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Reid v Workers' Compensation Regulator[2016] QIRC 47

Reid v Workers' Compensation Regulator[2016] QIRC 47

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Reid v Workers' Compensation Regulator [2016] QIRC 047

PARTIES: 

Reid, Louisa Elizabeth

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2014/124

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

22 April 2016

HEARING DATES:

12 - 14 May 2015

MEMBER:

Industrial Commissioner Neate

ORDERS:

  1. The appeal is dismissed.
  2. The decision of the Respondent dated 19 March 2014 is confirmed.
  3. The Appellant is to pay the Respondent's costs of and incidental to this appeal to be agreed, or failing agreement, to be the subject of a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION – psychological injury – whether injury arose out of, or in the course of employment – whether employment was a significant contributing factor to the injury – whether injury arose out of, or in the course of, reasonable management action taken in a reasonable way – appellant bears onus of proof

CASES:

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

Avis v WorkCover Queensland (2000) 165 QGIG 788

Blackwood v Adams [2015] ICQ 001

Bowers v WorkCover Queensland (2002) 170 QGIG 1

Brothers Pty Ltd & Anor (1984) 154 CLR 552

Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031

Commonwealth of Australia v Lyon (1979) 24 ALR 300

Coombes v Q-Comp (2007) 186 QGIG 680

Davis v Blackwood [2014] ICQ 009

Delaney v Q-COMP Review Unit (2005) 178 QGIG 197

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

Graham Douglas Sergeant v Q-COMP (C/2010/52) - Decision http://www.qirc.qld.gov.au

Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027

Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473

Kavanagh v The Commonwealth (1960) 103 CLR 547

Lackey v WorkCover Queensland (2000) 165 QGIG 22

Luxton v Q-Comp (2009) 190 QGIG 4

MacArthur v WorkCover Queensland (2001) 167 QGIG 100

Mayo v Q-COMP (2004) 177 QGIG 667

Newberry v Suncorp Metway Insurance Limited [2006] 1 Qd R 519

Newman v Blackwood [2015] ICQ 014

Nilsson v Q-Comp (2008) 189 QGIG 523

Prizeman v Q-COMP (2005) 18 QGIG 481

Qantas Airways Limited v Q-COMP and Blanch (2009) 191 QGIG 115

Q-COMP v Green (2008) 189 QGIG 747

Q-COMP v Foote (2008) 189 QGIG 539

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

Q-COMP v Hohn (2008) 187 QGIG 139, 143; Q-COMP v Glen Rowe (2009) 191 QGIG 67

Q-COMP v Queensland Rail, Decision C/2011/26

Re Yu and Comcare [2010] AATA 960

Rossmueller v Q-COMP (C/2009/36) - Decision

Sheridan v Q-COMP (2009) 191 QGIG 13

State Government Insurance Commission v Stevens

State of Queensland (Queensland Health) v QCOMP and Beverley Coyne (2003) 172 QGIG 1447

Svenson v Q-COMP (2006) 181 QGIG 629

Theiss Pty Ltd v Q-COMP (C/2010/11) - Decision http://www.qirc.qld.gov.au

Versace v Braun (2005) 178 QGIG 315

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

WorkCover Queensland v Kehl (2002) 170 QGIG 93

APPEARANCES:

Ms L Reid, in person

Mr N. Jarro, counsel directly instructed by the Workers' Compensation Regulator

Decision

  1. Louisa Elizabeth Reid, previously Louisa Elizabeth Chesswas, ("the Appellant") claims to have suffered a psychological injury while employed at SCT Logistics ("SCT", "the company") on 29 August 2013.  She made a claim for compensation to WorkCover Queensland on 1 September 2013.  That claim was rejected.  On review, in a decision dated 13 March 2014 provided to the Appellant in a letter dated                   19 March 2014, the Workers' Compensation Regulator ("the Respondent") confirmed the decision of WorkCover to reject her application for compensation in accordance with s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 ("the Act").  The Appellant has appealed to the Queensland Industrial Relations Commission ("the Commission") against that decision.

Background

  1. The Appellant was employed at SCT in Brisbane between 2006 and 2 September 2013.  She commenced as the personal assistant to Kevin Turnbull, the Queensland State Manager of SCT, and worked for three days each week for a year or so.  The work involved typing, filing, organising Mr Turnbull's office, looking after his emails and preparing Excel spreadsheets. Mr Turnbull managed and supervised the Appellant.  Subsequently she worked for four days each week in that role (with Friday as her day off) and took on additional responsibilities in relation to occupational health and safety, return to work coordinator, fire safety, and audit work for RABQSA.  In about January 2013, her role changed to Workplace Health and Safety Compliance Manager. 
  1. The Appellant undertook work-related training and, in 2010, commenced studying for a graduate diploma of Workplace Health and Safety, which she completed in June 2013.  She described the safety of SCT employees as "not only my job; it was my passion." 
  1. Significantly, the Appellant gave evidence that:

"my role had no budget and no autonomy, and I was to direct report of [sic] the State Manager.  So if he didn't want me to pursue a matter, I was expected not to."  (T1:17)

She recalled an incident in January 2010 when she followed up a safety matter that two employees had raised with her, and Mr Turnbull had remonstrated with her about her interference in the matter.  She felt that her role and actions were "severely undermined." 

  1. In late 2012 the Appellant was experiencing marital difficulties and consulted a clinical psychologist, Michelle Barratt-Conrad-Czaja, for 10 or 11 consultations over a period of approximately six months, apparently into early 2013.  In January 2013, the Appellant and her husband separated.  She spoke to Mr Turnbull about that separation.  In approximately March 2013, Mr Turnbull and the Appellant entered into an intimate personal relationship which continued until October 2013. Their relationship was expressed in the workplace and elsewhere, including at their respective residences, restaurants and the beach.
  1. On 1 July 2013, Mr Turnbull wrote to the Appellant advising her that, after a review of her performance in line with that of the organisation, her hourly rate of pay would rise and she would be paid an additional 21 per cent per annum from that date (Exhibit 17). Until then, she had received annual increases consistent with the increases awarded to other SCT employees.  A few employees were given a bonus each year, but the Appellant "never got one, even though I had asked and asked and asked."  She assumed that the increase was made in recognition of her graduate diploma in Workplace Health and Safety.  Mr Turnbull gave evidence that the pay rise was proposed because the Appellant kept going to him and wanting a pay increase, and the case for it was prepared for head office.  That proposal was approved.  He said that it was not specifically as a consequence of the Appellant obtaining the diploma, nor was it based on the relationship between him and the Appellant. 
  1. Between 23 May 2013 and 29 August 2013, there were events and interactions in the workplace which, the Appellant contends, led to her suffering a psychological injury in the form of major depressive disorder.  In particular, on Thursday, 29 August 2013, the Appellant left work in tears at about 2.00pm after a meeting with Mr Turnbull.  Later that afternoon she made an appointment to see her doctor the following morning. 
  1. The Appellant saw her then general practitioner, Dr Laila Abbassy, on Friday                30 August 2013. The doctor issued a medical certificate stating that the Appellant was unfit to continue her usual occupation for the period from 30 August 2013 until Friday 6 September 2013 (Exhibit 4).  At 11.32 am on 30 August 2013, the Appellant sent Mr Turnbull an email in relation to "Leave" attached to which was a medical certificate and a leave form (Exhibit 5).  That email included the following statements:

"I will be taking Monday, Tuesday and Wednesday next week as sick leave, due to extreme stress.  I will be going to NZ as planned on Thursday.  (I will not be cancelling a trip I have planned for a considerable time, and right now getting away from the angst in the office is probably a very good move, healthwise, for me.)

I have not resigned, nor do I intend to, but the situation yesterday was so stressful for me that I do not feel able at this time to return to work.

…

I am open to mediation provided it is conducted in accordance with policy and I am accorded the right to have a representative with me.  It would have to be held either early next week or when I return from NZ.  Please let me know what next step you propose to resolve this situation.

Louisa" (emphasis in original).

  1. Mr Turnbull replied at 3.07 pm by sending the following email message to the Appellant (cc to Joe Pastore, the national HR manager at SCT):

"Louisa

There is a meeting at our offices at 9 am Monday, 3rd of September.  If you require support you can bring someone with you or we will supply that person.

Kind regards,

Kevin Turnbull" (Exhibit 5).

  1. The Appellant responded by email addressed to Mr Turnbull (cc Joe Pastore) at             10.51 am on Saturday, 31 August 2013 stating:

"Good morning Kevin

Since you have not given an indication of just what the meeting will entail, I would like Jane to attend please as she is the Diversity Officer.  I would like to come in at 8.30 to talk with her before the meeting.

Thank you

Louisa" (Exhibit 5).

  1. The Appellant gave evidence that, although she had previously been able to access the SCT website from home, she was unable to do so on that Saturday.  In her words, she had been "cut off."  However, for the purpose of deciding this appeal, the relevant period ends with the issue of a medical certificate on Friday, 30 August 2013. 
  1. On Sunday, 1 September 2013, the Appellant lodged an Application for Compensation with WorkCover Queensland (Exhibit 8).  That application stated that:
  1. the injury happened at 2.15 pm on 29 August 2013;
  1. the injury did not happen over a period of time;
  1. the nature of the injury was "Psychological system in general, Reaction to stressors - other, multiple;"
  1. the injury happened as follows: "Stress issues related to bullying.  See attached timeline of issues leading up to this situation.  I have been attempting for some considerable time to manage my issues but the bullying I was subjected has now become detrimental to my physical health;"
  1. the Appellant reported the injury to Mr Turnbull; and
  1. the Appellant had not previously suffered any similar injury or condition. 

The accompanying document (Exhibit 7) listed "Stress issues - personal and work" for the period from 12 May 2007 (when the Appellant's mother died) until                              30 August 2013 when the Appellant saw her doctor and obtained a medical certificate.

  1. As noted earlier, it is the rejection of that claim which is the subject of this appeal.
  1. On Monday, 2 September 2013, the Appellant's employment was terminated.  The Appellant maintained throughout the hearing that she is still to be advised why her employment was terminated.  She is clearly and understandably concerned about that turn of events.  Whatever the reason for her employment being terminated, there is no suggestion that the fact of the termination had any bearing on her alleged injury or her claim for compensation made before that date.  Accordingly, events after the Appellant made her claim for compensation are not relevant to, and will not be taken into account when, determining whether this appeal should succeed.

Legal framework within which the appeal is to be decided

  1. This appeal is to be determined by reference to s 32 of the Act.
  1. Definition of "injury":  On the date when the Appellant allegedly suffered her injury and the date of her WorkCover claim, relevant parts of that section stated:

"Meaning of injury

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

  …

  (3)  Injury includes the following -

   (a) a disease …;

   (b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation -

  1. a personal injury;
  1. a disease;
  1. a medical condition if the condition becomes a personal injury or disease because of the aggravation;

  …

  (4)  For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.

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

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

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

  • action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker
  • a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment."
  1. An injury which arises out of employment occurs where there is a causal connection between the employment and the injury.[1] Although the words "arising out of" do not require the direct or proximate relationship which would be necessary if the phrase used was "caused by," there must be some causal or consequential relationship between the worker's employment and the injury.[2]
  1. An injury "in the course of employment" means an injury sustained while the worker is engaged in the work that he or she is employed to do or in something which is concomitant of, or reasonably incidental to, the person's employment to do that work.[3]
  1. For employment to be "a significant contributing factor" to the injury, the employment must be important or of consequence,[4] and there should be some linkage between the employment and the injury.[5]
  1. As Keane JA (as he then was) stated in Newberry v Suncorp Metway Insurance Limited:[6]

"[27] … The requirement of s. 32 of the WCRA that the employment significantly contribute to the injury is apt to require that the exigencies of the employment must contribute in some significant way to the occurrence of the injury which the claimant asserts was caused by the breach of duty of the person (not the employer) against whom the claim is made.

  …

  [41] That having been said, however, I should also observe in passing that the fact that an injury has been suffered arising out of employment, or in the course of employment, is not sufficient to establish that the employment has been "a significant contributing factor to the injury." To read s 32 of the WCRA in that way would be to read the latter words out of the section, and in my respectful opinion to accord scant respect to the evident intention of the legislature to require a more substantial connection between employment and injury than is required by the phrases "arising out of employment" or "in the course of employment"."

  1. Onus and standard of proof: The Appellant bears the onus of proof to establish her entitlement to compensation.  The standard of proof is on the balance of probabilities.[7]
  1. While 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.[8]
  1. While there is room for intuitive reasoning when determining whether a worker has suffered an injury within the meaning of the Act, in the process of determining that question of fact, the Commission cannot substitute speculation for satisfaction on the balance of probabilities.[9]
  1. Further, in a case where expert medical evidence is led, before any such expert medical evidence can be of value, the facts upon which it is founded must be proved by admissible evidence.[10]
  1. The hearing of the appeal from the Respondent's decision was conducted as a hearing de novo.  In other words, the Commission does not review the reasons for the Respondent's decision but decides the matter afresh on the evidence before it.[11]
  1. Matters in issue:  The Respondent concedes that, at the time of the alleged injury, the Appellant was a "worker" for the purposes of the Act and that she sustained a personal injury. Specifically, the Respondent submits that the evidence overwhelmingly supports a finding that the Appellant has suffered an injury which is properly characterised as an aggravation of a major depressive disorder.  The medical evidence is considered later in these reasons.
  1. The Respondent did not concede any other of the elements in the definition of "injury" in s 32(1), and also submitted that s 32(5) of the Act applied to exclude any entitlement to compensation.
  1. Consequently, for her appeal to succeed, the Appellant must satisfy the Commission, on the balance of probabilities, that:
  1. her injury arose out of, or in the course of, her employment;
  1. her employment was a significant contributing factor to the injury;
  1. her injury is not removed from the definition of "injury" because of s 32(5) of the Act.
  1. As the Respondent submits, the resolution of this appeal involves determination of the following issues:
  1. As a matter of fact, what actually occurred in the course of the Appellant's employment in relation to the events she alleges caused her injury (i.e., the seven claimed stressors contained within the Statement of Stressors)?
  1. On the basis of what is found to have occurred, has the Appellant proven that she sustained an "injury" to which employment was a significant contributing factor?
  1. If the answer to (b) is in the affirmative, was the behaviour which is found to have occurred within the exclusion in s 32(5) of the Act, or has the Appellant demonstrated that the injury is not removed from the definition of injury by virtue of s 32(5)?

