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Kuenstner v Workers' Compensation Regulator[2016] QIRC 83

Kuenstner v Workers' Compensation Regulator[2016] QIRC 83

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Kuenstner v Workers' Compensation Regulator [2016] QIRC 083

PARTIES: 

Kuenstner, Julio Bansano

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2014/343

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

9 August 2016

HEARING DATES:

HEARD AT:

12, 15, 16 and 17 June 2015

12, 13, 14 and 16 October 2015

23 November 2015 (Appellant's written submissions)

26 November 2015 (Respondent's written submissions)

10 December 2015 (Appellant's written submissions in reply)

11 January 2016 (Respondent's reply to the Applicant's written submissions)

Brisbane

MEMBER:

Industrial Commissioner Neate

ORDERS:

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

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION – injury a psychiatric or psychological disorder – 13 stressors – whether the appellant's injury arose out of, or in the course of, the appellant's employment – whether the appellant's employment was the major significant contributing factor to his injury – whether his injury arose out of, or in the course of, reasonable management action taken in a reasonable way – whether injury arose out of his perception of reasonable management action taken against him – appellant bears onus of proof

CASES:

Workers Compensation and Rehabilitation Act 2003 s 32

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

Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1

Avis v WorkCover Queensland (2000) 165 QGIG 788

Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324

Blackwood v Adams [2015] ICQ 001

Bowers v WorkCover Queensland (2002) 170 QGIG 1

Boyd v Q-COMP (2005) 180 QGIG 1129

Browne v Dunn (1894) 6 R 67

Calder v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 101

Christine McHours v Q-COMP, C/2012/12

Coombes v Q-COMP (2007) 185 QGIG 680

Cooper v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 38

Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100

Davidson v Blackwood [2014] ICQ 008

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

Elizabeth Miller v Q-COMP (C/2009/20) - Decision

Hansen v WorkCover Queensland (Unreported, Industrial Magistrates Court, Industrial Magistrate Taylor, 15 November 2001)

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

Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473

Lackey v WorkCover Queensland (2000)165 QGIG 22

MacArthur v WorkCover Queensland (2001) 167 QGIG 100

Mater Misercordiae Health Services Brisbane Limited v Q-COMP (2005) 179 QGIG 144

Mayo v Q-COMP (2004) 177 QGIG 667

McMah v Simon Blackwood [2014] QIRC 013

Misevski v Q-COMP, C/2009/29 - Decision

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

Newman v Blackwood [2015] ICQ 014

Nilsson v Q-COMP (2008) 189 QGIG 523

Pollock v Wellington (1996) 15 WAR 1

Prizeman v Q-COMP (2005) 18 QGIG 481

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

Q-COMP v Foote (No 2) (2008) 189 QGIG 802

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

Q-COMP v Hohn (2008) 187 QGIG 139

Q-COMP v Parsons (2007) 185 QGIG 1

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

Q-COMP v Riggs (2005) 179 QGIG 251

R v Turner [1975] QB 843

Re Yu and Comcare [2010] AATA 960

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

Simon Blackwood (Workers' Compensation Regulator) v Mahaffrey [2016] ICQ 010

State Government Insurance Commission v Stephens Brothers Pty Ltd (1984) 154 CLR 552

Versace v Braun (2005) 178 QGIG 315

Ward v Q-COMP (C/2011/39)

WorkCover Queensland v Buchanan (2000) QGIG 124

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

WorkCover Queensland v Heit (2000) 164 QGIG 121

WorkCover Queensland v Kehl (2002) 170 QGIG 93

APPEARANCES:

Mr H. Kuenstner, appearing as agent on behalf of the Appellant

Mr P. O'Neill, Counsel for the Respondent, instructed directly by the Respondent

Decision

  1. [1]
    Julio Bansano Kuenstner ("the Appellant") is a chef.  He claims to have suffered a psychological injury during the course of his employment as a chef by Australian Leisure and Hospitality Group Pty Ltd ("ALH").  On 25 February 2014 he lodged with self-insurer, Woolworths, an Injured Worker Statement Form in which he described his injury as "work related stress."  Woolworths rejected his application for compensation.
  1. [2]
    By letter dated 25 November 2014, a review officer of the Workers' Compensation Regulator ("the Respondent") advised the Appellant of the Respondent's decision of that date to confirm the decision of Woolworths to reject his application for compensation in accordance with s 32 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. [3]
    The Appellant was born in June 1987.  In December 2005, while still at high school, he commenced employment with ALH as a kitchen hand.  Early in 2009, he commenced his apprenticeship as a chef.  He completed that apprenticeship in December 2012 and was awarded a Certificate III in Hospitality (Commercial Cookery) from the Southbank Institute of Technology (Exhibit 11).
  1. [4]
    The Appellant served two and a-half years of his apprenticeship at the Lawnton Tavern.  In August 2012, he transferred to the Warner Tavern to complete practical aspects of his apprenticeship (see T2:44, 3:45).
  1. [5]
    On 1 December 2012, the Appellant was transferred to the Captain Cook Tavern.   Most of the events or interactions which, he claims, caused his psychiatric or psychological injury and gave rise to his claim for compensation occurred there. 
  1. [6]
    On 1 December 2013, following a series of alleged events and interactions, the Appellant was provided with a notice to attend a performance meeting in relation to allegations of misconduct made against him (Exhibit 15).  Having attended a meeting at which he was counselled about unsatisfactory aspects of his conduct within the workplace, he was provided with a written warning by letter dated 3 December 2013 (Exhibit 16).  About 17 or 18 December 2013, the Appellant was transferred at his request from the Captain Cook Tavern to the Petrie Hotel.
  1. [7]
    By letter dated 21 January 2014, the AHL Human Resources Manager responded to various items of correspondence from the Appellant and his father in relation to aspects of his employment, his concerns about being disciplined and other matters, and his experience of stress (Exhibit 14).  The Appellant commenced a period of sick leave on 27 January 2014 and made his application for compensation dated 25 February 2014 (Exhibit 12).

 Legal framework

  1. [8]
    The appeal is to be resolved by reference to s 32 of the Act, in particular the definition of "injury" in subsection (1).
  1. [9]
    Before 29 October 2013, s 32(1) provided:

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

  1. [10]
    As a consequence of amending legislation that commenced on 29 October 2013, s 32(1) provides:

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

  1. (a)
    for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury; or
  1. (b)
    for a psychiatric or psychological disorder - the employment is the major significant contributing factor to the injury."
  1. [11]
    As a result of the different wording, and depending on when his injury occurred, the Commission has to decide whether the Appellant's employment was:
  1. (a)
    "a significant contributing factor" to his injury; or
  1. (b)
    "the major significant contributing factor" to his injury.
  1. [12]
    Consequently, it is necessary to determine when the Appellant's injury was sustained before ascertaining the relevant definition of injury.
  1. [13]
    Subsection 32(5) of the Act states:

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

  1. (a)
    reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
  1. (b)
    the worker's expectation or perception of reasonable management action being taken against the worker;
  1. (c)
    action taken by the regulator 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. [14]
    In its written submissions, the Respondent:
  1. (a)
    concedes that the Appellant is a "worker" for the purposes of the Act; and
  1. (b)
    concedes that the Appellant has suffered a psychological/psychiatric injury; but
  1. (c)
    notes that the timing of the onset of the Appellant's initial symptoms and the timing of the onset of his psychiatric injury is very much in issue.
  1. [15]
    It is clear from the Respondent's submission that the issues to be resolved in this case are:
  1. (a)
    when the Appellant suffered his injury;
  1. (b)
    whether his injury arose out of, or in the course of, the Appellant's employment;
  1. (c)
    depending on when the injury occurred, whether the Appellant's employment was "a significant contributing factor" or "the major significant contributing factor" to his injury; and
  1. (d)
    whether the Appellant's injury is excluded from the definition of "injury" by the operation of s 32(5) of the Act.
  1. [16]
    Although the appeal is against the decision of the Respondent, the proceedings are not conducted as an appeal.  Rather, the proceedings are conducted as a hearing de novo.  The Commission decides the matter afresh by reference to the evidence before it and the submissions made by the parties to the proceedings, not by reference to the reasons for decision of the Respondent on the material to which the Respondent had regard in making its decision.
  1. [17]
    The Appellant bears the onus of proving on the balance of probabilities that he has an "injury" within the meaning of the Act.
  1. [18]
    Although the onus to be discharged is on the balance of probabilities, the Commission, in dealing with the matter, must feel an actual persuasion before the alleged facts can be found to exist.  The 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.[1]
  1. [19]
    There is room for intuitive reasoning when determining whether a worker has suffered an "injury" within the meaning of the Act.  But, in the process of determining that question of fact, the Commission cannot substitute speculation for satisfaction on the balance of probabilities.[2]
  1. [20]
    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.[3] 
  1. [21]
    Accordingly, the appeal will only succeed if the Appellant satisfies the Commission that:
  1. (a)
    he suffered an injury that arose out of, or in the course of, his employment;
  1. (b)
    the employment was either a significant contributing factor to the injury or the major significant contributing factor (depending on the date of the injury); and
  1. (c)
    his injury did not arise out of, or in the course of, reasonable management action taken in a reasonable way, or his perception of reasonable management action being taken against him.

Legal tests for deciding whether an injury is work-related

  1. [22]
    The legal test that the injury must arise out of, or in the course of, employment is relatively undemanding.  There are decisions for the propositions that:
  1. (a)
    the phrase "arising out of" is wider than "caused by" and, although it involves some causal or consequential relationship between the employment and the injury, "arising out of" does not require that direct or proximate relationship that would be necessary if the phrase used were "caused by;"[4]
  1. (b)
    an injury arises out of employment if the fact that the claimant was employed in the particular job caused, or to some material extent contributed to, the injury;[5]
  1. (c)
    in determining whether an injury occurred "in the course of" employment, regard must always be had to the general nature, terms and circumstances of the employment and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen.[6]
  1. [23]
    There might be more debate about the meaning or scope of the expression "the major significant contributing factor."  When introducing the amending Bill on                              15 October 2013 the Attorney-General said:

"The bill will increase the onus on workers to prove psychiatric and psychological disorders are work related.  Workers will have to satisfy insurers that their employment was 'the most' significant contributing factor to the injury or aggravation in order to be compensated."

  1. [24]
    In my view, the current requirement is more demanding or stringent than its predecessor because the Act now requires the employment be "the major" rather than "a" significant contributing factor to the injury, apparently removing the possibility that an application for compensation could be accepted where employment was simply one of a number of significant contributing factors to the injury.[7]  "Major" is one of three adjectives describing the nature of the necessary factor.  It is used in its ordinary English sense of "greater, as in … importance," "very important or significant,"[8] and "unusually important or serious or significant."[9]
  1. [25]
    The Act as amended does not preclude claims being accepted where the injury is caused by more than one significant contributing factor.  As I read s 32(1)(b), a number of factors could contribute to a worker's psychiatric or psychological disorder.  However, the worker's claim will only be accepted under the Act if their employment was "the major significant contributing factor" to their disorder.
  1. [26]
    Whether employment is the major significant contributing factor to an injury is a question of mixed law and fact to be determined by the Commission.[10]  In reaching that determination, the Commission can be assisted by evidence given by medical practitioners.[11]
  1. [27]
    There are decisions for the propositions that:
  1. (a)
    the reference to "employment" in s 32(1) is to employment as a set of circumstances, that is to the exigencies of employment of the worker by the employer, and refers to what the worker in fact does during the course of employment;[12]
  1. (b)
    the fact that an injury has been suffered arising out of, or in the course of, employment is not sufficient to establish that the employment has been "a significant contributing factor to the injury" (and hence "the major significant contributing factor") and there needs to be a more substantial connection between the employment and injury;[13]
  1. (c)
    employment needs to be a "real effective cause" of the injury and not merely the setting or background in which the injury occurs;[14]
  1. (d)
    if innocuous events which actually occurred were totally misconstrued by the claimant because of an existing condition, and the claimant imagined that other events or incidents had occurred, the claimant's employment could be said to be a contributing factor but not a significant (and hence not the major) contributing factor;[15]
  1. (e)
    the operation of disturbed perception and reasoning upon objectively identified workplace issues (such as the presence of toxic compounds in the product with which a claimant was required to work) can be sufficient to make the causal connection between the disorder and employment;[16]
  1. (f)
    where a claimant is mistaken about what their employer was asking them to do and becomes distressed on the basis of that misunderstanding such that there was no factual basis for their concern, or the workplace issues could be understood as pure fantasy, their employment would not be a significant contributing factor to the injury;[17]
  1. (g)
    events that do not occur in the workplace cannot contribute to the development of a work related psychiatric or psychological condition.[18]

Legal tests for deciding whether an injury arose out of, or in the course of, reasonable management action

  1. [28]
    Numerous decisions of the Commission and Industrial Court include discussions about the operation of s 32(5)(a) of the Act.  They provide the context in which this aspect of the appeal will be decided.
  1. [29]
    In Q-COMP v Queensland Rail,[19] President Hall 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. [30]
    In Q-COMP v Foote (No 2), President Hall 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."[20]  In relation to those statutory qualifications, Hall P wrote:

"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))."[21]

  1. [31]
    It follows that, as Justice Martin has observed, in circumstances where the trigger for the injury was reasonable management action taken in a reasonable way, then "it is an error not to have concluded that the injury was excluded by virtue of s 32(5)."[22]
  1. [32]
    In Lackey v WorkCover Queensland,[23] President Hall 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").[24]

  1. [33]
    In the subsequent decision of WorkCover Queensland v Curragh Queensland Mining Pty Ltd,[25] President Hall 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)

  1. [34]
    He continued by reiterating that it was settled by the decision in Avis[26] that the test posited by the words "arising out of" is wider than that provided by the words "caused by."[27]
  1. [35]
    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.[28]  Justice Martin has expressed his agreement with the reasoning in               Q-Comp v Hohn where President Hall said that the mere occurrence of reasonable management action will not insulate a disorder from characterisation as an “injury.”[29]
  1. [36]
    There is also authority in decisions of President Hall 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.[30]
  1. [37]
    In Bowers v WorkCover Queensland,[31] President Hall 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. [38]
    There are also decisions to the effect that:
  1. (a)
    what management must do is be reasonable, not perfect, and, although considerations of fairness will always be relevant, "reasonableness" does not always equate with "industrial fairness;"[32]
  1. (b)
    it is not necessary that management action be perfect or above criticism,[33] and the term "reasonable management action" permits "failings, deficiencies and flaws provided the management action was sound, based on reason, was not arbitrary, did not involve any unfairness and did not produce an unfair result."[34]
  1. [39]
    In Prizeman v Q-COMP,[35] President Hall 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. [40]
    Where there are multiple stressors alleged to be management action, the Commission may make a more "global" evaluation of management action when considering whether that management action was unreasonable or was taken in an unreasonable way (e.g. where there are were repetitive blemishes joined by subject matter, time and personality in a discordant workplace).[36]
  1. [41]
    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.[37]  Language, tone of voice and demeanour are relevant to the issue whether action was taken in a reasonable way.[38]
  1. [42]
    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.[39] As Justice Martin 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.”[40]

 Stressors

  1. [43]
    Part of the task of the Commission is to decide which of the stressors identified by the Appellant are significant in giving rise to his condition.
  1. [44]
    In accordance with the Further Directions Order dated 12 March 2015, the Appellant filed a Statement of Stressors.  That document lists the following 13 events between March 2013 and January 2014, which are said to be "reasons for sustained psychiatric/psychological injury/illness" referred to in the Licensed Investigator IDIS Group report 26 March 2014:[41] 
  1. (1)
    "That during the month of March 2013, Head Chef 'Cranston' on holidays for         2 weeks, there was no Sou Chef (a requirement), Chef Julio performed all head chef duties replenishing food stocks etc., Cook 'Taiperty Nolan'" (part time tattooist) neglected kitchen duties attending to his customers on his mobile phone, there was an overload of cooking for Chef Julio. The Assistant Manager "Thierry and Taiperty" (both indigenous New Zealanders) refused around            15 repeated request from Chef Julio not following up his pleading for help.
  1. (2)
    That in late February or early March 2013, Chef Julio also requested help/intervention from Venue Manager Ben Dyson for the above stated reasons no help was forthcoming.
  1. (3)
    That instead correcting kitchen issues with Cook Taiperty, whilst Head Chef Cranston was on holidays, Venue Manager Ben Dyson with a very loud voice for Tavern customers to hear abused Chef Julio with the use of f…. words. The uncalled abuse on kitchen issues should have been addressed to the Head Chef or to the non-existent Sou Chef - not Chef Julio.
  1. (4)
    That around the same time Chef Julio was targeted by Area Manager Dane Drane claiming he inspected the kitchen after serving lunch there was oil left in the tray, Cook Taiperty failed to empty the tray.
  1. (5)
    That after forwarding a written complained to Head Office Melbourne Area Manager Dane Drane was required to sort issues with Chef Julio, that meeting took place in late February 2013, subject; non-appointment to Sou Chef position.  The meeting lasted for 13-15 minutes only, there was no mention regarding the issue of Chef Julio's Sou Chef position.
  1. (6)
    That a letter received from Jenny Wregg Human Resources stated that Area Manager Dane Drane discussed the Sou chef position with Chef Julio for 1 hour.  Subsequent to the reply from Human Resources Manager Jenny Wregg, Ashley Harris ALH Investigator checked Chef Julio's time line on CCTV, confirming Area Manager Dane Drane misleads Melbourne Head Office. In August 2013, at mediation prior Head Chef Cranston's transfer to the North Lakes Tavern Venue Manager Ben Dyson was informed by head chef 'Cranston' - a Sou Chef was needed.
  1. (7)
    That subsequent to the above described incidents Chef Julio at that time employed by ALH without any incidents for 8 years was targeted by Area Manager Dane Drane and Venue Manager Ben Dyson for a dismissal.
  1. (8)
    That for over 2 weeks Chef Julio was the acting Head Chef, Steve Speack was appointed as the new head chef (at that time for 3 month on probation)                      Chef Julio instructed on kitchen procedures. At that time Head Chef Steve Speak over ordered chicken schnitzel and large quantities of chips, stored in the cool room instead the freezer.  Prior Chef Julio's days off, 'Julio' advised                Head Chef Speak not to serve the smelly chicken, returned by Tavern Patrons. Instead Head Chef Speack sorted cross contaminated chicken schnitzels indented to serve smelly chicken for lunch the next day - the cause for Salmonella poisoning. Chef Julio was wrongfully accused of undermining          Head Chef!
  1. (9)
    That Chef Julio also raised his concerns with Venue Manager Ben Dyson with the knowledge of Head Office management in Bulimba, Chef Julio was framed with false allegations, concocted evidence was produced by Venue Manager Ben Dyson with the support of Ezra Pyers, Bulimba Head Office management arranged a trumped up investigation claiming Chef Julio undermined the newly appointed Head Chef Steve Speak.
  1. (10)
    That during the same period after Cook Taiperty's replacement, Venue Manager Ben Dyson appointed his friend Sean Beck as a Cook who had no knowledge of cooking tavern food, Head Chef Cranston and Chef Julio instructed him how to prepare food, many times the COOK sent out food half cooked only.  The COOK distorted factual kitchen issues, his uniform was unwashed (owned 1 uniform only) had mental issues, was on prescription drugs. There was a build up for multiple stressors, especially with Venue Manager Ben Dyson stating that on food preparations Cook Sean Beck and Chef Julio are equal, Julio trained 4 years at the South Bank Institute of Technology it included food safety.
  1. (11)
    That following Venue Manager Ben Dyson's dismissal in December 2013, Bartender Gracie Mills, De Facto of Cook Sean Beck posted during working hours on Face book in December 2013, threatening with retaliation.
  1. (12)
    That after Chef Julio was transferred to the Petrie Hotel; he was shunned and called a "TROUBLEMAKER" by Bartender Ronan.
  1. (13)
    That in January 2014 the Melbourne Head Office Recourse Manager Jenny Wregg informed Chef Julio "HIS WORK WITH ALH HAS BECOME UNTENABLE"." (Emphasis and errors in original)
  1. [45]
    Having listed the 13 stressors the Appellant wrote:

