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CITE

Unreported Judgment

Read v Workers' Compensation Regulator[2016] QIRC 17Deputy President Swan
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Read v Workers' Compensation Regulator[2016] QIRC 17

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Read v Workers' Compensation Regulator [2016] QIRC 017
PARTIES:	Read, Michael (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2015/27
PROCEEDING:	Appeal against decision of the Workers' Compensation Regulator
DELIVERED ON:	8 February 2016
HEARING DATES:	18 - 22 May 2015 28 - 30 September 2015 9 November 2015 (Appellant Submissions) 16 December 2015 (Respondent Submissions)
HEARD AT:	Brisbane
MEMBER: ORDERS:	Deputy President Swan The Appeal is upheld. The decision of the Regulator is set aside and substituted with a new decision that the application is one for acceptance. The Regulator is to pay the costs of and incidental to the appeal.
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL AGAINST DECISION – decision of Workers' Compensation Regulator – appeal against Regulator's decision concerning allegations of bullying and harassment by senior QPS Officer – Appellant's claim of a major depressive/adjustment disorder is upheld and the Appellant's employment is the major significant contributing factor to the injury – corroborative statements from other Officers accepted as truthful – Appellant's complaint to specific superior Officers dealt with ambivalently – behaviour of senior Officer (the Officer complained of in most stressors) put in 'too hard basket' – Appellant's application upheld.
CASES:	Workers' Compensation and Rehabilitation Act 2003 Public Service Administration Act 1990 Kudryavtseva v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 053 Davis v Blackwood [2014] ICQ 009, [47] Simon Blackwood (Workers' Compensation Regulator) v Mary Adams [2015] ICQ 001
APPEARANCES:	Mr D. Atkinson, Counsel instructed by Murphy Schmidt Lawyers for the Appellant. Mr C. Clark, Counsel directly instructed by Workers' Compensation Regulator for the Respondent.

Decision

[1]
This Appeal is made by Mr Michael Read (the Appellant) against the decision of the Regulator which rejected his WorkCover claim.

[2]
The Regulator had set aside a decision of WorkCover which had determined that Mr Read's claim of incurring a "Major depression/adjustment disorder" was one for acceptance.

[3]
The Appellant's eight nominated stressors occurred over a period of time from when Read began working at the Water Police in 2011 and ultimately culminated in the Appellant's decompensation on 3 March 2014 while working at the Petrie Station.

Relevant Legislation

[4]
Section 32 of the WCRA defines "injury" as:

"32 Meaning of injury

1)
An injury is personal injury arising out of, or in the course of, employment if -

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

…

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—

(a)
reasonable management action taken in a reasonable way by the employer in connection with the workers employment;
(b)
the workers expectation or perception of reasonable management action being taken against the worker;

…"

Witnesses

[5]
For the Appellant:

Michael Read - Appellant (Read);
Lisa Bowman - Administrative Officer QPS (Bowman);
Sergeant Edi Mian (Mian);
Senior Constable Took (Took);
Dr Brett Davis - General Practitioner;
Dr Ann-Louise Keulder - Psychiatrist.

[6]
For the Regulator:

Snr Sergeant Warren Francis (Francis);
Inspector Gregory Ringuet (Ringuet);
Snr Sergeant Russell Fagg (Fagg);
Inspector Christopher Emzin (Emzin);
Lisa McAneny - Assistant Intelligence Officer (McAneny).

Note: After this initial reference to various titles held by witnesses, this decision will respectfully refer only to surnames.

Onus of Proof

[7]
The Appellant bears the onus of proof on the balance of probabilities.

Details concerning Read's employment

[8]
Read is a Sergeant with the Queensland Police Service (QPS). He commenced work with QPS in 2000 and holds the academic qualifications of Bachelor of Commerce and a Master of Arts in Management from Griffith University.

[9]
During his employment with QPS, Read had received several commendations and had never been the subject of a disciplinary action.

[10]
Read has worked in various QPS stations including the Water Police, the Tactical Crime Squad and Intelligence.

[11]
In August 2011, Read commenced work with the Water Police as an Intelligence Officer.

[12]
The Water Police Station is situated at Whyte Island and is operated by Francis, together with six Sergeants, approximately 16 to 17 Senior Constables, Constables and Civilian staff.

[13]
There are 11 Water Police Stations in Queensland - the most northern being at Thursday Island and the most southern being on the Gold Coast. Personnel at these stations are accountable to Francis and he is, in turn, accountable to an Inspector (the State Water Police Coordinator) who performed duties from the Brisbane Water Police station at Whyte Island.

[14]
The State Coordinator was responsible to Superintendent Chelepy who was, in turn, accountable to an Assistant Commissioner. At the time of commencing employment at the Water Police in 2011, the State Coordinator was Emzin. While Emzin held that position from March 2010 to May 2013, he had often been deployed elsewhere. For practical purposes, in 2011 the State Coordinator was Inspector Kolb. Read's immediate reporting Officer was Francis.

[15]
The duties undertaken by Francis included:

assigning tasks to others;
determining rosters and overtime;
undertaking reviews for Sergeants;
attending Officer in Charge meetings convened by QPS;
determination of the application of resources and responsibility for the plant and equipment utilized by staff at the Station.

Nominated Stressors

[16]
The stressors nominated by Read were as follows:

"No.	DATE	EVENT
	08/04/12	The Handran incident - The Appellant was verbally abused by Senior Sergeant Warren Francis (Francis) for failing to side with him in an argument Francis had with another Officer.
	25/05/12	Unauthorised Check incident - Francis requested the Appellant to undertake several personal computer checks for bad tenants related to his girlfriend's property management business.
	June/July 2012	Glory Hound Certificate incident - The Appellant was given a mock official Queensland Police Service Statement of Attainment by Francis announcing that the Appellant had received Glory Hound Status.
	19/01/13	Flare sighting incident - Francis asked the Appellant to find anything that he could on two fellow Officers so that Francis could use it against them to remove them from the Water Police Unit.
	27/03/13	Telephone discussion with Francis - Francis in an initial telephone call requested a report on the progress of a surveillance job on intelligence he had provided to the Appellant on 26 March 2013. In a later telephone call when Francis perceived that the Appellant had not complied with a request from him the Appellant was subjected to an abusive tirade from Francis. Approximately ten minutes after that conversation, Francis emailed the Appellant telling him that he was not required to work over the Easter break.
	28/03/13	Appellant complained about his treatment by Francis to Inspector Christopher Emzin. Despite apprising Inspector Emzin of the history of abuse and bullying he had experienced from Francis, Inspector Emzin took no action to assist the Appellant.
	16/07/13	The Appellant met with Inspector Gregory Ringuet at the Appellant's residence. At that meeting the Appellant told Inspector Ringuet about the several incidents of bullying and harassment perpetrated by Francis. At the end of that meeting Inspector Ringuet indicated that he would revert back to the Appellant with the outcome of any action he took towards Francis and the discussions he proposed to have with Superintendent Chelepy. Inspector Ringuet also failed to take any action against Francis or provide support or assistance to the Appellant.
	29/07/13 - 03/03/14	The Appellant obtained a position as the Officer-in Charge of State Intelligence at Petrie. Whilst completing this role he was also forced to maintain his role as the Intelligence Officer for the Water Police Unit. On a number of occasions the Appellant raised with his superiors the difficulties that he was experiencing undertaking the dual roles. Despite these requests nothing was done to reduce the Appellant's workload."

Brief overview of Regulator's response to these stressors.

[17]
The Regulator stated that Stressors 1, 2, 3, 4 and 5 are not in dispute to the extent that "events of the sort described occurred in regard to a basic factual sub-stratum". What is contested is Read's evidence that the events unfolded in the manner described by him.

[18]
Concerning Stressors 6 and 7, as they relate to Inspectors Emzin and Ringuet, the Regulator says Read's evidence does not establish any failure on their part to act appropriately in the circumstances.

[19]
While the Regulator states that Read is unable to substantiate these allegations, it adds, in its submissions concerning Stressor 8 that there were other issues to be considered concerning Read's departure from the workplace on 3 March 2014.

Medical Evidence

[20]
Dr Brett Davis was Read's General Practitioner from April 2013. At a consultation on 8 April 2013, Dr Davis said that Read had presented describing twelve months of stress that he had experienced in the workplace. The Stressor was "directly related to his work, certainly in respect to conflicts with a work colleague or superior". He was suffering some psychological symptoms of loss of motivation and concentration. He was also suffering from sleep deprivation. These symptoms were described by Dr Davis as an early presentation of reactive depression. Dr Davis made arrangements for Read to attend a psychologist who would give him skills to manage and deal with the stressors. He also issued a medical certificate on that date.