Stressors

  1. In accordance with the Further Directions Order of Vice President Linnane dated             20 November 2014, the Appellant provided a Statement of Stressors dated 2 December 2014.  That document was replaced subsequently by an amended Statement of Stressors dated 26 February 2015 (Exhibit 9).  That document outlines seven "work events that caused my psychiatric/psychological injury" on dates between                            23 May 2013 and 29 August 2013.
  1. As Justice Martin, the President of the Commission, has stated in recent decisions:
  1. the process of filing and serving a list of stressors is used to identify those events or matters which an Appellant says caused the psychiatric or psychological injury;[12]
  1. the list of stressors must be confined to matters that are relevant to the injury - it is not to be a list of grievances;[13]
  1. the list of stressors is not, by itself, evidence;[14]
  1. mere provision of such a list does no more than alert the Respondent of the case to be advanced by the Appellant;[15]
  1. however the Respondent is entitled to engage in the proceedings on the basis that the statement of stressors comprises the matters which constituted the entirety of an appellant's claim;[16] and
  1. the Commission must decide the appeal by reference to the list of stressors and may not go beyond them when making findings.[17]

Consequently, the hearing of this appeal focused primarily on the events described in Exhibit 9.

Overview of evidence

  1. In broad terms, the evidence in relation to the stressors shows that the Appellant's concerns, and the communications and altercations that resulted from them, related to aspects of the proposed provision of training to SCT employees in Brisbane. 
  1. The company provides training for its employees.  That training is tailored to the work undertaken by particular employees or categories of employees.  Different types of training were categorised as Certificate III and Certificate IV training.  Before 2013, the State manager had a budget for training and arranged appropriate training for the local employees.  The Appellant organised or coordinated the delivery of training. 
  1. Apparently some years earlier, training had been delivered to SCT employees in Brisbane by Danny Smith, who was then a consultant engaged for that purpose.             Mr Turnbull and the Appellant had concerns about the quality of that training.  They apparently decided that, so far as they were concerned, Mr Smith would not be engaged again to provide training. 
  1. A directive to deliver Certificate IV training came from head office in Melbourne in May 2013.  That training was to be done by Mr Smith who, by that stage, was employed by SCT.  Mr Turnbull and the Appellant were unaware of his employment by the company.
  1. The Appellant's concerns commenced with the company's proposal that Mr Smith provide that training, and continued in relation to how her concerns (as communicated to Mr Turnbull) were handled or followed up, and other issues about contracts in relation to training which were signed by the Appellant.
  1. The Appellant gave oral evidence in relation to each stressor.  That evidence was supplemented by relevant documents.  Medical opinion evidence in relation to her psychological state immediately before the events referred to in the Statement of Stressors was given by Michelle Barratt-Conrad-Czaja, a psychologist.  Medical opinion evidence in relation to the Appellant's injury was given by Dr Wasim Shaikh, a consultant psychiatrist.
  1. The Respondent relied on oral evidence given by three men who were employed by SCT in 2013: Christopher Curran (the National Manager, Accreditation Compliance Safety and Security for SCT), Mr Turnbull and Nick Scholtes (the SCT Operation Manager), and on some documentary evidence.  The Respondent did not produce any medical evidence.
  1. The evidence in relation to each stressor is considered below.  Later in these reasons I consider whether certain actions or events about which the Appellant complains can be described as involving reasonable management action taken in a reasonable way.

Stressor 1

  1. Stressor: 23 May 2013: It was unreasonable of Mr Turnbull to yell at me in a meeting in his office where we were discussing my concerns about Mr Smith.
  1. Evidence:  To understand this stressor it is necessary to appreciate the events that preceded, and the reasons for, the meeting on 23 May 2013.
  1. Mr Turnbull gave evidence that, approximately two months earlier, the Brisbane office of SCT had prepared a list of people who were to do basic Certificate III training.  The target was to keep as much of the workforce as they could to at least Certificate III level, with any other training in relation to high injury rate types of issues (such as forklift training, heavy lifting, and getting in and out of trucks) they could get along the way.  Much of the Certificate III and other training had previously been delivered by the Appellant's former husband.  However, the HR department of the SCT head office in Melbourne had directed that training in Certificate IV competencies was to be done.  Certificate IV training was middle management training. MEGT (Australia) Ltd ("MEGT"), based in Melbourne, would be coming to sign people up.  No one from the Brisbane office could have conducted that training.  The decision had been made that Certificate IV training would be done nationally. 
  1. On Thursday, 23 May 2013, Melanie Watkins from SCT's head office sent an email which advised that training had been arranged involving Mr Smith.  The Appellant received the email.  She was the organiser of training in Brisbane and was concerned about the involvement of Mr Smith who, she said, "had proven to be a faulty contractor … around four years prior to that," and who they had said they would not use again to provide training. 
  1. Before Mr Turnbull had seen the email, and without his knowledge or authorisation, the Appellant sent the following email at 8.16 am on 23 May 2013 addressed to          Ms Watkins:

"Melanie

I am absolutely gobsmacked to see Danny Smith's name associated with this training!  Are you not aware of the huge problems we had with this man and Flexible some 4 years ago?  If not, perhaps you had better pull the old correspondence – or I can send it to you.  A change of company name doesn't make him any better.  SCT Brisbane will not work with him under any circumstances!

How did you come up with the list of names of people to do this training?  Angelo, Ben and I - at the least - have higher qualifications and would not be eligible for funding.  Barry Rhodes is Melbourne.  Why are yard staff such as Leslie Arnold on the list if this is supposed to be supervisor training?

Please arrange a time to have a phone discussion with Kevin and I on this matter.

Kind Regards,

Louisa Chesswas / Queensland Compliance Adviser." (Exhibit 10)

  1. At 8.16 am, the Appellant forwarded the email to Mr Turnbull with the message, "We need to talk about this asap."   The Appellant gave evidence that she sent the message to Mr Turnbull "because I didn't believe that it was - for me, it was - part of my job, so I would CC anything that I had written about my job to my manager."  She did not agree that the comments in her email were unnecessary or out of line.
  1. According to Mr Turnbull, he and the Appellant had not previously discussed the proposed Certificate IV training or what it was about, but the letter and the Appellant's response "had certainly brought it to the top of the pile."  The Appellant also gave evidence that she had "absolutely no information at that stage what this training was about."
  1. Mr Turnbull was at a cafe near the SCT premises when he was contacted by telephone by someone from head office (apparently Ms Watkins) asking what the Appellant was "going on about."  He then rang the Appellant.  He was concerned about why she needed to send a letter to head office without discussing it with him, particularly as he was 55 metres down the road and the matter could have waited five minutes.  He said he would not define how he spoke to the Appellant as "yelling." 
  1. The Appellant recalled receiving a telephone call from Mr Turnbull at the café.  She told him that the email said that Mr Smith was going to come to Brisbane to work for them doing training, and that they had had a "Brisbane disruption against" Mr Smith four years earlier and "we got rid of him."  So far as the Appellant was aware, the Melbourne head office was taking Mr Smith on without "our agreement."  She agreed that Mr Turnbull told her that it was part of her job and the expectation of head office of SCT. The Appellant said that he "yelled" at her.  She told him that he could not talk to her like that because everybody at the café would hear what he was saying,  and          Mr Turnbull and the Appellant were known there.  He stated that he was outside the café and had not mentioned the Appellant's name. 
  1. Mr Turnbull said that they discussed the matter when he got to work.  He was critical of the Appellant's email response on the basis that it was "not the way we'd ever done things before" and was "not the way the system works and … not the way it'd ever worked and it should work."  The reply to the email "should have come through the correct formal management."  Indeed, if the "normal mode of operation" had been followed, they would have discussed the matter and he would have asked some questions.  The email that the Appellant sent made the situation "difficult to deal with" in a way that was "unnecessary."  He recalled that he "wasn't particularly happy" that a message had gone to head office in Melbourne with a "refusal to work."  He told the Appellant "that's not optional" if head office want to do it.
  1. Mr Turnbull described the context of the conversation as follows:

"[It's] somewhat difficult when - you know, if some employee refuses - they're going to refuse to work with Danny and, you know, it's a directive of the owners of the company and they don't want to listen to you - they don't want to listen but that's a fact of life.  If the … owners and executives make that decision, you can only ask questions.  You can't fight the fight."  (T2:33)

 He continued that, in his discussion with the Appellant:

"… my point was give me a chance.  I'll find out what it's all about, and which I did over a few days because the names didn't match.  MEGT are coming to sign up.  Why is Danny Smith doing it, is this a directive for everybody in Australia?  Yes, yes, yes.  I even checked with one other state manager who I'm probably more aligned to to make sure that, you know, he was under the same instruction.  He'd actually started that training and, yeah, thought it was - it was okay."  (T2:33)

  1. Mr Turnbull described his conversation with the Appellant as getting "heated."  He said that "I probably had my voice raised," as "sometimes with Louisa, it has to be that because it's coming back at you twice as fast just as loud."  He described the Appellant as "animated, loud and equally strong in character." 
  1. The Appellant said that when Mr Turnbull returned to the office "he just kept yelling at me."  She agreed that Mr Turnbull told her that her behaviour was unacceptable and would not be tolerated.  She answered to him yelling at her, and seemed to accept that she raised her voice.
  1. The Appellant left the office about 11.10am.  According to Mr Turnbull, the Appellant "stormed out" of the meeting.  The Appellant said that she had to leave, as she could not stay in her office "and just listen to him yelling at me. I could not put up with that."    She did not return to the office that day. 
  1. On Friday, 24 May 2013, the Appellant and Mr Turnbull discussed the matter further.  It appears that voices were raised during that conversation.  According to the Appellant, Mr Turnbull yelled at her again, so she went home again. 
  1. On Sunday, 26 May 2013, the Appellant lodged a statement on an online depression site suggesting that she might have experienced sexual harassment at work.  The statement outlines her history of seeing counsellors and a psychologist for a number of issues, the breakdown of her marriage, and her personal and work relationships with Mr Turnbull.  The only passage in that document that refers to the circumstances of stressor 1 states:

"I get angry and teary at work, and the crunch came last week when I made a bad judgment call on a business related matter.  My manager rang me on his mobile and yelled at me over the phone.  I later found out that he had been at the local takeaways which services our workplace, and where we are both very well-known.  The next day he called me into his office, slammed the door and yelled at me again.  I did not know how to respond.  When he eventually calmed down he made some comment along the lines of how I was a "beautiful person" and I guessed he was only protecting his sexual position, so I left his office.

I don't know if I can work there any more.  I had previously been seriously contemplating lodging a Work Cover claim for psychological stress and this is just another issue to add to the many, but I am the branch Return to Work Coordinator so my position makes it very difficult to do that."  (Exhibit 1)

  1. Apart from lodging that online statement, the Appellant did not complain to anyone else (e.g. head office) about Mr Turnbull's alleged actions.  She explained that she could not have told anybody about Mr Turnbull because he was a manager.  That was despite being the workplace health and safety compliance officer.
  1. The Respondent submits that if the Appellant felt so aggrieved by Mr Turnbull's actions then she would have reduced her complaint to writing.  Instead she vacated the building and did not return until the following day.  Further, the Respondent submits that there is no credible evidence to support the Appellant's allegation. 
  1. Findings: On the basis of the evidence outlined above, I find in relation to Stressor 1 that:
  1. on 23 May 2013:
  1. without the knowledge or authorisation of Mr Turnbull as state manager;
  2. in circumstances where Mr Turnbull and the Appellant had not discussed details about the proposed training; and
  3. when a response to the email from head office was not urgent,

the Appellant sent an email to head office stating that SCT Brisbane "would not work with" the trainer nominated by head office "under any circumstances;"

  1. Mr Turnbull became aware of the email when he was contacted by telephone from head office asking what the Appellant was "going on about;"
  1. Mr Turnbull spoke to the Appellant about the matter by telephone and then face-to-face in his office;
  1. in the course of those conversations, Mr Turnbull:
  1. criticised and expressed concern about the Appellant's action;
  2. told her that her behaviour was unacceptable and could not be tolerated;
  3. told her that it was part of her job and the expectation of head office that the proposed training proceed;
  4. told her that that he would make further enquiries in relation to the training;
  1. the conversation in Mr Turnbull's office became heated, and he raised his voice and the Appellant was also animated and spoke loudly;
  1. the Appellant abruptly left the meeting and the workplace for the day.
  1. The issue whether Mr Turnbull's actions constituted reasonable management action taken in a reasonable way is considered later in these reasons.