"All above stated incidence plus many more are fully documented causing a build up of work related psychological injuries deliberately manufactured by ALH management with the intent to create a reason to dismiss Chef Julio, who was assisted by the Fair Work Commission President The Hon Justice IJL Ross preventing the pre-arranged dismissal." (Errors in original)

  1. [46]
    The Appellant agreed that he had the opportunity of preparing the Statement of Stressors in conjunction with his father, and that he had made sure that the document represented all of the factors that he wanted to raise as the cause of him becoming unwell. 
  1. [47]
    As the President of the Commission, Justice Martin, stated in recent decisions:
  1. (a)
    a statement of stressors is an aid in the determination of a worker's entitlements;[42]
  1. (b)
    the process of filing and serving a list of stressors is used to identify those events or matters which an appellant worker says caused the psychiatric or psychological injury;[43]
  1. (c)
    the list of stressors must be confined to matters that are relevant to the injury - it is not to be a list of grievances;[44]
  1. (d)
    the list of stressors is not, by itself, evidence;[45]
  1. (e)
    the provision of such a list does no more than alert the Respondent of the case to be advanced by the Appellant;[46]
  1. (f)
    the statement of stressors serves to confine the issues which must be considered on the appeal, and an appellant may not depart from the statement of stressors without leave;[47]
  1. (g)
    the Respondent is entitled to engage in the proceedings on the basis that statement of stressors comprises the matters which constituted the entirety of an appellant's claim;[48]
  1. (h)
    the Commission must decide the appeal by reference to the list of stressors and may not go beyond them when making findings.[49]

 Conduct of the appeal

  1. [48]
    The Appellant's father, Hans Kuenstner, appeared as the authorised agent of the Appellant.  Mr Kuenstner Snr is not a lawyer, and was not familiar with the conduct of hearings before the Commission.  In many respects, the practical difficulties that attend many proceedings conducted by litigants in person were apparent in these proceedings.  These included difficulties with the framing of appropriate questions of witnesses and with the tendering of documentary evidence in an appropriate manner.  Mr Kuenstner Snr brought to the hearing a bundle of documents which he asserted were relevant to the appeal.  Some of them are in evidence.
  1. [49]
    Mr Kuenstner Snr was actively involved in many of the events that preceded the lodgement of the claim for compensation and the lodgement of the appeal to the Commission.  He prepared many documents that the Appellant signed and are significant for this appeal, namely:
  1. (a)
    the Injured Worker Statement Form (Exhibit 12), which Mr Kuenstner Snr hand wrote; and
  1. (b)
    letters and related documents sent to management of ALH between 8 December 2013 and 17 February 2014 in relation to warnings and disciplinary proceedings involving the Appellant (Exhibits 1, 2, 3, 4, 5, 6, 9 and 10), which he typed. 
  1. [50]
    The Appellant and Mr Kuenstner Snr gave evidence to the effect that the documents were prepared on the basis of notes and oral elaborations and instructions provided by the Appellant.  The letters were expressed using Mr Kuenstner Snr's phraseology rather than the Appellant's "different wording."  Although the documents were signed by the Appellant, some refer to him in the third person.  That is consistent with Mr Kuenstner Snr having prepared them.  Mr Kuenstner Snr gave oral evidence that he wrote the letters "because my son was accused of doing things he has not done."  However, Mr Kuenstner Snr rejected the suggestion that he was the motivating force behind the documents and this appeal. So did the Appellant, who explained that he told his father what to write in the Injured Worker Statement Form and that the Appellant proof-read and signed it.
  1. [51]
    Other evidence (some of which is summarised in these reasons) also shows how extensively and actively Mr Kuenstner Snr was involved in events that preceded the lodgement of the claim for compensation and in the prosecution of the claim.  For example, Mr Keunstner Snr:
  1. (a)
    attended an interview conducted with the Appellant by ALH's Area Manager Dan Drane and Venue Manager Ben Dyson about the Appellant's work performance or conduct in relation to incidents in the kitchen in about March 2013;
  1. (b)
    was present as a witness or support person in a meeting on                                   2 December 2013 convened by Human Resources Manager Ezra Pyers to investigate allegations against the Appellant in relation to incidents in the workplace;
  1. (c)
    attended each of the six consultations the Appellant had with his general practitioner, Dr Lindsay Davidson, between 28 January 2014 and                  8 May 2014 (Mr Kuenstner Snr gave evidence that at the first consultation the Appellant, who "was in a very depressed state," asked him to inform Dr Davidson about what had happened to him, and her consultation notes record that on that occasion he did most of the talking and appeared, at a subsequent consultation, to be a "forceful character");
  1. (d)
    attended and spoke at the Appellant's consultations with his next general practitioner, Dr Bhat;
  1. (e)
    had three telephone conversations with Mr Pyers about allegations concerning the Appellant's behaviour at work. 
  1. [52]
    There was no evidence that the Appellant, aged 26 in 2013, was incapable of doing many of those things on his own.  He completed year 12 at school and a three year course as part of his apprenticeship to qualify as a chef.  He can read and write in English. As a witness he demonstrated that he is a thoughtful, intelligent man who at times put his recollection or version of events firmly and with conviction.  Yet it was readily apparent that the conduct of the appeal was very much in the hands of Mr Kuenstner Snr, and the Appellant appeared to play little if any part in instructing or assisting his father during the hearing.
  1. [53]
    It is clear that Mr Kuenstner Snr prepared the written submissions on behalf of the Appellant.  The conclusion to the written submissions commences:

"I Hans Kuenstner, appointed as an Agent by Appellant Chef Julio Kuenstner regretfully without the advantage of any legal training endeavour to inform the Commissioner of all truthful events bringing on Chef Julio's work related stressors."

  1. [54]
    The Respondent is meant to behave as a model litigant in proceedings such as these.  Counsel for the Respondent, Mr O'Neill, took appropriate objections to questions (and to the tender of some documents) but otherwise provided a level of assistance in relation to the procedures before the Commission consistent with his client's model litigant role.
  1. [55]
    It is appropriate to make that observation because the written submissions made on behalf of the Appellant contained numerous and sometimes vitriolic criticisms of Counsel for the Respondent and his instructing officer in relation to aspects of their conduct during the course of the hearing.  A careful analysis of those criticisms indicates that many of them arise from a misunderstanding of the role of Counsel. Others are mistaken allegations of impropriety in relation to the production into evidence of a letter from the Appellant to the General Manager of Child Support dated 22 September 2014 (Exhibit 19), which contains material adverse to the Appellant's case.
  1. [56]
    The Appellant's written submissions contended, for example, that Counsel for the Respondent put words in people's mouths and manipulated facts. It was clear, however, that in the course of cross-examination, counsel was testing the evidence of witnesses and putting propositions to them that reflected evidence called by the Respondent.  That was in accordance with the rule that counsel are obliged when cross-examining to provide the witness with the opportunity to deny the evidence of that Counsel's own witnesses.  A failure to cross-examine a witness on the evidence of that other witness may be taken as an admission of the truth of that evidence.[50]  In that context, I reject the Appellant's contentions in this case that counsel was putting words into the mouths of witnesses or manipulating facts.
  1. [57]
    The Appellant (or at least Mr Kuenstner Snr) appeared to allege that a witness (or witnesses) called by the Respondent was "coached" by Counsel for the Respondent in relation to the evidence they would give to the Commission.  In apparently equating a barrister having a conference with a witness as them coaching the witness, the Appellant misunderstood the process of preparing for a hearing and made unsubstantiated allegations against Counsel for the Respondent. 
  1. [58]
    Much time and energy was spent in the course of the hearing dealing with contentions about whether the Appellant's letter dated 22 September 2014 to the General Manager of Child Support should be evidence in these proceedings.  The Appellant made various allegations about how the Respondent acquired that letter, and disputed its relevance to this appeal and the propriety of relying on it.  It is not necessary here to recount the contentions made and dealt with at length, particularly on day five of the hearing.[51]  It is sufficient to note that I am satisfied that:
  1. (a)
    the letter was signed by the Appellant;
  1. (b)
    the letter was provided to the Respondent by the Appellant along with other documents on a USB stick on 23 September 2014 in the course of disclosing to the Respondent the documents in the Appellant's possession relevant to the matter in issue in these proceeding; and
  1. (c)
    that the contents of the letter are relevant to both the basis on which Dr Matheson formed an opinion about the cause of the Appellant's psychiatric or psychological disorder and the credibility of the Appellant.
  1. [59]
    Although some latitude was given to the Appellant and his representative in the conduct of the appeal, it remains the case that:
  1. (a)
    the decision about the appeal can only be based on evidence before the Commission; and
  1. (b)
    the Appellant bears the onus of proof on the balance of probabilities.
  1. [60]
    The detailed written submission made on behalf of the Appellant commences with the statement that it:

"identifies Appellant Chef Julio's psychological injuries in the course of his employment, the proof employment was the major significant contributing factor for injuries sustained.  Furthermore, the court proceedings provided the 'proof' management actions are the major contributing factor in respect to a build-up of work related stressors ..."

  1. [61]
    The conclusion to the submission refers to its "long list of identified causes causing psychological injury."  The submission summarises much of the evidence in the case in the order in which that evidence was given.  However, it does not analyse the evidence by reference to the 13 stressors particularised by the Appellant.  It includes commentary and criticisms of the Respondent (dealt with above), and appears to include or refer to material that was not provided as evidence during the hearing. 
  1. [62]
    For example, the overarching statements in relation to the range of stressors said to have given rise to the Appellant's injury include a reference to those stressors "incubating in November 2012" with the alleged actions of the venue manager at the Lawnton Tavern.  The submission expressly states that the "incubation of the first stressor was not listed in the list of stressors," although it was referred to several times in the course of the hearing.  The Commission cannot consider stressors that were not identified in the Statement of Stressors (see [47] above).  Nor can it give any weight to what purports to be evidence, if that evidence was not received properly in the course of the hearing.  Such material must be disregarded. 
  1. [63]
    For those reasons, the Appellant's written submissions  (although broad in scope) are not as helpful as they might be.  That does not relieve the Commission of the obligation to deal with the appeal by reference to the listed stressors.  However, it is not for the Commission to make the case for the Appellant.  The Commission can only deal with the case which the Appellant has made, based on evidence properly adduced during the hearing.  

Evidence in relation to the injury and its cause

  1. [64]
    Given the way the appeal was run, it is appropriate to consider in the following order:
  1. (a)
    the evidence in relation to each nominated Stressor to assess whether each event or interaction occurred in the way contended by the Appellant and, to the extent relevant, whether the event or interaction involved reasonable management action taken in a reasonable way;[52] and
  1. (b)
    the evidence of the Appellant[53] and the medical experts[54] respectively, as to the nature of the Appellant's injury, the cause of his psychiatric or psychological condition, and when his injury occurred.
  1. [65]
    As noted earlier, the Appellant did not make submissions in relation to specific stressors, preferring to summarise the evidence in the order in which it was given. The Respondent made submissions in relation to every stressor but in some instances the submissions were made about two stressors together on the basis that the factors identified those stressors can be dealt with more effectively together.  The following analysis of the evidence and submissions adopts the format used by the Respondent. Accordingly:

 (a) Stressors 1 and 2 are considered together;

 (b) Stressors 3 and 4 are considered together;

 (c) Stressors 5 and 6 are considered together; and

 (d) Stressors 8 and 9 are considered together.

Some evidence was relevant to more than one stressor.  It was not clear to which stressor some other evidence related.

 Stressors 1 and 2

  1. [66]
    Stressor 1: "That during the month of March 2013, Head Chef 'Cranston' on holidays for 2 weeks, there was no Sou Chef (a requirement), Chef Julio performed all head chef duties replenishing food stocks etc., Cook 'Taiperty Nolan'" (part time tattooist) neglected kitchen duties attending to his customers on his mobile phone, there was an overload of cooking for Chef Julio. The Assistant Manager "Thierry and Taiperty" (both indigenous New Zealanders) refused around 15 repeated request from Chef Julio not following up his pleading for help."
  1. [67]
    Stressor 2: "That in late February or early March 2013, Chef Julio also requested help/intervention from Venue Manager Ben Dyson for the above stated reasons no help was forthcoming."
  1. [68]
    Evidence:  According to the Appellant, in March 2013 whilst Head Chef Cranston Cumberbatch was on holidays for two weeks, the Appellant was basically doing the head chef's role of maintaining the kitchen, ordering stock, doing temp logs and maintaining the kitchen flow.  He recalled that Cook Starr-Nolan was often engaged in other activities (including conversing on his mobile phone).  As a result, the Appellant had to do his work as well to ensure that the job was done and meals were prepared.  The Appellant explained to the assistant manager that Cook Starr-Nolan "wasn't a team player, and he wasn't, you know, fully, 100 per cent on working in the kitchen".  He asked the assistant manager to speak to Cook Starr-Nolan about not having his phone on.  However, after that, nothing was done and Cook Starr-Nolan still brought his phone.  Despite the Appellant's pleas for help, his concerns about the kitchen were not rectified.  The Appellant spoke to Venue Manager Ben Dyson about the matter twice, once in earlier February and again the day before the visit of Mr Drane, because Cook Starr-Nolan would not assist him.  Despite Mr Dyson saying he would "sort it," the situation continued with Cook Starr-Nolan being on the phone. 
  1. [69]
    The Appellant said that he started experiencing issues with Cook Starr-Nolan in January 2013.  After working with him for about six weeks, the Appellant started to realise that Cook Starr-Nolan "wasn't into food and he had tattoos that he was doing with clients and patrons."  He would call in sick and the head chef would contact the Appellant to fill in that shift.  The Appellant said he raised his concerns with Head Chef Rob Morris in about mid-January 2013.  He also raised concerns with Head Chef Cumberbatch who was appointed in March 2013.  The Appellant agreed that some action was taken in response to his concerns and that there would be an improvement in Cook Starr-Nolan's attitude and performance for a period and then he would slack off again.  Cook Starr-Nolan left the Captain Cook Tavern in about May 2013.
  1. [70]
    Although the hierarchy of the kitchen comprised the head chef, commis chef and cook, it was usual that only two of them worked on any particular shift.  All three worked together one day each week (usually Friday as it was a busy day), and each of them was absent for two days each week. 
  1. [71]
    In cross-examination, the Appellant suggested that he experienced stress because he had to do additional work on the two days each week when he worked on the same shift as Cook Starr-Nolan.  Having raised issues with Mr Morris, Mr Cumberbatch and Mr Dyson, the Appellant was not informed of what they did in response and, from what he witnessed in the kitchen, it was his perception that nothing was done.  He suggested that if they had convened a mediation in the kitchen to talk about the issues he would have observed action in response to his concerns.  However, the Appellant conceded he had not asked that there be mediation between him and Cook Starr-Nolan. 
  1. [72]
    Area Manager Dan Drane gave evidence that he was made aware by Mr Dyson of some interpersonal issues in the kitchen, apparently involving Cook Starr-Nolan and Cook Sean Beck.  According to Mr Drane, it seemed to Mr Dyson that the Appellant was "highlighting a number of other people's shortcomings in order to distract the attention that was placed on him for his performance".  Mr Drane addressed the issue with Mr Dyson as they were Mr Dyson's staff and he was accountable for their performance.  Mr Drane asked him to try to resolve the issues amicably and get on with running the business effectively. 
  1. [73]
    Mr Dyson described the Appellant's performance as a commis chef as "very hit and miss" in the sense that there tended to be more bad days than good.  Although Mr Dyson had concerns about the Appellant's performance in the kitchen, the main issues that arose involved the Appellant's "interactions with other staff members, not being the team player and being a bit of a pot-stirrer."  He recalled that the main staff issues were between the Appellant and Cook Starr-Nolan, who commenced work at the Tavern before Mr Dyson commenced there and who had "rather immense personal issues with his family."  In the absence of Head Chef Cumberbatch, they were consistently "bickering and backstabbing each other."  There was a decrease in performance by both of them.  The tensions between the two men were brought to Mr Dyson's attention on "many occasions" by the management team, half of the frontline staff, and the Appellant and Cook Starr-Nolan.  In response, Mr Dyson first addressed the head chef, to whom the Appellant reported.  Mr Dyson did not give him directions, and Mr Cumberbatch was apparently happy to try to resolve the issues within the kitchen before getting higher management involved.  However, they were never resolved. 
  1. [74]
    Mr Dyson hosted a couple of performance management sessions with him, Head Chef Cumberbatch had counselling sessions with him on several occasions, and one of the assistant managers also had a chat with Cook Starr-Nolan.  It appears that those conversations were, at least in part, a response to the Appellant's pleas for help in relation to what was occurring in the kitchen. 
  1. [75]
    In cross-examination, Mr Dyson agreed that it had been brought to his attention that Cook Starr-Nolan had long smokos and restroom sessions. However, Mr Dyson said that he had not observed that the Appellant was overloaded with kitchen duties, prompting requests for help. 
  1. [76]
    Head Chef Cumberbatch gave evidence that there were "many situations" when he and Venue Manager Dyson (and sometimes other management) had to reprimand Cook Starr-Nolan about such matters as turning up late for work, not doing his job properly, general kitchen safety issues, his use of the telephone and his attitude in the kitchen.  Mr Cumberbatch did not involve the Appellant when dealing with such issues because what he was doing in his role as head chef was "irrelevant to anybody… who it doesn't concern." 
  1. [77]
    Following those attempts to address the issues, Cook Starr-Nolan "had his good days and he had his bad.   At some stages there he tried to improve his work commitments."  Apparently he had "a lot of ongoing issues outside of work with his private life" which, Mr Cumberbatch suggested, could explain why he was late for work on occasions.
  1. [78]
    Appellant's submissions:  The Appellant submits that the combination of kitchen incidents and unresolved kitchen issues were responsible for an overload of work contributing to additional work-related stressors, as the Appellant had to fill-in for others and do extra kitchen duties.  Also, whilst working with untrained kitchen staff over a period of time there was a build-up of work-related stress.  In particular, the Appellant submits in relation to Cook Starr-Nolan that there were issues about kitchen safety, his attitude and his lateness for work (or not turning up for work, calling in sick) which were a distraction in the kitchen, and he had no real interest in cooking, was covered with tattoos, and his tattoo clients came to the workplace.
  1. [79]
    The Appellant submits that, despite his pleas for help from assistant managers and the venue manager, he was denied help from venue management and that ALH key management forced him to confront significant kitchen issues without management support.  That was responsible for the build-up of work related stressors.  Although he requested help from Venue Manager Dyson, there was no help from management in relation to kitchen issues (especially reflecting on health and safety).  He was handicapped by Cook Starr-Nolan's kitchen performance and stated that he could not do all the work by himself. 
  1. [80]
    The Appellant acknowledged, however, that Head Chef Cumberbatch and Venue Manager Dyson had reprimanded Cook Starr-Nolan, and that Cook Starr-Nolan and Cook Beck's kitchen issues were addressed with Venue Manager Dyson and managers. 
  1. [81]
    Respondent's submissions: The Respondent submits that the effect of these stressors is that:
  1. (a)
    the Appellant was subject to an additional workload because Cook Starr-Nolan was slacking off and not doing his job properly; and
  1. (b)
    the Appellant made numerous requests for assistance regarding the lack of performance by Cook Starr-Nolan, but nothing was done to assist him. 
  1. [82]
    The Respondent submits that, although the Appellant repeatedly asserted that unresolved kitchen issues were responsible for an overload of work contributing to additional work-related stressors, that contention is not made out on the evidence.  Indeed it has never really been clarified how the Appellant was overloaded with work.  The Respondent submits that the Commission should reject that contention. 
  1. [83]
    The Respondent notes that the Appellant had interpersonal issues with Cook Starr-Nolan and, after a period, had similar interpersonal issues in working with Cook Beck (see Stressor 10).  Almost immediately upon Mr Speak starting as head chef, the Appellant was critical of him and their working relationship appeared to be a "rocky one"  (see Stressors 8 and 9).  The Respondent describes the Appellant as the common denominator in each scenario, and suggests (consistently with Mr Drane's evidence) that the Appellant was raising issues to deflect attention from his own performance. 
  1. [84]
    The Respondent submits that, although the evidence establishes that there was a drop in performance by Cook Starr-Nolan in early 2013, there was also a drop in the Appellant's performance in the context of an increasingly problematic working relationship between the two men where both parties appear to have been at fault. 
  1. [85]
    The Respondent submits that it has not been established on the evidence (other than by the broadest of allegations) how the alleged drop in performance by Cook Starr-Nolan necessarily impacted upon the Appellant to cause him additional work and to cause him stress.  Equally, there is no evidence of the Appellant raising any concerns about him being stressed by the actions of Cook Starr-Nolan.  Nor is there any evidence of the Appellant making a contemporaneous report to a medical practitioner of the onset of any symptoms brought about by the actions of Cook Starr-Nolan. The Appellant failed to report the onset of symptoms arising from these events, which are some time in the past from his decompensation in January 2014.  Rather, the Appellant told Dr Bhat that he only had an onset of symptoms in November 2013.  Accordingly, the Respondent submits, these stressors can be safely put to one side as not having caused the Appellant's condition. 
  1. [86]
    In the alternative, the Respondent submits that, contrary to the Appellant's assertion that management failed to act on his complaints/concerns, the evidence establishes that Head Chef Cumberbatch, Venue Manager Dyson, Mr Magnon and other managerial staff members tried to address the performance issues of Cook Starr-Nolan (and Cook Beck). Indeed, the Appellant gave evidence that he raised his concerns with Head Chef Cumberbatch who told him that he was taking steps to address them.  The Appellant agreed that there would be an improvement in Cook Starr-Nolan's attitude and performance for a period then he would slack off again.
  1. [87]
    In the Respondent's submission, those actions constitute reasonable management action taken by the employer in response to the concerns that were raised by the Appellant about the work performance of his co-workers.  The fact that the interventions attempted by management were not successful in having Cook Starr-Nolan permanently lift his performance does not mean that management did not act reasonably.[55] 
  1. [88]
    Consideration:  On the basis of the evidence summarised above, I find that, in or around February and March 2013:
  1. (a)
    while Head Chef Cumberbatch was on holidays for two weeks, the Appellant, as the more qualified and experienced person on the kitchen staff, was in practice maintaining the kitchen and doing associated tasks;
  1. (b)
    on occasions during those two weeks, and at other times, Cook Starr-Nolan's attendance at work and attitude to work were below the standard required of a cook at the Tavern;
  1. (c)
    the Appellant had some personal issues with Cook Starr-Nolan which originated, in large part at least, as a response to the Appellant's assessment of Cook Starr-Nolan's attitude and actions in the kitchen and absences from the kitchen when he should have been on duty;
  1. (d)
    the Appellant expressed concerns about Cook Starr-Nolan to his immediate managers, including Venue Manager Dyson and Head Chef Cumberbatch, but did not ask for mediation between himself and Cook Starr-Nolan;
  1. (e)
    Mr Dyson, Head Chef Cumberbatch and other managerial staff spoke with Cook Starr-Nolan about such matters as being late for work, not doing his job properly, kitchen safety issues, his attitude and his use of the telephone at work (and at least some of those conversations could be characterised as counselling sessions);
  1. (f)
    as a result of those conversations, there was some improvement in Cook Starr-Nolan's attitude and performance before he would slacken off again;
  1. (g)
    although the Appellant was not involved in the counselling sessions with    Cook Starr-Nolan, he was aware that Cook Starr-Nolan was reprimanded;
  1. (h)
    although the Appellant perceived, incorrectly, that little or nothing had been done in response to his concerns, management had taken appropriate (though not permanently successful) action;
  1. (i)
    as a result of the inadequate assistance provided to him in the kitchen on the two days each week when he worked on the same shift as Cook Starr-Nolan, the Appellant had to do some additional work and experienced some stress (and perhaps frustration or annoyance) as a consequence;
  1. (j)
    the Appellant was not observed to be overloaded with kitchen duties, and he did not report to a doctor or management that he was suffering stress.
  1. [89]
    Consequently, Stressors 1 and 2 were only partially proven and, although management took appropriate actions in response to the Appellant's concerns, those actions were not permanently successful.