[21]
Read next saw his General Practitioner on 15 July 2013. The psychologist had sent reports to Dr Davis saying that Read wasn't receiving a lot of support in returning to the workplace and was still having symptoms of reactive depression.

[22]
When Dr Davis saw Read on 3 March 2014 his symptoms of depression seemed to have worsened as the "conflicts at work hadn't been resolved" and he was suffering "the effects of the traumatisation from his previous exposure to those harassments in the workplace." "Even the thought of returning to work was causing undue distress and worsening his depression symptoms" [T5-15]. Dr Davis prescribed an antidepressant - Lexapro. The dosage of Lexapro was increased on 11 April 2014 and by 16 May 2014 Read was showing increased anxiety and agitation and developing defensive mechanisms as he felt very threatened. As a consequence of these symptoms Read was referred to a psychiatrist, Dr Keulder on 26 August 2014.

[23]
Dr Keulder first saw Read on 9 September 2014. Since that time, Dr Keulder has seen him on nine other occasions. At the consultation of 9 September 2014, Dr Keulder said that Read's mental illness symptoms fulfilled the DSM-IV category for both depression (of moderate intensity) and post-traumatic stress disorder.

[24]
Dr Keulder said Read's energy levels were lowered; his sleep was disturbed; he was chronically anxious; he had a bleak view of his future; he felt helpless in this situation and he was hyper-aroused causing him to be vigilant and on edge.

[25]
Read provided Dr Keulder with his history of being off work since April 2013 and cited the reasons for his symptoms related to having a superior who had intimidated, ridiculed and threatened him.

[26]
He advised of speaking to a superior and while he was keen to make a formal complaint, he was unable to do so because of his elevated levels of anxiety and fear.

[27]
During that period, he also suffered frustrations while at home fearing that he would be unable to return to work and that he would not only lose his income but also his family.

[28]
Dr Keulder was aware that Read had returned to work on 30 August 2013 and that he was experiencing the ramifications of a heavy work load at the Petrie Police Station.

[29]
Significantly, Dr Keulder, in response to a question from the Regulator as to other stressors in Read's life responded:

"…there were no, you know, significant stressors other than the work stress in his life, as far as I am aware from what we discussed. I mean, I'm just saying the symptoms that he was experiencing and his anxiety was impacting on his home life and had repercussions for his home life, but - and that was a stressful situation, but they weren't the cause of his stress. As I mentioned, somewhere in my notes I said that his wife had had depression in the past following the birth of their children, but she had recovered from that, so he didn't see her - her condition impacting on him at all any more, but he was mindful not to put too much stress on her, wasn't always talking to her about all the feelings he had. But, you know, as any other family with young children, there would have been minor stresses but nothing of significance …. The stressor that he most - found most significant was the working relationship with his superior" [T2-5, 6].

[30]
Dr Keudler said Read referred to his superior asking him to act unethically vis a vis an entry onto data bases of names of persons solely for his superior's personal reasons. Read advised his superior that he would not do this. Other events nominated by Read to Dr Keudler included the "Glory Hound" incident where the inference was that he was a weakling or somebody that others would "single out". Read also referred to being ridiculed in front of others and also made reference to the boat incident where he believed he had been threatened by his superior Officer. Reference was also made by Read of having his roster changed by his superior so that he would miss out on an expected financial benefit.

[31]
Dr Keudler referred to Read suffering recurrent stress of wanting to make a complaint against his superior "but not being heard… but not feeling like he - this is - this is being addressed" [T2-9]. Read believed that his superiors were stalling and were not taking his complaints seriously. Read also referenced the possible loss of his "work" and his "job" [T2-10].

[32]
Dr Keulder described Read as a softly spoken, balanced person, having a normal personality with no psychological injury. There was no exaggeration on Read's part and he had no symptoms of Obsessive Compulsive Disorder. In Read's case she said that:

"In this case being bullied and perceived as not being able to escape his situation causes client to suffer a setback, and elongates recovery and keeps them anxious for longer. This is what happened in client's case."

Dr Keulder stated that Read held a genuine belief that Francis was a danger to him [Exhibit 14].

Stressors

[33]
In Simon Blackwood (Workers' Compensation Regulator) v Mary Adams^[1], Martin J stated:

"It is an error for a Tribunal in cases where the boundaries of the application have been set by a document such as a Statement of Stressors to go beyond that boundary when making findings. It was an error to find that the conduct (offensive as it was) operated to cause Ms Adams' injury simply because this conduct was likely to have caused distress to Ms Adams."

08/04/12

The Handran incident - The Appellant was verbally abused by Senior Sergeant Warren Francis (Francis) for failing to side with him in an argument Francis had with another Officer.

[34]
On 8 April 2012, Read was aboard the Water Police vessel "Handran". Other Officers on the vessel included Francis, and Sergeants Worrell, Gunthorpe and Cowland.

[35]
Handran was anchored off Peel Island and, sometime in the evening, Officers had gone to their berths with the exception of Francis, Worrell and Read.

[36]
Officers had been drinking, but Read says none were intoxicated. In the course of the evening a heated dispute ensued between Francis and Worrell. This is accepted by Francis as accurate.

[37]
Read said that he tried to resolve the dispute between the two Officers.

[38]
Later in the evening Francis approached him and Read asked him if he was upset with him and Francis responded by saying words to the effect "You know what you fucking said. All you cunts around here want me to be your mother. I'm not going to be your mother. You know what you fucking said. You took his side. If you ever go ahead and cross me its - if you ever cross me you will see what I can do. I will ruin you here." Read said he had tried unsuccessfully to pacify Francis and upon deciding to go to his berth, Francis said to him "That's right, go to bed glory boy" [T1-50].

[39]
Read noticed Francis' lack of acknowledgement of him on the following day and he sought counsel from Gunthorpe and also spoke to Constable Gates. He kept a diary note of what had happened on that evening [Exhibit 1].

[40]
Generally, Francis did not deny swearing in the workplace, using words such as "cunt", "dog cunt" and "lazy cunt" when referring to others, but denied using that terminology directly at others. He accepted that others may have heard him using those words as he had walked away and he accepted that the use of such words could be offensive to some people, but stated that others, including women, used the word "cunt" in otherwise normal conversation in that workplace. He accepted that the use of such language was inappropriate.

[41]
Francis recalled that Read was in the vicinity of where the heated discussion ensued. He did not recall Read speaking to him.

[42]
The essence of this Stressor was Read's concern that Francis threatened him to take sides (with him) against Worrell.

25/05/12

Unauthorised Check incident - Francis requested the Appellant to undertake several personal computer checks for bad tenants related to his girlfriend's property management business.

[43]
The second stressor cited by Read occurred in May 2012.

[44]
Read said that Francis approached him saying that he had information that he had acquired when going to one of the homes his girlfriend (who worked in property management) was about to rent. Francis had with him mail he had taken from the house he shared with his girlfriend. He had advised Read that his girlfriend had told him that the tenants were "grubby" and that she had problems with them and that he would like Read to look into it. Francis' evidence was that the tenant's names on the letters were not, at that point, tenants of his girlfriend's business, but after the event, they were. Francis, in response to a question from the Appellant: "And the connection with them is that your girlfriend at the time ran a business and they had some connection with a property that she might be about to use as a rental property" responded "That's correct" [T6-46].

[45]
Read said Francis told him words to the effect "Look, I would like some drug information put on these people or possibly look at doing a drug warrant." Read asked Francis what drug information was available and Francis had told him he had none. Read said he was stunned because it would require him putting false information on the Police computer system, which was an offence.

[46]
Read said Francis showed him the letters advising him that if he wanted any further information on the people then he should open the envelopes and see what was inside. Read noticed that two of the letters were from bank or building societies and one was an Australian Government letter.

[47]
Read said he told Francis that he was not going to put false information on the system. Francis responded by saying words to the effect "Remember what I said to you previously about if you don't do what I want, you know, what I can do". Read's evidence continued as follows:

"And with that he left the office and I - and with that comment I was freaking out because I didn't know what to do. I didn't know if I should tell someone because by policy he has committed misconduct by asking me to do those checks. There were certain information privacy things that I would be breaking if I wanted to put that information on the system and it would be criminal. So - yes - I was just - I was scared. I didn't know what to do. I was anxious about what decision to make, whether to go to the inspector, whether to take the mail and just put it somewhere. I didn't know that to do. I was really, really scared. The -- when Warren went out of the room he dropped the envelopes in the plastic bag into my in tray near my front door and I thought, what can I do in case this incident is brought up again with Warren. And I thought, well, I'll scan the envelopes. I have a flat-bed scanner and I scanned the front and back of all four envelopes and, put them back into the plastic bag and then back into the in-tray. Obviously, I didn't do the checks on those - those people. And I'd gone out later in the day to run a few errands and when I returned to the station later in the day, those letters and the plastic was gone from my in-tray" [The scanned envelopes are Exhibit 2].