 Stressor 2

  1. Stressor: July-August 2013: By reason of Mr Turnbull's ongoing active pursuit of an intimate relationship with me in the period from March to October 2013, when I was emotionally vulnerable because of my marital break down and extreme personal illness, and when he knew of these matters and that I was so emotionally vulnerable, it was unreasonable for him to continue to manage me at work, to give me directions at work, to make decisions about my performance of my work, my conduct at work and my attitude to work and to take steps to involve himself in the decision to terminate my employment, which was ultimately effected on 2 September 2013.
  1. Evidence:  In order to deal with this stressor it is not necessary to go into detail about the nature of the personal relationship between the Appellant and Mr Turnbull or the ways in which that relationship was expressed, both in private and in the workplace.  As noted earlier, that relationship commenced in March 2013 and continued until October that year, a few weeks after the Appellant's employment was terminated.  The Appellant confirmed in cross-examination that she was a consenting party to the intimate relationship from some time in March 2013.  It is important to reiterate that her application for compensation was made some days before the Appellant's employment was terminated.  At the time the application was completed, the Appellant had no indication that her employment would not continue.  Consequently, the fact of the termination has no relevance to any of the issues to be decided in this appeal.
  1. Although there was evidence that the personal relationship had its ups and downs, the Appellant said that Mr Turnbull treated her "fine" from March until May 2013 (when there was the altercation described as Stressor 1), then "he'd take me back again and then he'd blow me up again."    Later in the hearing, the Appellant said that she had a "very, very good relationship" with Mr Turnbull until 29 August 2013.  It seems that during this period they would walk along the beach together, go out to dinner or breakfast, and stay at each other's place. 
  1. The Appellant gave evidence in relation to aspects of their relationship.  She described her online statement to the depression site (Exhibit 1) as "personal" and "nothing that's a stressor to me." She thought that, after May, they had sorted out the verbal argument in relation to the training and she "thought that that was okay."  Things "got good again" in June.  July was "fine … didn't take me down at all."
  1. She recalled that in early July 2013, soon after receiving the letter about the 21 per cent increase in her hourly pay rate, she had a CT scan which identified an aneurysm.  She drove back to work with those results and advised Mr Turnbull.  Within the next few days, Mr Turnbull called a meeting in the office and told other employees of the Appellant's aneurysm and that they were to look after her at work.  He put Mr Scholtes in charge of looking after her if she was out in the yard, and Mr Scholtes "had to be very, very good to me."  Mr Scholtes was not, however, the Appellant's supervisor.  For her part, Mr Turnbull told the Appellant she was to look after Mr Scholtes who was experiencing some other problems.  From her perspective, that made her condition part of her work.  She stated, "you can't tell everybody at work that somebody's got something wrong with them and they have to look after you."  The Appellant did not ask Mr Turnbull to tell her co-workers to look after her, but she did not criticise him for doing so. 
  1. The Appellant continued to go to work on a regular basis, and was not away on sick leave.  She recalled that, on 6 August 2013, Mr Turnbull took her to the hospital and waited while she had a second CT scan, and then brought her back to work.                       Mr Turnbull confirmed that he had done so. On 23 August 2013, the Appellent went to the hospital to have an angiogram in relation to her aneurysm.  Mr Turnbull collected her from her home and took her to the hospital by about 7.30am, gave her a kiss and said that she should be okay.  In her opinion, he had "calmed down" after yelling at her in May.  She said that Mr Turnbull was "fine" with her the week before Mr Curran came. In her oral submissions, the Appellant said that by Monday                 26 August 2013 "we were having a really good relationship."
  1. By contrast with that evidence, the Appellant also said that she was particularly concerned about the period of July and August 2013.  In cross-examination, when asked what was unreasonable about Mr Turnbull managing her at work, the Appellant replied:
  1. "Yelling at me, swearing at me. …  He would yell at me pretty much every week.  He would swear every single day;" 
  1. Mr Turnbull would take days off work, and she had to explain where he was;
  1. "It's actually illegal for him to manage me when he was in a relationship with me," "It's against the law;"
  1. Mr Turnbull gave her unreasonable directions to sign contracts (which directions are dealt with in relation to stressor 3 below);
  1. she could not think of any other examples relevant to this stressor.
  1. The Appellant confirmed that she did not complain to anyone at head office in Melbourne about Mr Turnbull's behaviour. 
  1. In respect of (c) above, the Appellant did not, and apparently could not, refer the Commission to any published SCT policy about relationships between its employees, including whether such relationships should be noted on a personnel file. Nor did she refer to any legal constraint.  Given her qualifications in Workplace Health and Safety, and her role as the Workplace Health and Safety Compliance Manager, it is somewhat surprising that, if such policies existed, she would not have known about them.
  1. It would seem from Mr Turnbull's evidence that he was generally happy with the Appellant's work for the seven years. 
  1. Mr Turnbull confirmed that he was aware of the breakdown of the Appellant's marriage and of her illness.  He said that she was given a lot of help to deal with some of the problems she was having, but there were times when she was fine.  He agreed that he drove her to appointments but that was because "she needed to get there and be … looked after," not for any other "benefit."  He also agreed that he and the Appellant had an intimate relationship in the period around March to October 2013. It appears that he had not thought that it was unreasonable for him to manage the Appellant's work or give directions to her or make decisions about her work performance during the period in which they had that relationship.  In cross-examination he stated:

"I didn't, at the time think it was unreasonable.  In hindsight it may have been, but at the time I didn't view it like that at all."

  1. Mr Turnbull gave evidence that the Appellant was given "lots of help" because she needed it.  He referred to the Appellant's "antics" and that "she would not let the training issue and the Dan Smith issue alone."  Mr Turnbull described Mr Smith as like "a red rag to a bull" for the Appellant.  However, Mr Smith's status had changed from being a contract trainer to working for SCT.  The Appellant was also concerned about changes to the lists of employees to receive training (see Exhibit 10).  He was concerned about the way the Appellant addressed the issue.
  1. Mr Turnbull explained that, after the Appellant's aneurysm was discovered, he spoke to some staff out of "genuine concern" and "with care" for the Appellant.  He may have talked to a couple of staff to "keep an eye on" her and make sure that she was "all right." 
  1. The Respondent submits that the Appellant adduced no specifics for this claimed stressor apart from Stressors 3 and 7 (dealt with separately).  Due to the absence of particulars, and in the context of a consensual relationship, this stressor ought not to be held to be within the ambit of management action.  Further, the Appellant did not propound any alleged breach of policies concerning harassment (sexual or otherwise) within the workplace that suggested a breach of any employer policy as the basis of arguing the unreasonable actions of management.  Presumably in her role as the Workplace Health and Safety officer the Appellant should have articulated any such breach.  She has not done so on the evidence and on the basis of the claimed stressors.
  1. Findings: On the basis of the evidence outlined above, I find in relation to Stressor 2 that:
  1. the Appellant worked as Mr Turnbull's personal assistant from 2006 and exercised a range of other roles and responsibilities for SCT in Brisbane, becoming Workplace Health and Safety Compliance Manager in about January 2013;
  1. Mr Turnbull was generally happy with her work over the period of seven years;
  1. the intimate personal relationship between Mr Turnbull and the Appellant:
  1. preceded and continued beyond the period in which the stressors occurred;
  2. was consensual;
  3. had its ups and downs, but was generally fine until 29 August 2013;
  1. in early July 2013, the Appellant was diagnosed with an aneurysm;
  1. Mr Turnbull was aware of the Appellant's physical condition and of the breakdown of her marriage;
  1. Mr Turnbull advised other employees of the Appellant's physical condition and told them to look after her at work, and he transported her to hospital for tests in relation to that condition on 6 and 23 August 2013;
  1. the termination of the Appellant's employment by SCT occurred after she made her claim for compensation, and has no relevance to any of the issues to be decided in this appeal.
  1. I do not find that it was illegal for Mr Turnbull to manage the Appellant while he was in a personal relationship with her.  In the absence of any evidence of a published SCT policy about relationships between its employees, I do not find that by continuing to manage the Appellant at work, Mr Turnbull was acting in breach of company policy.
  1. The issue whether Mr Turnbull's actions constituted reasonable management action taken in a reasonable way is considered later in these reasons.

 Stressor 3

  1. Stressor: 11/12 August 2013: It was unreasonable of Mr Turnbull to require me to sign undated training contracts for Brisbane based trainees.
  1. Evidence:  This issue had its origin almost three months earlier in an exchange of emails between Kris Wycherley (the National Accounts Coordinator of MEGT) and Ms Watkins and the Appellant in relation to Trainee Sign Ups in Queensland (Exhibit 10).  In the first email (on Wednesday, 22 May 2013) to Ms Watkins and the Appellant, Ms Wycherley wrote that Ms Watkins provided  the Appellant's name "so that we can organise a suitable date and time to do the traineeship sign ups."  The email continued:

"As you were not aware this was happening, I have attached a spreadsheet with the trainees' names to be signed up, including yourself.

Melanie said you would be able to sign the Training Contracts on behalf of your company.  However, I have just noticed Louisa's name on the list, so she will not be able to sign the Training Contracts on behalf of the company.  Is there another manager, who is not being signed up into a traineeship, who can act as the company signatory on the day?"

Ms Watkins replied soon afterwards:

 "Yes and Kevin Turnbull can sign."

In an email sent at 8.02 am on 23 May 2013, Ms Wycherley asked "Can you give me Kevin Turnbulls contact details please."

  1. According to the Appellant, on 11 and 12 August 2013, MEGT brought her the contracts for signature.  She signed them on those dates but, at the request of MEGT, she did not date them.  She did not see the signed contracts again.  The Appellant thought that Mr Turnbull was not in the office on 11 August 2013 but was there the next day. 
  1. The Appellant said she was one of the few people in that part of the company who was not going to do the training.  It was not clear why, or in what capacity, she was to sign the contracts.  Her evidence was that:
  1. Mr Turnbull could have signed the documents (even though he had nothing to do with the training), but he required her to do so;
  1. as far as the Appellant knew no employee in Brisbane should have signed the documents;
  1. she initially refused to sign them, and believed that she would not have been eligible;
  1. she had concerns about whether "what they were doing was legal" and wanted Mr Turnbull to tell her that it was okay but "he never did;"
  1. Mr Turnbull told her to sign the contracts and that if she did she would get out of that "net," or that the matter would be out of her way, and she would not have to have anything to do with it. 
  1. In her oral submissions the Appellant stated that Mr Turnbull did not tell her to sign the contract, he asked her to sign them.  According to the Appellant, each person who receives training is meant to fill in their name, address, what they are doing, the name of their employer, and how long they have been employed there.  The Appellant inferred, by reference to the start date recorded on a list of people attending the training attached to the Leadership Development Program (Exhibit 12), that the contracts were back dated to 1 August 2013.  She had not seen the contracts that she signed with that date on them.
  1. In an email to Mr Turnbull on Monday 26 August 2013 (considered below in relation to Stressor 4), the Appellant wrote:

"Although I had to sign off the traineeship applications, I said to you previously that I don't feel comfortable signing anything to do with this training as the Queensland contact and I reiterate that concern."  (Exhibits 3, 13)

  1. Mr Turnbull's evidence in chief in relation to this issue was imprecise.  As I understand it, he said in essence that:
  1. in previous years, all the training was organised by people in each state and, as State Manager supported by the Appellant, he could apply for various forms of training and had a yearly budget to spend on training;
  1. this was the first directive from head office that they would have training in this format;
  1. when the MEGT person arrived there was some discussion about it;
  1. Mr Turnbull would not normally read the detail, and would not go through the documents line by line;
  1. he understood the process would be handled by the Appellant;
  1. he understood that the Appellant and he could sign the documents, although he did not know why someone from the Brisbane office would have been required to sign them or in what capacity either of them would sign the contracts; 
  1. he did not recall ever signing a training contract, and the Appellant did not ask him to sign the contracts;
  1. the Appellant had expressed concerns to him about signing the documents (e.g., whether the training was legal) and he asked Mr Pastore the questions;
  1. he did not give a directive to the Appellant to sign the contracts;
  1. the Appellant asked some questions of MEGT and then decided to sign them;
  1. he did not know that the documents did not have a date on them. 
  1. The following exchange occurred when the Appellant cross-examined Mr Turnbull:

"Why did you choose to - for me to sign the contracts when I thought they were incorrect or illegal? --- Honestly, I don't know that I did because when you were asking the questions, then suddenly you were signing them.  And, you know, I don't recall any insistence on signing and, you know, wasn't directly involved in that part of it.  But, yes, they got signed; yes, you signed them; and I don't recall any pressure involved in you signing.  Yep, you had all the questions, and I understand and I appreciate those, and I genuinely believe that every time you raised issues about the legality or anything else that I went through the process of talking to - to Joe - to get, you know, the head office or the owner's understanding of the executive, rather than the owner's decision on what they're doing.  I mean, I've never ignored anything that was raised.  I've always taken it to another level, as I've always done.  So as for the signing - yet, I shouldn't be signing these because I don't think they're right.  Well, don't sign them - blah, blah, blah - and I'll follow through.  But then all of a sudden you're signing.  I ---

I signed them because you asked me to.  Were these contracts previously dated by MEGT; if so, what date? --- I haven't even looked at them."  (T2:74)

  1. The Respondent submits, in summary, that the evidence does not demonstrate unreasonableness on the part of management and, in the circumstances, management action was reasonable and taken in a reasonable way. 
  1. Findings: The Commission was not given a copy of a contract of the type referred to, or evidence about such contracts.  It is not possible to determine the consequences of signing such a contract or the significance of the date that was included on a contract.  However, the stressor is not about the content or legal effect of the contracts. 
  1. On the basis of the evidence outlined above, I find in relation to Stressor 3 that:
  1. the Appellant's role at SCT included organising or coordinating the delivery of training in the Brisbane office of SCT;
  1. although Mr Turnbull as State Manager had previously been able to apply for training for employees in his state, he had no role in relation to the proposed training organised by head office;
  1. the training organisers:
  1. required a person from the SCT Brisbane office to sign the relevant training contracts for Brisbane-based trainees; and
  2. were content for Mr Turnbull or the Appellant to sign the contracts;
  1. Mr Turnbull did not become familiar with the detail of the documents and, having been assisted in the past by the Appellant in relation to training matters, understood or assumed that she would handle the process;
  1. the Appellant was one of the few people in that part of SCT who was not doing the training;
  1. the Appellant did not feel comfortable signing the contracts;
  1. although Mr Turnbull did not insist on the Appellant signing the contracts and did not expressly direct her to do so, the Appellant reasonably considered that he expected her to sign them;
  1. on or about 11 and 12 August 2013, the Appellant signed but, at the request of any MEGT, did not date the contracts. 
  1. The issue whether Mr Turnbull's actions constituted reasonable management action taken in a reasonable way is considered later in these reasons.

 Stressor 4

  1. Stressor: Sometime between 26 August and 29 August 2013: By reason of                Mr Turnbull's active pursuit of an intimate relationship with me in the period from March to October 2013, when I was emotionally vulnerable because of my marital break down and extreme personal illness, and when he knew of these matters and that I was so emotionally vulnerable, it was:

– Unreasonable of him, given the history of my concerns about the training, to communicate my concerns about the Leadership Works training to             Mr Curran as he did;

– Unreasonable of him not to tell me that he had sent Mr Curran the questions about the Leadership Works training, in a manner that                  Mr Curran could determine they came from someone other than him;

– Unreasonable of him not to tell me he had done this when he knew I was meeting with Mr Curran on 29 August 2013.

  1. Evidence:  To understand this stressor it is necessary to know the context of the interview between Mr Curran and the Appellant, and the emails that preceded it.
  1. The Appellant gave evidence that she did not know until Monday, 26 August 2013 that Mr Smith was still to be included in the training of Brisbane employees.  She wrote an email that day to Mr Turnbull to confirm what was happening with the training.  The Appellant wrote:

"I know you have said you don't want to fight this fight, but could you please humour me for a few minutes and just read what I have to say.  If you still don't want to fight it, I'll shut up.