Stressors 3 and 4

  1. [90]
    Stressor 3: "That instead correcting kitchen issues with Cook Taiperty, whilst          Head Chef Cranston was on holidays, Venue Manager Ben Dyson with a very loud voice for Tavern customers to hear abused Chef Julio with the use of f…. words. The uncalled abuse on kitchen issues should have been addressed to the Head Chef or to the non-existent Sou Chef - not Chef Julio."
  1. [91]
    Stressor 4: "That around the same time Chef Julio was targeted by Area Manager Dane Drane claiming he inspected the kitchen after serving lunch there was oil left in the tray, Cook Taiperty failed to empty the tray."
  1. [92]
    Evidence: The Appellant agreed that when the head chef was away from work, he and the cook would operate the kitchen.  During the two week period when                                Head Chef Cumberbatch was on leave, the Appellant was alleging that Cook Starr-Nolan was not pulling his weight and the cook was alleging that the Appellant was not pulling his weight.  The Appellant agreed that there was such a breakdown in the way that he and Cook Starr-Nolan were functioning as a team that the kitchen was not operating properly.  He did not agree that there was a distinct drop in his performance at that time, however agreed that on occasions he was late to work, as was the cook.  
  1. [93]
    The Appellant recalled an incident, possibly on a Wednesday, early in March 2013 while Head Chef Cumberbatch was on leave.  After the lunch service, but before taking his afternoon break, a staff member in the gaming area asked him about gaming snacks.[56]   They were supposed to provide deep fried snacks in the afternoon.              Cook Starr-Nolan left at 2.30 pm, and everything in the kitchen was turned off.  The Appellant said that he offered to prepare the snacks but was told not to worry about it.
  1. [94]
    The Appellant also said that (apart from the drip trays, grill and stove tops) everything in the kitchen was clean.  He did not agree that the surfaces in the kitchen were dirty or that the fridges and cool room were left in a poor state.  Indeed, he stated that he always cleaned the kitchen before he left and was the last one that finished.  However, he agreed that his performance that day (in the way he left the kitchen after lunch) was below his usual standards. 
  1. [95]
    The Appellant had been on his post-lunch break from about 2.50 pm and returned at 5.00 pm, half an hour before the next meal service began.  Mr Dyson spoke to him and Cook Starr-Nolan in the kitchen, and said that the drip trays were not cleaned and the gaming snacks were not sent out.  Mr Dyson said that he had got into trouble with Area Manager Dan Drane that afternoon.  Mr Drane had inspected the kitchen, pulled out the drip trays, opened the fridges and entered the cold room.  He had, in effect, had a go at Mr Dyson about the state of the kitchen.  Mr Dyson gave a direction that the kitchen was to be cleaned (which they did after the dinner service before going home).  He spoke "in a loud voice, but not … enough to hear patrons and staff member to hear in the kitchen."  Mr Dyson then walked away, said in a loud voice "You two sort your shit out" and went home. 
  1. [96]
    The Appellant recalled saying "Oh my God" loudly, putting the tongs on the sink, and shaking his head.  He denied using abusive language in the kitchen immediately after the meeting with Mr Dyson, or making derogatory comments about Mr Dyson and his girlfriend. 
  1. [97]
    The Appellant agreed that, on the day in issue, Cook Starr-Nolan had arrived late for his shift and that, although both of them were responsible for ensuring that gaming snacks were prepared in the morning and afternoon, the gaming snacks had not been made by either the cook or the Appellant after the lunch service. 
  1. [98]
    The Appellant referred to Cook Starr-Nolan as "a cook that wasn't qualified," who did not have "the care factor of basically running the kitchen."  By comparison, the Appellant was "basically making sure the kitchen was running fine as a business." He agreed that the head chef had the responsibility for running the kitchen, and that he felt comfortable with Head Chef Cumberbatch with whom he had trained and worked previously. 
  1. [99]
    The Area Manager, Mr Drane, gave evidence that he would visit the Captain Cook Tavern weekly during 2013.  Some of the visits were announced and he would have a one-on-one conversation with the hotel manager about the venue's performance.  On other visits he would walk through all parts of the business and review the different departments, and would walk through the kitchen and related rooms to assess its level of compliance with food safety and other matters.  He would make comment to Venue Manager Dyson as to the standard of each of those areas any concerns he might have. 
  1. [100]
    Mr Drane recalled an occasion after the lunch service where he found the kitchen was left "in a state that was unacceptable in terms of food safety and cleanliness."  Food was left uncovered, the stove was on, there were dirty dishes on the benches, the char grill was dirty, the kitchen was untidy and food was uncovered in the cool room.  There was no one in the kitchen.  Mr Drane said that both cooks on that shift (Starr-Nolan and the Appellant) "should have left the kitchen in a satisfactory condition.  That's the requirement."  In particular, all food should be wrapped and stored in its correct area; any pots, pans and dishes that had not been cleaned were at least to be left soaking, completely submerged in water; and the kitchen should have been cleaned and tidy and left in a sanitary condition.  On that occasion, the state of the kitchen was "completely unacceptable."  Although Cook Starr-Nolan had worked at the Captain Cook Tavern longer than the Appellant, the Appellant as a qualified chef had more experience and knowledge of the kitchen than a cook.  Accordingly,               Mr Drane seemed to suggest that the Appellant could have instructed Cook Starr-Nolan about kitchen cleanliness. 
  1. [101]
    That was not the only occasion on which he saw the kitchen in a mess.  He estimated it would have been more than three times over a period of three to four months. 
  1. [102]
    Mr Drane described it as a "very serious" issue.  He said that ALH takes food safety "very seriously."  It is "dealing with people's health," and is concerned that if the kitchen is left in a poor state of repair, food could spoil and be produced and people would get sick.  It also attracts vermin and cockroaches if not cleaned and left in a satisfactory and sanitary condition. ALH is under a lot of scrutiny from the regulator, and there are financial risks if things are left to spoil.  Mr Drane recalled that, on that occasion, he was "very stern" in his way of dealing with the situation.  He needed action to take place directly with the people responsible.  If there was no satisfactory response there would have been some sort of disciplinary action.  He made it clear that the Venue Manager was responsible and accountable for those matters within the venue.  Mr Drane subsequently became aware that Mr Dyson had addressed those concerns with the relevant staff members, including the Appellant. He recalled being involved in a disciplinary meeting with Mr Dyson, the Appellant and Mr Kuenstner Snr.  Although he could not recall the details, Mr Drane said that there probably would have been consultations between himself and others within ALH before the Appellant received a written warning. 
  1. [103]
    Mr Dyson gave evidence that his area manager, Mr Drane, would conduct inspections of the Captain Cook Tavern "quite regularly," "on average probably fortnightly."  He recalled one occasion when Mr Drane saw the kitchen after a lunch service. Mr Dyson described the state of the kitchen as "a disgrace."  "Nothing was cleaned.  It was just very substandard."  Food was left out, and there was an issue about the cold room.  Neither the Appellant nor Cook Starr-Nolan were present in the kitchen during the inspection, presumably being on the usual break after lunch.  As a consequence of finding the kitchen in that state, Mr Drane told Mr Dyson to speak to the Appellant and Cook Starr-Nolan at the commencement of the dinner service and explain to them what was found.  Usually Mr Dyson would have passed the information to Head Chef Cumberbatch to deal with his staff.  However, as the head chef was on holidays,                 Mr Dyson had to do so.
  1. [104]
    Around at that time, Cook Starr-Nolan was periodically late for work, and the Appellant was occasionally late.  Mr Dyson said that there was quite a decline in Cook Starr-Nolan's performance over a couple of months.  Mr Dyson gave evidence that, on that particular day, Cook Starr-Nolan had arrived between 30 and 60 minutes late for work (with no telephone call, no reason given and not in uniform) and that both Cook Starr-Nolan and the Appellant had failed to cook snacks for the gaming patrons before leaving after the lunch service.  When a staff member asked them about the gaming snacks she was told the fryers were turned off.
  1. [105]
    That evening, Mr Dyson spoke to them about the cleanliness of the kitchen, the fact that gaming snacks had not been cooked that day, Cook Starr-Nolan's tardiness that day and his lack of a uniform.  As he progressed, Mr Dyson raised his voice, becoming firm but not loud.  He also spoke to them briefly about how they had been interacting with each other.  At the end of the meeting, Mr Dyson told them to "Sort your shit out."  He said that because both the Appellant and Cook Starr-Nolan had come to him behind each other's back complaining about the other, and accusing each other of things that were or were not being done in the kitchen environment. 
  1. [106]
    The incident occurred in the kitchen.  No patrons were present in the kitchen when he made that statement.
  1. [107]
    Having been told of the Appellant's reaction to that discussion, Mr Dyson passed the information to Mr Drane who had a management session with Mr Dyson, the Appellant and Mr Kuenstner Snr.  As a result of that meeting, Mr Dyson received a verbal warning for the way he spoke to the staff when he raised his voice and swore.  The Appellant also received a verbal warning. 
  1. [108]
    Appellant's submissions:  In relation to the incident in March 2013, the Appellant submits that:
  1. (a)
    he offered to stay back, turn the stoves on and cook the gaming snacks but the manager told him not to worry about it;
  1. (b)
    during the lunch break, everything was clean with the exception of the drip trays and stove tops;
  1. (c)
    he was not guilty of any kitchen wrongdoings.
  1. [109]
    In the Appellant's submission, because he had no involvement in that kitchen issue, it was Mr Dyson's responsibility to address those kitchen issues with Cook Starr-Nolan in his office.  Mr Dyson confirmed that the Appellant had raised kitchen issues in regard to Cook Starr-Nolan.  Mr Dyson also confirmed that Cook Starr-Nolan had multiple private issues and failed to perform proper kitchen duties.  He described the gaming snacks out of context.
  1. [110]
    Consequently, when Mr Dyson shouted "You two sort your shit out in this kitchen," that "shouted verbal abuse" was "hurtful, setting a trigger for work related stress inflicted by the Venue Manager."  In the Appellant's submission, that was another issue adding toward his work-related stressors. 
  1. [111]
    The Appellant notes that Mr Dyson acknowledged that he received a verbal warning for his conduct, specifically in relation to the way he spoke to those staff.
  1. [112]
    Respondent's submissions:  As the Respondent observes, there was no real controversy about what occurred.  The evidence of the Appellant and other witnesses was to the same effect.  The Respondent submits that there should also be no controversy that a verbal reprimand was at the minimum warranted in all the circumstances of the case.  In particular:
  1. (a)
    it was not unreasonable for management to expect that the Appellant and Cook Starr-Nolan should have been able to successfully manage to be kitchen operations while Head Chef Cumberbatch was on leave;
  1. (b)
    in the period leading up to the subject day there had been allegation and counter allegation by the Appellant and Cook Starr-Nolan that the other was not pulling their weight;
  1. (c)
    there were occasions when the Appellant and Cook Starr-Nolan was late for work;
  1. (d)
    on the day in question, Cook Starr-Nolan was approximately 30 to 60 minutes late for his shift;
  1. (e)
    the gaming stacks were not made after the lunch service;
  1. (f)
    the grills and drip trays were left in a dirty state;
  1. (g)
    there had been a breakdown in the way that the Appellant and Cook Starr-Nolan were functioning as a team, and as a consequence the kitchen was not operating properly; and
  1. (h)
    the manner in which the kitchen had been left that day was well below the standards that the Appellant set for himself. 
  1. [113]
    In light of that evidence, the Respondent submits that it was not only appropriate but entirely necessary that both the Appellant and Cook Starr-Nolan received a verbal dressing down.  Mr Dyson addressed his reprimand to both men equally.  He addressed them in the kitchen with no other staff present and hence took care not to humiliate them in front of other staff members.  Mr Dyson spoke to them in an assertive voice which was entirely warranted given the substantial concerns about the respective performances.  What was done constituted reasonable management action taken by Mr Dyson. 
  1. [114]
    The Respondent also notes that there is no evidence before the Commission that any patrons heard, or could have heard, the discussion between Mr Dyson, the Appellant and Cook Starr-Nolan. 
  1. [115]
    Although Mr Dyson told the Appellant and Cook Starr-Nolan "to sort their shit out," that comment could be seen to be fairly mild in the circumstances.  At worst, the Respondent submits, it would constitute a blemish that would not make otherwise reasonable management action unreasonable.  Consequently, the Respondent submits that there has been reasonable management action taken in a reasonable way in relation to Stressors 3 and 4. 
  1. [116]
    The Respondent also notes that, after receiving the rebuke from Mr Dyson, the Appellant acted and spoke inappropriately.  As a consequence, he was called to a meeting with Mr Drane in which those allegations were addressed with him, and both the Appellant and Mr Dyson received a warning.  Once again, the Respondent submits, the action taken was reasonable management action because the Appellant was not treated arbitrarily and both he and Mr Dyson received the same punishment. 
  1. [117]
    Consideration:  On the basis of the evidence summarised above, I find that, while Head Chef Cumberbatch was on leave in March 2013:
  1. (a)
    the Appellant and Cook Starr-Nolan were operating the kitchen at the Tavern;
  1. (b)
    at that time, the Appellant was more experienced and had more knowledge of the kitchen than Cook Starr-Nolan;
  1. (c)
    there was a breakdown in the way the two men were functioning as a team, and the kitchen was not operating properly;
  1. (d)
    each man alleged that the other was not pulling his weight, and there was some drop in the Appellant's performance;
  1. (e)
    on the day in question, Cook Starr-Nolan was late to work without a telephone call or reason given, and he was not in uniform;
  1. (f)
    on the day in question, neither the Appellant nor Cook Starr-Nolan prepared gaming snacks after the lunch service and they left the kitchen in an unsatisfactory state, well below the required standards (and those which the Appellant espoused);
  1. (g)
    while the Appellant and Cook Starr-Nolan were away from the kitchen on their post-lunch break, Area Manager Drane inspected the kitchen and found it completely unacceptable for a range of reasons, including by reference to health standards;
  1. (h)
    that was not the first or only occasion on which he saw the kitchen in a mess during the course of his periodic inspections of the Captain Cook Tavern while the Appellant worked there;
  1. (i)
    later on the day in question, at the direction of Area Manager Drane,                  Venue Manager Dyson spoke with both the Appellant and Cook Starr-Nolan about the cleanliness of the kitchen, the fact that gaming snacks had not been cooked that day, and Cook Starr-Nolan's tardiness and his lack of uniform;
  1. (j)
    it was appropriate that Mr Dyson speak to both men together and that he reprimand each of them in relation to matters for which they were responsible;
  1. (k)
    in the course of that conversation, Mr Dyson spoke to them briefly about how they had been interacting with each other;
  1. (l)
    Mr Dyson's voice became raised during the conversation and he concluded by telling them to "Sort your shit out;"
  1. (m)
    that exchange took place in the kitchen, no patrons were present when he made that statement and there was no evidence that any patrons elsewhere could have heard what was said;
  1. (n)
    after that conversation, and apparently after Mr Dyson left the kitchen, the Appellant responded loudly and placed (possibly threw) his tongs in the sink;
  1. (o)
    subsequently both Mr Dyson and the Appellant received a verbal warning for their behaviour.
  1. [118]
    I am satisfied that:
  1. (a)
    Area Manager Drane did not "target" the Appellant;
  1. (b)
    the action taken by Mr Dyson (at Mr Drane's request and in the absence of Head Chef Cumberbatch) was reasonable management action; and
  1. (c)
    Mr Dyson's final statement, although intemperate, has to be considered in the context of the actions and behaviours he was addressing and,  at worst, it could be characterised as a blemish on reasonable management action taken in a reasonable way. 
  1. [119]
    Consequently, I am satisfied that Stressors 3 and 4 were partially proven.

