possession, Bechtel has not objected to the production of documents in these categories. Bechtel said that it had already provided Mr Galjaardt with documents identified in categories 6 and 7. However, Bechtel has objected to the disclosure of documents falling within categories 3, 4, 5, 8, 11, 12, 14 and 19. Bechtel objects primarily on the ground that the documents in contest are not relevant to matters in issue in the proceedings.
Industrial Relations (Tribunals) Rules 2011
- Rule 64B provides that a party to a proceeding may, by notice of non-party production, require the production of documents "directly relevant to a matter in issue in the proceeding", while Rule 64C provides that a notice must "state the matter in issue in the proceedings about which the document sought is directly relevant". Rule 64E provides that objections to production may be made for reasons which may include the following:
- (a)the lack of relevance to the proceeding of the documents mentioned in the notice;
- (b)the lack of particularity with which the documents are described;
- (c)the confidential nature of the documents or their contents;
- (d)the effect production would have on any person.
- Rule 64G provides that the Commission may make any order it considers appropriate including, but not limited to, an order:
- (a)lifting the stay; or
- (b)varying the notice; or
- (c)setting aside the notice.
Notice of Non-Party Disclosure
- Bechtel maintained that the Notice of Non-Party Disclosure served on it was deficient. It was submitted that Mr Galjaardt had failed in the preparation of his Notice to adequately describe the matters in issue in the proceedings to which the documents sought to be discovered were directly relevant. Bechtel’s difficulty in positively responding to particular parts of the Notice is self-evident given the breadth and the scale of the information sought.
- In developing its objections to parts of Mr Galjaardt’s Notice, Bechtel relied on an affidavit filed by Ms Sally McMillan on 16 November 2016. In her affidavit, Ms McMillan explained that Bechtel may experience near insurmountable difficulties in endeavouring to comply with the Notice and that compliance would result in "significant inconvenience, time, effort and expense" to Bechtel. Ms McMillan’s reasoning was outlined in paragraphs 11, 12 and 13 of her affidavit:
"11. Bechtel’s work on the QCLNG Project and the GLNG Project has been complete for some time. As the number of projects on Curtis Island have reduced, the PJET workforce has also reduced. PJET is now down to a "skeleton" staff as the remaining work for PJET relates to bringing goods and assets off Curtis Island. The APLNG Project is scheduled to be handed over to the client on 2 December 2016, at or by which point the APLNG Project and PJET will be fully demobilised.
- Bechtel’s work on the APLNG Project is nearly complete. Bechtel has progressively reduced its workforce engaged on the APLNG Project, including human resources staff, over this calendar year as the project approaches completion. As a result, I am the only person within Bechtel who has access to all of the documents related to Mr Galjaardt’s complaints lodged by him during his employment with Bechtel. The other persons who were involved in responding to Mr Galjaardt’s complaints and also responding to his application for workers’ compensation are no longer employed by Bechtel.
- There are no specific HR staff employed by PJET. The APLNG Project has 1 administrative staff member. This person reports to the HR Manager, who is responsible all remaining field non-manual employees on the Projects. However, as that project is demobilised, these staff will be redundant. Neither of these HR staff are familiar with Mr Galjaardt’s claim for workers’ compensation."
Category 3 Documents
- In category 3, Mr Galjaardt seeks the disclosure of all material relating to certification and management training of an unspecified number of unnamed supervisors across a period from November 2011 to June 2014. Bechtel opposed disclosure on a number of grounds including a lack of particularity and the oppressive nature of the request. These grounds were canvassed in Ms McMillan’s affidavit in the following terms:
"29. To collate the types of records Mr Galjaardt has requested at category 3 would require a person to review the training records for each field non-manual, to identify which of them are supervisors. This would involve reviewing the records of hundreds of employees. These records would then need to be manually checked against training sign on sheets, completed by employees, assuming that these records are retained."
- In my view it would be unreasonable to expect Bechtel to comply with this request given the scope of the information sought and the failure to particularise the information to enable an association to be found between the information and a matter in issue in Mr Galjaardt's appeal proceedings. Mr Galjaardt’s appeal will turn in the first instance on findings about whether he had been subject to bullying, harassment or intimidation as he has claimed. Subsequent findings will include whether management was aware of any inappropriate behaviour and whether management’s response was reasonable. At some point in the appeal proceedings, the delivery by Bechtel of preventative training may become relevant, but not to the extent implied in Mr Galjaardt's notice at category 3.