The "leadership" training, as you know, is, in fact, Cert IV Competitive Systems and Practices.  Because it is a nationally recognised qualification, and MEGT are the AAC (Australian Apprenticeship Centre) in this instance, the training comes under ASQA, the Australian Skills Quality Authority."

The Appellant then made a series of observations about the extent of the training and suggested that there was "no possible way that this course can be delivered and participants found competent over only three days when the course itself is intended to take between 6-12 months."  She observed that the name of the Registered Training Organisation and contact details for the author did not appear on the resource, and there was no training plan included in the packs.  The Appellant made other critical observations, including that SCT head office "must realise that this training is not complying with the [legislative and regulatory] requirements."

  1. In the passage quoted earlier, the Appellant concluded:

"ASQA[18] require verification from a site source that the training has taken place.  That seems to be me, as you will be away when the training happens, Nick is on the course, and training is in my job description.  Although I had to sign off the traineeship applications, I said to you previously that I don't feel comfortable signing anything to do with this training as the Queensland contact and I reiterate that concern.  If my name is going to be on any other documents, I need to be assured that everything is 100% above board and I am not leaving myself open for future problems with ASQA when it is found that this training does not comply with the legislation and regulations.  Is someone in SCT able to give me that assurance?"  (Exhibits 3, 13)

  1. Mr Turnbull's reply was brief: "Please list the question u would like me to ask and who I should ask.  we will discuss am Tuesday."
  1. The Appellant prepared six questions and sent them to Mr Turnbull at 8.41 am on Tuesday, 27 August 2013 (Exhibit 13).  The Appellant wrote: "These are the questions I would like you to ask.  I can explain the terms to you so you can re-word them in your own language.  It depends on who you intend to ask."  The Appellant referred to three possible people: Joe (Pastore) and Melanie (Watkins) at SCT head office, and Ms Wycherley, who was the principal MEGT contact.  In her oral submissions, the Appellant said that Mr Turnbull did not tell her that he had spoken to Mr Pastore about this matter, and she was unaware of any communication between them. 
  1. Mr Turnbull sent five questions (the first four of them from the Appellant's list and one other) to Mr Curran at 3.52 pm on Wednesday, 28 August 2013 (Exhibit 2).  The format of the email from Mr Turnbull was unusual.  The subject was "FW: Training".  There was no message.  The five numbered questions were listed below (rather than above) Mr Turnbull's signature block.  According to the Appellant, anybody that received the email would have realised that Mr Turnbull had sent the questions on from someone else.  However, it was not possible to determine from that email who had prepared the questions.  In particular, there was no reference to the Appellant. 
  1. As far as the Appellant was aware, Mr Curran had nothing to do with training and so did not need to answer any of the questions.  In her view, Mr Turnbull should have sent questions to head office. 
  1. As noted earlier, the Appellant had her CT scan on 6 August 2013 and her angiogram on 23 August 2013.  By the week of 26 August 2013, her aneurism was "taking over a lot of [her] concentration" and she had a "lot of thoughts in [her] mind."
  1. The limited scope of the Appellant's concern about management action was illustrated by her responses to questions from the Commission in the course of her final submissions.  In summary:
  1. the Appellant agreed that she raised an issue about training with Mr Turnbull who asked her to provide some questions, which she did;
  1. if he had sent the questions to Mr Pastore and identified her as the author of them "That would've been fine;"
  1. the problem from her perspective was that Mr Turnbull sent the questions to            Mr Curran "who had nothing to do with training," i.e. what was unreasonable was sending them to a person who was not the appropriate recipient.
  1. In cross-examination, the Appellant said that Mr Turnbull should have communicated her concerns to "Anybody who was involved with the training.  Chris Curran was an auditor.  He was also the national compliance manager.  As far as I was aware, he had nothing to do with the training."  At that stage, she was unaware that Mr Curran had completed the leadership training and hence knew about it. It is apparent from her questioning of Mr Turnbull that the Appellant was concerned that his email to             Mr Curran led to Mr Curran asking her questions about the training matter, including some specific details not mentioned in the list of questions.  In one question to Mr Turnbull, she indicated that that aspect of the interview in the boardroom on 29 August 2013 "absolutely changed my life."  That issue is considered in relation to Stressor 5.
  1. Mr Turnbull gave evidence that he and the Appellant had communicated about training issues, including the directive that the trainer was to be Mr Smith.  She had raised concerns, and he had asked questions of Mr Pastore.  Having raised issues and asked questions of HR two or three times, Mr Turnbull had been told this was a directive from head office.  Everybody was going to do the training.  It was going to happen.  Mr Turnbull formed the view that there was "no fight to fight.  It's a head office directive.  We are doing it."  He then received the email from the Appellant on 26 August 2013.  At that stage, he thought he had "already exhausted all the avenues of asking questions about it."  However, he asked the Appellant to provide a list of questions, and she did.  He sent those questions with some variations to Mr Curran.  Mr Turnbull said that the last question on the Appellant's list[19] was not something           Mr Curran would be directly involved with.  It was a matter that would come from     Mr Pastore, but Mr Turnbull had already visited that subject and did not think it needed Mr Curran's input or opinion.
  1. Mr Turnbull also gave evidence that on 28 August 2013 the Appellant gave responses which were "completely out of character" in relation to having not done things in relation to the audit.  He had a quiet conversation with her to the effect that he did not know what was going on, but the subject of the training had been dealt with.  If she had not done her audits and other things, she needed to get them up to date because it was ultimately unacceptable for her not to have done so.  In his "management opinion," the Appellant was "just itching for a fight" about training at the time when Mr Curran was in town.
  1. Mr Turnbull explained that:
  1. he did not send the questions to Mr Pastore or someone else from Melbourne because he had already asked questions about such matters as the involvement of Mr Smith and what that was going to achieve, and had checked whether other people were doing the training and where they were up to.  Having exhausted his enquiries with them, he formed the view he was "going nowhere;"
  1. Mr Curran was in his office on 28 August 2013 and they were discussing these issues, along with other matters.  Mr Turnbull mentioned that the Appellant had certain concerns (" a heap of questions") and he asked Mr Curran to help him understand them. Mr Curran asked him to send the questions and suggested they could have a talk about them.  Mr Curran told Mr Turnbull that he had been in the training modules and that it was very good.  Later that day, Mr Turnbull sent the questions to Mr Curran. He did so because Mr Curran "is a good ear, he gives a good opinion and he knows his stuff," and Mr Turnbull thought that he "could help in clarifying some things for us." Given that           Mr Curran had done the leadership training, Mr Turnbull thought "he might be able to help me." 
  1. In response to the specific concerns identified in relation to this stressor, Mr Turnbull said that:
  1. in his opinion, it was not unreasonable of him to communicate the Appellant's concerns about the leadership works training to Mr Curran;
  1. it was not unreasonable for him not to tell the Appellant that he had sent           Mr Curran the questions because he did not get a chance to do so as it happened in the afternoon; and
  1. he did not get a chance to tell the Appellant he had sent the questions to            Mr Curran before she met with Mr Curran on 29 August 2013 because the Appellant would have gone home on the afternoon of 28 August, and                Mr Turnbull was so sick with the flu the next day that he did not come to work until lunchtime, after the Appellant and Mr Curran had met. 
  1. The Respondent submits that it was not unreasonable for Mr Turnbull to raise the leadership training concerns with Mr Curran.  The offending email from Mr Turnbull to Mr Curran did not identify the source or author of the questions, and Mr Turnbull changed some of the Appellant's questions.  In the circumstances, management action was reasonable and taken in a reasonable way.
  1. Findings: On the basis of the evidence outlined above, I find in relation to Stressor 4 that:
  1. by the week of 26 August 2013, the Appellant was aware that she was suffering from an aneurysm and was concerned about that; she was still affected by the breakdown of her marriage and, for those reasons, was in an emotionally sensitive state;[20]
  1. Mr Turnbull was aware of the Appellant's marital circumstances and her medical condition;
  1. on Monday, 26 August 2013, the Appellant asked Mr Turnbull in writing to "humour me" by reading her ongoing concerns about aspects of the proposed training, including whether her name might be on any other documents;
  1. Mr Turnbull asked her to provide a list of questions she would like him to ask and who he should ask;
  1. the Appellant prepared six questions which she sent to Mr Turnbull on Tuesday, 27 August 2013, offered to explain the terminology to him so that he could reword them depending on who he intended to ask; and nominated three possible people (Mr Pastore, Ms Watkins and Ms Wycherley) to whom questions might be sent;
  1. the Appellant considered that Mr Turnbull should have sent the questions to the SCT head office to anyone who was involved in the training;
  1. by that stage, Mr Turnbull had made inquiries of Mr Pastore, thought that he had exhausted avenues of inquiry and had concluded that the training would happen in accordance with the directive from head office;
  1. Mr Turnbull forwarded five questions to Mr Curran at 3.52 pm on Wednesday, 28 August 2013;
  1. it is clear from the fact that Mr Turnbull forwarded four of the six questions prepared by the Appellant, but not questions 5 and 6, and included one question that he prepared, that he was not merely humouring the Appellant but was asking questions to which he was seeking answers which he thought           Mr Curran could provide;
  1. it was not possible from the email to determine who prepared the questions and, in particular, there was no reference to the Appellant;
  1. as far as the Appellant was aware, Mr Curran had nothing to do with training, and considered that Mr Turnbull should not have sent the questions to him;
  1. Mr Turnbull forwarded the questions to Mr Curran because Mr Curran had been in the relevant training modules, and Mr Turnbull considered that             Mr Curran could help him by clarifying some things and providing informed opinions;
  1. Mr Turnbull did not have an opportunity on the afternoon of 28 April 2013 to tell the Appellant that he had sent questions to Mr Curran;
  1. Mr Turnbull was away from work sick on the morning of 29 April 2013 and hence did not have the opportunity to tell the Appellant before her meeting with Mr Curran that he had sent the questions to him.
  1. The issue whether Mr Turnbull's actions constituted reasonable management action taken in a reasonable way (including by reference to the three assertions of unreasonableness in Stressor 4) is considered later in these reasons.

 Stressor 5

  1. Stressor: 29 August 2013: Mr Curran was the National Compliance Manager, based in Melbourne.  He had made an arrangement with me to do my audit whilst he was in Brisbane and this is what I had prepared for the interview.

Unexpectedly, whilst I being was interviewed by Chris Curran in the boardroom by myself about my audit, (which he said was good,) he then began to question me about the Leadership Works training.

It was unreasonable of Mr Curran to ask me in this interview about the Leadership Works because:

– I did not know he was going to do so;

– I was not prepared; and

– He did not offer me the chance to have a representative present at the meeting when he stated he had "serious concerns" about my concerns about the training matters.

  1. Evidence:  Mr Curran came from Melbourne to Brisbane to conduct audits.  The Appellant gave evidence that, on 29 August 2013, she went to a cafe where he was having breakfast to tell him about her aneurysm, so that he (like everybody else at the branch) knew what was going on with her. 
  1. Later that day, they walked around the yard to conduct an inspection.  In the boardroom, Mr Curran spoke to the Appellant about the audit that she had not completed. He said he would give her a couple of issues to resolve. 
  1. Mr Curran then began to ask her questions about the email he had received from            Mr Turnbull.  According to the Appellant:

"He said he was not at all happy about what I had said.  I did not want to discuss it with him because Kevin Turnbull had told me that he would rewrite the email and send it to head office as if it was from him.  Chris told me that he was very concerned with my attitude.  And I responded to him that I was not involved, I did not believe that I was involved with that training, but I wanted to know that information to make sure that it was - it was okay.  Kevin, to me, afterwards, never ever should have even sent that email to - to Chris." 