Stressors 5 and 6

  1. [120]
    Stressor 5: "That after forwarding a written complained to Head Office Melbourne Area Manager Dane Drane was required to sort issues with Chef Julio, that meeting took place in late February 2013, subject; non-appointment to Sou Chef position.  The meeting lasted for 13-15 minutes only, there was no mention regarding the issue of Chef Julio's Sou Chef position."
  1. [121]
    Stressor 6: "That a letter received from Jenny Wregg Human Resources stated that Area Manager Dane Drane discussed the Sou chef position with Chef Julio for 1 hour.  Subsequent to the reply from Human Resources Manager Jenny Wregg, Ashley Harris ALH Investigator checked Chef Julio's time line on CCTV, confirming Area Manager Dane Drane misleads Melbourne Head Office. In August 2013, at mediation prior Head Chef Cranston's transfer to the North Lakes Tavern Venue Manager Ben Dyson was informed by head chef 'Cranston' - a Sou Chef was needed."
  1. [122]
    Evidence:  According to the Appellant, he transferred from the Warner Tavern to the Captain Cook Tavern because they needed a sous chef in late 2012, around the time he had qualified as a commis chef.  The Appellant said that the assistant manager at the time (a woman named Lisa) asked if anyone wanted to be the sous chef there. He understood that the previous sous chef was Joshua Stanley, although "he wasn't a qualified chef." He had not met Mr Stanley.  In cross-examination, the Appellant recalled that the head chef would have said that Mr Stanley was his sous chef, and that the head chef told him that the person was not a qualified chef but was "just a cook." 
  1. [123]
    The Appellant described a sous chef as "second in charge after the head chef" but suggested that he was qualified to be a sous-chef at that stage because he was trained by his head chef in such things as how to order. "[S]o I thought - you know, practice makes perfect, so I thought, you know, my head chef would teach me more."
  1. [124]
    The Appellant indicated that because the person was second in charge of the kitchen, behind the head chef, that made him a sous chef.  He disagreed with the proposition that a person cannot be a sous chef if they are not a qualified chef, and indicated that one could obtain a pay rise as a sous chef whilst a cook.  In cross-examination, the Appellant suggested that people are promoted to sous chef if the venue manager allows that promotion, rather than waiting a couple of years as a commis chef. 
  1. [125]
    Later in cross-examination, the Appellant agreed that nobody from the Captain Cook Tavern ever suggested to him that he was being employed as a sous chef.  In particular, Venue Manager Ben Dyson never indicated to him that he was a sous chef.  However, the Appellant referred to a printed telephone list which had his name underneath that of Head Chef Rob Morris as sous chef.  Apparently that list was taken down after about four months when the Appellant raised his concern. 
  1. [126]
    The Appellant was given a contract which, he recalled, said commis chef.  The Appellant gave evidence that he thought he was on three months' probation as a qualified commis chef for the company and "I did sign that - commis-chef at Captain Cook." He stated in evidence that when he realised he was a commis chef there (after "close to my three months' probation"), he thought that he had made a mistake and should not have signed the contract. 
  1. [127]
    The Appellant explained that he lived at Bray Park around the corner from the Warner Tavern, and had to drive for 40 minutes to the Captain Cook Tavern.  He said that he would never have transferred to the Captain Cook Tavern if he was going to be a commis chef there.  He agreed, however, that had he read the contract prior to signing that he would have been in no doubt that he was being appointed as a commis chef.  Furthermore, he agreed that he was aware that he was being paid as a commis chef.  He thought or assumed that he was on three months' probation as a commis chef, but had not read that in his contract. 
  1. [128]
    For reasons that were not explained, the Appellant went above others in the company structure (e.g. the area manager) and wrote to the ALH National Operations Manager about the fact that he had not been appointed as sous chef.  He agreed that he received correspondence from ALH that informed him that he was not appointed as a sous chef, that he was appointed as a commis chef and that he had signed a contract to that effect. 
  1. [129]
    The Appellant said in chief that he spoke to Venue Manager Dan Drane after his three months' "probation" (but in cross-examination said that he did not recall raising the matter with Mr Drane). 
  1. [130]
    According to the Appellant, Mr Drane phoned the kitchen to arrange a discussion.  The discussion occurred the following day and lasted 12 to 15 minutes (or perhaps           30 minutes).  The Appellant did not agree that Mr Drane discussed the matter with him at a meeting at the Captain Cook Tavern.  Indeed, apart from saying that the meeting went for 12 to 15 minutes rather than one hour, the Appellant said he could recall little of what they talked about on that occasion. 
  1. [131]
    The Appellant referred to some communication from Ms Wregg to the effect that          Mr Drane spoke with him about the sous chef position for one hour.  The Appellant disputed the suggestion that the conversation went for one hour.  He said that three or four days later, in February 2013, there was an investigation subsequently by               Ashley Harris, the ALH investigator (possibly a compliance officer).  The Appellant's evidence on this point was imprecise and speculative.  When asked whether there was some investigation, his evidence was as follows:

   "In my opinion, it - there was - it seems to me there was some investigation.

All right.  When you say in your opinion, why have you formed the view that there was an investigation? --- I just - he - well, I witnessed that he came in the office and told people in the office to come out the front, your Honour.

    Who is 'he'?--- His name would be Ashley Harris.  He's HR."  (T2:54)

  1. [132]
    The Appellant confirmed that he formed the opinion that there was an investigation because he saw Mr Harris at the Tavern, and that Mr Harris "came in there, did his thing, and then left." 
  1. [133]
    Mr Beck recalled the Appellant telling him that he had come to the Captain Cook Tavern to fill the position of sous chef, or at least that was what the Appellant had been told. Mr Beck understood that the Appellant had come over to the Tavern "but hadn't been promoted to sous chef yet, but he was still trying to get there."  They had conversations about what direction the Appellant wanted to take the kitchen "if he became sous chef."  Although Mr Beck thought the Appellant would make "a great sous chef," he said that the kitchen at the Captain Cook Tavern was "was too small for a sous chef."  Indeed, in his opinion and experience, one person could and did run it.  A head chef and two cooks (or a head chef, commis chef and a cook) were adequate. 
  1. [134]
    Former Head Chef Cumberbatch described the structure or hierarchy within a full commercial kitchen from apprentice chef (whose training includes attendance at a TAFE or other teaching institution as well as practical experience), to commis chef (who qualified recently), demi chef, chef de partie (who does much of the cooking), sous chef (who takes control of the kitchen), chef de cuisine, head chef and executive chef.  Different sized operations would have a less comprehensive structure.  He noted, for example, that there were no demi chefs in any of the kitchens he had worked in and there were no full kitchen structures at ALH venues.  He agreed that at ALH a person goes straight from commis chef to sous chef.  A smaller operation like the Captain Cook Tavern would not usually justify a sous chef, although he thought that they had a sous chef before he worked there. 
  1. [135]
    Mr Cumberbatch, who worked in a hotel system, served for 10 years as a commis chef.  By comparison, one of his apprentices who had "a lot of experience which was relevant for the position" was promoted to sous chef within six months. 
  1. [136]
    The Appellant commenced his apprenticeship under Mr Cumberbatch at the Lawnton Tavern.  Mr Cumberbatch agreed that the Appellant's kitchen knowledge was to a standard required for ALH and that the Appellant was confident enough to become a sous chef at that time.  In the absence of a sous chef, Head Chef Cumberbatch was trying to get the Appellant up into a more senior position so that the Appellant could take over on the days Mr Cumberbatch had off work.  
  1. [137]
    Mr Cumberbatch recalled a conversation with Mr Dyson early in Mr Cumberbatch's time at the Captain Cook Tavern in which they discussed the Appellant, and he mentioned that the Appellant commenced his apprenticeship under him. Mr Cumberbatch denied telling Mr Dyson that the Appellant was not yet skilled and knowledgeable enough to be qualified, or that he had been signed off too early. 
  1. [138]
    Mr Dyson was appointed as the venue manager at the Captain Cook Tavern in January 2012. 
  1. [139]
    Mr Dyson, who had worked in about eight hotels in approximately nine years, described the kitchen at the Tavern as "extremely small."  It turns over a small amount of money each week.  Its size is relevant to the staffing levels and structure there.  Although a head chef was necessary, there was no need for a sous chef.  During the period he was employed at the Tavern there was no time when a sous chef was employed there. 
  1. [140]
    Before the Appellant was transferred to the Captain Cook Tavern there was a full-time cook but no sous chef at the Tavern. Mr Dyson stated that the Appellant was transferred to the Captain Cook Tavern to replace Cook Joshua Stanley who was leaving the company.  Mr Stanley was not qualified. 
  1. [141]
    According to Mr Dyson, he played no role and had no say in the replacement of Mr Stanley.  He was told by Area Manager Drane that the matter would be sorted out for him.  Prior to his transfer, Mr Dyson did not know the Appellant. 
  1. [142]
    Although Mr Dyson was made aware by Mr Drane about some potential miscommunication with the Appellant about the sous chef role, he was not involved in that matter and did not discuss it with the Appellant.  Mr Dyson seemed to acknowledge that the staff contact sheet referred to the Appellant as a sous chef, but referred to the sheet that was a template on which names were changed but not the positions.  He stated that just because a contact sheet says that someone was a sous chef did not make that person a sous chef. 
  1. [143]
    Mr Drane's evidence: At all relevant times, Mr Drane was an operations manager for AHL.   That role involved overseeing and assisting in general hotel operations and being responsible for the financial and other outcomes of some 15 to 23 hotels in a geographic location.  In late 2012 until early 2014 he was responsible for the North Brisbane to Bribie Island area.  That area included places where the Appellant worked from time to time, namely the Lawnton Tavern, the Warner Tavern, the Captain Cook Tavern and the Petrie Hotel.  In that "fluid role," Mr Drane visited many hotels daily.  Each hotel manager (or the most senior Assistant Manager) reported to him about all matters relating to their hotel. 
  1. [144]
    Usually, Mr Drane would have very little involvement with a relatively junior chef such as the Appellant.  However Mr Drane was involved with him during the Appellant's apprenticeship, when concerns were raised about the Appellant's performance while he was at the Lawnton Tavern and his progression through to graduating from the apprenticeship.  Although the Appellant successfully completed his studies in December 2012, he had to complete certain practical requirements before he could qualify as a chef.  Having spoken to people including the Appellant, Mr Drane thought it might be beneficial to move the Appellant to a different environment, a larger venue that had more resources and time to assist him achieve the required level with his apprenticeship.  Mr Drane transferred the Appellant to the Warner Tavern and asked the hotel manager and head chef there to assist the Appellant to qualify.[57] 
  1. [145]
    Subsequently, the Appellant filled a vacancy at the Captain Cook Tavern, that had a significantly smaller kitchen operation than the Warner Tavern and even smaller than the Lawnton Tavern.  Mr Drane became aware that the Appellant had complained that he should have been a sous chef at the Captain Cook Tavern, as the position he occupied had been vacated by a sous chef, but Mr Drane said that the size of the business did not warrant a sous chef role.  After the Appellant became qualified, he became a full-time salaried chef with the status of commis chef.  Shortly after the Appellant arrived at the Captain Cook Tavern, Mr Drane went there to meet with the Appellant for up to an hour (possibly 40 or 50 minutes).[58]  The Appellant told                Mr Drane that he felt he should have been a sous chef, and queried whether he was entitled to that position and should receive back pay for the time he occupied the role as a commis chef and not a sous chef.  Mr Drane recalled explaining to the Appellant that a business of that size does not require a sous chef and that he was "well and truly underqualified had there been a sous-chef role available anyhow."  Mr Drane recalled spending "a lot of time talking" to the Appellant about what his expectations were for the future and if his aspiration was to achieve that level, and explained that it would be "some time" before the Appellant gained sufficient experience for ALH to consider him for that role. 
  1. [146]
    According to Ms Wregg, the national human resources manager of ALH, when the Appellant was transferred to the Captain Cook Tavern there was no position for a sous chef and he was not offered that position.   However, someone who was not authorised to do so had put the Appellant's name on a telephone list against the position of sous chef.  The Appellant was advised that his position was that the sous chef and the phone listing was corrected.  Ms Wregg wrote a letter to the Appellant to let him know the outcome of his query.  She recalled that she would have advised him that he was a cook or commis chef.
  1. [147]
    Appellant's submissions:  The Appellant submits that:
  1. (a)
    a sous chef was employed at the Captain Cook Tavern before the Appellant was transferred there;
  1. (b)
    the sous chef position was offered to him before he transferred from the Warner Tavern to the Captain Cook Tavern;
  1. (c)
    for three months he was listed on the contact sheet at the Captain Cook Tavern as a sous chef;
  1. (d)
    Mr Drane failed to recall communications with others at ALH regarding the sous chef position;
  1. (e)
    although Mr Drane was required to sort out the non-sous chef appointment, he did not raise the sous chef position during the meeting with the Appellant, and the meeting lasted 13 to 15 minutes (not one hour);
  1. (f)
    because the kitchen at the Captain Cook Tavern was of a comparable size to the kitchens at other ALH taverns, it was not correct to say that the kitchen was of a size and had a turnover that would not support the employment of a sous chef. 
  1. [148]
    Respondent's submissions:  Stressors 5 and 6 are related to the Appellant's mistaken belief that he was appointed as a sous chef at the Captain Cook Tavern and to management action taken as a consequence of him agitating that issue in seeking to be paid as a sous chef.  The Respondent submits that the evidence is to the effect that:
  1. (a)
    the Appellant signed a contract which confirmed that he was being transferred to the Captain Cook Tavern as a commis chef;
  1. (b)
    the Appellant alleges that he did not read the contract prior to signing it;
  1. (c)
    Mr Stanley, who the Appellant replaced, was not a qualified chef but a cook, and the Captain Cook Tavern had been operating with the head chef and two cooks before the Appellant's arrival;
  1. (d)
    due to the size of the food operations, the size of the kitchen and the value of the weekly income from food operations, the Captain Cook Tavern could not justify having both a head chef and a sous chef;
  1. (e)
    for reasons which the Appellant did not explain, he raised his concern directly with the National Operations Manager for ALH (by-passing the regular chain of command of his Head Chef, the Venue Manager, the Area Manager, and the human resources section in Brisbane or Melbourne);
  1. (f)
    although the National Operations Manager telephoned the Appellant, the Appellant did not return his call;
  1. (g)
    the Appellant received correspondence from Ms Wregg, the National Human Resources Manager, confirming that he had signed a contract pursuant to which he was appointed as a commis chef;
  1. (h)
    ALH arranged for Mr Drane to meet with the Appellant to discuss the issue;
  1. (i)
    the accounts of that meeting differ - the Appellant says that it was a meeting of about 15 minutes duration and nothing was discussed about the sous chef issue, whereas Mr Drane says that the meeting went for between 40 and               60 minutes and there was a wide-ranging discussion including about the sous chef issue, where he addressed the Appellant's concerns.
  1. [149]
    On that summary of the evidence, the Respondent submits that:
  1. (a)
    it is unlikely that the Appellant did not read the contract prior to signing it;
  1. (b)
    it is further difficult to believe that the Appellant would not check the contract at the time he was agitating the issue that he had been appointed a sous chef and was therefore not being paid properly;
  1. (c)
    the fact that the Appellant replaced a Cook indicates the Appellant's ability to misinterpret situations;
  1. (d)
    the scale of the operations at the Captain Cook Tavern were such that a sous chef was not justified; 
  1. (e)
    it would be unlikely that the sous chef issue would not have been discussed at the meeting between the Appellant and Mr Drane when this was the only issue being agitated by the Appellant and the meeting were specifically arranged for that purpose.
  1. [150]
    In response to the contention that Head Chef Cumberbatch confirmed there had been a sous chef previously at the Captain Cook Tavern, the Respondent notes that in cross-examination he confirmed that his assertion was based on hearsay and that he had no real knowledge of the situation prior to being employed there.  Mr Cumberbatch did not have any knowledge of the qualifications of Mr Stanley, the cook who the Appellant replaced.  (Respondent's submissions in reply para 20)
  1. [151]
    The Respondent submits that, once again and contrary to the assertions of the Appellant, ALH management took action to address the Appellant's concerns and to communicate with him so that he could understand and have no doubt he was appointed as a commis chef and not a sous chef.  The fact that he did not obtain the outcome that he was seeking does not mean that management act acted unreasonably in relation to his concerns.
  1. [152]
    Rather, these stressors involve reasonable management action taken in a reasonable way by ALH in connection with the Appellant's employment.  
  1. [153]
    In relation to the balance of matters raised in Stressor 6, the Respondent submits that:
  1. (a)
    the Appellant provided no evidence as to the purpose of Ashley Harris coming into the workplace or of there being any investigation into the allegation that Mr Drane attended the meeting for a short period of time (and this appears to be a "flight of fancy" of the Appellant and his father);
  1. (b)
    Mr Drane denied being aware of any such investigation and denied that he had been reprimanded or spoken to about this meeting with the Appellant;
  1. (c)
    Mr Cumberbatch could not recall attending a mediation in August 2013 with the Appellant, Mr Dyson and Mr Beck; and
  1. (d)
    Mr Beck gave evidence that the mediation was conducted by Head Chef Magnon.