[48]
Around that date, Read said he did not want to have any contact with Francis. He was apprehensive of not knowing what Francis might ask him to do. He tried to avoid being in the same areas in the station where Francis was present. He said, "But even after being asked about doing those checks on those people, the worse thing was actually there was quite a long driveway going down the Brisbane water police and I drive down that driveway and just feel anxious and apprehensive about even going to work" [T1-57].

[49]
Francis agreed that he had given the letters to Read and asked him to do a street check. He denied that he requested that drug information be put against those persons' names.

[50]
Francis said that 'street checks' can be made on the Police computer system of "anyone that you get a name off." Cross-examination of Francis included the following:

Atkinson: "Well, I'm struggling with the tenants. They've done nothing wrong. Yeah. They're not involved in any investigation. You've taken documents to work and you haven't asked - done any inquiries yourself. You've asked a subordinate, Sergeant Read, to do checks on them, on your own case?"

Francis: "That's correct"

Atkinson: "And the connection with them is that your girlfriend at the time ran a business and they had some connection with a property that she might be about to use as a rental property?"

Francis: "That's correct".

Francis, said that his girlfriend had "not necessarily" asked him to do the checks [T6-50]. He said that she did not know the persons in question - all that had happened was that she had collected old mail from letter boxes from persons who had vacated a tenancy.

Francis says that even though he had asked Read to do street checks on these persons, he did not follow the matter up further with him.

Deputy President Swan:

"… But what you are putting to me is apropos of nothing, other than that your friend at the time was a real estate agent and these people – there was no history of anything. You collected some mail and decided to do a street check. What was the trigger for it?"

Francis: "No trigger. We randomly check. We just randomly check names"

[51]
The matter of 'street checks' was advanced further with Emzin. His evidence was that street checks are "probably more to do with - it's collecting intelligence, your Honour. There may be a case that there's a particular area, a hot spot, of crime, and you're then collecting information from cars and people in that area" [T7-18]. Emzin said that a street check could be instigated when the person subject to the check was not under any precise suspicion, however in cross-examination, he said that street checks were not undertaken randomly. Further, he agreed that these checks were not to be undertaken unless there was a 'purpose' for so doing. Primarily, his evidence was that a street check would be performed for the purpose of gathering evidence, doing police work and preventing crime [T7-19]. Street checks could not be conducted for private purposes or for random checks [T6-57].

[52]
Emzin said the procedures to be followed in relation to a street check on a person would require the Officer to explain the reason for the check. Emzin said it was not necessarily compulsory to fill in that information, "but if someone is querying you and you're investigated, and then have to, you know, provide reasons … again, to show that you're doing it lawfully as opposed to inappropriately" [T7-23].

[53]
Read was questioned by Counsel for the Regulator as to why the matter of the street checks was not included in the material he put before WorkCover. His response was:

"I was advised by WorkCover and, in particular, Temilya Broderick, that she did not want to run those letters as part of my claim because she believed that it was an internal criminal matter and she advised me not to." Read said that similar evidence was given by Ms Broderick concerning the Glory Hound matter and added: "There was a lot of things that I put forward to WorkCover that WorkCover haven't used for some reason or another. I can't explain their decision making. All I can say is what I've been told" [T2-16].

[54]
Ms Broderick was not called to respond to these claims made by the Appellant.

June/July

2012

Glory Hound Certificate incident - The Appellant was given a mock official Queensland Police Service Statement of Attainment by Francis announcing that the Appellant had received Glory Hound Status.

[55]
In August 2012, Read came to work and found a laminated document on his door. He said that Francis was standing near the door and presented the document to him. The document was described as a mock-up of the standard QPS Statement of Attainment. It purported to certify that Read had reached the status of "Glory Hound" and was signed by Francis.

[56]
Read said that he felt humiliated by this incident as he perceived that a Glory Hound was someone who had sought attention and glory, perhaps at the expense of others. He was particularly distressed that the "award" had been presented to him by the Officer in Charge of the station, Francis.

[57]
Francis' evidence was that Read had prepared the document and that he had given it to Read as part of a joke. He said that Read often referred to himself as Glory Hound. Francis had stated in an e-mail to WorkCover that he did not have the computer competency to compile such a document.

[58]
Read denied Francis claims. The term, to Read, was of a derogatory nature.

[59]
Ms Bowman, who was employed as the Administrative Officer for Francis, gave evidence that she was directed by Francis to make up the certificate and he signed it. Francis also directed her to use the terminology "Glory Hound". She was then required to laminate the form. Her evidence was that she was present when Francis presented the document to Read and she noticed that Read appeared to be notably "perplexed".

[60]
Ms Bowman said there had been a conversation between herself, Francis and Read prior to the direction from Francis for her to make up the award. She had commented on the fact that Read didn't have any Certificates/Awards on his wall, to which Francis said words to the effect that Read needed a Glory Hound award because he had reached Glory Hound status.

[61]
Read said that subsequent to that event, Ms Bowman sent him an SMS text, acknowledging her role in the incident. This assertion was unchallenged [T1-61].

[62]
I have accepted that Ms Bowman has told the truth.

[63]
The fact that Read had heard this comment from Francis when Bowman was present cannot be seen as some form of implied consent on Read's part that the description of "Glory Hound" was acceptable to him.

[64]
I have formed the view that Francis has not told the truth when giving his evidence and I have accepted that Read was distressed by receiving this certificate from Francis.

19/01/13

Flare sighting incident - Francis asked the Appellant to find anything that he could on two fellow Officers so that Francis could use it against them to remove them from the Water Police Unit.

[65]
On 16 February 2013, a member of the public had contacted the Water Police to say that they had seen a sighting of a flare in Moreton Bay.

[66]
Francis was off duty but had instructed Mian and Sergeant Bairstow at the Station to take a vessel into the Bay to see if anyone was in distress. Francis instructed that Kane should co-ordinate the search from the Station.

[67]
Mian (who was the second most senior Water Police Officer in the Station) and Bairstow arranged to take the vessel into the Bay and leave Kane to co-ordinate the search. Kane, however, expressed his concerns at coordinating the search as he was a junior Officer. Consequently, Mian stayed behind to co-ordinate the search from a vehicle looking out onto the Bay and Bairstow and Kane went out in the vessel.

[68]
Read stated that Francis had called later that evening to see how the search was proceeding. When he realized that Mian was not on the vessel he became angry and returned to the workplace.

[69]
Read was at the Station on that evening when Francis arrived and a heated dispute occurred between Francis and Mian. In the course of berating Mian, Read said that Francis "remarked to both of us and said all you cunts at this station think you run it. You don't run this place. I fucking run this place. And he pointed directly at me and I was just taken aback."

[70]
Mian's evidence was also that he could see Read sitting at the computer and "you could see it in his face; he was pretty well terrified by what was going on". Read said he was also distressed at Francis accusing him of disloyalty. This was further exacerbated when Francis later asked Read to collect information on Mian for the purpose of "getting" Mian.

[71]
Initially when Stressor 4 arose, Read had been asked by Francis to use the computer to find out what had occurred with a search he had required some other Officers to instigate. Read said this was a normal request and he did as requested. Francis, while watching Read on the computer, saw a particular report and said to Read "… look at that fucking time on the computer…… print it out for me, I fucking want to use it. I'm going to get these cunts with this". Read printed the first sighting report and Francis said the report was "fucking great, I'm going to get these cunts now, I've always wanted to get rid of them, this is what I've got now". He then said to Read "I want you to sit back on the computer and dig up anything else you can find in relation to Eddie or Shawn that I can use to get rid of them". Read told Francis that he was not going to do that. Read's evidence was "he was so irate, he just had the piece of paper in his hand in a clenched fist and just kept saying "fuck I've got them, I'm going to get these guys now".

[72]
In the course of this commentary Francis pointed at both Mian and Read telling them they didn't run the place, because "I fucking run the place". Read said Francis pointed directly at him and Mian when saying this and he didn't know what to say. Read said it was the first occasion upon which Francis had confronted him in a room with another Officer where he had been threatened by Francis.

[73]
Francis specifically asked Read if there was any way of "digging up dirt" on Mian. He said he was collating a file on Mian, which Read saw, and said that he would be greatly appreciative if Read could find anything on Mian. Read again told Francis that he would not do that.

[74]
Mian was not the only Officer Francis had asked Read to collate material on - he also added other Officers - Sergeant Shawn Harrison, Senior Constable Belinda Gapes, Senior Constable Jason Carter, Senior Constable Trent Lucas and, to some degree, Senior Constable Mark Eaton.

[75]
Read said these directions from Francis to gather information on other Officers was not only inappropriate but also very threatening.