  1. According to the Appellant, Mr Curran "goaded" her and "led the conversation with an untruth based on the question I was supposed to have asked but hadn't." She contended that the moment he indicated that he had a serious concern about the matter, she should have been offered the opportunity to have a representative present.  She was not offered that opportunity, and there were no witnesses.
  1. Mr Curran gave evidence that he arrived in Brisbane from Melbourne on the morning of 28 August 2013 and arrived at the depot by about 10.30 am.  The purpose of his visit to Brisbane was to conduct three audits (an internal audit, heavy vehicle accreditation, and food safety), which could be completed in approximately two days.  He met with the Appellant in the office that day.  The Appellant joined him when he was having breakfast on 29 August 2013.  They discussed what they are going to do that day, and the Appellant told him about her medical condition.  They went to the office at about 9.00 am and Mr Curran set up in the boardroom in preparation to commence the audit.  While doing so, he checked his emails and saw two from                    Mr Turnbull.  A short email concerned heavy vehicle accreditation (Exhibit 14), a matter which he had discussed previously with Mr Turnbull.  The other email, which was sent to Mr Curran on 28 August 2013 at 3.52 pm, contained five questions relating to training (Exhibit 2).
  1. Mr Curran asked the Appellant if Mr Turnbull was available.  She said that he was sick and was not sure whether he was coming in that day.  She asked if she could help.  Mr Curran pointed out some errors in acronyms used in the short email, as he "knew what that was about."  By contrast, he said that "the training session one just came out of the blue, and I wasn't sure what the questions were directed to me for, so I wanted to talk to Kevin about that."  As the Appellant had asked if she could help, Mr Curran pointed out the different styles of language used in the emails.  The second email was "more formal" and he did not believe that it was Mr Turnbull's.  Mr Curran wanted to know what it was about.  The Appellant told him that it was her wording, and he asked what she was trying to achieve by asking these questions. 
  1. In the discussion that followed, the Appellant "started to rant,[21] and then had a normal conversation and then started to rant, and then had a normal conversation."  The discussion went for approximately three or four minutes.  Something was said about Mr Smith, who was the proposed trainer, including reference to incidents in the past that Mr Curran knew nothing about.  The Appellant kept referring to that, and                  Mr Curran gathered that something had occurred that the Appellant was not happy about.  She asked how Mr Smith got involved.  Mr Curran explained that he was an SCT employee.  The Appellant apparently thought Mr Smith represented a Registered Training Organisation.  Mr Curran was concerned that something "wasn't right," and "started to sort of delve in a little bit further."   Mr Curran explained to the Appellant that Mr Pastore, the national HR manager, had set up the training.  She started to question the validity of the training, and Mr Curran asked whether she was making statements about Mr Pastore having erred.  Where was she going with this?  That led to the Appellant wondering whether he would put her into counselling about this, as part of the company's counselling and disciplinary process.  Mr Curran said that that had not entered his mind and he did not.  However he indicated to the Appellant that he was concerned about her not showing objectivity, particularly towards another member of the SCT staff.  He formed the impression that there "may be some serious issues" if Mr Smith came to Queensland to do the training.  Mr Curran expressed that concern to the Appellant, and informed her that he would speak with Mr Pastore and Mr Turnbull about the matter. 
  1. When asked why Mr Turnbull might have sent him the list of questions, Mr Curran said he did not know and could only surmise that, based on the Appellant being the author of the questions, she had asked Mr Turnbull to send them to him. 
  1. Mr Curran said that at some time between noon and 1.00 pm he rang Mr Pastore and advised him to give serious consideration to suspending or cancelling Mr Smith doing training because, in his view, there was a real issue about whether Mr Smith would be treated fairly in Brisbane.  Mr Pastore advised Mr Curran to speak to Mr Turnbull and tell Mr Turnbull that it was his decision as to whether Mr Smith came to Brisbane to do the training and is fairly treated, or whether the training is cancelled.  Mr Turnbull arrived unexpectedly between about 1.00 and 2.00 pm and told Mr Curran that he was unwell.  They discussed the audit findings.  Mr Curran then explained to Mr Turnbull the interaction he had with the Appellant, and the instructions that Mr Pastore gave him to pass on.  Mr Turnbull said that he was going to go ahead with the training. 
  1. At the request of Mr Pastore on 30 August 2013, Mr Curran that day prepared detailed typed notes of his meeting with the Appellant on 29 August 2013 and associated matters (Exhibit 15). The subject was "The aggressive and unwarranted attitude Louisa displayed in relation to the prospect of Danny Smith attending Brisbane depot in a couple of weeks to deliver the scheduled Leadership and Cert IV training to SCT staff."  Those notes are consistent with Mr Curran's oral evidence, but provide more detail in relation to some matters.  For example, he referred to:
  1. the Appellant's apparent unwillingness to sign off on the training that               Mr Smith was scheduled to provide;
  1. the Appellant having no intention of letting Mr Smith provide the training when she had to sign off on it;
  1. the Appellant saying that if she did not have to sign off on the training she would not have a problem;
  1. his advice to the Appellant that she should not be involved in the training process in any capacity as he believed her statements to him about Mr Smith were "way out of proportion" with Mr Smith's role as a SCT employee providing training to SCT  employees.
  1. Mr Turnbull gave evidence that he did not recall the meeting with Mr Curran that day. 
  1. The Respondent submits that there is no credible evidence to support the Appellant's assertions and she failed to discharge the burden of proof in respect of this matter.
  1. Findings: On the basis of the evidence outlined above, I find in relation to Stressor 5 that:
  1. on 29 August 2013, in the course of an audit meeting and in the absence of Mr Turnbull due to illness, Mr Curran spoke to the Appellant about the questions in Mr Turnbull's email to him dated 28 August 2013;
  1. the Appellant had no advance notice that the questions had been sent to               Mr Curran or that he would ask her about them;
  1. Mr Curran and the Appellant discussed the reasons for the Appellant's concerns about the training and the person nominated to deliver that training;
  1. that discussion went for a few minutes before they were interrupted by               Mr Scholtes (see Stressor 6);
  1. in her angry and aggressive demeanour and what she said, the Appellant indicated her resistance and opposition to Mr Smith providing the training;
  1. Mr Curran indicated his concern that the Appellant was not showing objectivity, particularly about another member of the SCT staff, and became concerned that there may be serious issues if Mr Smith came to Brisbane to deliver the training;
  1. Mr Curran informed the Appellant that he would speak to Mr Pastore and Mr Turnbull about the matter, and that afternoon he spoke to each of them separately.
  1. I note that the actions taken by Mr Curran after the meeting with the Appellant concerned whether the training would occur, not whether the Appellant would be counselled or disciplined.
  1. The issue whether Mr Curran's actions constituted reasonable management action taken in a reasonable way is considered later in these reasons.

 Stressor 6

  1. Stressor: 29 August 2013: Mr Scholtes interrupted the interview which I was involved in with Mr Curran to get from me some information about pre-employee's medicals which I did not have.  Mr Scholtes knew that this was not information which I had as he had previously been advised by Head Office that I was not involved in medical matters for employees.  I told him that it was not part of my position.

It was unreasonable of Mr Scholtes to seek information from me which he knew in advance I was not responsible for and which I did not have.  It was unreasonable of Mr Scholtes to interrupt the meeting I was involved in with Mr Curran to seek this information.

  1. Evidence:  According to the Appellant, Mr Scholtes came into the boardroom while she was meeting with Mr Curran and asked whether she had received a medical report.  The company's practice had changed at least one month earlier.  Previously the Appellant had a sign-in to a website from the clinic where the medical reports on employees were done.  Head office changed that.  The Appellant was told that she was no longer in charge of them, and that Ms Watkins would look after them.  The Appellant said that Mr Scholtes knew of the change when he spoke to her.  At that stage she was talking to Mr Curran and was "really upset" because he had referred to the email considered in relation to the stressor 5.  The Appellant stated that she did not understand why Mr Scholtes came into the boardroom to ask her about the matter.  She "had nothing to say to Nick, except to tell him that I wasn't getting those medicals at that stage and that he needed to contact head office.  I didn't think that that was unacceptable." 
  1. In cross-examination, the Appellant agreed that there was no reference to this incident in the timeline she lodged with her application for compensation.  She explained that, at that time she did not see any fault with what had happened with her and Mr Scholtes.  He had just shrugged his shoulders, turned around and walked out of the boardroom.  When asked whether it was with the benefit of hindsight that she attributed this incident as partly causing her psychiatric condition, the Appellant responded "When he has laid a complaint against me, yes." 
  1. Mr Curran gave evidence that while he was having the discussion with the Appellant about training issues, Mr Scholtes knocked and walked into the boardroom and started to talk to the Appellant about an employee's medical matter.  Mr Curran observed that the Appellant was "very aggressive towards him and dismissive.  And he's just turned around and walked straight out."  Mr Curran then said they needed to move on to the audit, and the Appellant "just calmed straight down."  The audit took most of the morning.  Mr Curran said that his dealings with the Appellant and the tenor of their discussions during the audit were "good."
  1. In his written notes prepared on 30 August 2013 (Exhibit 15) he referred to                    Mr Scholtes asking the Appellant question about an employee medical matter.  He described her response to Mr Scholtes as "aggressive and dismissive."  In cross-examination, Mr Curran said that he considered it to be "aggressive" when a person starts becoming personal or swears at somebody and that is not done in fun.  In this case, he was using "aggressive" in relation to the way in which the Appellant was speaking, not her physical demeanour.  He was not suggesting any physical aggression on her part. 
  1. Mr Curran said that he did not have a clear recollection of the content of the discussion between the Appellant and Mr Scholtes.  He recalled the Appellant raising her voice, but did not believe that she swore at Mr Scholtes. 
  1. Mr Scholtes gave evidence that he was aware of a meeting in the Brisbane office involving Mr Curran and the Appellant.  At what he believed to be the end of the meeting, he walked in to ask for her opinion on a person that he was looking to employ.  The door between Mr Turnbull's office and where the meeting was occurring was open.  He thought Mr Turnbull was at his desk looking at emails.  Mr Scholtes did not speak to him.  Mr Scholtes asked the Appellant whether she had a view about this person.  He "got unloaded on" and "got my head bitten off" by the Appellant who "jumped down my throat."  He described her as being "aggressive," in the sense that her tone was "attacking."  He said that he had not seen the Appellant like that before.  Considering the nature of his enquiry, he considered her response to be "ridiculous."  In his opinion, the question he asked did not require the answer that was given or the nature or tone of it.  Mr Scholtes walked back to his office.  The conversation would not have lasted two minutes and it "wasn't pretty." 
  1. Mr Scholtes said that he asked the Appellant's opinion "out of professional courtesy."  He did not have to ask her permission to employ someone.  In cross-examination he said that he always asked the Appellant for her opinion, but agreed that she had not expected him to enter the room.  He was aware at that time that head office was looking after medicals.  However, he entered the boardroom to speak with the Appellant because she was making it her purpose to get medical results because she was unhappy with head office taking that away from her.  He described the Appellant as "hell bent on getting the medical results sent" to her, not just the back page which stated whether the person was fit for duty. 
  1. Mr Scholtes was upset because of what had happened and wrote a letter dated 30 August 2013 to Mr Turnbull (Exhibit 18).  In it he described the meeting as occurring around 11.15 am, and outlined the subject of that discussion and associated medical results and correspondence. When asked if she had the opportunity to review the email and her opinions in offering the person employment with SCT, the Appellant advised that she would not make a decision regarding this person because she was not sent his entire medical results from SCT head office.  According to that written account, the Appellant "became aggressive and totally unreasonable wanting to discuss or offer opinions in the matter" and she was in an "aggressive frame of mind and unable to have a civil conversation at that time" (Exhibit 18).
  1.   The Respondent submits that there is no credible evidence to support the Appellant's assertions and she failed to discharge the burden of proof in respect of this matter.
  1. Findings: On the basis of the evidence outlined above, I find in relation to Stressor 6 that:
  1. 29 August 2013, without any prior arrangement or notice, Mr Scholtes interrupted the meeting between the Appellant and Mr Curran to discuss a medical report matter in relation to a person who he was considering for possible employment by SCT;
  1. by that date, the company's practice had changed and the Appellant no longer received medical reports in relation to prospective employees;
  1. Mr Scholtes was not required to seek the Appellant's permission to employ someone, but sought her opinion out of professional courtesy;
  1. at the time when Mr Scholtes entered the boardroom, the Appellant was upset about the conversation she was having with Mr Curran about the proposed leadership training;
  1. the Appellant raised her voice and was aggressive and dismissive to                   Mr Scholtes;
  1. their conversation lasted about two minutes and Mr Scholtes left the boardroom;
  1. Mr Scholtes did not supervise the Appellant.
  1. The issue whether this event constituted reasonable management action taken in a reasonable way is considered later in these reasons.

 Stressor 7

  1. Stressor: 29 August 2013:  As my manager, in any case, and specifically by reason of the matters set out in relation to stressor 2, it was unreasonable for Mr Turnbull to hold a meeting with me about my meeting with Mr Curran and interaction with                  Mr Scholtes.

Further, the way Mr Turnbull held the meeting was unreasonable because:

– He yelled at me;

– He did not seek to understand my side of the events before starting to yell at me;

– He had Mr Scholtes at the meeting; and

– He did not offer me an opportunity to have someone present at the meeting as my representative.

  1. The Appellant gave evidence that when she returned from lunch on Thursday,                     29 August 2013, she found Mr Turnbull and Mr Scholtes in Mr Turnbull's office.              Mr Turnbull, who had not been at work that morning, looked "very angry," called her in and asked her to shut the door.  When she sat down, he started to yell at her saying that he was embarrassed that she had "brought up the training."  He wanted her to write and apologise.  According to the Appellant, she had not brought up the training.  But she was not allowed to talk.  At that stage she got out of the chair, told Mr Turnbull that she could not handle how he was talking to her, and headed into her office.            Mr Turnbull yelled at her saying that he offered her all support and "look what he had to put up with."  At that time, the Appellant "lost control", and that was "the very first time I lost my temper".  Although she said that she did not scream or yell at                    Mr Turnbull or abuse him while she was in his office, the Appellant gave evidence that after leaving his office she swore at him (for the first and only time), slammed the door, and went home in tears at about 2.00 pm.  She did not return to work that day. 
  1. The Appellant agreed that Mr Turnbull asked what was going on with Mr Curran that morning, and contended that Mr Turnbull seemed completely prepared to accept                Mr Curran's version of events.  In her opinion, Mr Turnbull's subsequent anger was unjustified and unfair as he did not have all relevant information.  The fact that he would not listen to anything she had to say meant she was not afforded "fair counselling and due process in any shape or form."  She considered that she "never should have been told off without anybody" present as her representative.                        Mr Turnbull had Mr Scholtes.
  1. The following day, Friday, 30 August 2013, the Appellant saw Dr Abrassi, her general practitioner, obtained a medical certificate (Exhibit 4) and completed her application for compensation. 
  1. Mr Turnbull gave evidence that, immediately after he arrived at work in the afternoon, Mr Scholtes came to his office and said, in effect that he could not work with the Appellant and did not want to do this any more.  While they were having the conversation, he saw the Appellant drive into the car park.  When she came into her office, Mr Turnbull asked her to come into his office.  He asked her what had gone on that day (along the lines of "what the hell's gone on?") and "it erupted.  It just erupted."  The Appellant "had a go" at Mr Turnbull, apparently referring to Mr Curran abusing her and saying it was not his role.  The situation "just deteriorated from there to her getting up, slamming the door and walking out."  In a matter of a minute or two, "it went from what should have been a discussion … to yelling and slamming doors and walking out."  According to Mr Turnbull he did not yell at the Appellant.  In his words, "I never got a chance." 
  1. In cross-examination, Mr Turnbull said that the conversation did not last long enough for the Appellant to advise about the questions asked by Mr Scholtes that morning.  He did not recall asking her to apologise, nor yelling at her as she left his office (at least "not in my interpretation" of yelling).
  1. Mr Turnbull:
  1. disagreed with the proposition that it was unreasonable for him to hold the meeting with the Appellant about her meeting with Mr Curran and the interaction with Mr Scholtes.  In his view it is his job as the manager to have such discussions. 
  1. agreed that he probably did not seek to understand her side of the events, but referred to a discussion the afternoon before where he had advised her to "give it a break, give it a rest, do your audit and let it go."[22]  His observation was "that never happened." 
  1. dismissed any criticism that Mr Scholtes was present in the meeting.  He was Mr Turnbull's operations manager.  Mr Turnbull normally had somebody at the meeting, and Mr Scholtes "had been at plenty of meetings involving those type of discussions." 
  1. said that in seven years of having meetings with the Appellant he had never formally had to say that she bring a representative in for that meeting, but noted that as it happened Mr Scholtes was present as a representative.  (When the Appellant, however, suggested that Mr Turnbull had Mr Scholtes as a representative, Mr Turnbull asked "What was Nick, a ham sandwich?") 
  1. Mr Scholtes had no recollection of this meeting.
  1. The Respondent submits that there is a clear factual dispute by the relevant witnesses about the events, but the weight of the evidence ought to fall in favour of the Respondent's position, namely that there was nothing untoward in the meeting to address the legitimate concerns. 
  1. Findings: On the basis of the evidence outlined above, I find in relation to Stressor 7 that:
  1. in the early afternoon of Thursday, 29 August 2013, Mr Scholtes met with Mr Turnbull and told him that he could not work with the Appellant;
  1. when the Appellant arrived at work soon afterwards, Mr Turnbull asked the Appellant into his office where Mr Scholtes was already present;
  1. Mr Turnbull asked the Appellant what had happened with Mr Curran that morning;
  1. Mr Turnbull used direct language and, in the course of conversation, raised his voice at the Appellant;
  1. the conversation lasted a few minutes during which the Appellant was critical of Mr Turnbull;
  1. the Appellant lost her temper and the situation deteriorated;
  1. the Appellant told Mr Turnbull she could not handle how he was talking to her, and left his office, slammed the door and returned to her office;
  1. the Appellant went home in tears at about 2.00 pm.
  1. The issue whether Mr Turnbull's actions constituted reasonable management action taken in a reasonable way is considered later in these reasons.