Consequently the Appellant has not proven on the balance of probabilities the other matters raised in Stressor 6, and the Commission should put those allegations to one side.

  1. [154]
    Consideration:  On the basis of the evidence summarised above, I find that:
  1. (a)
    when the Appellant transferred to the Captain Cook Tavern, he replaced          Mr Stanley who was a cook and was not qualified to be a chef;
  1. (b)
    at that time, there was no sous chef position at the Captain Cook Tavern, and the size of the kitchen and the scale of its operations did not require a sous chef;
  1. (c)
    the Appellant had recently qualified as a commis chef, was employed as a commis chef, signed a contract to that effect, and was paid as a commis chef;
  1. (d)
    the temporary inclusion of the Appellant's name on a template printed telephone/contact list against the title sous chef was a mistake which was rectified when the issue was raised, and was not evidence that he was employed as a sous chef;
  1. (e)
    the Appellant was mistaken if he thought he was on a three-month period of probation as a commis chef after which he would be made a sous chef;
  1. (f)
    the fact that the Appellant later regretted transferring to the Captain Cook Tavern in the hope, or mistaken belief, that he would be or become a sous chef does not support a finding that he filled, or was invited by anyone at the Captain Cook Tavern to fill, a sous chef position;
  1. (g)
    after the Appellant contacted the ALH National Operations Manager about the fact that he had not been appointed as a sous chef, Area Manager Drane met with the Appellant at the Captain Cook Tavern and discussed with him why there was no sous chef position at the Captain Cook Tavern and why it would be some time before the Appellant gained sufficient experience to be considered by ALH for a sous chef position;
  1. (h)
    once the Appellant had raised his concerns, ALH engaged in reasonable management action taken in a reasonable way to respond to those concerns (even though the Appellant was apparently not satisfied with the outcome of those communications). 
  1. [155]
    Consequently, I find that Stressor 5 has not been proven.
  1. [156]
    Given the paucity of evidence in relation to the other elements of Stressor 6, particularly in relation to the alleged investigation by Ashley Harris, I find that Stressor 6 has not been proven.

 Stressor 7

  1. [157]
    Stressor 7: "That subsequent to the above described incidents Chef Julio at that time employed by ALH without any incidents for 8 years was targeted by Area Manager Dane Drane and Venue Manager Ben Dyson for a dismissal."
  1. [158]
    Evidence:  It appears that the Appellant formed the impression that he was targeted in some way by Area Manager Drane.  The Appellant said that Mr Drane would visit the Captain Cook Tavern every three weeks or monthly, but sometimes twice in one week.  Mr Drane would not always come into the kitchen. 
  1. [159]
    According to the Appellant, there were three or four occasions when he would come to work after his day off and Head Chef Cumberbatch would tell him that Mr Drane had asked about the Appellant, and that Mr Cumberbatch had told Mr Drane that the Appellant was turning up to work and doing his job.  The Appellant gave evidence that:

 "when Mr Drane would rock up, he wouldn't go - he would go past the kitchen and not talk to me, and that's when I realised that, you know - like, every time I'm on my day off, he would visit the pub and ask, you know, three or four times, you know, how's Julio?  And that's when I realised it's not - you know, why would he be talking about me?"  (T2:55)

  1. [160]
    The Appellant acknowledged that Mr Drane had no involvement in the written warning that he received in December 2013 (see Stressor 9).  He drew the link to Mr Drane as follows:

 "It was all part of management.  He was in HR management which all do talk to one of each other.  …  I was called trouble.  So I was called a trouble maker.  So what would happen is, you know, due - in my opinion, that would have had Ezra [Pyers] to interview me." (T4:57-58)

  1. [161]
    When asked whether he believed that ultimately Mr Drane was behind the written warning, the Appellant said "In a way, yes." The Appellant agreed that he had no evidence of that, and it was just a feeling he had.
  1. [162]
    The Appellant agreed that his meeting with Mr Drane earlier in the year (for 12 to 15 minutes) was quite amicable, that he had no complaints about how Mr Drane spoken to him, and that Mr Drane treated him entirely appropriately in the course of that discussion. 
  1. [163]
    Mr Cumberbatch gave evidence that, soon after he was transferred to the Captain Cook Tavern as head chef, he met with Mr Drane and Venue Manager Dyson.              Mr Cumberbatch recalled that during the meeting Mr Drane said words to the effect that the Appellant was "trouble."  Mr Cumberbatch did not know the reason for that statement. 
  1. [164]
    As noted earlier, Mr Drane was involved with the Appellant during his apprenticeship.  In cross-examination, Mr Drane was asked whether, in the course of a managerial meeting involving him, Mr Dyson and Head Chef Cumberbatch, he had stated "Julio is trouble."  Mr Drane did not recall saying that. 
  1. [165]
    Mr Dyson did not recall a meeting with Mr Drane and Mr Cumberbatch in which Mr Drane stated that the Appellant caused trouble. 
  1. [166]
    Mr Dyson dismissed as "absolutely absurd" any allegation that there was some form of conspiracy (involving Mr Dyson, Mr Drane, Mr Beck, Ms Stanley and other members of staff)  to have the Appellant sacked from his position at the Captain Cook Tavern. 
  1. [167]
    Mr Beck said that he never saw or heard Mr Dyson verbally abuse the Appellant.
  1. [168]
    Appellant's submissions:  The Appellant makes few submissions in relation to Stressor 7.  However, contends that:
  1. (a)
    in a managerial meeting attended by Mr Dyson and Mr Cumberbatch,                Mr Drane stated that "Julio is trouble" (a statement which Mr Drane denied making);
  1. (b)
    he was targeted by key management about kitchen issues for which he was not responsible;
  1. (c)
    he was blamed for an oil spill reaching the footpath and that "there is no doubt Chef Julio was to be 'framed' in preparation for a dismissal."  Yet he also notes that Mr Beck received a Warning Letter regarding the oil spill. 
  1. [169]
    The overall import of the Appellant's submissions is captured in the following statement:

"There is no shadow of doubt the Captain Cook kitchen environment has been loaded with dynamite by management for the build-up of work related stress hindering Chef Julio's professionalism."  (Submission page 11)

  1. [170]
    Respondent's submissions:  The Respondent submits that there is no evidence of any conspiracy to have the Appellant dismissed.  Not only did Mr Drane and Mr Dyson deny the allegation and describe it as absurd, but the Appellant remained employed by ALH as a chef at the Petrie Hotel.
  1. [171]
    The Appellant's belief or perception that he was being targeted by Mr Drane was based, at least in part, on his observation that when Mr Drane would conduct inspections at the Captain Cook Tavern he would ask Head Chef Cumberbatch how the Appellant was going and how he was performing.  Mr Drane would not say hello to the Appellant.  The Respondent submits there is nothing unusual about this given the involvement that Mr Drane had with the Appellant by that time.  However,              Mr Cumberbatch noted that area managers visit a venue whether or not someone was there, and usually to talk to venue managers.  He did not seem to consider it unusual for someone in Mr Drane's role to make such an enquiry.
  1. [172]
    Consideration:  There is relatively little evidence in relation to Stressor 7 and even less in support of it.  Area Manager Drane was involved with the Appellant during his apprenticeship. As noted earlier, he had been involved with the transfer of the Appellant to the Warner Tavern so that he could complete his apprenticeship.  He had discussed the Appellant's future with him when the Appellant raised the sous chef issue (see Stressors 5 and 6).   On occasions, in the course of his management duties, Mr Drane inspected the kitchen where the Appellant worked.  It is neither surprising nor a matter of concern that Mr Drane did not always speak to the Appellant on every occasion when he visited the Captain Cook Tavern, or that he asked about the Appellant on occasions when the Appellant was not present.  On one occasion,               Mr Drane directed Mr Dyson to speak with the Appellant in relation to the unsatisfactory state of the kitchen, and Mr Dyson had did so (see Stressors 3 and 4). 
  1. [173]
    There is nothing in that evidence or any other evidence before the Commission to suggest that either Mr Drane or Mr Dyson, or both of them, targeted the Appellant for dismissal.  Indeed, despite the events already considered and subsequent events, the Appellant remained employed by ALH.  If the Appellant perceived that he was being targeted for dismissal, that perception was unfounded. 
  1. [174]
    The Appellant has not proved Stressor 7.

Stressors 8 and 9

  1. [175]
    Stressor 8: "That for over 2 weeks Chef Julio was the acting Head Chef, Steve Speack was appointed as the new head chef (at that time for 3 month on probation) Chef Julio instructed on kitchen procedures. At that time Head Chef Steve Speak over ordered chicken schnitzel and large quantities of chips, stored in the cool room instead the freezer.  Prior Chef Julio's days off, 'Julio' advised Head Chef Speak not to serve the smelly chicken, returned by Tavern Patrons. Instead Head Chef Speack sorted cross contaminated chicken schnitzels indented to serve smelly chicken for lunch the next day - the cause for Salmonella poisoning. Chef Julio was wrongfully accused of undermining Head Chef!"
  1. [176]
    Stressor 9: "That Chef Julio also raised his concerns with Venue Manager Ben Dyson with the knowledge of Head Office management in Bulimba, Chef Julio was framed with false allegations, concocted evidence was produced by Venue Manager Ben Dyson with the support of Ezra Pyers, Bulimba Head Office management arranged a trumped up investigation claiming Chef Julio undermined the newly appointed Head Chef Steve Speak."
  1. [177]
    Evidence:  Stressors 8 and 9 cover a cluster of events and interactions at the Captain Cook Tavern in November 2013, including what became known as the "smelly chicken incident" of 22 November 2013.
  1. [178]
    The evidence in relation to those events and interactions can be broadly categorised as:
  1. (a)
    the Appellant's oral account of the events;
  1. (b)
    Mr Dyson's oral accounts of the events;
  1. (c)
    subsequent written accounts of the events;
  1. (d)
    oral and written accounts of how Mr Pyers dealt with the allegations made against the Appellant.
  1. [179]
    As context to the events I note that, after Mr Cumberbatch left employment at the Captain Cook Tavern, Bradley Magnon was appointed as head chef.  He was replaced by Stephen Speak in November 2013. At Mr Drane's instruction, Mr Dyson interviewed potential head chefs and Mr Speak was successful.
  1. [180]
    Mr Dyson agreed that, in the period between head chefs, the Appellant was the most senior member of the kitchen staff and performed his duties. 
  1. [181]
    The Appellant's evidence:  For the two weeks while there was no head chef, the Appellant ran the kitchen.  When Head Chef Speak was hired on Melbourne Cup Day (5 November 2013), he was new to ALH.  The Appellant said that he needed to learn the policy of ALH, and the Appellant taught him such things as how to order for the kitchen, and told him what needed to be done with preparation and what was in the menu.
  1. [182]
    The Appellant agreed that Mr Speak was a few minutes late on his first day at work, and that at lunchtime he had a conversation with Mr Dyson about how Head Chef Speak was going.  However, the Appellant denied that he reported that in disparaging terms to Mr Dyson, or that he started undermining Head Chef Speak soon after he arrived, or that he made comments to other employees to the effect that Mr Speak was a "shit chef."
  1. [183]
    According to the Appellant, Cook Beck would tell him about Mr Speak, and passed on a statement by a neighbour that Mr Speak was not a good chef.  The Appellant denied asking Mr Beck to help him get rid of the new head chef because the Appellant did not like the way he operated in the kitchen, and denied speaking in disparaging terms about Head Chef Speak. 
  1. [184]
    The Appellant did not agree that, within a couple of shifts of Mr Speak starting, he had a conversation with Mr Dyson about wanting to apply for the head chef position or that Mr Dyson said that Mr Speak had been offered the job and they all needed to give Mr Speak a chance.  The Appellant also denied being interested in being appointed to the head chef position, and said that he did not mention a sous chef position to Mr Dyson. 
  1. [185]
    The Appellant was on leave from 11 November 2013 and returned on Monday 18 November 2013 then was away on the following Tuesday and Wednesday.  When he returned to work on Thursday, 21 November 2013, they were busy in the kitchen.  Most of the orders were for chicken schnitzels, and they sold chicken schnitzels throughout the afternoon.  However, customers returned some chicken schnitzels because there was something wrong with them.  The Appellant spoke to Head Chef Speak and asked if they could check the chicken, which was not in the freezer.  They both did so, and Head Chef Speak said that he was going to serve this chicken.  After the break following lunch, Head Chef Speak said that he had "chucked the lunch schnitzels away."  However, he had retained some schnitzels for dinner that night.  They served five patrons, and four schnitzels were returned because they were "smelly" and did not "taste right that night." After they were returned, the Appellant spoke to Head Chef Speak and told him to throw out the other schnitzels. 
  1. [186]
    On Friday, 22 November 2013, the Appellant and Head Chef Speak were on duty.  They were to serve schnitzel from the same box of schnitzels as on the previous night.  It was the last box of chicken schnitzel.  The lunch service commenced at 11.30 am.  While they were waiting for orders, Head Chef Speak left the premises.  After about 10 minutes, the Appellant went into the cold room, remembered the chicken from the previous night, and thought he should ask the venue manager if he was happy to have this chicken.  Before 11.53 am, the Appellant carried in his left hand a chicken schnitzel that had been returned the previous night. 
  1. [187]
    He explained that he did not wait to speak to Head Chef Speak because he had already spoken to him about the matter on the previous night. The Appellant said that if an order had come through when the head chef was not there, he did not want to serve to customers food that he would not like to eat.  Had he done so, "that might be it for me." 
  1. [188]
    The Appellant walked to the administration office and spoke to the administrative officer, Jodi Searston.  She asked him what was in his left hand.  He said it was a chicken.  She asked what was wrong with it.  He said that in his opinion it was off.  He asked her where Venue Manager Dyson was.  The Appellant said that he wanted his opinion about the chicken. 
  1. [189]
    Having been advised that Mr Dyson was in the public bar, the Appellant walked through the public bar area where there was another staff member (Traci Stanley) and a patron looking at the TAB.  The Appellant did not speak to the staff member but walked around to find Mr Dyson.  He saw him in the gaming area next to the closed keg room or cool room.  There were a couple of customers in the gaming room. The Appellant asked if he wanted to smell the chicken.  Mr Dyson said they should do that inside the cool room.  They walked inside that room.  Mr Dyson smelt the chicken there and agreed that it was "off."  The Appellant told Mr Dyson that the chicken was what had been returned from the previous day's lunch and dinner.  Mr Dyson said he would meet the Appellant back in the kitchen, and about 10 minutes later Mr Dyson walked into the kitchen and said he could smell the chicken.  Head Chef Speak had returned. He, the Appellant and Mr Dyson were in the kitchen cool room.  They smelt the chicken.  Mr Dyson told Head Chef Speak that the chicken needed to be thrown away, and it was thrown out just before noon. 
  1. [190]
    Mr Dyson's evidence:  Mr Dyson gave evidence that Mr Speak was allocated a trial shift on Melbourne Cup Day to see if he was suitable.  That was a busy day.                  Mr Dyson had two conversations with the Appellant about Mr Speak that day.  The first occurred when Mr Speak was two minutes late and the Appellant informed Mr Dyson that he was late.  The Appellant "then continued to bag a person he'd never met," that is, the Appellant spoke in terms that degraded, defamed and spoke ill of Mr Speak.  Mr Dyson told the Appellant that they were to give Mr Speak a chance.  About an hour later, the Appellant "took it upon himself to bring some of Steven's shortcomings" to Mr Dyson's attention.  Again Mr Dyson told the Appellant to give Mr Speak a chance on his first shift. 
  1. [191]
    Mr Speak was appointed to the head chef role after that shift.  Mr Dyson gave evidence that he came to his attention that the Appellant and Mr Beck were "talking down" the head chef behind his back when he was not in the kitchen and were also talking to some of the frontline bartenders in the public bar.  Consequently, he had to speak with both the Appellant and Mr Beck that "we were to give this guy a chance." 
  1. [192]
    Mr Dyson also recalled that a week or more after Mr Speak had been assigned to the position, the Appellant mentioned to Mr Dyson that he was interested in the head chef position. 
  1. [193]
    Mr Dyson said that he found Mr Speak to be "quite capable and confident in the kitchen," but that he needed further training that he lacked some skills necessary in such a large organisation.
  1. [194]
    In relation to the smelly chicken incident, Mr Dyson gave evidence that he was standing in the gaming area, behind the cashier, with customers in front of him.  The area was open and visible to patrons.  The Appellant came up to Mr Dyson, "waving this smelly chicken schnitzel in the area with a pair of tongs, saying, 'Smell this, smell this.  The head chef's serving this'."   Mr Dyson quickly took the Appellant into the keg room or cold room next to the gaming cashier so that they were "away from customers' eyes."  He then listened to what the Appellant had to say.  The Appellant informed Mr Dyson that the chicken schnitzel was "off" and was smelly.  Mr Dyson smelt the schnitzel and agreed it was "turning."  The Appellant told Mr Dyson that Head Chef Speak was cooking these schnitzels and serving them to customers. 
  1. [195]
    Mr Dyson had been made aware that on the previous night some chicken schnitzels were found to be turning.  He was informed that both Head Chef Speak and the Appellant had entered the cold room to investigate the schnitzels and threw away the ones that they deemed to be off or turning. 
  1. [196]
    As a result of the conversation with the Appellant, Mr Dyson and the Appellant went directly to the kitchen.  Mr Dyson questioned Head Chef Speak about the schnitzels.  The three men then entered the cold room and threw out the remaining schnitzels. 
  1. [197]
    Mr Dyson said that, to his knowledge, the Appellant had not spoken to Head Chef Speak about the matter on that day.  He viewed the Appellant as trying to "undermine" and "talk ill of" the head chef. 
  1. [198]
    Mr Dyson said that, later that day, he became aware that the Appellant had also walked in the public bar and had a similar conversation with public bar employee Traci Stanley.  Apparently, the Appellant walked along the bar, out to the back office to the administration office, and had a brief conversation with the administrative officer before finding Mr Dyson in the gaming room. 
  1. [199]
    According to Mr Dyson, CCTV footage showed:

 "Julio walking out the side door of the kitchen, which opens into the public bar.  You see him standing there, talking with Traci Stanley, the public bar full‑time bartender.  You see him walk around the public bar into the back office area.  There are no cameras in the admin office, so there is no footage of him showing the admin Officer.  But you do see him walk back out into the bar area, walking the length of the gaming bar to find me at the cashier." (T6:60)             

  1. [200]
    Mr Dyson said that the Appellant made no comment to him after viewing the CCTV footage.  Mr Dyson did not recall the Appellant ever asking him for the CCTV footage to be kept or for him to be provided with a copy of it. 
  1. [201]
    Mr Dyson said that he did not know what happened to the CCTV footage.  He thought he had sent it by email to Mr Pyers, and that is usually protocol within the hotel to keep all footage in a file on the computer in case it is needed for a further investigation.  However, as he was fired two weeks after the event, he did not know where footage was. 
  1. [202]
    Subsequent written accounts:  Written accounts of the "smelly chicken" incident in documents were prepared by Mr Kuenstner Snr and signed or adopted by the Appellant in the weeks following that incident. 
  1. [203]
    The undated typed statement prepared by Mr Kuenstner Snr and the Appellant for the Appellant's meeting with Mr Pyers on 2 December 2013, and given to Mr Pyers then (Exhibit 9) includes the following description:

"4) That on the 22 November, Chef Julio decided to show before service opens the smelly chicken (over ordered not put into the freezer) to Venue Manager Ben, only 'Jodi' was in the office smelling confirming it was unsafe to eat advising 'Ben' was in gaming, 'Julio' holding the downwards attempting to show the smelly chicken, we decided to walk to the keg room with 'Ben' ordering to throw away all chickens. AT NO TIME PATRONS HAVE BEEN INVOLVED PERTAINING TO THAT INCIDENT NEITHER TRACY STANLY, KERR-ANN COLE, JODI SEARSON OR VENUE MANAGER BEN DYSON HAVE BEEN PRESENT on untrue allegations backing up the untrained cook Sean Beck. All false accusations will be defended …" (Emphasis and errors in original)

  1. [204]
    The letter to Mr Pyers dated 8 December 2013 (Exhibit 1) includes the following passage:

"Chef Julio … aired his concerns pertaining to smelly chicken to the Head Chef on November 21, 2013, at that point of time the remaining 8 pieces of chicken should have been condemned and thrown away (it can cause salmonella poisoning) none of the remaining chicken pieces should have been served to hotel patrons.  The Head Chef and Venue Manager Ben Dyson both have been aware that from the same batch on the previous day a large number of hotel patrons complained, returning the Schnitzel.   …  For the above stated reasons Chef Julio consulted higher management Ben Dyson airing his concerns pertaining to smelly chicken - who later ordered Chef Julio and Head Chef Steve in the kitchen cool room to throw the remaining chicken into the bin.