27/03/13

Telephone discussion with Francis - Francis in an initial telephone call requested a report on the progress of a surveillance job on intelligence he had provided to the Appellant on 26 March 2013. In a later telephone call when Francis perceived that the Appellant had not complied with a request from him the Appellant was subjected to an abusive tirade from Francis. Approximately ten minutes after that conversation, Francis emailed the Appellant telling him that he was not required to work over the Easter break.

Note: Stressor 5 is also called the "Took Incident"

[76]
The Regulator says that the "bare factual sub-stratum of this incident is likewise not in dispute" [Regulator's Submissions, Paragraph 34].

[77]
On 27 March 2013, Francis had asked Read to go to Caboolture to inspect some number plates in a car yard.

[78]
Francis sent an SMS message to Read at 10.19pm on 27 March 20213 in relation to this issue. It read: "I thought that if Took was driving you could walk into the car yard and look at the number plate screw heads to see if they had been removed."

[79]
Read advised Francis that he would finish work at midnight but that he would have time to undertake this request. Francis emailed Read again saying that if Read was driving the car then Took could see if the number plate had been tampered with. As it was nearly 10.00pm, Read spoke to Took and asked if he could assist him in that job. Took said he would like to help but he was leading into five days off work and he had arranged with Sergeant Bartlett to go through a Court brief and the only chance he would get to do it would be that night. With that, Read spoke to Constable Kane to ask if he could assist him, but said that he had to seek permission from Francis before that could occur.

[80]
Read, in seeking approval from Francis, called him and explained Took's situation, and Francis responded aggressively that Took was only "pulling the wool" over Read's eyes to which Read responded "Warren, I'm just trying to ask your permission if I can take Luke Kane. If I can't take Luke Kane, I'll take Gary Took." Francis responded with "No, you've made it clear who you sit with now and you don't support me. You've gone behind my back and made a decision." It was at this point that Francis told Read that he was not wanted at Water Police anymore and he should go and work at Crime Ops [T1-66].

[81]
When Read told Francis he wasn't going behind his back but was asking permission to do something, he was shaking while on the phone and did not know what to do. Francis told him that:

"And you believed that shit? He is weak, and it demonstrates that you are too. The fact that Kane is ready to go and you haven't taken Took tells me you are going against me here. It's happening again, isn't it. You're just like Harrow and Eddie. You want to undermine me. If I gave you an order, I want it followed. It's Sergeants that want to be everyone's friend. You want to be their friends? Then clean up your shit now and fuck off to Crime Ops to drink coffee with the rest of those cunts. Forget the job. I don't want it done. We don't want you. You want to be everyone's friend and I need Sergeants with balls who will tell these cunts where to go.

You want to be the happy friendly Sergeant? I don't need that in my station. You can fuck off. I can't trust you to be a manager. I don't care how hard you work. If you don't want to do what I ask, you can fuck off. I have asked you to do things for me and you won't do them. I have talked to you about Eddie and Harrow and you have made it clear now who you sit with. I don't want you in my station any more. You can pack your shit up and fuck off because you won't do what I want you to do. Pack your things and fuck off. I've told you before, I'm not your mother and if you don't do what I tell you, then you're with them and you know I want them out."

[82]
Some ten minutes after that conversation, Francis sent an email to Read and Emzin to the effect that Read was no longer required to work the Easter weekend. Read said that notwithstanding the wording in the email, Read saw this as a slap in the face. Read had previously told Francis that he had sought to make money for his young family and he was keen for penalty shifts. The arrangement for him to work the Easter break had been made some weeks beforehand. Had he worked over that break he would have made substantial money.

[83]
Read made a diary entry immediately afterwards [Exhibit 5]. Took's evidence was that he had remained at the Water Police Station as Read and Kane went to leave and he saw Read come back inside later on visibly shaken. Took said that Read appeared to be keeping his head down to hide tears.

[84]
Read told Took that Francis had told him to leave the Water Police and Took observed Read pack up his things. Francis also kept a diary note summary [Exhibit 48] which the Appellant says gave a similar account to Read's. Took confirmed Read's evidence that he had told him that Francis had said he had to leave the Water Police [T5-38].

[85]
Emzin's evidence was that when he mentioned the incident with Read to Francis later on, Francis had conceded that he had been angry and that he had mentioned Crime Ops. Ringuet also mentioned the Took incident with Francis. Francis had conceded to him that he had "used language" at the time. These two mentions of the incident by both Emzin and Ringuet were as a consequence of what was viewed as 'fleeting' discussions between those two Officers and Francis.

[86]
Francis said he had removed Read from the Easter roster as he held fears for Read's mental well-being and he had advised Emzin of this. Emzin said this had not occurred. Having made the observation concerning Read's mental health, later in evidence Francis conceded that Read's mental health had appeared perfectly healthy before the incident.

[87]
Read explained his situation to Kane and then spoke to the shift supervisor, Bartlett. Took apologised for what had happened and Read told him it was not his fault. Read then said he went into his office and started crying in front of those persons and "it takes a lot for me to get upset". He had a conversation with Took who said that similar things had happened to him in the past, but that it would blow over. However, Read said "It escalated and it just got to a point however I just couldn't you know, I didn't know where to turn, I didn't know what to do and I just - I started to pack my office up." Read said he was 'totally distraught' [T1-67].

[88]
The Regulator questioned who had instigated Read's departure from the Water Police – i.e. Read or Francis? It states that if Read's version is correct (i.e. that Francis told him to leave the Water Police) then that evidence is at odds with Emzin's evidence that Francis, the morning after the incident, told him that the matter was "over and … would continue to move on". Basically, the Regulator says that Francis was happy to put the dispute behind him and that this was conveyed to Read via Emzin [Ex 51, p.2 and T2-9].

[89]
The Regulator reinforced its claim that Read was the instigator of his departure from the Water Police, by citing the following exchange between Counsel for the Regulator and Francis:

"Okay. And what's - is it a day shift that starts after that? A day shift arrangement

Starts after ---? --- at 6am to 2pm, and then afternoon shift is 2pm to 10pm

"All right. Thank you? ---And I disagreed with that, because he'd had a whole week

of night work, and traditionally at Water Police on night work there's not a lot of

work. He could have done his court brief any time, and I disagreed with his reason

for not being able to go.

Okay. All right. This was a conversation that you had with Read? ---That's correct.

I'm going to ask you this, was it a heated conversation? Was it ---? ---It got that

way.

In what way? --- Raised voices. I swear in general conversation. I've no doubt I

swore that night. Raised voice - and I told him that he disappointed me, that he

failed to follow a simple instruction.

All right. What was the next event that took place:--- Well, the conversation then

turned and Michael questioned his position at Water Police. Question - said if I

didn't trust him he questioned his position at Water Police. That went on for a fair

while and questioned his ---

When you said a 'fair while' can you give us an estimate? --- A number of minutes.

Okay? ---the same sort of thing. He actually told me I had to transfer him out. I

had to transfer him out of Water Police. He had to get away from Water Police if I

didn't trust him. And it was up to me whether I trusted him or not.

Okay. All right. Where did that conversation end? ---That was pretty much it.

Michael actually agreed that he'd been weak, and that he'd let these people pull the

wool over his eyes. I'd said that to him. I said you've been taken advantage of by

the staff. And he admitted to that at the end. He admitted he was weak and he

apologized." [T6-22, 23]

28/03/13

Appellant complained about his treatment by Francis to Inspector Christopher Emzin. Despite apprising Inspector Emzin of the history of abuse and bullying he had experienced from Francis, Inspector Emzin took no action to assist the Appellant.

[90]
Read said he approached Emzin the day after Francis had told him to leave the Water Police and spoke to him on a number of issues [Exhibit 44].

[91]
In cross-examination, Emzin conceded in the course of his conversation with Read that:

(a)
Francis had spoken to him about the Took Incident in the specific terms set out above;
(b)
Francis had told Read to "clean up your shit and fuck off now and go to Crime Ops" on the night of the Took Incident, even though he had no authority to dismiss Read;
(c)
Francis had taken away Read's entitlement to penalty rates in a penal or arbitrary way;
(d)
Francis appeared to give privileges to one group over another on the basis of their loyalty to him, and would seek intelligence on members of the B-team;
(e)
Many people at the Station were suffering because of Francis' intimidatory behavior;
(f)
In particular, the anger/tirades from Francis extended to "Harro and Edi" - "Officers Harrison and Mian" [Appellants submissions - points 91 and 92].

[92]
Emzin said he spoke to Read about options he might consider - "do nothing; deal with it himself; up to complaint" [Exhibit 51, Paragraph 8].