 Medical opinion evidence

  1. The only medical evidence came from psychologist Michelle Barratt-Conrad-Czaja and consultant psychiatrist Dr Wasim Shaikh.  The Appellant's then general practitioner, Dr Laila Abbassy, was not called to give evidence in relation to the Appellant's condition on 30 August 2013 when Dr Abbassy issued the medical certificate stating that the Appellant was unfit to continue her usual occupation for the period from 30 August 2013 until Friday 6 September 2013 (Exhibit 4).
  1. Ms Barratt-Conrad-Czaja: The Appellant consulted Ms Barrett-Conrad-Czaja in relation to her personal situation, before her husband left her and while she had relationship difficulties with her children. Ms Barratt-Conrad-Czaja recalled her consultations with the Appellant, although she did not have her clinical notes at the time of the hearing.  In essence, Ms Barratt-Conrad-Czaja gave oral evidence that the Appellant initially presented as struggling with anxiety and depression and trying to manage her anger.  The Appellant was going through a difficult relationship at home and was also trying to manage a very difficult relationship with her employer.  She was upset, anxious and in a state of conflict when her husband told her that they were separated.  She was under pressure at work with a high workload, and found herself in difficult situations involving miscommunication and misunderstandings.  She felt threatened by her job at the time, but was learning to manage her anger and angry outbursts and became successful in doing so.  The Appellant was improving, and reported the strategy she was trying to manage her anger, the symptoms of depression, and the pressure she was under. 
  1. Ms Barrett-Conrad-Czaja diagnosed the Appellant as suffering with depression in late 2012/early 2013, but agreed that she would defer to the expertise of a psychiatrist in providing a diagnosis. 
  1. The Appellant completed the 10 Medicare Mental Health Care Plan rebate sessions and could not afford private sessions after them.  However, she had another pro bono session as Ms Barrett-Conrad-Czaja did not feel that she had "wrapped up the treatment enough."  The Appellant was eager to learn strategies to manage her depression, and implemented them, making "a very clean progression alleviating all the symptoms" with which she presented initially. 
  1. In about January 2013, the Appellant told Mr Turnbull that she was seeing                   Ms Barrett-Conrad-Czaja, and it appears that he supported the Appellant in that.  The Appellant stated that, by the time she finished those consultations, she was "way up there … doing really, really well." 
  1. Dr Shaikh: Dr Shaikh interviewed and examined the Appellant on 14 January 2014 in response to instructions from WorkCover to provide an independent examination and report with respect to the work incident in which the Appellant was involved on 29 August 2013.  His report (Exhibit 16) was based on that interview and examination, as well as the letter of instruction from WorkCover Queensland dated 6 January 2014 and 50 pages of miscellaneous documentation that included personal statements, email correspondence and other attachments (apparently provided to him by WorkCover). 
  1. In relation to the Appellant's history as related to him, Dr Shaikh wrote:

"Ms Reid reports that the stressors in her workplace initiated much before August 2013 but events in August 2013 significantly contributed towards deterioration of her mental state.  In her personal statement Ms Reid describes a sequence of events and this will not be repeated.  She was quick to mention that she appreciates having presented with multiple other stressors (which she has detailed in her personal statement).  However, the events of August 2013 led her into a downward spiral and significant distress, affecting her social and occupational functioning.

…

Ms Reid has identified multiple social and family stressors which have been discussed in her personal statement.  The most recent of these was a separation from her husband in January 2013." (Exhibit 16)

The personal statement to which Dr Shaikh referred is a document which included Attachment 1, described/headed "Burnout Timeline" (Exhibit 6).  Dr Shaikh gave evidence that the sequence of events related to a lack of support that the Appellant perceived that she received from the workplace in relation to a training issue.  Apparently she felt that there was some information that was misleading and she was put under pressure during a conversation that led to significant distress.  During the assessment, the Appellant did not nominate any individuals in the workforce. 

  1. Dr Shaikh provided a diagnosis of all work-related conditions from a DSM-IV/DSM-V perspective including "Major Depressive Disorder, recurrent (aggravation)."  In relation to that diagnosis, he wrote that he had "no doubt that Ms Reid suffered with a pre-existing condition of major depressive disorder related to multiple other personal and social stressors.  Having said that it seems that the perceived stressors in her workplace caused an aggravation of this pre-existing condition" (Exhibit 16).
  1. When asked to describe the relationship of the current work-related diagnosis to the stated mechanism of injury, Dr Shaikh wrote:

"The aggravation of a major depressive disorder has causal and consequential relationship to the stated mechanism of injury.

Whilst Ms Reid has a pre-existing history her symptoms are unlikely to have presented to current severity had she not been exposed to the workplace stressors."

Accordingly, he confirmed that the work-related condition is an aggravation of a pre-existing condition.

  1. Later in the report, Dr Shaikh stated that:

"Ongoing symptoms are attributable to a combination of pre-existing condition and work related injury.

…

As stated earlier Ms Reid has suffered a major depressive disorder due to multiple stressors and her condition has been aggravated by perceived workplace stressors."

  1. In his oral evidence, Dr Shaikh confirmed the opinions expressed in his report.  His diagnosis of a major depressive disorder of recurrent nature was based on information provided to him by the Appellant during the assessment.  In his opinion, the disorder "was pre-existing and related to multiple factors prior to the alleged injuries of August 2013" and the Appellant "suffered an aggravation of this condition … as a result of perceived stressors in [her] workplace in August 2013." 
  1. Dr Shaikh stated that:
  1. the stressors that the Appellant perceived in her workplace related to the lack of support and the perceived intimidatory behaviour on the nominated day in August 2013; and
  1. her employer had responded indicating that her perception of events may not have been accurate. 
  1. Consideration of the medical opinion evidence:  The Appellant relies on the evidence of Ms Barratt-Conrad-Czaja and Dr Shaikh.
  1. The Respondent submits that little turns on the opinion evidence of                                    Ms Barrett-Conrad-Czaja, and it should be given no weight, because:
  1. her involvement with the Appellant ended in about December 2012/January 2013, before the first of the nominated stressors occurred; and
  1. when giving her diagnosis of depression, she was willing to defer to the subsequent expert opinion of Dr Shaikh.
  1. Although that submission is cogent, the evidence given by Ms Barrett-Conrad-Czaja is useful because it provides:
  1. additional insight into the Appellant's personality, the range of circumstances with which she was dealing, and the ways in which she was coping with those circumstances; and
  1. support for Dr Shaikh's assessment that the condition which he diagnosed was an aggravation of a pre-existing condition that arose from multiple stressors.
  1. In relation to Dr Shaikh's evidence, the Respondent submits that when reference is made to Attachment 1 "Burnout Timetable" caution should be exercised.  Dr Shaikh's opinion was based on that document and not the Statement of Stressors relied upon by the Appellant as the "work events that caused my psychiatric/psychological injury." 
  1. It is not necessary to quote extensively from the "Burnout Timetable," two versions of which were in evidence.  The first was attached to the online claim form lodged with WorkCover Queensland (Exhibit 7) and the other with a bundle of documents provided to the Respondent's review unit by the Appellant on 15 November 2013 (Exhibit 6).  A comparison of those two versions shows that:
  1. each Timetable included events between May 2007 and March 2013, i.e. a period of six years before the period covered by the Statement of Stressors;
  1. those events were primarily personal and family events, such as the death of the Appellant's mother in May 2007 and the breakup of the Appellant's marriage in January 2013;
  1. some work related events were listed for the period before May 2013;
  1. the workplace events in the period between 23 May 2013 and 30 August 2013 referred to in those documents include four of the seven stressors and make no mention of Stressors 1, 2 or 6;
  1. some work-related events in the period May to August 2013 that are not listed as stressors were included in the Timetables.
  1. Despite the fact that the "Burnout Timetable" covers events preceding the period covered by the Statement of Stressors, and includes personal as well as some  work-related events not covered by the Statement of Stressors, Dr Shaikh's opinion can be given significant weight.  He expressly referred to the Appellant having suffered with a pre-existing condition of Major Depressive Disorder "related to multiple other personal and social stressors" and expressed the view that although the Appellant has a pre-existing history, "her symptoms are unlikely to have presented to current severity had she not been exposed to the workplace stressors."  Her condition "has been aggravated by perceived workplace stressors."  For the purposes of this appeal, the only difficulties with that analysis are:
  1. the extent to which (if at all) stressors in the workplace initiated much before August 2013 but not listed in the Statement of Stressors had a significant influence on Dr Shaikh's opinion; and
  1. the significance that Dr Shaikh gave to the lack of support in the workplace that the Appellant reported (given that lack of support is not specified in the statement of stressors).

I note, however, that Dr Shaikh recorded (and appeared to have accepted) the Appellant's contention that events in August 2013 significantly contributed towards deterioration in her mental state.

  1. Having considered Dr Shaikh's report and oral evidence in light of the contents of the "Burnout Timetable" and the evidence in relation to the seven nominated stressors, I accept:
  1. his diagnosis that the Appellant was suffering from an aggravation of a pre-existing Major Depressive Disorder; and
  1. that substantial weight should be given to his opinion that the aggravation has a causal and consequential relationship to the stated mechanism of injury, and that the Appellant's symptoms are unlikely to have presented to current severity had she not been exposed to workplace stressors.

Findings in relation to the Appellant's injury

  1. The Appellant submits, in effect, that she suffered a psychological injury that arose out of, or in the course of, her employment and that her employment was a significant contributing factor to the injury.
  1. In summary, the Respondent submits that the evidence overwhelmingly supports findings of fact that:
  1. the Appellant has suffered an injury, which is properly categorised as an aggravation of a psychiatric disorder;
  1. the Appellant's employment was not causative to the development of the injury.
  1. In Sheridan v QCOMP ("Sheridan"), Hall P wrote:

"In respect to psychological injury, there is an "egg-shell psyche" principle which is the equivalent of the "egg-shell skull" principle, compare State Transit Authority of New South Wales v Chelmer [2007] NSWCA 249 at paragraph 40 per Spigelman CJ.  So long as the events within the workplace are real rather than imaginary, it matters not that they impact upon the claimant's psyche because of a flawed perception of events attributable to a disordered mind, compare Federal Broome Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 643 per Windeyer J, Westgate v Australian Telecommunications Commission (1987) 17 FCR 235 and Q-COMP v Foote (2008) 189 QGIG 802 at 810."[23]

  1. In Q-COMP v Foote ("Foote"), Hall P wrote that "a fragile psychological make-up is no more a bar to an entitlement to benefits under the Act than an eggshell skull."  Subject to the "very significant statutory qualifications" contained in s 32(5) of the Act (discussed below), "an insurer takes a worker with all his faults."[24]
  1. In light of the evidence:
  1. about the Appellant's psychological state in early 2013;
  1. from the Appellant in relation to various events in her workplace the period between 23 May 2013 and 29 August 2013 and the effect of those events on her mental health;
  1. of Mr Turnbull, Mr Curran and Mr Scholtes which, at the very least, corroborates the Appellant's evidence of robust verbal exchanges between her and each of them on one or more occasion between 23 May 2013 and 29 August 2013; and
  1. in the form of expert medical opinion evidence and diagnosis of                   Dr Shaikh, which I accept,

and my findings in relation to the nominated stressors,  I find that:

  1. on or about 29 August 2013, the Appellant suffered an injury, being an aggravation of a Major Depressive Disorder;
  1. that injury was a consequence of a multiple stressors, being a combination of a pre-existing condition and work-related injury;
  1. her condition had been aggravated by work-related factors, and hence her injury was an aggravation of a medical condition;
  1. the aggravation of her pre-existing condition arose out of, and in the course of, her employment.
  1. the Appellant's employment was a significant contributing factor to her injury.
  1. Those findings do not resolve this appeal but provide the basis on which to consider the final issue.

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

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

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

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

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

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

None of the examples listed in relation to subsection (5) appear to be relevant to the circumstances giving rise to this appeal.

  1. The appeal must be dismissed if the Appellant's injury arose out of or in the course of:
  1. reasonable management action taken in a reasonable way by the employer in connection with the Appellant's employment; or
  1. the Appellant's expectation or perception of reasonable management action being taken against her.
  1. General principles: The extent and limits of the operation of s 32(5) of the Act have been described in the decisions summarised below.
  1. In Q-COMP v Queensland Rail,[25] Hall P wrote:

"Section 32(5)(a) of the Act operates, inter alia, to deny a worker access to statutory benefits under a no-fault scheme notwithstanding that the injury exists, notwithstanding that the injury arose out of or in the course of the worker's employment and notwithstanding that the employment was a significant contributing factor to the injury."