In order to verify Chef Julio's judgement on smelly chicken pieces one chicken piece was taken to Venue Manager Ben Dyson's office, Secretary Jodi Searston advised he was in the gaming room, asking what was in his hand smelling the smelly chicken.  From there Chef Julio walked straight to the gaming room, thereafter in company of Venue Manager Ben Dyson to the keg room; thereafter back to the kitchen throwing the chicken piece into the bin - verified by the video footage.

For that reason Chef Julio was unable to recall the wrongful accusation taking the smelly chicken to the public bar attended by Kerri-Ann Cole and Tracy Stanley, however to the best of Chef Julio's recollection after throwing the smelly chicken in the kitchen, he has been to the public bar for either a soft drink or just to say 'HELLO'."  (Emphasis and errors in original)

Later in that document, the Appellant wrote:

"It can be suggested that in hindsight there could have been an error of judgement taking the smelly chicken to the gaming room; - the chicken has not been sighted by hotel patrons."

  1. [205]
    In her report following an interview with the Appellant on 11 August 2014, Dr Matheson wrote:

"There was an incident in late November whereby Mr Kuenstner complained that chicken which was unsafe for human consumption was being served to patrons.  …  Mr Kuenstner acknowledges that after this he walked through the hotel carrying a piece of chicken and looking for the venue manager, Mr Dyson.  He found the venue manager in the gaming area and raised the issue in a public domain.  This led to Mr Kuenstner receiving a written warning."                              (Exhibit 13 page 5)

In cross-examination, Dr Matheson confirmed that this account was given to her by the Appellant. 

  1. [206]
    The Appellant agreed that he told Dr Matheson about the chicken incident, including that he walked through the hotel carrying a piece of chicken and looking for the venue manager.  But he disagreed with the statement in her report that he "found the venue manager in the gaming area and he raised the issue in a public domain."  His explanation was to the effect that raised the matter "inside the keg room," and he "don't show anything about what's off or not in front of patrons." 
  1. [207]
    Action taken by Mr Pyers:  Mr Dyson said that, as a venue manager he had a number of concerns about the Appellant's actions including:
  1. (a)
    the Appellant not communicating to his direct superior, Head Chef Speak, who was standing not more than two metres away;
  1. (b)
    branding [sic - brandishing] a chicken schnitzel in customers' eyes and informing casual staff along the way. 
  1. [208]
    Mr Dyson raised those and other concerns with Mr Pyers.
  1. [209]
    Mr Pyers is employed by Woolworths as a human resources manager.  He has relevant university qualifications and some six years' experience in human resources management.  He started work at Woolworths in mid‑September 2013, and first dealt with the Appellant in the course of the investigation he conducted in December 2013.  Mr Pyers gave evidence that Mr Dyson asked him for assistance investigating matters about the Appellant's conduct that had been raised with him by other staff members (including Sean Beck, Kerri-Ann Cole, Traci Stanley, and Jodi Searston).  It was usual practice for HR to conduct an investigation in relation to personnel matters. 
  1. [210]
    Having received oral and written witness statements from some employees and a report from Mr Dyson about CCTV footage that he viewed, Mr Pyers was satisfied that:
  1. (a)
    the allegations were not vexatious or without reasonable cause; and
  1. (b)
    there was enough information to allow allegations to be put to the Appellant and to seek a response. 
  1. [211]
    Mr Pyers prepared the letter of allegation and Mr Dyson checked it and confirmed that it was accurate.  The allegations included the following in relation to the smelly chicken incident:

"On 22 November 2013, you approached Traci Stanley, Kerrie-Ann Cole,               Jodie Searston, Ben Dyson, and in the presence of hotel patrons and accused the Mr Speak of sending out unsafe food." 

  1. [212]
    That was one of a series of allegations that, between 7 and 24 November 2013 and on multiple occasions, the Appellant "harassed and bullied" Mr Speak by saying various things to Mr Beck that were critical of Mr Speak (e.g. "Steve is shit," "Steve can't cook to save his life," "Steve is a shitty head chef because he can't even order right or keep the kitchen stocked up.  He can't make his mind up on what he wants to do and I just plain don't like him and I want to get rid of him.").  It was alleged that the Appellant asked Mr Beck to help him "get rid of the new head chef" because he did not like the way he operates in the kitchen and the way he treated Mr Beck better than the Appellant.  The Appellant indicated that if the head chef were removed, he could get the position he wanted. 
  1. [213]
    It was also alleged that the Appellant harassed Mr Beck when:
  1. (a)
    on 7 November 2013 he shouted at Mr Beck words to the effect that Mr Beck should not talk to the Appellant's girlfriend about what is going on at work and should not talk to her about anything or talk to other staff about work-related things; and
  1. (b)
    on 24 November 2013, he said loudly to Mr Beck words to the effect "Watch your fucking attitude" and threw his tongs at the sink with force.
  1. [214]
    Mr Beck confirmed that the allegations set out in Exhibit 15 in relation to things that had been said to him by the Appellant were types of matters that he reported to management in his complaints. 
  1. [215]
    Mr Beck recalled that after Mr Speak was appointed as head chef, the relationship between the Appellant and Head Chef Speak was "good" but later on things did not go as well.  They had a "professional working relationship, as everyone else did" but there may not have been clear communication between them.  On "multiple occasions" the Appellant told Mr Beck that Mr Speak was a "shit chef" who should not be a head chef, and that the Appellant did not really like him.  The Appellant expressed the desire to replace Mr Speak as head chef, as the Appellant could do a better job.  The Appellant suggested that they should team up and try to have Mr Speak removed.  
  1. [216]
    Mr Beck also gave evidence that he overheard the Appellant talking to another staff member saying in effect that Head Chef Speak was not adequate and was "pretty shit," and that the Appellant did not like him. 
  1. [217]
    Mr Beck took his concerns to management by lodging more than one formal complaint about the Appellant.  He provided a statement to Mr Dyson about his concerns.
  1. [218]
    Mr Beck gave evidence that, as a consequence of what was occurring in the workplace towards the end of 2013 (including his dealings with the Appellant), he sought medical treatment because he was feeling anxious and depressed and did not want to go to work.  His doctor prescribed medication.  Mr Beck described the cause of the anxiety as "literally work,"  In particular, having to listen to staff being abused and struggling to deal with everything that was going on in the kitchen, particularly when people were "under the pump" and things needed to be done straight away.  It was apparent from his evidence that, although the Appellant had a part to play in that anxiety, others were involved and responsible from time to time. 
  1. [219]
    Mr Dyson gave evidence that he had received complaints about the Appellant in the form of written statements handed into other managers, who passed them on to Mr Dyson.  He found those complaints credible.   He followed company protocol and informed his area manager, Mr Drane.  Mr Dyson had no further managerial involvement in determining what was to happen. 
  1. [220]
    Mr Dyson said that, although Mr Pyers prepared the notice to attend the meeting on 2 December 2013, he signed the document and was satisfied that, at least to the best of his knowledge, the allegations being put to the Appellant were accurate.  He personally gave the document to the Appellant at work. 
  1. [221]
    By letter dated 1 December 2013, Mr Dyson advised the Appellant that his recent conduct in the workplace might be in breach of the ALH Employee Code of Conduct and the Bullying, Discrimination & Harassment Policy (Exhibit 15).  Included in the letter were particulars of allegations that, on various dates and on multiple occasions between 7 and 24 (or 27) November 2013, the Appellant had harassed and bullied Stephen Speak and had harassed Sean Beck.  The letter requested a meeting to discuss those allegations with the Appellant on Monday 2 December 2013 at 2.30 pm at the Captain Cook Tavern.  The Appellant was advised that "subject to the issues outlined above you may be subject to disciplinary action arising from this incident and such action may include termination under probation."  He was also advised that he was entitled to bring a representative/witness to the meeting. 
  1. [222]
    Mr Pyers did not receive any complaint or assertion by the Appellant that he did not have time to prepare for the meeting. 
  1. [223]
    Disciplinary meeting on 2 December 2013 and subsequent actions: The Appellant said that he received the letter dated 1 December 2013 from Mr Dyson and understood, among other things that:
  1. (a)
    it provided him with allegations that were to be addressed in a meeting to which he was invited on 2 December 2013;
  1. (b)
    it foreshadowed possible disciplinary action, so that he was aware that there were potentially serious consequences from the meeting; and
  1. (c)
    he was entitled to bring a representative or a witness to the meeting. 
  1. [224]
    The Appellant prepared a document (Exhibit 9) which was provided to Mr Pyers at the meeting on 2 December 2013.  Mr Pyers took the Appellant through each of the matters listed in that letter and asked him questions about them.  The Appellant was able to answer those questions as well as provide the document. 
  1. [225]
    Mr Dyson attended the meeting as a witness, but did not say anything.  The Appellant spoke for himself at the meeting.  The meeting went for about 45 minutes or close to an hour. 
  1. [226]
    The Appellant agreed that, in the course of the meeting, Mr Pyers asked him about details of the smelly chicken incident on 21 November 2013.  He did not recall, or disagreed with, some aspects of Mr Pyers' account of what he told Mr Pyers.  He had no complaint about the way in which Mr Pyers spoke to him at that meeting and said that Mr Pyers "did his management role and listened to my version." 
  1. [227]
    According to Mr Pyers, the meeting was attended by himself, Mr Dyson, the Appellant, and Mr Kuenstner Snr.[59]  This was the first time Mr Pyers had met the Appellant or Mr Kuenstner Snr.  The meeting went for approximately one and a half to two hours. Mr Pyers went through a "scripted process" for the meeting, including going through the allegations and describing the process of questions and answers and noting that there would be an opportunity to provide a complete response should they choose to do so.  He explained that the role of the witness was to observe, not provide evidence on behalf of the Appellant.  The participants agreed to proceed on the basis he outlined, and he repeated the allegations and went through a series of questions directed at the Appellant in relation to each incident.  Mr Pyers gave evidence that he was calm, quiet and considered during the meeting.  Whenever he asked a question he would give the Appellant any time he needed to respond.  In all cases, a response was provided by the Appellant.  Mr Kuenstner Snr also responded and asked questions on the Appellant's behalf from time to time.  That was not normal, particularly as Mr Pyers had already described the role of the witness. According to Mr Pyers, although Mr Kuenstner Snr did not adhere to his instruction not to speak, he permitted Mr Kuenstner to speak just for the purposes of ensuring that the investigation could continue.
  1. [228]
    According to Mr Pyers, at the end of the meeting Mr Kuenstner Snr praised him for the process followed.  He asked whether Mr Pyers had a legal background or any experience in conducting such meetings because he had followed a very good process and Mr Kuenstner Snr was very happy with it. 
  1. [229]
    Mr Pyers identified an undated typed document with nine numbered paragraphs (Exhibit 9) as information provided to him during the interview on to December 2013 by the Appellant in response to the allegations.  Neither the Appellant nor Mr Kuenstner Snr indicated that they wanted to provide additional information or needed time to do that.  Mr Pyers took the document away from the meeting and gave evidence that its contents formed part of his consideration as to whether he was satisfied that the allegations were made out.  Indeed, according to Mr Pyers, the Appellant's responses including the written statement that he provided formed "a large part" of the investigation.
  1. [230]
    Mr Dyson said that his concerns about the Appellant's behaviour in relation to the smelly chicken incident were raised with the Appellant in a performance management session on 2 December 2013 attended by Mr Dyson, Mr Pyers, the Appellant and Mr Kuenstner Snr.  According to Mr Dyson, Mr Pyers conducted the meeting in an appropriate way, and did not shout or swear at either the Appellant or his father during the meeting.  Mr Pyers afforded them an opportunity to respond to the various allegations.  Mr Pyers received a document (Exhibit 9) which he took away along with other documents from that meeting.  Mr Dyson did not recall whether Mr Kuenstner Snr made any comments during that meeting.
  1. [231]
    Although Mr Dyson was the appropriate person to make the determination, he and Mr Pyers conferred and they agreed that the allegations had been made out on the balance of probabilities.  Mr Pyers asked for more time to go back and reread the material and consider everything included in it.  The next day he met with Mr Dyson.  They decided that, based on information provided by the Appellant at interview and the other things leading up to that (including Mr Dyson's viewing of the CCTV footage), there was enough information to make a determination.  Considering everything that had been provided, the determination should be a written warning on the basis that there had been a breach of the policies.  Mr Pyers prepared the warning letter, and he contacted the Appellant and notified him verbally about the outcome of the meeting.  The Appellant told Mr Pyers that he understood and agreed with the outcome at that time. 
  1. [232]
    Mr Dyson said that he signed the letter to the Appellant dated 3 December 2013 (Exhibit 16).  According to Mr Dyson, the author of the document was Mr Pyers who also made the decision that the Appellant should receive a written warning.  Mr Dyson gave the signed letter to the Appellant, but did not discuss it with him on that occasion.
  1. [233]
    The letter was headed "WRITTEN WARNING".  In it, Mr Dyson referred to a discussion on 3 December 2013 and confirmed that the Appellant had been "counselled about unsatisfactory aspects of your conduct within the workplace" (Exhibit 16).  The letter noted the allegations that were put to the Appellant during the meeting on 2 December 2013, and summarised the points made by the Appellant in response to those allegations.  The letter continued:

"ALH have taken into consideration your length of service, past conduct, information gathered through the investigation of the allegation your written response and response at interview. ALH finds that your conduct constitutes misconduct, and a breach of the Code of Conduct."

The letter set out the relevant sections of the Code of Conduct and the Bullying, Discrimination & Harassment Policy and advised the Appellant as follows:

"On the basis that ALH finds that your conduct constitutes misconduct, you are provided a written warning.  Any further breaches of company policy and/or inappropriate behaviour may result in further disciplinary action up to and including termination of your employment.

I accept your commitment to improve your conduct in the area above.  Please do not hesitate to ask if you need assistance to reach the standards required for you to continue a successful career with ALH."

  1. [234]
    The Appellant also gave evidence that Mr Pyers contacted him by telephone on 3 December 2013 to deliver the findings, and the Appellant received the letter of that date setting out the findings and the warning on 4 December 2013 (Exhibit 16). 
  1. [235]
    About one week later, the Appellant telephoned Mr Pyers, who said that the Appellant could ask Mr Dyson to view the CCTV footage.  The Appellant viewed the CCTV footage in the public bar area where Mr Dyson was working.  He agreed that it showed him walking through the public bar with a piece of chicken in his left hand, but denied that it showed him holding the chicken in front of himself and speaking to Ms Stanley.
  1. [236]
    Some days later, the Appellant came back to Mr Dyson and asked to review the CCTV footage on the day of the smelly chicken schnitzel incident.  Mr Dyson arranged for that to occur and watched the CCTV footage with the Appellant.
  1. [237]
    Ms Wregg is the National Human Resources Manager of AHL.  Based on her human resources career of about 20 years, she agreed that the following accorded with normal HR or management practice:
  1. (a)
    where management wishes to discuss some performance or disciplinary issues with an employee, management provides the employee with notice to attend a meeting setting out what allegations are to be addressed at the meeting;
  1. (b)
    at the meeting, the employee is afforded the opportunity to have a support person present, the allegations are put to the employee, and the employee is afforded an opportunity to respond to each allegation;
  1. (c)
    after the interview process the decision-maker takes into account what they have been told by the employee and other information provided to them, and then comes to a determination as to the disciplinary penalty;
  1. (d)
    management provides written notice of the outcome to the employee. 
  1. [238]
    The basis of the disciplinary action: In the course of cross-examination, Mr Pyers agreed that the Appellant possibly prevented salmonella poisoning of some Tavern patrons.  He said that the Appellant should not have kept quiet about the "smelly chicken incident." However, he did not agree that the Appellant had done "the right thing in regards to ALH policies."  Mr Pyers explained that, the moment he realised or believed that chicken was no longer safe, the Appellant should have taken that directly to Head Chef Speak. That was the person who he had agreed would review the situation.  At no point did the Appellant go straight to Mr Speak or even try and find him before the Appellant spoke with several other people.  Rather, having spoken to Mr Dyson and Ms Searston, it was left to Mr Dyson to find Mr Speak. 
  1. [239]
    Mr Pyers explained that the Appellant did not receive a written warning because he had brought the tainted chicken issue to someone's attention, but because of the manner in which he went about doing that. 
  1. [240]
    It is not clear whether the Appellant appreciated the distinction between raising his concerns about the smelly chicken and the inappropriate method in which he did so.  On the one hand, the Appellant appeared to acknowledge his error in carrying the smelly chicken schnitzel through a public area of the Tavern.  In his oral evidence he said "what I did is I realised that I shouldn't have done it."  However he denied blatantly displaying the chicken saying, "but I did not hold it in front of patrons.  I held it right beside my leg when I was walking." 
  1. [241]
    In the course of cross-examination, the following exchange occurred between counsel for the Respondent and the Appellant:

 "You understand that the notice you received to attend the misconduct meeting wasn't because of you identifying the off chicken.  You understand that it wasn't about that? --- It stated that I walk across with the off chicken.  Yes.