[93]
In the interim, Emzin contacted Superintendent Steve Dabinett who is a Superintendent of the Specialist Services Branch which oversaw, amongst other things, the Water Police. His advice was that Read proceed with a QP466 complaint and forward it to him for processing. Emzin said that Dabinett added if he wished to proceed "… likely [sic] this type of an incident would be referred to the local level of management" [Exhibit 51].

[94]
Emzin also said that "does it amount to misconduct, if it does, it's certainly at the lower end, you know, sort of thing" [Exhibit 53].

[95]
Emzin agreed that if a matter was deemed appropriate to be dealt with at a local level, then it would be dealt with by people with a relatively restricted ability to impose penalties [T7-25]. The highest an Inspector could impose in terms of penalties would be two penalty units of $107.00 each.

[96]
Emzin contacted Read and discussed the options provided. He advised Read that "… if you make a complaint that doesn't necessarily mean that the Officers going to be moved or, you know, at worst sacked, but he seemed to understand the level of the - of what could happen" [T7-8].

[97]
Emzin said he would raise the issues with Francis subject to Read being agreeable to this approach. Emzin contacted Francis and advised him of Read's concerns and Francis' response was essentially that the matter was over and he could continue to move on [T7‑9]. Emzin, in cross-examination, said that Francis showed no remorse for his actions [T7-53].

[98]
Emzin discussed with Read the prospect of a lateral transfer. He advised Read that one did not need to make a specific complaint for this to occur but it was a process often utilized when there had been a breakdown in workplace relationships.

[99]
Emzin received a telephone call from Mr Mick Barnes who was the General Secretary of the QPUE concerning the issue of Read missing out on his Easter Holiday work. Also Read said that the QPUE had contacted him advising him that the issue with Francis was a 'member on member' issue and suggested to Read that he take some leave, clear his head, and not make a rushed decision.

[100]
Read sought to take sick leave around this time from 16 April 2013 to 26 July 2013. Francis was contacted and advised that he was agreeable to Read reporting directly to Emzin, rather than through him. Read also discussed some family matters he was experiencing and a consensus was reached that the taking of leave would be beneficial to him.

[101]
Emzin ceased his position in the Water Police on 3 May 2013 but had contact with Read during April 2013.

[102]
Counsel for Read referred Emzin to all of the allegations Read had made to him [Exhibit 51]. Emzin agreed that if the allegations were found to be truthful, then they were of a very serious nature [T7-31].

[103]
Emzin said that it was not open to Francis to purport to dismiss an Officer, nor was it appropriate for Francis to call other Officers 'cunts'.

[104]
Emzin agreed that issues concerning Francis' behaviour were not confined to just one issue [T7-34]. He agreed that Francis may have some anger management issues [T7-35]. Emzin agreed he had several people approach him previously raising issues concerning Francis [T7-39].

[105]
Emzin was aware of Francis swearing in general conversation when he was speaking to his subordinates, some of whom were also civilians working at the station. He heard Francis using words such as "fuck" and "cunt" [T7-43]. Even though Emzin heard this language, he did not recall intervening when he heard Francis talking in those terms to subordinates [T7-45]. Francis swearing at other staff at the station was corroborated by Mian [T5-22].

[106]
Overall, Read said that what had stopped him from deciding how to deal with his complaints was that "The advice that was given to me by Inspector Emzin was that I could make a complaint, but even if I could make that complaint and prove it at the highest level that bullying and harassment had occurred at Brisbane Water Police, that nothing was likely to happen. You'd have to return to that workplace, and get on with working with Warren Francis" [T2-22].

16/07/13

The Appellant met with Inspector Gregory Ringuet at the Appellant's residence. At that meeting the Appellant told Inspector Ringuet about the several incidents of bullying and harassment perpetrated by Francis. At the end of that meeting Inspector Ringuet indicated that he would revert back to the Appellant with the outcome of any action he took towards Francis and the discussions he proposed to have with Superintendent Chelepy. Inspector Ringuet also failed to take any action against Francis or provide support or assistance to the Appellant.

[107]
Upon Emzin moving on to another position, Read sought to meet with Ringuet. After sending an email request to meet on 23 May 2013, a meeting was finally arranged for 16 July 2013. Both Emzin and Ringuet agreed that the delay in the meeting was unacceptable and that it breached the Grievance Policy which states that workplace issues be dealt with fairly and efficiently [Exhibit 56].

[108]
Read was under the belief that Emzin would have briefed Ringuet regarding his issues but Ringuet said this had not happened. Read's evidence was that Ringuet did not have an understanding of his issues and did nothing to understand the history of the matter.

[109]
There had been a meeting between Read and Ringuet on 16 July 2013. The Appellant states that the Transcript shows that Read raised the following issues with him:

That Francis had:

threatened to end Read's career;
had purported to dismiss Read summarily from the Water Police;
had requested that Read carry out non-legitimate checks;
had sought advice on other Officers;
had rages or rants within the Station at particular Officers;
had pulled Read off a shift after an argument and, on its face, arbitrarily [Exhibit 54].

[110]
Notwithstanding this, the Regulator believed that Read had not complained of work related stress to Ringuet but was pre-occupied with "mapping out" the next step in his career progression [Regulator's Submission 56(e)]. In my view, this assertion is not correct. Exhibit 54 traverses the gamut of events that had occurred at the workplace involving Read and Francis. The fact that Read did not use the words "workplace stress" does not derogate from the reality of what had happened to him. It can be fairly presumed that the issues raised by Read with Ringuet were of an extremely stressful nature, so much so that Ringuet agrees with Read that Francis "has done the wrong thing" [Exhibit 54]. He also said that the actions of Francis would not constitute "acceptable management practice" [T8-42].

[111]
Ringuet accepted that Francis did not have the authority to dismiss Read. He was also aware that if he had reasonable suspicion that Francis was asking Read to do non-legal criminal checks, there was an obligation to report misconduct under section 7.2 of the Public Service Administration Act 1990. The Appellant states that receiving a report such as this from a well-regarded Sergeant "could hardly be anything but a basis for a reasonable suspicion" [T8-25, 29 and 62].

[112]
Reference was also made by the Appellant to Clause 9 of the 2009/10 Preventing and Resolving Negative Workplace Behaviour.

[113]
Paragraphs 4 (a), (b) and (c) of the 2013/12 Grievances Policy state:

"4. Goals

(a)
to resolve workplace issues as early, fairly and as efficiently as possible;
(b)
to resolve workplace issues in an informal manner prior to employees feeling the need to lodge and initiate a formal grievance resolution procedure;
(c)
proactively to identify and resolve workplace issues before they escalate into a situation where an employee feels the need to initiate any of the grievance resolution procedures outlined in this policy;

…"

[114]
Ringuet also accepted that Francis "has done the wrong thing" if, in relation to Stressor 5, for example, it was found to be substantiated [T8-41].

[115]
Exhibit 54 details the following discussion between Read and Ringuet after Read had mentioned the situation with his loss of Easter week-end penalties.

Read: "… but the other thing, this is more serious and this is the reason why, this and [inaudible] there has never since I've been there the inspectors have been there I am not disregarding the inspectors [inaudible] but there has never been a clear line of um command or [inaudible] and this is how it's got to this position. The other thing too is that he has come into my office several times and asked me to do cheques [checks] on his behalf which I know and I've told him I don't want to do because I don't want to deal with cheques [checks]. Before I go down this road though I guess I just need some advice from you on how much information I can give up at this stage or do I just talk to you about"

Ringuet: "Mate there are really only two ways you can go [inaudible] or we work out or we work out what is best for you, and that's really the only way I can see it…"

Read: "Well I know…".

Ringuet: "and that's, that's, that's fraught with [inaudible] you know what I mean."

Read: "Yeah"

Ringuet: "You can make a formal complaint and it's going to go on to become an investigation and go down that path well that's all well and good if you want to do that, but if you don't want to do that it's entirely up to you as to what you think or what outcome you are after, you know what I mean."

Read: "Yep, yep."

Ringuet: "It depends on the outcome you're after"

Read: "Yep"

…

Read: "I know I've got a couple of issues, I can't see the situation is going to change there. I know the culture might change but [inaudible] he's got a position there and he is obviously going to stay in it um…".

Ringuet: "Unless, and obviously unless it is proven otherwise that the status quo will remain unless there is a complaint. Unless a bunch of people are going to stand up and say something". ... "That's the way I see it". (Commission Emphasis)

[116]
Ringuet had told Read that he would be spending about one week with Inspector Chelepy on a work driving trip and that would provide him with the opportunity to raise Read's issues with Chelepy as to what action might be taken by Read [T1-82].

[117]
Read said he thought that Chepeley might not understand the issues he was experiencing with Francis because he had not heard Read's full story, to which Ringuet responded "He's not stupid. He knows what the Ferrett's personality is like" [T8-34].