  1. In Foote, Hall P wrote that, subject to the "very significant statutory qualifications" contained in s 32(5) of the Act, "an insurer takes a worker with all his faults."[26]  In relation to those statutory qualifications, Hall P wrote:

"Where the psychological disorder develops out of a worker's perception of reasonable management action being taken against the worker, it is withdrawn from the definition of injury (see s 32(5)(b) of the Act). Where the psychological disorder arises out of or in the course of reasonable management action taken in a reasonable way by an employer in connection with the worker's employment, the psychological injury is withdrawn from the definition of 'injury,' whatever the worker's perceptions may have been (see s 32(5)(a))."[27]

  1. In Sheridan, Hall P referred to "a statutory deviation from the general rule where the psychological disorder arises out of or in the course of a claimant's expectation or perception of reasonable management action being taken against the worker, compare s 32(5)(b) of the Act."[28]
  1. In Lackey v Workcover Queensland,[29] Hall P accepted that:

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

The former President repeated that statement in Avis v WorkCover Queensland ("Avis").[30]

  1. In the subsequent decision of WorkCover Queensland v Curragh Queensland Mining Pty Ltd,[31] Hall P stated that the statutory provision:

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

He continued by reiterating that it was settled by the decision in Avis[32] that the test posited by the words "arising out of" is wider than that provided by the words "caused by."[33]

  1. However, there is also authority rejecting the proposition that once an injury was in any way "touched" by reasonable management action reasonably taken it is not compensable.[34]  More recently, Martin J expressed his agreement with the reasoning of in Q-Comp v Hohn where Hall P said that the mere occurrence of reasonable management action will not insulate a disorder from characterisation as an “injury.”[35]
  1. There is also authority in decisions of Hall P for the proposition that "reasonable" should be treated as meaning "reasonable in all the circumstances of the case," and that such circumstances can include circumstances relating to the psychological make-up of the worker where those circumstances are known to the employer.[36]
  1. In Bowers v WorkCover Queensland,[37] Hall P rejected a submission that where the work environment is found to be a significant cause of a depressive illness, the employer's system of work and its implementation cannot be found to be reasonable.
  1. In Prizeman v Q-COMP,[38] Hall P stated that in determining whether action was reasonable management action taken in a reasonable way by the employer in connection with the worker's employment, "it is the reality of the employer's conduct and not the employee's perception of it which must be taken into account."
  1. In Svenson v Q-COMP,[39] Hall P found that the appellant had "developed a propensity to perceive 'bullying' in the conduct of others and to react to it."  Hall P continued:

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

  1. For s 32(5)(a) to operate there must not only be reasonable management action but that action must be "taken in a reasonable way."  The responsibility for management action being taken in a reasonable way lies with the management.  Whether management action was taken in a reasonable way is a question of fact, and reasonable people may differ from time to time about whether a particular management decision was reasonably implemented.[40]
  1. Management action does not have to be perfect or carried out "without blemish," so long as it is reasonable in all the circumstances of the case.[41]
  1. The Commission's role is to embark upon the enquiry whether the psychological/psychiatric injury arose out of, or in the course of, reasonable management action taken in a reasonable way.[42]  As Martin J stated:

“The task of the Commission when applying s 32(5) does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances.  There may be any number of actions or combinations of actions which would satisfy s 32(5).  The proper task is to assess the management action which was taken and determine whether it was reasonable and whether it was taken in a reasonable way.  Sometimes, that may involve considerations of what else might have been done but that will only be relevant to whether what was done was, in fact, reasonable.”[43]

  1. For the present appeal to succeed, the Appellant needs to establish that:
  1. her psychiatric or psychological disorder did not arise out of, or in the course of, management action; or
  1. if it did so arise, such action was not reasonable or was not taken in a reasonable way (in other words that management action was unreasonable or taken in an unreasonable way); and
  1. her disorder did not arise out of her expectation or perception of reasonable management action being taken against her.
  1. Appellant's submissions:  The stressors refer to the alleged actions of Mr Turnbull, Mr Curran and Mr Sholtes in relation to the Appellant on specified occasions.  In particular, the Appellant submits that the actions and events listed in those stressors were unreasonable and were not taken in a reasonable way by her employer.  It is not necessary to repeat those stressors.  I will note the key points that the Appellant made in her oral submissions.
  1. Stressor 1: The focus of the Appellant's submission is that Mr Turnbull yelled at her, and that it was unreasonable for him to do so. 
  1. Stressor 2:  The Appellant submits that Mr Turnbull was not entitled to supervise her once he had commenced a personal relationship with her.  He should not have started that relationship, particularly given her emotional vulnerability.
  1. Stressor 3:  The Appellant submits that it was unreasonable of Mr Turnbull to ask her to sign undated training contracts in relation to a program that she considered was illegal (and no one has convinced her that it was not illegal). 
  1. Stressor 4:  Mr Turnbull should not have forwarded the questions (most of which the Appellant had written) to Mr Curran as he was not the appropriate person to receive them.  In her submission, it was "extremely unreasonable" of him to do so.  The Appellant was unaware when she prepared the questions that Mr Turnbull had spoken to Mr Pastore.  Mr Turnbull could have told her to forget the issue and the questions, but he chose not to. 
  1. Stressor 5:  The Appellant submits that it was unreasonable of Mr Curran to ask her in the interview about the leadership work training because she did not know that he was going to do so.  She did not even know that he had her email (i.e. the questions) or that Mr Turnbull had sent the email to him.  She was not prepared, and Mr Curran did not offer her the chance to have a representative (i.e. a support person, representative, or diversity person) present at the meeting when he stated that he had some serious concerns about her concerns on the training matters. 
  1. Stressor 6:  Mr Scholtes just walked in to the board room without waiting for anybody to agree to him coming in.  The Appellant was having an interview with Mr Curran about the email he had received from                       Mr Turnbull, and that had "completely dropped" her as she was not expecting it.  It was "extremely unreasonable" of Mr Scholtes to come into the boardroom without asking if he could do so, particularly as the Appellant was in "quite a private meeting" and did not have a support person present.  When Mr Scholtes asked her about the medical that he was waiting for, the Appellant said she did not have it and suggested that he ring Ms Watkins about it.  The Appellant does not believe she was very aggressive.  Rather she submits that Mr Scholtes should not have been there and believes that he was very aggressive.  He should not have asked for something he knew she was not involved in.  She could not understand why he came into the board room. 
  1. Stressor 7:  The Appellant submits that Mr Turnbull should have talked to her, but he yelled at her from the very start.  He should never have yelled at her.  He would not listen.  He wanted an apology from her.  If he knew that he was going to discipline her, he should have made sure that she had a representative, a support person. 
  1. Respondent's submissions: The Respondent's submissions in relation to each nominated stressor are in summary:
  1. Stressor 1:  The email which triggered this Stressor was sent without                 Mr Turnbull's approval or knowledge.  It was sent while he was out of the office and, according to him, it was unnecessary and out of line.  Mr Turnbull was entitled to raise the email with the Appellant, particularly when he received a call from head office about it.  Although he wanted to raise the issue with her, the Appellant yelled and stormed out of his office.  There is nothing unreasonable about Mr Turnbull's actions, and the appropriate conclusion is that management action was reasonable and taken in a reasonable way.  Furthermore, the Respondent submits, it was the Appellant's perception that she was being treated unfairly or there was an inadequate response management.
  1. Stressor 2: it was reasonable for Mr Turnbull, as the manager of the Brisbane office, to manage, direct and make decisions about the Appellant's work related duties.  The Appellant did not propound any alleged breach of policies concerning harassment (sexual or otherwise) within the workplace to suggest a breach of such a policy or to argue the reasonableness of the actions of management.  In the circumstances, management action was reasonable and taken in a reasonable way.  Furthermore, the Respondent submits, it was the Appellant's perception that she was being treated unfairly or that there was an inadequate response by management.
  1. Stressor 3:  although it is not disputed that the Appellant signed the contracts, the evidence does not demonstrate unreasonableness on the part of management because:
  • the Appellant was not forced to sign the documents;
  • she accepted that Mr Turnbull could not have signed the documents because "he had nothing to do with the training;"
  • the Appellant did not reduce her complaints to writing about her concerns until 26 August 2013;
  • she was able to raise her concerns freely with Mr Turnbull by way of that email;
  • the tenor of the email does not exhibit any signs of an individual who perceived their manager to be unreasonable, but demonstrates a willingness by Mr Turnbull to "fight" for the Appellant's concerns.

Accordingly, in the circumstances, management action was reasonable and taken in a reasonable way.  Furthermore, the Respondent submits, it was the Appellant's perception that she was being treated unfairly or that there was an inadequate response by management.

  1. Stressor 4: It was not unreasonable for Mr Turnbull to raise the leadership training concerns with Mr Curran, who was in Brisbane at the relevant time but was based in head office.  He was experienced and able to offer comment about perceived concerns.  The offending email from Mr Turnbull to                      Mr Curran did not identify the source or the author of the questions.                      Mr Turnbull changed some of the Appellant's questions.  There was nothing untoward in Mr Turnbull indicating to the Appellant that he would pass on issues or questions regarding the leadership workshop training to higher management without recording her name.  This was done in circumstances where Mr Turnbull had raised concerns about Mr Smith with head office, to no avail.  The only person left was Mr Curran who was in Brisbane at the time.

In the circumstances, management action was reasonable and taken in a reasonable way.  Furthermore, the Respondent submits, it was the Appellant's perception that she was being treated unfairly or that there was an inadequate response by management.

  1. Stressor 5: Mr Curran did not supervise or manage the Appellant.  He disputed her version of events.  The Appellant has failed to discharge the burden of proof in respect of this matter.
  1. Stressor 6:  Mr Scholtes did not supervise or manage the Appellant.  He disputed her version of events and his account is supported by the evidence of Mr Curran.  The Appellant has failed to discharge the burden of proof in respect of this matter.
  1. Stressor 7: It was not unreasonable for Mr Turnbull, as the state manager, to raise contemporaneous complaints about the Appellant's actions towards                Mr Scholtes and Mr Curran.  The action did not have to be perfect or carried out without blemish, but it was reasonable in all the circumstances and was taken in a reasonable way. Furthermore, the Respondent submits, it was the Appellant's perception that she was being treated unfairly or there was an inadequate response by management.
  1. Looking more generally at the circumstances surrounding specific stressors, the Respondent submits that the personal relationship between Mr Turnbull and the Appellant was conducted in a private capacity and ought not be viewed in any manner as management action.  The relationship involved two consenting adults for a period of time which extended beyond the termination of the Appellant's employment with SCT.  There is no suggestion in the psychiatric report that this relationship contributed to the development of the Appellant's psychiatric condition.
  1. In summary, the Respondent submits that:
  1. the Appellant's injury is one which is properly characterised as having arisen out of reasonable management action taken in a reasonable way by SCT in connection with the Appellant's employment;
  1. SCT's actions have been reasonable management action taken in a reasonable way in connection with the Appellant's employment;
  1. if any of SCT's actions are considered to be unreasonable, in all the circumstances of the case, they are only blemishes; and
  1. the injury is removed from the definition of "injury" by virtue of s 32(5) of the Act.
  1. Consequently, the Respondent submits, the Appellant has not discharged the burden of displacing the operation of s 32(5) of the Act, and the appropriate orders to be made are:
  1. the appeal is dismissed
  1. the review decision of the Workers' Compensation Regulator dated 19 March 2014 is confirmed
  1. the Appellant pay the Workers' Compensation Regulator's costs to be agreed or, failing agreement, to be the subject of further application to the Commission.
  1. Conclusions:  Earlier in these reasons I set out my findings in relation to each of the seven nominated stressors.  I need not repeat them.  They inform my conclusions as to whether:
  1. reasonable management action was taken by SCT in connection with the Appellant's employment; and
  1. if so, whether it was taken in a reasonable way.
  1. Having regard to my findings in relation to those stressors, and agreeing generally with the Respondent's submissions, I conclude that:
  1. it was reasonable management action for Mr Turnbull to reprimand the Appellant in relation to the email she sent on 23 May 2013 (Stressor 1);
  1. in the absence of any company policy to the contrary, and given the history of their working relationship and the consensual nature of their personal relationship, it was not unreasonable for Mr Turnbull to continue to manage the Appellant at work, to give her directions at work, to make decisions about her performance of her work, her conduct at work and her attitude to work (Stressor 2);
  1. Mr Turnbull did not require the Appellant to sign the undated training contracts, but expected her to do so and, in all the circumstances at that time (including her role in organising and coordinating training in the Brisbane office, and the absence of any evidence of illegality), that was not unreasonable management action (Stressor 3);
  1. in all the circumstances:
  1. it was reasonable management action for Mr Turnbull to send the revised list of questions about the Leadership Work training to                Mr Curran; and
  2. it was not unreasonable for Mr Turnbull not to have informed the Appellant before she met with Mr Curran that he had sent those questions to Mr Curran (Stressor 4);
  1. although Mr Curran was not the Appellant's manager, by virtue of his position and role within SCT and the way in which Mr Turnbull provided him with the questions, his way of following up the issue can be characterised as a form of management action.  Given the circumstances in which he accessed the questions, the absence of Mr Turnbull from work due to illness, and the fact that the Appellant had raised the issues with                  Mr Turnbull and was qualified to discuss them, it was not unreasonable for Mr Curran to ask the Appellant about the Leadership Works training in the course of their meeting in relation to the audit (Stressor 5);
  1. Mr Scholtes did not manage the Appellant, and his interruption of the meeting between her and Mr Curran did not constitute management action.  There is no medical or other evidence to suggest that this stressor contributed in any significant way to the Appellants work-related injury.  Indeed, it appears from the Appellant's evidence that she included the stressor because, she stated, Mr Scholtes laid a complaint against her  (Stressor 6);
  1. it was reasonable management action for Mr Turnbull to hold a meeting with the Appellant about her meeting with Mr Curran and her interaction with             Mr Scholtes.  The fact that Mr Scholtes was present does not make it unreasonable. Indeed, as he made a complaint about the Appellant, it was appropriate that he be present (though not as a support person for either         Mr Turnbull or the Appellant) (Stressor 7). 
  1. Where it is factually possible and appropriate to do so, an appellant may seek a global assessment of multiple aspects of management action out of which, or in the course of which, the condition has arisen, and thereby exclude the operation of s 32(5).[44]
  1. Although the Appellant did not request such an assessment, having regard to the circumstances of this case and relevant decisions of Hall P,[45] it is appropriate to deal with the stressors in this case globally, given the temporal link between the matters complained of and because the few people involved.
  1. Having regard to individual actions, and also taking a global approach to the management of the Appellant, I have concluded that reasonable management action was taken in connection with her employment. 
  1. There remains the issue whether that action was (or those actions were) taken in a reasonable way.
  1. As noted earlier, the responsibility for management action being taken in a reasonable way lies with the management, and whether management action was taken in a reasonable way is a question of fact.  Reasonable people may differ from time to time about whether a particular management decision was reasonably implemented.
  1. Stressors 1 and 7 assert, and the evidence establishes, that voices were raised in some meetings between the Appellant and Mr Turnbull. The Appellant left meetings on            23 and 29 August 2013 abruptly and, on at least one occasion, in tears.
  1. In relation to some of the stressors, the Appellant contended that Mr Turnbull yelled at her.  Those contentions are considered in relation to specific stressors.  In more general terms, she said that Mr Turnbull swore at everyone, in person and on the telephone.  She also asserted that others in the workplace swore, though some would apologise to her as she did not swear.  She referred to an occasion in January 2010 in which Mr Turnbull "proceeded to verbally lash" her about her interference in a work matter.
  1. Mr Turnbull gave evidence that "I'm loud on the phone.  I'm loud in voice."  He admitted that he swears, and that he had sworn at people during the last six months that the Appellant was working at SCT.  In particular, he stated that swearing was okay "on occasions" and that he had sworn on the phone to his CO "occasionally." 
  1. In addition to evidence in relation to specific stressors, there was some evidence about the Appellant's personality and conduct in the workplace.  In particular, there was an incident in 2012 in which the Appellant said, she "lost her cool."  The Appellant subsequently sent an email message (headed "My apologies") to the persons involved in which she wrote that she "went too far" at a recent toolbox meeting.  "My behaviour was unacceptable and I regret any offence I caused" (Exhibit 11).  As noted earlier, Ms Barrett-Conrad-Czaja gave evidence that she had sessions with the Appellant in 2012 and early 2013 because the Appellant was, among other things, trying to manager her anger and angry outbursts and was becoming successful in doing so.  In her message posted to the online depression site, the Appellant referred to getting "angry and teary at work" (Exhibit 1).  It is not clear whether such expressions of anger and other emotions in the workplace reflect the Appellant's personality or were precipitated by her distressing personal circumstances and interactions in the workplace.  But they do assist in assessing the stressors.
  1. A number of factors have to be taken into account in assessing whether management action was taken in a reasonable way.  In my view, it is relevant to note that:
  1. the Appellant and Mr Turnbull had a sound working relationship for a period of about seven years, and Mr Turnbull relied on the Appellant in a range of ways including, it seems, providing technical assistance and advice in relation to some matters;
  1. Mr Turnbull spoke loudly and swore occasionally in the workplace and, it appears, such swearing was directed to people at all levels within the company (rather than being targeted at the Appellant);
  1. the Appellant was capable of speaking her mind to Mr Turnbull, and demonstrated persistence in raising with him matters of concern to her (including personal remuneration, and questions about the leadership training program);
  1. before and during the period covered by the stressors, the Appellant was suffering from a psychological condition and was experiencing a range of difficulties in her personal life as well as occasional conflicts in the workplace;
  1. Mr Turnbull was aware of a range of health and personal issues affecting the Appellant;
  1. the personal relationship between the Appellant and Mr Turnbull continued for (and beyond) the duration of the relevant period and (apart from the altercations described in Stressors 1 and 7) was essentially consensual and stable;
  1. Mr Turnbull also expressed his care and concern for the Appellant in a number of ways which at least demonstrated his concern as a manager (and might also have been influenced to some degree by his personal feelings in relation to the Appellant)
  1. Mr Turnbull had reasons to be critical of the Appellant and although raising his voice at her might not have been ideal management practice, in all the circumstances it was a blemish on his behaviour.
  1. Taking a global approach to the evidence, and in particular why Mr Turnbull had occasion to raise significant management issues with the Appellant during the relevant period, I am satisfied that management action was taken in a reasonable way, albeit not without blemish.  Mr Turnbull clearly experienced some frustration in managing the Appellant, particularly in relation to her persistent raising of issues about the proposed training even after he had formed the view that a decision had been taken by head office and there was little or no point in challenging it.  I am not suggesting that the Appellant's concerns were frivolous or ill founded.  Nor am I suggesting that they could not have been handled better, particularly having regard to the Appellant's condition at the relevant dates.  However, those blemishes are not sufficient to dislodge the application of s 32(5) in relation to this appeal.  In other words, the Appellant has not established that her injury did not arise out of, or in the course of, reasonable management action taken in a reasonable way.
  1. Although not necessary to do so, I find that some of the Appellant's psychiatric or psychological disorder arose out of her perception of reasonable management action being taken against her.