It wasn't about the fact of you bringing to the attention that the chicken was off.  Do you understand what I'm saying?  It was the manner in which you went about it? --- What was stated on the warning letter saying that I spoke to him in front of patrons, which wasn't true, and I did view it - and I never spoke to Tracey, Kerri-Anne, about - you know, all of these guys in front of patrons."  (T4:67)

  1. [242]
    According to the Appellant, he viewed the CCTV footage.  By his account, it showed that he:

 "basically did not speak to the staff member, walked around and - and basically did what - you know, just did the - basically the right thing, just - you know, I didn't even show anyone - I didn't even speak to any staff member except for Ben Dyson, and there was no patrons on the bar …" (T2:76)

  1. [243]
    The Appellant said that, although he is a truthful person, he felt like he was told he was a liar in relation to the CCTV footage and that Mr Pyers "was basically attacking me." 
  1. [244]
    At the hearing an issue was raised about the availability of CCTV footage in relation to the Appellant's activities in the area of the bar on 22 November 2013.  In summary, the evidence (including Exhibit 20) was that:
  1. (a)
    there was CCTV footage of the Appellant in the public bar area on that date;
  1. (b)
    Mr Dyson viewed the CCTV footage and reported what he saw to Mr Pyers;
  1. (c)
    Mr Dyson thought he sent an email of the footage to Mr Pyers, but Mr Pyers did not receive it and that it was hotel protocol to keep footage on computers;
  1. (d)
    at no time did Mr Pyers see the CCTV footage;
  1. (e)
    the CCTV footage was not captured on an external hard drive; (Exhibit 20)
  1. (f)
    the CCTV footage was overwritten within 28 days of the events; (Exhibit 20)
  1. (g)
    no CCTV footage was provided to the parties or to the Commission.
  1. [245]
    Mr Pyers gave evidence that he had not seen any CCTV footage in relation to the "smelly chicken incident" in November 2013.  However he stated that it was viewed by Mr Dyson, and what he saw was relayed to Mr Pyers.  That account "lined up fairly closely with the account of the events described by Julio on the interview" on 2 December 2013. 
  1. [246]
    Given that the CCTV footage apparently would have confirmed the Appellant's account of his interactions with at least some of the named individuals, Mr Pyers considered that he was not required to review the footage and that he could make a decision based on information provided to him. 
  1. [247]
    Appellant's submissions:  The Appellant's submission deals with a range of related matters including allegations that he attempted to undermine Head Chef Speak, his conduct in relation to the smelly chicken incident, the conduct of the investigation by Mr Pyers, and the effect of the Warning letter on the Appellant.
  1. [248]
    The Appellant submits that at no time did he undermine Head Chef Speak.  Rather:
  1. (a)
    Mr Pyers confirmed that the investigation had absolved the Appellant of making the alleged derogatory statements (although Cook Beck had been issued with a warning letter); and
  1. (b)
    although Mr Pyers gave evidence that the only wrong done by the Appellant was undermining Head Chef Speak, the Appellant had already relayed his concerns in regard to the smelly chicken the previous night (and Head Chef Speak had insisted he would serve the smelly chicken for lunch the following day), and the following day (when he discovered that the chicken schnitzel had not been thrown out) the Appellant raised his concerns with Venue Manager Dyson, requesting his opinion when Head Chef Speak was not in the Tavern, because an urgent decision had to be made. 
  1. [249]
    In relation to the smelly chicken incident, the Appellant submits, in summary, that:
  1. (a)
    despite the Appellant recommending on the evening of 21 November 2013 that Head Chef Speak not serve contaminated smelly chicken to Tavern patrons at the lunch service on 22 November 2013, he was overruled by the head chef who said he would serve the chicken;
  1. (b)
    in the absence of Head Chef Speak after 11:30 am (when the lunch service had commenced but there were no customers), and for health and safety reasons, the Appellant solicited the opinion of Venue Manager Dyson;
  1. (c)
    the Appellant did not waive the smelly chicken schnitzel around in front of Tavern patrons, indeed he did not show it to Tavern patrons but held it close to his waist while trying to locate Mr Dyson;
  1. (d)
    Mr Dyson ordered that the smelly chicken be thrown out;
  1. (e)
    as a result, and in order to cover up the smelly chicken incident, ALH management "set up/framed" the Appellant by "manipulating factual events;"
  1. (f)
    however, as a result of his training, the Appellant had protected Tavern patrons from salmonella poisoning.
  1. [250]
    The Appellant's submission also focuses on the CCTV record and the absence of any CCTV footage in evidence in these proceedings.  In summary, the Appellant submits that:
  1. (a)
    Mr Pyers authorised the Appellant to view the CCTV footage;
  1. (b)
    that footage confirmed that the smelly chicken schnitzel was never shown to Tavern patrons, and would have shown that the Appellant was holding schnitzel close to his waist while trying to locate Venue Manager Dyson;
  1. (c)
    Mr Pyers denied the Appellant's request for a copy of the CCTV footage;
  1. (d)
    although Mr Dyson said that the CCTV footage together with witness statements were handed to Mr Drane, Mr Pyers denied receiving that material;
  1. (e)
    although Mr Pyers denied viewing the CCTV footage, his investigation on 2 December 2013 was based on the CCTV footage and written statements provided by Mr Dyson;
  1. (f)
    the CCTV footage should have been kept.
  1. [251]
    The Appellant contends that the CCTV footage provides evidence that ALH management "manufactured false evidence regarding the 'smelly chicken incident' against Chef Julio."  He asks why the CCTV footage disappeared as it could have been the best evidence to absolve Mr Dyson and vindicate ALH management. 
  1. [252]
    As part of his submission, the Appellant is critical of Mr Dyson as a witness, claiming among other things that he had knowingly implicated the Appellant in events which did not take place.  The Appellant refers to Mr Dyson's confirmation that contrary to company policy he was found to be intoxicated in the workplace (before the smelly chicken incident), and that Mr Dyson's employment was terminated after the CEO of ALH received material from the Appellant.  It appears that the Appellant relies on those events to place doubt on Mr Dyson's credit as a witness in these proceedings.
  1. [253]
    The Appellant's submissions in relation to the investigation conducted by Mr Pyers is, in summary that:
  1. (a)
    the focus of the investigation was on the Appellant allegedly undermining Head Chef Speak but also reviewed the smelly chicken incident;
  1. (b)
    Mr Pyers received the Appellant's notes (Exhibit 9) which "detailed the truth on all events regarding the 'smelly chicken incident';"
  1. (c)
    Mr Pyers confirmed that there was only one (unsigned) witness statement from Traci Stanley and, although witness statements were not taken from                    Kerri-Ann Cole and Jodi Searston, Ms Cole and Ms Searston each verbally provided evidence to Mr Dyson before he issued the notice to attend;
  1. (d)
    Mr Pyers went through a scripted process ("there was a bundle of questions that didn't make sense") and the investigation was unprofessional.
  1. [254]
    The Appellant was critical of the way in which Mr Pyers performed his investigation and of his evidence at the hearing.  The Appellant's submission referred to the involvement of Mr Kuenstner Snr in the process, stating that:
  1. (a)
    Mr Kuenstner Snr was only allowed to listen and had no input at the meeting on 2 December 2013, and had he interjected or questioned he would have been asked to leave;
  1. (b)
    Mr Kuenstner's praise of the process "was based on politeness only, Mr Pyers process of questioning was repetitious and un-professional." 
  1. [255]
    The Appellant submitted that:

"Mr Pyers un-professional investigation in November 2013, targeted Chef Julio for non-existing events which never occurred, knowingly derailing the documented truthful facts of kitchen incidents.  The 'WARNING LETTER' caused additional work related stress, it evidenced ALH management could not be trusted."  (Submission page 28)

  1. [256]
    Finally, the Appellant also submits that the "denial of truthful event" was the cause of additional work-related stress.  I understand him to mean that inaccurate accounts of what transpired (i.e. accounts that differed from his version of events, including those given by Mr Dyson) were accepted by management, and the fact that he was not believed added to his work-related stress.  The Appellant added that the reason he did not access the Employee Assistance Program was that, because he had been "set up/framed by ALH management," he could no longer trust management. 
  1. [257]
    Respondent's submissions:  Stressors 8 and 9 relate to the smelly chicken incident, allegations that the Appellant was undermining Head Chef Speak, and the investigation and disciplinary process was undertaken by Mr Pyers.
  1. [258]
    The Respondent's submissions draw primarily on the evidence of Mr Dyson, Mr Beck and Mr Pyers.  In summary, the Respondent contends that the evidence supports findings that:
  1. (a)
    from the first day that Head Chef Speak was appointed, the Appellant began to undermine him and run him and his performance down, and that subsequently the Appellant and Mr Beck were critical of Mr Speak;
  1. (b)
    the Appellant's way of dealing with Mr Dyson in relation to the smelly chicken incident was such that Mr Dyson viewed that as a further attempt to try and undermine Head Chef Speak;
  1. (c)
    Mr Dyson received complaints via his management team about the manner in which the Appellant had been treating Head Chef Speak, and he passed these on to Mr Drane and Mr Pyers and sought advice as to what he should do;
  1. (d)
    from his dealings with the Appellant, Mr Dyson formed the view that the complaints about the Appellant's actions were credible;
  1. (e)
    Mr Beck had been the subject of some degree of bullying behaviour by the Appellant and had witnessed the Appellant run down Head Chef Speak. 
  1. [259]
    In relation to the investigation and disciplinary process, the Respondent submits, in summary, that:
  1. (a)
    Mr Pyers worked with Mr Dyson, and drew on complaints from Mr Beck, in preparing the allegations contained in Exhibit 15;
  1. (b)
    there was ample evidence upon which Mr Dyson and Mr Pyers could proceed to a disciplinary meeting with the Appellant, and it was appropriate in the circumstances for them to do so;
  1. (c)
    in Exhibit 15, Mr Pyers gave the Appellant clear notice of the allegations that he had to meet, and afforded the Appellant the opportunity to have a support person present;
  1. (d)
    the evidence from the Appellant, Mr Kuenstner Snr, Mr Pyers and Mr Dyson shows that the Appellant was afforded procedural fairness at the meeting on 2 December 2013;
  1. (e)
    Mr Pyers chaired the meeting in a professional and calm way, took the Appellant through each of the allegations and afforded him the opportunity to provide whatever information he wished to provide;
  1. (f)
    Mr Pyers received Exhibit 9 from the Appellant, and took the document away to consider when deciding whether allegations were made out;
  1. (g)
    the information provided by the Appellant in the meeting largely confirmed the allegations in paragraph 1 of Exhibit 15;
  1. (h)
    Mr Pyers took time to consider what he had been told by the Appellant in the meeting and what was contained in Exhibit 9, and he formed the view that the allegations had been established on the balance of probabilities and that it was appropriate for the Appellant to be disciplined by a written warning;
  1. (i)
    Mr Pyers telephoned the Appellant on 3 December 2013 to inform him of the outcome of the process and that he would receive a written warning;
  1. (j)
    the written warning (Exhibit 16) was subsequently provided to the Appellant on 4 December 2013 by Mr Dyson;
  1. (k)
    Mr Pyers confirmed that the same process was adopted for Mr Beck who also received a written warning;
  1. (l)
    Ms Wregg confirmed that the entire process appeared to conform with the accepted human resources practice for conducting a disciplinary meeting;
  1. (m)
    the manner in which Mr Pyers conducted the investigation, the meeting and the disciplinary process constituted reasonable management action taken in a reasonable way. 
  1. [260]
    The Respondent also notes that Mr Pyers found that both the Appellant and Mr Beck had engaged in conduct designed to undermine the head chef, and each received a written warning.  The fact that Mr Beck also received a written warning for his behaviour demonstrates that the Appellant was not being singled out but was being treated in the same manner as Cook Beck in relation to similar types of behaviour.
  1. [261]
    Consideration:  On the basis of the evidence summarised above, I find that:
  1. (a)
    when Head Chef Speak commenced employment at the Captain Cook Tavern he needed further training and lacked some skills necessary to work in the ALH organisation;
  1. (b)
    early in the term of Head Chef Speak's employment there, the Appellant instructed him in relation to aspects of the work in the kitchen;
  1. (c)
    on occasions soon after the appointment of Head Chef Speak, the Appellant spoke to Mr Dyson about him, including in disparaging terms;
  1. (d)
    both the Appellant and Cook Beck were "talking down" Head Chef Speak behind his back, and Mr Dyson spoke to both of them about that;
  1. (e)
    on 21 November 2013, at lunchtime and dinner, the Appellant spoke to              Head Chef Speak about checking chicken schnitzels which they were serving as customers had returned some of them because there was something wrong with them;
  1. (f)
    although the Appellant told Head Chef Speak to dispose of the chicken schnitzels, at least some were retained for service at lunch on 22 November 2013;
  1. (g)
    in the absence of Head Chef Speak (who had left the premises for a relatively short period), the Appellant took a piece of chicken from the kitchen in order to ask Venue Manager Dyson if he was happy for the chicken to be served;
  1. (h)
    the Appellant carried the piece of chicken to the administration office and spoke to Ms Searston about the piece of chicken and where Mr Dyson was;
  1. (i)
    having been advised that Mr Dyson was in the public bar, the Appellant walked through the public bar area, passing another staff member                 (Traci Stanley) and at least one patron;
  1. (j)
    the Appellant met with Mr Dyson in the gaming room, which was open and visible to patrons and where customers were present, and he asked Mr Dyson if he wanted to smell the chicken that the head chef was serving;
  1. (k)
    at Mr Dyson's suggestion they entered the adjoining closed keg room or cool room, away from the view of customers, where Mr Dyson smelt chicken and agreed that it was "off" or "turning";
  1. (l)
    at Mr Dyson's instruction, the Appellant returned to the kitchen where Mr Dyson met with him and Head Chef Speak;
  1. (m)
    Mr Dyson instructed Head Chef Speak to throw away the chicken, and the remaining chicken schnitzels in the cool room were thrown out;
  1. (n)
    Mr Dyson understood that the Appellant had not spoken to Head Chef Speak about the matter on that day, and considered that the Appellant was trying to "undermine" and "talk ill of" the head chef;
  1. (o)
    the Appellant considered that, having spoken to Head Chef Speak on the previous evening about disposing of the chicken and given that the head chef left the kitchen at the start of the lunch service, he should seek the advice of the venue manager about the chicken schnitzels before serving any to patrons.
  1. [262]
    In relation to the action taken by management subsequent to the smelly chicken incident (but not confined to it), I find that:
  1. (a)
    Mr Pyers gave appropriate consideration to oral and written witness statements from some employees and a report from Mr Dyson about CCTV footage for 22 November 2013 that Mr Dyson viewed in order to satisfy himself that the allegations were not vexatious or without reasonable cause, and there was enough information to allow allegations to be put to the Appellant and seek a response from him;
  1. (b)
    it was appropriate for management to advise the Appellant in writing of a range of concerns about his conduct in the workplace (being a series of complaints concerning what he had said about Head Chef Speak and his statements to Mr Beck), to request a meeting to discuss those allegations, and to advise the Appellant that he might be subject to disciplinary action;
  1. (c)
    the letter dated 1 December 2013 was in an appropriate form;
  1. (d)
    the process for setting up of the meeting (including allowing the Appellant to bring a representative or witness to the meeting) was appropriate;
  1. (e)
    the Appellant prepared a document setting out his responses to the allegations;
  1. (f)
    Mr Pyers, the Appellant, Mr Kuenstner Snr, and Mr Dyson attended the meeting on 2 December 2013;
  1. (g)
    Mr Pyers went through a scripted process, and took the Appellant through each of the matters listed in the letter and asked him questions about them;
  1. (h)
    the Appellant was given sufficient time to answer the questions, and he answered those questions and provided Mr Pyers with the document that he had prepared;
  1. (i)
    neither the Appellant nor Mr Kuenstner Snr indicated that they wanted to provide additional information or needed time to do that;
  1. (j)
    the Appellant had no complaint about the way in which Mr Pyers spoke to him or the conduct of the meeting (a view which was, generally speaking, confirmed by Mr Kuenstner Snr);
  1. (k)
    after the meeting, Mr Pyers and Mr Dyson considered the available materials, including the document provided by the Appellant and decided there was enough information to make a determination in the form of a written warning on the basis that the Appellant had breached the Code of Conduct and Bullying, Discrimination and Harassment Policy;
  1. (l)
    the letter was prepared by Mr Pyers, dated 3 December 2013 and signed by Mr Dyson;
  1. (m)
    Mr Pyers contacted the Appellant and notified in verbally about the outcome of the meeting;
  1. (n)
    Mr Dyson gave the signed Warning Letter to the Appellant;
  1. (o)
    the letter does not include specific findings in relation to each allegation, but it might be inferred that Mr Dyson and Mr Pyers were satisfied that most or all of the allegations had been substantiated;
  1. (p)
    on the basis that the allegations were substantiated, and in light of the surrounding circumstances identified in the letter, the written warning was appropriate;
  1. (q)
    the Appellant apparently made a commitment to improve his conduct in relation to the area identified in the letter;
  1. (r)
    the procedure followed and its outcome constituted reasonable management action taken in a reasonable way.
  1. [263]
    Given the (perhaps inordinate) emphasis on the smelly chicken incident, it is important to note that the enquiry conducted by Mr Pyers was prompted by and involved much more than allegations in relation to that incident.  There was a series of allegations about the Appellant undermining Head Chef Speak and his conduct in relation to Mr Beck.  It is apparent that the Appellant was not cleared by Mr Pyers' investigation. 
  1. [264]
    Although it might have been useful for the Commission to see the CCTV footage, the absence of CCTV footage need not affect the outcome of this appeal.  It is clear from the evidence of Mr Pyers that:
  1. (a)
    Mr Dyson described the CCTV footage to Mr Pyers;
  1. (b)
    the investigation by Mr Pyers included the interview with the Appellant (attended by Mr Kuenstner Snr) during which they went through what had been described as being recorded in the CCTV footage;
  1. (c)
    the events on that day included the Appellant talking to Kerri-Ann Cole and Traci Stanley, talking to Jodi Searston, and talking to Ben Dyson;
  1. (d)
    the Appellant's account of the events confirmed that those interactions took place;
  1. (e)
    the CCTV footage would have shown some of those interactions and so would have confirmed that they took place;
  1. (f)
    the CCTV footage did not record what was said, and so could not have resolved any dispute about what was said.
  1. [265]
    Having regard to all the evidence, I find that:
  1. (a)
    the Appellant was correct in seeking to advise those above him about the risk of serving the apparently tainted chicken schnitzels, and may have prevented some Tavern patrons suffering from salmonella poisoning;
  1. (b)
    the Appellant did not receive a written warning because he had brought the tainted chicken issue to Mr Dyson's attention;
  1. (c)
    the Appellant received a warning because of (among other things) the inappropriate manner in which he went about advising of the tainted chicken schnitzels.
  1. [266]
    Given my findings in relation to these matters, I conclude that Stressors 8 and 9 have not been proven, and that ALH management took appropriate actions in a reasonable way in relation to the smelly chicken incident and the other allegations against the Appellant.