(Commission note - It has been submitted that Francis nick-name was "Ferrett")

[118]
Read said he never heard back from Ringuet about any discussions Ringuet had with Chelepy concerning him [T1-83].

[119]
At this time, Read was looking at taking another position in the QPS as long as it was out of the environment in which Francis was present.

[120]
Asked by the Deputy President as to whether he believed that Francis could tell him to leave his job at the Water Police, he said he had believed that he could not go back to his job, but with that he also held the view that it was not the "right thing" to do or a lawful command on Francis' part. He said that was why he had contacted an Inspector the next morning [T1-84].

[121]
When asked why he had believed that Francis had the power to do what he was doing, Read responded:

"… Only because the statements that had been made to me by Francis about people that have gone against him before, about him saying to me about the A and B team and the power that he held, and that he was trying to ruin people's careers. So when he said to me get out of the station I took it from the senior sergeant that that was serious. That's what he wanted me to do and that was sort of follow through on that" [T1-84].

29/07/13

03/03/14

The Appellant obtained a position as the Officer-in Charge of State Intelligence at Petrie. Whilst completing this role he was also forced to maintain his role as the Intelligence Officer for the Water Police Unit. On a number of occasions the Appellant raised with his superiors the difficulties that he was experiencing undertaking the dual roles. Despite these requests nothing was done to reduce the Appellant's workload.

[122]
In an email dated 30 August 2013, it showed that Read had been posted to a position as Officer in Charge, Intelligence, at Petrie Station and at that time he was to continue performing his duties as State Intelligence Water Police with a view to giving a hand-over of some of his duties to McAneny.

[123]
The proposed hand-over did not occur and McAneny's evidence supports that proposition.

[124]
The Regulator has suggested that Read sought to "hang on" to Water Police Duties but in an e-mail dated 9 September 2013, Read had highly recommended another employee for that position. The Appellant states that this would not be indicative of a person wanting to retain a position.

[125]
In October 2013, it had been agreed that Read receive a reduction in his workload. His position then would be that of the Liaison Officer between Water Police and Intelligence. It was unchallenged that these changes occurred as a result of a request from Read.

[126]
On 7 January 2014, Read asked to be relieved from his position with Water Police and Fagg agreed that Read's workload was unsustainable. The Appellant said that Fagg had been unaware of the intelligence needs of the Water Police. He thought that the job of Liaison Officer between Intelligence and the Water Police could be a part time or full time job. The OIC position at Petrie entailed not only providing intelligence for the Pine River Area but also for intelligence throughout the State. The heavy workload complained of by Read consisted of at least performing two jobs or at least one and a half jobs.

[127]
Read's appointment to the OIC Petrie position commenced on 2 August 2013. The QPS had not by then and did not issue an expression of interest for the Water Police role. Ringuet said he had never seen 'product' from Read, but the concession was made by Ringuet that there were many Water Police personnel who might approach Read for intelligence services without going through their Inspector.

[128]
The Appellant states that Ringuet had not spoken with the Intelligence services to work out the extent of Read's obligations. Read had sought to be relieved of that position and this had not occurred.

[129]
On 7 January 2014, Fagg recommended that Read be relieved of his obligations with Water Police because performing both positions had become untenable. Further it was recommended that an expression of interest be commenced and then the position should be formally advertised.

[130]
Read left the workplace on 3 March 2014 with his workload continuing as previously without any changes being implemented.

[131]
The Appellant states that Read had been left with a dual role, and this occurred notwithstanding Read's expressions of concern and those of Fagg.

[132]
An incident occurred on 3 March 2014 where McAneny, who was not a sworn Officer of QPS, expressed concern to Read that he was spending too much time doing water police work, that it was having an effect on others and their work load at the Petrie Station.

[133]
On 3 March 2014, McAneny had come into work at the Petrie Office on her day off and had arranged for an Officer to come in to work on an early shift. Read at the time was working out of the Mount Gravatt office. When Read arrived at the Petrie Station he told McAneny she should have contacted him before she altered an Officer's shift. McAneny said that if Read had spent more time at Petrie, things would be different and she also stated that he was spending too much time performing water police duties.

[134]
Read said ultimately he agreed with McAneny as performing a dual role had caused him considerable stress. That was the day upon which Read left work. The Appellant states that Read subsequently put in a formal complaint (QP466) which began the internal affairs investigation which is still underway [T1-40].

[135]
McAneny corroborated Read's claim regarding his workload.

Findings on Stressors

[136]
Read's history is that of a Sergeant who had been a member of the QPS for over 12 years. His work record is excellent. He had also undertaken further education. In all, he has presented as a dedicated, committed and truthful member of the QPS.

[137]
On the other hand, I have not found Francis to be a truthful witness.

[138]
It is clear that if it is found that the nominated stressors are proven then, as Emzin says, the matters are of a very serious nature [T7-31], however in Exhibit 53 Emzin states after hearing Read's complaints "Yeah look, the reality is that the fair conduct of it is you know not appropriate. Does it amount to misconduct, if it does it's certainly at the lower end, you know sort of thing …" In considering all the evidence, I have determined that the Stressors nominated by Read have been substantiated, in that firstly, they occurred and secondly, they occurred in the manner so described by Read. I have also determined that the substance of the complaints are not "low level" matters but very serious issues.

Stressor 1

[139]
The only evidence provided concerning this stressor, the "Handran Incident" is that of Read and Francis. Francis accepts that a heated conversation ensued between himself and Worrell on the Handran concerning the issues identified by Read but that Francis and Worrell were good friends. In terms of Read's evidence that Francis was verbally aggressive towards him, Francis either could not recall that happening or it did not happen. Francis agreed that Read was present at the time of his interaction with Worrell.

[140]
I have preferred Read's evidence over that of Francis that this event occurred as described by Read and that he was shocked and distressed by the level of aggression on Francis' part towards him and specifically when Francis told him that he had taken Worrell's side and that "… If you ever cross me you will see what I can do - I will ruin you here … go to bed glory boy."

[141]
Read had kept a diary note of this event [Exhibit 1]. The diary note (dated 18/4/2012) is consistent with the evidence given by Read regarding this event.

[142]
Francis' behaviour could not be viewed as reasonable management action.

Stressor 2

[143]
Francis' reason for requesting that Read run 'street checks' on two persons whose only connection with the Water Police relate to Francis' girlfriend and a real estate business she was conducting is unconvincing and somewhat unnerving.

[144]
Francis held the view that 'street checks' could be done for no reason at all. This view was not accepted by Emzin and Ringuet. I have accepted Emzin's and Ringuet's evidence in this regard.

[145]
Francis accepts that he had asked Read to do 'street checks' on these persons but denied that he had asked Read to place drug references against those names (and/or "look at doing a drug warrant") and to open the mail of these persons if he wanted further information.

[146]
I have accepted Read's version of events over that of Francis. I accept that Read had told Francis that he wouldn't do as requested. The fact that Read scanned the envelopes back and front corroborates the fact that he was very concerned about this request. The letters disappeared from Read's in-box later that day and Francis never raised the issue again with Read.

[147]
I have accepted that this event was one of considerable concern to Read in that he was asked to do something inappropriate by Francis.

[148]
I have accepted Read's evidence that Ms Broderick from WorkCover had advised that since this matter was arguably an "internal criminal matter" for the QPS, he had not continued with that claim at the time of making his initial contact with WorkCover. Broderick was not called to give evidence.

[149]
The behaviour of Francis in this matter is both inappropriate and disturbing. It is clearly not reasonable management action, but it is up to QPS to determine if the matter warrants further investigation and action.

[150]
I have accepted that this incident caused Read genuine concern and anxiety.

Stressor 3

[151]
The detail of this stressor has been adequately set out under Stressor 3 earlier in this decision. I have found that Francis was untruthful in his evidence to the Commission. Francis strongly denied the claim that he had any involvement in the "Glory Hound" incident. Bowman, in my view, was truthful in terms of how this Certificate came into existence. Bowman's evidence was that she was directed by Francis to make up the certificate and he had signed it and she was present when Francis presented it to Read.

[152]
The term 'glory hound' was not seen by Read as a complimentary or humorous term - rather, it was viewed as terminology which was derogatory in nature.

[153]
It is accepted that the fact that Read was presented with this Certificate by his superior Officer was a matter of considerable concern to him.

[154]
Read's evidence around this issue has been accepted as truthful by the Commission.

Stressor 4

[155]
The detail surrounding this issue has also been significantly detailed under Stressor 4 earlier in this decision.

[156]
Read's evidence was that Francis, while calling his subordinates, Read and Mian "cunts" amongst other things, stood so close to Mian that spittle was coming from his mouth onto Mian. I have accepted that evidence as truthful.