Orders

  1. It follows from the conclusions that I have reached that:
  1. the appeal is dismissed;
  1. the decision of the Respondent dated 19 March 2014 is confirmed;
  1. the Appellant is to pay the Respondent's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.             
  1. Order accordingly.

Footnotes

[1] Kavanagh v The Commonwealth (1960) 103 CLR 547, 556 (Dixon J), 558 (Fullagar J).

[2] Avis v WorkCover Queensland (2000) 165 QGIG 788, 788 (Hall P); WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6, 7 (Hall P).

[3] Commonwealth of Australia v Lyon (1979) 24 ALR 300, 303-304 (Deane J); Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, 478 (Mason CJ, Deane, Dawson and McHugh JJ); Theiss Pty Ltd v Q-COMP (C/2010/11) - Decision http://www.qirc.qld.gov.au at [3] (Hall P).

[4] Q-COMP v Green (2008) 189 QGIG 747, 751 (Hall P); Luxton v Q-Comp (2009) 190 QGIG 4, 6 (Hall P). See also Qantas Airways Limited v Q-COMP and Blanch (2009) 191 QGIG 115, 119 (Hall P).

[5] Graham Douglas Sergeant v Q-COMP (C/2010/52) - Decision http://www.qirc.qld.gov.au, [15] (Hall P).

[6] Newberry v Suncorp Metway Insurance Limited [2006] 1 Qd R 519.

[7] State of Queensland (Queensland Health) v QCOMP and Beverley Coyne (2003) 172 QGIG 1447; Rossmuller v Q-COMP C/2009/36 - Decision http://www.qirc.qld.gov.au, [2].

[8] See MacArthur v WorkCover Queensland (2001) 167 QGIG 100, 101 (Hall P) and cases cited.

[9] Nilsson v Q-Comp (2008) 189 QGIG 523, 526 (Hall P).

[10] Coombes v Q-Comp (2007) 186 QGIG 680, 681 (Hall P); see also Newman v Blackwood [2015] ICQ 014, [4], [7] (Martin J).

[11] State of Queensland (Queensland Health) v Q-COMP and Coyne (2003) 172 QGIG 1447 (Hall P); Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031, [24] (Martin J).

[12] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027, [7].

[13] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027, [8]

[14] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027, [7].

[15] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027, [8].

[16] Blackwood v Adams [2015] ICQ 001, [17].

[17] Blackwood v Adams [2015] ICQ 001, [19], [20].

[18] Australian Skills Quality Authority.

[19] "Will SCT head office provide indemnity from any possible future action from ASQA for any SCT staff member signing any documentation related to this course?" 

[20] See also the section of these reasons on Medical opinion evidence at [146] to [164].

[21] Mr Curran observed the Appellant's angry speech.  She was "hot under the collar about it all."  There was "obviously something that was concerning her" and it appeared that she had "lost all focus on … the position that she held."  She did not show any physical violence, or physical aggression.

[22] See the summary of Mr Turnbull's evidence at [101].

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

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

[25] Q-COMP v Queensland Rail, Decision C/2011/26 at [11].

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[40] Versace v Braun (2005) 178 QGIG 315, 316 (Hall P); see also Alex Sabo v Q-COMP (C/2010/46) - Decision , [21]

[41] Bowers v WorkCover Queensland (2002) 170 QGIG 1; WorkCover Queensland v Kehl (2002) 170 QGIG 93, 94; Delaney v Q-Comp Review Unit (2005) 178 QGIG 197.

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

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

[44] See Delaney v Q-COMP (2005) 178 QGIG 197, 198.

[45] Delaney v Q-COMP (2005) 178 QGIG 197, 198; Q-COMP v Whyte C/2009/32, [21]-[24].

Close

Editorial Notes

  • Published Case Name:

    Reid v Workers' Compensation Regulator

  • Shortened Case Name:

    Reid v Workers' Compensation Regulator

  • MNC:

    [2016] QIRC 47

  • Court:

    QIRC

  • Judge(s):

    Neate IC

  • Date:

    22 Apr 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

Case NameFull CitationFrequency
Avis v WorkCover Queensland (2000) 165 QGIG 788
2 citations
Jump To
Cite 1 - (2000) 165 QGIG 788
Cite 2 - (2000) 165 QGIG 788
Bowers v WorkCover Queensland (2002) 170 QGIG 1
1 citation
Jump To
Cite 1 - (2002) 170 QGIG 1
Cf Delaney v Q-Comp Review Unit (2005) 178 QGIG 197
1 citation
Jump To
Cite 1 - (2005) 178 QGIG 197
Church v Workers' Compensation Regulator [2015] ICQ 31
1 citation
Jump To
Cite 1 - [2015] ICQ 31
Coombes v Q-Comp (2007) 186 QGIG 680
2 citations
Jump To
Cite 1 - (2007) 186 QGIG 680
Cite 2 - (2007) 186 QGIG 680
Davis v Blackwood [2014] ICQ 9
1 citation
Jump To
Cite 1 - [2014] ICQ 9
Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500
1 citation
Jump To
Cite 1 - (1987) 163 CLR 500
Hardy v Workers' Compensation Regulator [2015] ICQ 27
5 citations
Jump To
Cite 1 - [2015] ICQ 27
Cite 2 - [2015] ICQ 27
Cite 3 - [2015] ICQ 27
Cite 4 - [2015] ICQ 27
Cite 5 - [2015] ICQ 27
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
2 citations
Jump To
Cite 1 - (1992) 173 CLR 473
Cite 2 - (1992) 173 CLR 473
Kavanagh v The Commonwealth (1960) 103 CLR 547
2 citations
Jump To
Cite 1 - (1960) 103 CLR 547
Cite 2 - (1960) 103 CLR 547
Lackey v WorkCover Queensland (2000) 165 QGIG 22
1 citation
Jump To
Cite 1 - (2000) 165 QGIG 22
Leigh Sheridan v Q-COMP (2009) 191 QGIG 13
2 citations
Jump To
Cite 1 - (2009) 191 QGIG 13
Cite 2 - (2009) 191 QGIG 13
Luxton v Q-Comp (2009) 190 QGIG 4
1 citation
Jump To
Cite 1 - (2009) 190 QGIG 4
MacArthur v WorkCover Queensland (2001) 167 QGIG 100
2 citations
Jump To
Cite 1 - (2001) 167 QGIG 100
Cite 2 - (2001) 167 QGIG 100
Mayo v Q-COMP (2004) 177 QGIG 667
1 citation
Jump To
Cite 1 - (2004) 177 QGIG 667
Newberry v Suncorp Metway Insurance Ltd[2006] 1 Qd R 519; [2006] QCA 48
2 citations
Jump To
Cite 1 - [2006] 1 Qd R 519
Cite 2 - [2006] 1 Qd R 519
Newman v Workers' Compensation Regulator [2015] ICQ 14
1 citation
Jump To
Cite 1 - [2015] ICQ 14
Nilsson v Q-Comp (2008) 189 QGIG 523
2 citations
Jump To
Cite 1 - (2008) 189 QGIG 523
Cite 2 - (2008) 189 QGIG 523
Prizeman v Q-COMP (2005) 18 QGIG 481
1 citation
Jump To
Cite 1 - (2005) 18 QGIG 481
Q-COMP v Foote (No. 2) (2008) 189 QGIG 539
2 citations
Jump To
Cite 1 - (2008) 189 QGIG 539
Cite 2 - (2008) 189 QGIG 539
Q-COMP v Green (2008) 189 QGIG 747
2 citations
Jump To
Cite 1 - (2008) 189 QGIG 747
Cite 2 - (2008) 189 QGIG 747
Q-Comp v Hohn (2008) 187 QGIG 139
1 citation
Jump To
Cite 1 - (2008) 187 QGIG 139
Q-COMP v Rowe (2009) 191 QGIG 67
2 citations
Jump To
Cite 1 - (2009) 191 QGIG 67
Cite 2 - (2009) 191 QGIG 67
QANTAS Airways Limited v Q-Comp and Michelle Blanch (2009) 191 QGIG 115
2 citations
Jump To
Cite 1 - (2009) 191 QGIG 115
Cite 2 - (2009) 191 QGIG 115
Re Yu and Comcare [2010] AATA 960
1 citation
Jump To
Cite 1 - [2010] AATA 960
State Government Insurance Commission v Stevens Bros Pty Ltd (1984) 154 CLR 552
1 citation
Jump To
Cite 1 - (1984) 154 CLR 552
State of Queensland v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447
3 citations
Jump To
Cite 1 - (2003) 172 QGIG 1447
Cite 2 - (2003) 172 QGIG 1447
Cite 3 - (2003) 172 QGIG 1447
Svenson v Q-COMP (2006) 181 QGIG 629
1 citation
Jump To
Cite 1 - (2006) 181 QGIG 629
The Commonwealth v Lyon (1979) 24 ALR 300
2 citations
Jump To
Cite 1 - (1979) 24 ALR 300
Cite 2 - (1979) 24 ALR 300
Versace v Braun (2005) 178 QGIG 315
1 citation
Jump To
Cite 1 - (2005) 178 QGIG 315
Westgate v Australian Telecommunications Commission (1987) 17 FCR 235
1 citation
Jump To
Cite 1 - (1987) 17 FCR 235
WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6
4 citations
Jump To
Cite 1 - (2003) 172 QGIG 6
Cite 2 - (2003) 172 QGIG 6
Cite 3 - (2003) 172 QGIG 6
Cite 4 - (2003) 172 QGIG 6
WorkCover Queensland v Kehl (2002) 170 QGIG 93
1 citation
Jump To
Cite 1 - (2002) 170 QGIG 93
Workers' Compensation Regulator v Adams [2015] ICQ 1
3 citations
Jump To
Cite 1 - [2015] ICQ 1
Cite 2 - [2015] ICQ 1
Cite 3 - [2015] ICQ 1

Cases Citing

Case NameFull CitationFrequency
Hodder v Workers' Compensation Regulator [2018] QIRC 1542 citations
Kevesther Pty Ltd v Workers' Compensation Regulator [2024] QIRC 1952 citations
Santos Ltd v Simon Blackwood (Workers' Compensation Regulator) [2016] QIRC 672 citations
State of Queensland (Queensland Police Service) v Workers' Compensation Regulator & Neville Stretton [2023] ICQ 152 citations
1

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