- It is not appropriate for Mr Galjaardt to institute a fishing expedition of the scale that he has, and at Bechtel's expense, to try to find information that he is not sure exists and that might be related to his complaints. The oppression caused to Bechtel is evident from a reading of Ms McMillan's affidavit. I accept Bechtel’s objection and the Notice will be set aside to the extent that it seeks disclosure of material described in category 5.
Category 4 Documents
- In this request, Mr Galjaardt seeks to access a copy of all materials which revealed the extent of formal and informal training implemented by Bechtel for the purpose of preventing workplace bullying. The material sought appeared to relate to all supervisors and all employees employed by Bechtel over the period from November 2011 and June 2014.
- Again, Mr Galjaardt has cast his request far too broadly and it is unlikely that all of the material that he seeks will be relevant in his appeal proceedings. While Mr Galjaardt is entitled to seek disclosure of information that may assist in determining whether supervisors or co-workers who featured in his complaints had received training related to bullying and harassment issues in the workplace, he is not entitled to access information that does not directly pertain to his own circumstances.
- I accept that Mr Galjaardt’s request, if sufficiently particularised, should be accommodated by Bechtel. I have decided to vary the Notice in so far as it pertains to Category 4 with the effect that disclosure will be ordered in the following terms:
"Training documents disclosing whether informal or formal training about workplace bullying, harassment or intimidation, had been delivered by Bechtel to supervisors and employees who had been mentioned in complaints made by Mr Galjaardt about bullying, harassment or intimidation."
Category 5 Documents
- Mr Galjaardt seeks to access a list of supervisors who worked in a particular work area during 2013 and part of 2014. Bechtel opposed disclosure on the basis that it does not have such a list in its possession, nor is it required to create documents in response to Mr Galjaardt’s notice. Further Bechtel says that, if it were to attempt to compile such a list, it would incur significant inconvenience, time, effort and expense. Bechtel’s position was explained by Ms McMillan’s at paragraphs 32 and 33 of her affidavit:
"32. To create the list of all supervisor who worked at FLNE, someone would need to review the payroll records for field non-manual employees (supervisors) to identify the supervisors who worked at PJET. FLNE is only one of 6 locations for PJET. The payroll records do not identify which location a person worked at on a particular day. Supervisors regularly worked across different locations.
- The only way to identify where a supervisor worked on a particular day would be to identify their position title at the time (as to whether it nominated a specific location) and reconcile that against available organisational charts, that were not necessarily updated regularly. Bechtel would then have to rely on the memory of managers as to which individuals were working under them at a particular time. In addition, the managers who worked for PJET have been progressively demobilised and many are no longer employed by Bechtel."
- Bechtel’s objection in regard to this category of documents is made out. The Notice will be set aside to the extent it seeks disclosure of material described in category 5.
Category 8 Documents
- In category 8, Mr Galjaardt sought disclosure of supervisors’ records, including notes of complaints, written complaints, notes of concerns, notes of incidents, near miss cards, hazard cards and start cards. The request does not confine the material sought to complaints in the nature of bullying, harassment or intimidation, nor does it confine the material to specific incidents, to a specified period of time, to specified supervisors, nor to specified employees.
- Bechtel opposed disclosure on the basis that the request should be characterised as a fishing expedition and that the request was not sufficiently particularised to identify how the requested documents were relevant to an issue in the proceedings.
- In my view, Mr Galjaardt’s request in Category 8 can only be entertained if the request were restricted to the disclosure of records relating to complaints that he had made to supervisors during the specified period. Mr Galjaardt's notice will be varied in so far as it relates to category 8 documents, and the order will direct disclosure in the following terms:
"Documents which record and deal with, or contain responses to, complaints made by Mr Galjaardt during the course of his employment with Bechtel, about bullying, harassment or intimidation in the workplace, whether such complaints were made to supervisors or others in a supervisory or management role."