[157]
Read was also very distressed that Francis had questioned his loyalty. However, demanding that Read begin collecting information on Mian for the purpose of "getting" him was more disturbing and distressing for him.

[158]
Mian's evidence was that he could see Read's face and that he appeared to be "pretty well terrified" by Francis' behaviour.

[159]
Francis denied the claims made by Mian and Read. I have not accepted that denial as truthful. I have accepted Mian's and Read's evidence as accurate.

[160]
I have accepted that, in terms of Read's claim in this application, he was greatly distressed at the behaviour of Francis towards him on this occasion.

[161]
None of this behaviour could be classified as reasonable management action.

Stressor 5

[162]
The Regulator states that the "bare factual sub-stratum" of this incident is also not in dispute. The evidence surrounding this nominated stressor is set out under Stressor 5 earlier in this decision.

[163]
Discussions between Read and Francis concerning the job at hand had been discussed. Took, who was one of the Officers who was to perform the job with Read, requested, for reasons outlined earlier, that it might be better if Read took another Officer with him.

[164]
Read considered this and contacted Francis, before the commencement of this job, to request that that an alternative Officer to Took undertake the job with him.

[165]
Read's evidence was that this request set Francis into a tirade about Took. This alleged tirade extended to telling Read that he was to "clean up your shit now and fuck off to Crime Ops". The further commentary is detailed under Stressor 5 earlier in this decision. While Read knew that Francis could not dismiss him from QPS, he held no doubts that if Francis told him to leave the Water Police Station he had to go. I have accepted Read's evidence as truthful.

[166]
Some ten minutes after that commentary, Francis emailed Read to the effect that he would not be working over the Easter Break. In my view this was a retaliatory action on Francis' part towards Read which was both inappropriate and unfair.

[167]
Francis' evidence that he was concerned about Read's mental state so much so that he had taken him off the Easter Roster out of concern is not believable [T6-94]. Francis, in cross-examination, agreed that he had not noticed anything untoward about Read's demeanor prior to the incident, the subject of this stressor [T6-94].

[168]
Francis' concessions to swearing and having heated discussions at times were in my view used as a shield to excuse his own bad behavior.

[169]
There is nothing in Francis' behaviour that could be seen to be reasonable management action.

[170]
I have accepted that the toll taken on Read as a consequence of this event was extreme. I have accepted that this incident and its ramifications bore heavily on Read so much so as to cause him not to return to the workplace for some time. Read's evidence is corroborated by that of Took, whom I found to be an honest witness.

Stressors 6 and 7

[171]
It has been found that Read incurred an injury as described by his medical practitioners (for the purposes of s 32(1)(b) of the Act) and that his employment is the major significant contributing factor to the injury.

[172]
Section 32(5)(a)and (b) states, inter alia, that an injury does not include a psychiatric or psychological disorder arising out of, or in the course of reasonable management action taken in a reasonable way by the employer in connection with the workers employment or the workers expectation or perception of reasonable management action being taken against the worker.

[173]
The Regulator says that the fact that Read could return to work in 2013 at Petrie raises doubts as to whether his claimed medical condition continued at that time. Dr Keulder's report refers to a continuation of his condition during this period and I accept Dr Keulder's opinion on that point.

[174]
Whilst it is established that Francis' behaviour towards Read did not constitute reasonable management conducted in a reasonable manner, the reporting by Read to Emzin and Ringuet require consideration within the focus of that requirement of the Act. These were the Senior Officers with whom Read raised his complaints.

[175]
Read met separately with both Emzin and Ringuet at his home while he was absent from work. Read privately recorded the ensuing conversations. Transcripts of those recordings were tendered as evidence before the Commission [Exhibits 53 - Emzin and Exhibit 54 - Ringuet].

[176]
The day after the events described in Stressor 5, Read spoke to Emzin and conversations ensued between the two on other occasions.

[177]
The Appellant states that Emzin was told by Read:

The detail of the incident which occurred on the previous day [T7-32].
That Francis had effectively dismissed Read from the Water Police, albeit without the authority to do so [T7-32].
That Francis had regular blow ups against his staff [T7-33, 34 and 35].
That Francis had taken away Read's entitlement to penalty rates in a penal or arbitrary manner [T7-35].
That Francis appeared to give privileges to one group over another on the basis of their loyalty to him and would seek intelligence on members who were not in his favoured group [T7-35].
Many people at the Water Police Station were suffering because of Francis' behaviour especially when he intimidated people [T7-36, T7-37].
In particular, Read had mentioned the anger/tirades from Francis towards "Harro and Edi" - Officers Harrison and Mian [T7-68].

[178]
From Emzin's evidence, the issues as outlined by Read were of a very serious nature and, in cross-examination, he acknowledged that he was aware of Francis' particular style of management.

[179]
Francis' behaviour was variously described by others as "robust", "frank", "cranky", "authoritarian", "prickly" and "very regimented."

[180]
The Appellant highlights evidence showing that Francis regularly called those who made complaints "dogs" or "dog cunts".

[181]
Against that backdrop of concerns, the Appellant asserts that there was a real possibility that if Read complained about Francis he would face repercussions. I have accepted Read's perception as being well founded

[182]
While Emzin discussed the possibility of Read taking a formal complaint (QP466) against Francis, he believed that the complaint would be dealt with at a local level. If this course was adopted, then the worst penalty which could be imposed on Francis would be a fine of two penalty units (each worth $107) after which the complainant would return to his job. It was also likely that the complainant would continue to have to work with Francis.

[183]
Emzin agreed that he was aware of Francis' behavior and language towards other people at the workplace.

[184]
The Appellant says that while Emzin listened to Read regarding his concerns about Francis, he in fact did little to assist Read and put the onus on Read to drive his concerns in circumstances which were never viable.

[185]
Of concern to the Appellant was that Emzin, when raising issues with Francis, did not put any of the complaints specifically to him on the basis that "I was very careful not to go too deeply because you're giving information on a potential complaint that's coming" [T7-53]. The Appellant states that Emzin did not ask any Officers how they might be affected by Francis' behaviour; he did not ask for copies of corroborative documents; he did not check if there was a history of complaints and he did not act on the knowledge he had that Francis was causing distress to his staff and might at the very least need assistance with anger management or people skills [Appellant's submissions - point 104].

[186]
Emzin did not pursue the issue with Francis when, after advising Francis generally of Read's concerns, Francis said he had "moved on" [T7-52]. In my view, Francis may have moved on but the reality of Read's situation was that he could not.

[187]
The Appellant submits that the failure of Emzin to take a proactive approach when dealing with Francis was an abrogation of his obligations to ensure the workplace health and safety of Brisbane Water Police, including Read.

[188]
In effect, Emzin did nothing, advising Read that he had left matters with him for him to decide what to do.

[189]
The Appellant contends that Emzin in effect was dissuading Read from pursuing the matter further when he stated: "Like he [sic] even at its highest sort of thing, again I'm not, I'm saying this you know from my experience. If it is found, you know, yes he spoke to you inappropriately, he threatened and bullied, you know um, what, you know, what would be the highest of that, you know he could get a you know, some sort of reprimand and that would be it, and he could continue there and he continues to work forward."

[190]
It is submitted that when Read determined to progress the matter, and to advise Emzin accordingly, the following occurred:

On 26 April 2013, Read wrote to Emzin requesting a meeting. However, the meeting never occurred.
On 26 April 2014, Emzin advised Read that he was finishing at the Water Police on 30 April 2014 and would no longer be dealing with Read's matter.

[191]
Emzin did however say that he was going to speak to the incoming Inspector for Water Police [Ringuet] re Read's concerns and would brief the new Inspector accordingly.

[192]
This did not occur.

[193]
The Regulator says that the Appellant at no point put to Emzin that he told Read that nothing was likely to happen with his complaint and he would have to get on and work with Francis. What the evidence does show is that Emzin in discussion with Read said to him that "yeah look, the reality is, is that the fair conduct of it is you know not appropriate. Does it amount to misconduct? If it does, it's certainly at the lower end, you know sort of thing …" [Exhibit 53, page 26]. It is not unreasonable to accept from this evidence that Emzin inferred to Read that his complaints were at the lower end of complaints that could be made and that there was a real likelihood of him returning to work with Francis.

[194]
In cross-examination Counsel for the Appellant raised the point with Emzin that if a matter was dealt with at the local level effectively the complainant could end up working alongside the Officer complained of, post-penalty if that was to be imposed.

Atkinson: "It's awkward, don't you agree, if you're - well, if you're being dealt with at a local level, whatever happens, the two members are going to keep working alongside each other?"

Emzin: "Yes"

…

Atkinson: "And then they have to work alongside each other?"