Categories 11 and 12
- Bechtel opposed disclosure on the basis that the requests were not relevant to a matter in issue and that Mr Galjaardt had failed to serve either Mr Drinkwater or Mr Buttworth consistent with his obligation under s 64D of the Rules which requires affected parties to be served with any Notice of Non-Party Disclosure.
- In his category 11 request, Mr Galjaardt seeks, in effect, to establish whether Mr Drinkwater and Mr Buttsworth were competent to operate a designated piece of equipment. I am unable to accept, on the available material, that the question of whether Mr Galjaardt was inappropriately treated by Mr Buttsworth and Mr Drinkwater is relevant to whether either of them were qualified to drive a particular crane. Further, Mr Galjaardt did not lead any evidence that would support an allegation that Bechtel had allowed persons who were not appropriately ticketed to operate machines on its site. The Notice will be set aside in so far as it pertains to this request.
- In his category 12 request, Mr Galjaardt asks that he be provided with dates that Mr Buttsworth and Mr Drinkwater were absent from site, and the dates on which both men worked at other worksites. I am unable to accept that this request is sufficiently connected to a matter in issue, and the Notice will be set aside in so far as it relates to category 12 information.
Category 14 Documents
- In this request, Mr Galjaardt asks for a list of all mechanics that worked on a particular piece of equipment in 2013 and 2014. Bechtel opposed disclosure on the basis that it does not have such a list in its possession, nor is it required to create documents in response to Mr Galjaardt’s notice. Further Bechtel says that, if it were to attempt to compile such a list, it would incur significant inconvenience, time, effort and expense. Ms McMillan’s affidavit was relevant at paragraph 35:
"35. Bechtel does not have in its possession a document containing a "list of all BES mechanics that worked on equipment number 14-4093…between 2013 – April 2014". To create such a list someone would need to review each of the work orders, identify the full names of the person on the work orders, and then with the BES Manager to identify whether a particular individual performed the work or was the leading hand on the work. Again, this would take considerable time and effort as it would need to be done manually. Further, the work order may not record the name of the person who performed the work and/or the BES Manager may not recall who performed the work on the equipment."
- Bechtel’s objection in regard to this category of documents is made out. The Notice will be set aside to the extent that it seeks disclosure of material described in category 14.
Category 19 Documents
- In category 19, Mr Galjaardt sought all material, including statements, notes and reports that emanated from sixteen named supervisors and other unnamed supervisors during the 2013-2014 period. The request does not confine the material sought to complaints in the nature of bullying, harassment or intimidation, nor does it confine the material to specific incidents, nor to specified employees.
- Bechtel objected to disclosure on the ground of oppressiveness and on the basis that Mr Galjaardt failed to identify the matter in issue and failed to identify how the documents sought were relevant. I accept Bechtel’s objection and set aside the Notice in so far as it relates to Category 19 documents.
- The Notice of Non-Party Disclosure filed by Mr Galjaardt on 31 October 2016 be set aside in so far as it seeks the disclosure of materials described in categories 3, 5, 11, 12, 14, and 19.
- Bechtel Construction Australia Pty Ltd disclose to Mr Galjaardt:
- (a)Documents identified in Attachment 1 to Mr Galjaardt’s Notice of Non-Party Disclosure filed on 31 October 2016 and referred to in categories 1, 2, 6, 7, 9, 10, 13, 15, 16, 17, and 18. Provided that such documents exist and are in Bechtel's possession;
- (b)Training documents disclosing whether informal or formal training about workplace bullying, harassment or intimidation, had been delivered by Bechtel to supervisors and employees who had been mentioned in complaints made by Mr Galjaardt about bullying, harassment or intimidation (amended category 4); and
- (c)Documents which record and deal with, or contain responses to, complaints made by Mr Galjaardt during the course of his employment with Bechtel, about bullying, harassment or intimidation in the workplace, whether such complaints were made to supervisors or others in a supervisory or management role (amended category 8).
- Bechtel Construction Australia Pty Ltd to disclose material or documents no later than 31 January 2017.
- Published Case Name:
Theodore Galjaardt v Workers' Compensation Regulator; Ex parte Bechtel Construction Australia Pty Ltd
- Shortened Case Name:
Galjaardt v Workers' Compensation Regulator; Ex parte Bechtel Construction Australia Pty Ltd
 QIRC 145
20 Dec 2016