Emzin: "Yes." [T7-26]

…

Atkinson: "…if you make a complaint of - against the Officer-in-Charge, and if it's dealt with at a local level, and if you continue to work alongside each other, it may not have improved your life? So the - if I just - the- question - so if you make a complaint against the Officer - in charge -"

Emzin: "Yes"

Atkinson: "--he gets a penalty. At the local level"

Emzin: "At the local level."

Atkinson: "Yep. And now you're working alongside each other, post-penalty?"

Emzin: "Yes." [T7-27]

[195]
The Appellant asserts that Emzin's actions could not be regarded as reasonable management conducted in a reasonable manner. The unreasonableness of the actions were that management kept insisting that it was up to Read to progress his complaint while it stood by and commented that complaining about such matters would more than likely result in a reprimand for Francis if complaints were proven with the real possibility of Read having to return to the same workplace. I have accepted that Read could no longer work with Francis.

[196]
The Appellant submits that in the case of complaints made by a well-educated and well‑regarded police Officer, the complaints should have been taken seriously.

[197]
Read's evidence was when he was considering transferring from the Water Police he was approached by Inspector Kolb and "he asked me why I was leaving and I said well I've had issues with Warren Francis. And he said to me, I'd like to keep you in the command and he said to me can I go and talk to Superintendent Chelepy about keeping you. I really don't want to lose you. You're a very good worker. And I said, well, that'd be great if you could work something out. He said give me five minutes and I'll call you back. So I waited and then I got a call back from Inspector Kolb on my mobile phone and he said to me, Mike, I've spoken to the superintendent and he said all I can say to you is you need to get out of office support command as quickly as possible and my advice to you is to take the job if it gets offered to you."

[198]
Neither Inspector Kolb nor Superintendent Chelepy were called as witnesses.

[199]
Read said that Ringuet had come unprepared for his meeting with him in that Emzin had not properly briefed him about Read's concerns.

[200]
Ringuet was well aware of Francis' behaviour and added that Chelepy was also aware of Francis' 'personality'.

[201]
Read said that Ringuet appeared to accept that Francis' behaviour had been inappropriate and that he had not behaved in an acceptable management manner.

[202]
Ringuet outlined to Read the various courses he could adopt in dealing with the issue. However, his approach that unless a 'bunch of people' stood up and said something, then the status quo would remain, is of concern.

[203]
It appears obvious to me that while both Emzin and Ringuet outlined possible options for Read to consider, the thrust of the options led to an outcome that was untenable for Read. Read loved his job at Water Police and was highly regarded in that role. However, returning to work with Francis would not be possible for him. Ultimately, his job at Petrie initially saw him perform his old role from Water Police together with the role of Petrie OIC.

[204]
In my view, Read was subtly discouraged from making a formal complaint because he was frequently reminded that nothing would change if he did. Read sought assistance from Emzin and Ringuet but they placed all of the onus on him to resolve an issue not of his making.

[205]
The complainant in this matter, Read, was a well-regarded Officer with the QPS with an impressive work record. There has been no suggestion at all that Read might be considered as one who would make allegations lightly.

[206]
It is my view that proven inexcusable behaviour on Francis' part has been put in the 'too hard basket'.

[207]
This decision relates to specific claims made by Read regarding Francis and what management action was taken by QPS to deal with these complaints.

[208]
It is acknowledged that the work of a QPS Officer is important, robust and dynamic and it would be unusual for somewhat colourful language not to be used on occasions and unsurprising if flare-ups by Officers occurred at times in the workplace. However, the evidence has shown and it is accepted that the language and behavior of Francis at the workplace was completely unacceptable as the words and behaviour were directed at Read. The language complained of went beyond being colourful and unsurprising to being derogatory, offensive and intimidating.

Stressor 8

[209]
I have not accepted the Regulator's view that Read was trying to hold on to the two positions he held whilst working at the Petrie Station. In fact Read had asked to be relieved from his position with the Water Police because this dual position was becoming unsustainable.

[210]
This was acknowledged by Fagg. In fact, Fagg recommended that Read be relieved of his obligations with the Water Police. While there was an acknowledgement of Read's heavy workload, nothing in fact occurred.

[211]
At the time of leaving the workplace on 3 March 2014, Read's workload had continued as previously without any changes being implemented.

[212]
The fact that McAneny became frustrated with Read's work obligations, is a situation that Read readily accepted. He believed that McAneny had every right to complain that he was not attending to his work at the Petrie Station as required because of his other duties.

[213]
This situation added to Read's overall frustration and anxiety over the nominated period of time. By March 2014, it is accepted that Read was in an untenable position and that this was having an adverse effect upon his well-being. Read's medical evidence supports that history.

Conclusion

[214]
The comments and decision in this Appeal are not an 'across the board' dissertation upon the workings of the QPS. Rather, this is a discrete case relating to some specific people within specific workplaces.

[215]
In Kudryavtseva v Simon Blackwood (Workers' Compensation Regulator)^[2], Neate C considered the authorities in so far as they related to onus, noting:

"Although the onus to be discharged is on the balance of probabilities, the Commission, in dealing with the matter, must feel an actual persuasion before the alleged facts can be found to exist. The mere possibility of an appellant suffering an injury on mere conjecture is not enough. Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. (See MacArther v WorkCover Queensland (2001) 167 QGIG 100, 1010 Hall P and cases cited.)"

[216]
The Regulator says that the reason for the delay in dealing with Read's complaints was that Emzin and Ringuet were waiting for Read to nominate which course he wished to pursue. In effect, what is submitted by the Regulator is that management were acting appropriately in the circumstances.

[217]
There were frequent comments from both Emzin and Ringuet to Read that, at best, the matter would be dealt with 'locally' and Francis might be reprimanded by way of a penalty of two units of $107 each and that Read would most likely have to continue working with Francis. This attitude was, in my view, an inducement for Read to let matters lie. While the Regulator states that Read was grateful to Emzin and Ringuet for considering his concerns, those comments were attributable to the early stages of Read's interaction with both. It became clear that, after the effluxion of time, those sentiments dissipated.

[218]
In my view, both Emzin and Ringuet were not unsympathetic to Read's concerns but they were ambivalent to assisting him to resolve the situation. On the one hand Emzin saw the complaints by Read as very serious matters and on the other, that those complaints were at the lower end of poor behaviour or misconduct on Francis' part and there would be very minor repercussions for Francis if those claims were substantiated. Similarly, Ringuet said that if Francis had asked Read to engage in non-legal criminal checks then that would constitute misconduct, but stated that unless a group of people were going to stand up and say something, the status quo would remain.

[219]
I have also accepted that in effect they both, through comments and lack of action, sought to discourage Read from following the formal complaint process. The view was that Read should determine what was going to be best for him in terms of the action he might take. This left Read in a parlous position and there was consequently no real action taken by those managers to address his issues. He was required to individually take whatever action might best see a positive outcome for him. He was clearly not in a state of health to do that, at that time. In all of this, Read had taken the right approach in advising the appropriate managers in some detail of his complaints against Francis. That those complaints went no further was, in my view, no fault of Read's.

[220]
In Davis v Blackwood^[3] 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."

[221]
It has been established on the balance of probabilities that Read's employment is the major significant contributing factor to his injury [s 32 (1)(b)] and that the management action taken was unreasonable and taken in an unreasonable way [s 32 (5)(a)].

[222]
The Appeal is upheld.

[223]
The decision of the Regulator is set aside and substituted with a new decision that the application is one for acceptance.

[224]
The Respondent is to pay the Appellant's costs of and incidental to this appeal.

Footnotes

[1]Simon Blackwood (Workers' Compensation Regulator) v Mary Adams [2015] ICQ 001

[2] Kudryavtseva v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 053.

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

Editorial Notes

Published Case Name:
Read v Workers' Compensation Regulator
Shortened Case Name:
Read v Workers' Compensation Regulator
MNC:
[2016] QIRC 17
Court:
QIRC
Judge(s):
Deputy President Swan
Date:
08 Feb 2016

Appeal Status

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

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Davis v Blackwood	[2014] ICQ 9	2 citations Jump To Cite 1 - [2014] ICQ 9 Cite 2 - [2014] ICQ 9
Kudryavtseva v Blackwood	[2015] QIRC 53	2 citations Jump To Cite 1 - [2015] QIRC 53 Cite 2 - [2015] QIRC 53
MacArthur v WorkCover Queensland	(2001) 167 QGIG 100	1 citation Jump To Cite 1 - (2001) 167 QGIG 100
Workers' Compensation Regulator v Adams	[2015] ICQ 1	2 citations Jump To Cite 1 - [2015] ICQ 1 Cite 2 - [2015] ICQ 1

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
Read v Workers' Compensation Regulator No. 2	[2016] QIRC 117	2 citations

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Read v Workers' Compensation Regulator[2016] QIRC 17