Stressor 10

  1. [267]
    Stressor 10: "That during the same period after Cook Taiperty's replacement, Venue Manager Ben Dyson appointed his friend Sean Beck as a Cook who had no knowledge of cooking tavern food, Head Chef Cranston and Chef Julio instructed him how to prepare food, many times the COOK sent out food half cooked only.  The COOK distorted factual kitchen issues, his uniform was unwashed (owned 1 uniform only) had mental issues, was on prescription drugs. There was a build up for multiple stressors, especially with Venue Manager Ben Dyson stating that on food preparations Cook Sean Beck and Chef Julio are equal, Julio trained 4 years at the South Bank Institute of Technology it included food safety.
  1. [268]
    Evidence: The Appellant recalled Mr Beck starting work at the Captain Cook Tavern on a Saturday in early June 2013 around the start of the Appellant's holidays.  The Appellant went to the Tavern for about one hour that morning on his day off work, to help the head chef and meet the new cook.  According to the Appellant, Mr Beck did not know how to cook steaks.  Indeed, "He didn't know anything."                                         Head Chef Cumberbatch taught him how to cook a steak. 
  1. [269]
    The Appellant agreed that initially his relationship with Cook Beck was reasonably good.  When Cook Beck sent out raw fish and raw chicken and the meals were returned, the Appellant would tell him to ensure that he checked the chickens and fish.  The Appellant denied being "snappy" towards Cook Beck, but he spoke to management about the cook's work and they would ask him to check it.
  1. [270]
    In cross-examination, the Appellant denied that, around the time that                            Head Chef Speak started, a chicken schnitzel that he prepared had been returned by a customer to be recooked, and that he had lost his temper and sworn at Cook Beck.  The Appellant also denied speaking to Mr Beck about the incident later that day and saying that he did not like the way Mr Beck had spoken to him.  He also denied speaking loudly and in a bullying manner to Mr Beck on 24 November 2013 and throwing metal tongs into the kitchen sink on that occasion. 
  1. [271]
    Mr Dyson gave evidence that Sean Beck replaced Cook Starr-Nolan as a cook at the Captain Cook Tavern.  Mr Dyson denied the assertion that effectively he secured the job for Mr Beck.  Rather, by his account:
  1. (a)
    Mr Beck was the next door neighbour of Mr Dyson's partner                   (Kara Johnson);
  1. (b)
    Mr Beck approached Mr Dyson's partner asking if there were any vacancies at the Captain Cook Tavern, and she told him to pass his resume to the cook;
  1. (c)
    the cook passed the resume to Mr Dyson who passed it to                                   Head Chef Cumberbatch and told him to look at the resume and tell him what the head chef thought, and after that everything was in the head chef's hands;
  1. (d)
    Head Chef Cumberbatch alone conducted the interview;
  1. (e)
    Mr Dyson did not participate in the interview and did not direct or recommend that Mr Beck be employed. 
  1. [272]
    Mr Dyson said that he was made aware of some of Mr Beck's shortcomings, including that on a few occasions food that was put out by Cook Beck was "not up to par" in terms of food standards.  (He added that the same was said about the Appellant.) 
  1. [273]
    After Mr Beck was employed at the Captain Cook Tavern, Mr Dyson became aware that there were issues between the Appellant and Mr Beck.  After a period they both approached him with their complaints.  According to Mr Dyson:

 "We had allegations of harassment and bullying in the workplace. We had lots of pointing of fingers, lots of back stabbing, lots of - both parties [i.e., Mr Beck and the Appellant] trying to pass the buck."

 Mr Dyson described these as "very similar circumstances" to those involving Cook Starr-Nolan (considered in relation to Stressors 1 and 2).

  1. [274]
    Mr Dyson spoke to Head Chef Cumberbatch, who decided to try to deal with the matter in-house. 
  1. [275]
    Mr Cumberbatch was head chef at the Captain Cook Tavern when Mr Beck commenced work there in early June 2013.  He did not recall interviewing Mr Beck for that position, but suggested that Venue Manager Ben Dyson had approached him about Mr Beck being "keen to learn." 
  1. [276]
    Mr Cumberbatch recalled that Sean Beck was employed as a cook but it became "pretty evident that he'd had a little, but not enough" training.  Mr Cumberbatch "basically had to train him in lots of issues to get him up to standard."  He described Mr Beck as a "basic cook." 
  1. [277]
    Speaking more generally, Mr Cumberbatch said there were ongoing kitchen concerns (in relation to such things as training, laws and regulations, and company policies).  His evidence was that there are always going to be problems.  That is the "usual work situation."  Some of them he could resolve and others had to be handed over to senior management. 
  1. [278]
    He observed that there were issues between the Appellant and Mr Beck about standards.  The Appellant tried to set a high standard in relation to food and wanted to make customers happy with the best value for money.  He tried to pass that standard to the cooks. That might have created some conflict in the kitchen. Apparently Mr Beck did not quite understand because his prior kitchen knowledge was limited at that time.  That was something that Mr Cumberbatch, as head chef, was working on.  He described it as a "work in progress."
  1. [279]
    Mr Beck gave evidence that the following steps led to him obtaining the position of cook at the Captain Cook Tavern in mid-2013:
  1. (a)
    he knew a person who worked at the Tavern and they told him the Tavern was looking to staff;
  1. (b)
    he delivered his resume to the Tavern
  1. (c)
    on his way home he received a telephone call from Venue Manager         Ben Dyson who asked him to come in for an interview with the head chef;
  1. (d)
    he was interviewed by Head Chef Cumberbatch;
  1. (e)
    both Mr Dyson and Mr Cumberbatch told him that he had the position of cook;
  1. (f)
    Mr Beck was required to report to the head chef who he described as "brilliant to work with."

He denied that he had been employed as a cook as a direct result of the friendship between Mr Dyson's partner and Mr Beck's partner, Gracie Mills.

  1. [280]
    Mr Beck also gave evidence that at the time of his appointment he had about seven years' experience, including previous bar experience at different kitchens and an apprenticeship.  He had cooking experience in fast food, in roasts, restaurants and cafes.  By his account, although he might not have had the skills of the chef with years of training, at least he had the skill to be able to do what was needed, including running the kitchen from time to time.  By the time he gave evidence at the hearing in October 2015 he had been a qualified chef for about one month. 
  1. [281]
    Some months after Mr Beck commenced work at the Captain Cook Tavern, Mr Cumberbatch was replaced as head chef by Brad Magnon.  He was replaced by Steven Speak.  There was a period of about a month between those head chefs. 
  1. [282]
    During his time at the Tavern, Mr Beck worked with the Appellant and for about a week with Cook Starr-Nolan.  Mr Beck said that initially he got on "very well" with the Appellant with whom he worked on about four of the five days in a normal working week.  They would discuss what to do, and one would go and do the ordering while the other looked after the kitchen.  After about six months or more, they started "not getting along as well, just being in each others' faces all the time … you lose that sort of relationship." Mr Beck said that, around November leading into December that year, there were good days and bad days "as there is with every other kitchen."  On some days people are stressed and take it out on others and the next day they can be best friends.  He said that "everyone has their bad days of trying to deal with things." 
  1. [283]
    Mr Beck gave rather ambiguous evidence to the effect that, although the Appellant was the senior chef, the Appellant was and was not in a supervisory position in relation to him. 
  1. [284]
    Mr Beck recalled the Appellant raising concerns with him about sending out half‑cooked food.  Mr Beck, who had sent out a chicken schnitzel, "got a little bit upset and stuff."  The Appellant directed him to re-cook the schnitzel and make sure he checked it the next time, so Mr Beck did what the Appellant asked.  Mr Beck also recalled that on one occasion the Appellant sent out half cooked food.  At that time, both of them were "under the pump in the kitchen, and misconception of not checking it before it was sent."  Mr Beck checked the food before it was sent out and said it was "a little bit raw."  He asked the Appellant to "try and cook it a bit more."  The Appellant agreed but became a "bit upset.  Angry."  He swore at Mr Beck, who thought that reaction was "understandable" because a senior chef does not want someone that has just come into a kitchen telling them how to do that job.  Mr Beck recalled another instance when he misread an order for salmon and included hollandaise sauce when the patron had asked that there be no sauce.  He and the Appellant had a discussion about the need to read the docket so they could be safe in the kitchen.
  1. [285]
    Mr Beck gave evidence that he attended a mediation meeting conducted by Head Chef Brad Magnon, which included the Appellant, about "some of the stuff" that Mr Beck needed to "pick up on."  He also recalled being reprimanded a number of times by Head Chef Magnon and Head Chef Cumberbatch for arriving at work with a dirty uniform. 
  1. [286]
    Although he did not recall a disciplinary meeting involving allegations about Mr Speak,  Mr Beck recalled receiving a written warning regarding an oil spill that he caused with an oil drum stored out the back.  That was the only written warning he recalled receiving. 
  1. [287]
    Mr Pyers gave evidence that the process followed in relation to the allegations that Cook Beck undermined or mistreated Head Chef Speak was the same process as for the Appellant.  Mr Beck received notice to attend a meeting, a meeting was conducted with him, and he was provided with a written warning. 
  1. [288]
    Appellant's submissions:  The Appellant makes few submissions in relation to Stressor 10.  He refers to evidence that:
  1. (a)
    during the period when there was no head chef, he executed all the head chef functions without any difficulties; and
  1. (b)
    he instructed Cook Beck in relation to health and safety matters, particularly about sending out half-cooked food (and Mr Dyson was made aware that   Cook Beck was sending out unsafe food). 

He notes, however, that Mr Beck gave evidence that the Appellant was the senior chef in the kitchen, but was not appointed senior, and that the Appellant had no authority in the kitchen.  The Appellant submits that that was the cause for many kitchen issues causing the build-up of work-related stressors, as was the overload of his work preparing food for Tavern patrons. 

  1. [289]
    The Appellant also contends that he was blamed for an oil spill reaching the footpath and that "there is no doubt Chef Julio was to be 'framed' in preparation for a dismissal."    However, the Appellant notes that Mr Beck received a warning letter regarding the oil spill.
  1. [290]
    As noted elsewhere in these reasons, he also contends that:
  1. (a)
    he was framed or set up by ALH management, particularly in relation to the smelly chicken incident;
  1. (b)
    he was targeted by key management about kitchen issues for which he was not responsible.
  1. [291]
    Respondent's submissions:  The Respondent submits that the evidence establishes a different view of the facts than that put forward in the Statement of Stressors, and that:
  1. (a)
    as Mr Beck was employed by Mr Cumberbatch, the Appellant's allegation of nepotism is not made out;
  1. (b)
    if, as appears from the evidence of Mr Beck, there were some performance issues with Mr Beck, the Appellant has not established how this fact caused him stress;
  1. (c)
    ALH took steps to improve Mr Beck's skill set and that constituted reasonable management action taken in a reasonable way by the employer;
  1. (d)
    the same disciplinary process was adopted with Mr Beck as with the Appellant, and the Appellant was not treated differently or arbitrarily by the employer.
  1. [292]
    The Respondent submits that Stressor 10 is also caught by the reasonable management action exception in s 32(5) of the Act. 
  1. [293]
    In support of that submission, the Respondent refers to evidence to the effect that:
  1. (a)
    rather than being a friend of Mr Dyson, Mr Beck was the next door neighbour of Mr Dyson's partner;
  1. (b)
    at the suggestion of a friend, Mr Beck provided a resume to Mr Dyson who passed it on to Mr Cumberbatch;
  1. (c)
    Mr Cumberbatch interviewed Mr Beck and selected him for the role of Cook, and it was his call as to whether Mr Beck was employed in the Cook role;
  1. (d)
    before working at the Captain Cook Tavern, Mr Beck had bar experience and had worked in different kitchens and restaurants, and had worked in the hospitality industry for approximately seven years;
  1. (e)
    Mr Beck conceded that he may not have had the years of training that a chef may have had, but he had the skill to do what was necessary;
  1. (f)
    Mr Cumberbatch appeared to concede that Mr Beck had some experience as a cook and had received some training, but that his training had been deficient in some areas and he needed additional training to get him up to standard, (check T3: 82) and Mr Cumberbatch in his role as Head Chef took steps to improve Mr Beck's skill set by additional training;
  1. (g)
    Mr Magnon when he was Head Chef undertook a mediation to address not only the issue of lack of performance by Mr Beck but also the interpersonal issues between Mr Beck and the Appellant;
  1. (h)
    Mr Beck received a written warning for his role in the oil spill from the oil drums, (check T6: 16) and also received a written warning in December 2013 (the same as the Appellant) for undermining Head Chef Speak;
  1. (i)
    in relation to the latter issue, exactly the same process was adopted with Mr Beck as with the Appellant (i.e., he received a letter setting out the allegations and inviting him to attend a meeting, an investigatory/disciplinary meeting was held with him, and he was ultimately issued with a written warning). 
  1. [294]
    The Respondent submits that there is no evidence before the Commission that Mr Dyson blamed the Appellant for the oil spill incident.  The fact that Mr Beck received a written warning for this confirms that he was found responsible.  In the Respondent's submission, that further debunks the theory from the Appellant that Mr Beck was a favourite or some form of protected species at the workplace.  (Respondent's submissions in reply para 37)
  1. [295]
    Consideration:  On the basis of the evidence summarised above, I find that:
  1. (a)
    there is no evidence that, at the time Mr Beck applied for a position at the Captain Cook Tavern, Mr Beck was a friend of Mr Dyson;
  1. (b)
    although Mr Dyson had some role in facilitating the process leading to             Mr Beck’s appointment, Head Chef Cumberbatch interviewed Mr Beck and selected him to be a cook;
  1. (c)
    at the time of his appointment Mr Beck was a basic cook and, although he had some bar and restaurant experience and limited kitchen knowledge, he had not received sufficient training to perform the duties of a cook to the standard required at the Captain Cook Tavern;
  1. (d)
    Mr Beck reported to, and enjoyed working with, Head Chef Cumberbatch;
  1. (e)
    Head Chef Cumberbatch had to train Cook Beck in a range of matters to get him to the required standard;
  1. (f)
    the Appellant was more experienced and qualified than Cook Beck, and he tried to set a high standard in relation to health and safety and tried to pass that standard to the cooks, including Cook Beck;
  1. (g)
    initially the Appellant and Cook Beck  had a reasonably good relationship, but after some months there were conflicts between them about such things as kitchen standards;
  1. (h)
    although the Appellant was not formally Cook Beck’s supervisor, the Appellant expressed his concerns to Cook Beck about him sending out under-cooked food and, although he got a little upset, Cook Beck recooked the food;
  1. (i)
    there is insufficient evidence to establish to what extent (if at all) the tension or conflict between the Appellant and Cook Beck resulted in the Appellant suffering stress or constituted a build-up of multiple stressors.
  1. [296]
    In light of the factual findings, Stressor 10 is not proven.

Stressor 11

  1. [297]
    Stressor 11: "That following Venue Manager Ben Dyson's dismissal in December 2013, Bartender Gracie Mills, De Facto of Cook Sean Beck posted during working hours on Face book in December 2013, threatening with retaliation."
  1. [298]
    Evidence:  Gracie Mills worked in the bistro area of the Tavern.  In 2013, she was the de facto partner of Cook Beck.  According to the Appellant, during a busy lunchtime on a Friday in December 2013, when Venue Manager Dyson was not at work,                Ms Mills was critical of the Appellant for not providing order dockets with meals he had prepared and which she was to serve (a claim he denied).  Ms Mills then went to the kitchen and told a Head Chef Speak that the Appellant was not giving her the dockets.  The Appellant left work at about 3.30 pm.  He gave evidence that when he came home "there was a Facebook stating that the claims … saying that, you know, there's a retribution because …"
  1. [299]
    It appears that on Saturday 14 December 2013 (rather than the Friday), at 3.04 pm, the following message was posted on Facebook:

"How is it that soo much pain and destruction can be caused by one person and yet that one person seems pretty much untouchable!...this is getting out of hand and fucked to say the least!  So many lives getting pushed to the limits because of you and you sit back n laugh!  I hope karma gets you before the line up of people do!"

A printed screenshot of the message is Exhibit 8.  It records that there were "7 likes and 4 comments" but they are not in evidence.

  1. [300]
    According to the Appellant at the hearing, he had received a phone call on the Friday night from a woman called Tracy (who was apparently a friend of Ms Mills, but who no longer works at the Tavern) saying that his name was on the post.  Although he is not a Facebook "friend"[60] of Ms Mills, he was able to look at what she had posted. According to the Appellant, "what I did is, basically, go on to the Facebook and, basically, got the information, what she posted that day out of the Facebook."  When he accessed the Facebook page (about six or seven hours after it was posted) his name was not on it.  Having located the Facebook post himself, he said he "felt, like, threatened … like, the way it's been sentenced with, like, earlier incident regarding that service."
  1. [301]
    The Appellant agreed in cross-examination that there was no other Facebook post that had his name in it.  Accordingly, he agreed "in a way" that he had interpreted or inferred that the Facebook post related to him.  He asserted that the post was made during work hours, while Ms Mills was working on the bistro taking out the meals that he had served.  Although he left work at about 3:10, she was rostered and clearing tables. 
  1. [302]
      When asked to explain why he felt threatened, the Appellant said:

"The reason why, your Honour, because that week, that Tuesday, I did write to head office in Melbourne regarding … venue manager, Ben Dyson,[61] and regarding about the investigation regarding about what happened to me and after finding out that he wasn't … working on that Friday and having Gracie Mills … claiming that … I wasn't … giving her the dockets, then that afternoon she … posted this thing on Facebook" (T2:97)

  1. [303]
    The Appellant disagreed that the Facebook post was made before Mr Dyson was dismissed. 
  1. [304]
    The Appellant appeared to link the Facebook post and his reaction to it to his fear of venturing out at night.  He gave evidence to the effect that he felt that someone was going to attack him at night after finishing work.  He felt that he was "going to be mugged" and that "just made me scared and, you know, it just, like, I - like, I - I felt like, I don't know, I was just - I didn't want to be, like, punched up or beat up; that's the reason why I - I felt scared at night after finishing work." 
  1. [305]
    The Appellant agreed that after his letter of 17 December 2013, he received a telephone call from Mr Pyers.  During that conversation, the Appellant raised his concerns about the Facebook post and Mr Pyers asked the Appellant to tell him the contents of it.  The Appellant did that, named Ms Mills as the person had posted that information, and said that Mr Dyson and somebody named Cole had liked the post.  He also told Mr Pyers that he (the Appellant) was named in the title.  Mr Pyers asked whether the Appellant had any genuine concerns that any threats would be made against him.  The Appellant did not recall whether Mr Pyers asked if he wanted to access the Employee Assistance Program. The Appellant asked that he be transferred from the Captain Cook Tavern ASAP.  He agreed to provide a screenshot of the post to Mr Pyers, and did so. 
  1. [306]
    In a letter addressed to Mr Pyers dated 15 January 2014 about "Un-substantiated associations in need for urgent rectification," Mr Kuenstner Snr referred to concerns raised in a lengthy telephone conversation on Friday, 10 January 2014 (Exhibit 5).  Having referred to issues involving the Appellant and Head Chef Speak, the letter continued:

"That in regard to the 'Facebook' threat lodged by Cook Sean's partner Graceville, a serious concern which was reflected by a staff member in the Petrie Tavern (trouble-maker) - you indicated that the transcribed version "is not worthy of a written reply"."

A paragraph below the signature of Mr Kuenstner Snr states:

"I Chef Julio Kuenstner have read all and verify that the best of my recollection all stated significant issues are true and correct - in addition I request a written reply on the Facebook incident as it causes undesirable stress related issues."

Below that paragraph is the signature of the Appellant.

  1. [307]
    In an undated letter addressed to management of the ALH in Melbourne, the Appellant alleged that after eight years of having a good relationship with staff in every Tavern in which he had worked,[62] he was "set up" by parties whose interests were contrary to ALH work requirements.  He claimed that his "persona has been deliberately tainted/stained by a floored [sic-flawed] Bulimba - Head Office investigation."  He continued:

"After the transfer to the Petrie Tavern where the partner of dismissed Venue Manager Ben Dyson works, prior my transfer trumpeted her version of events to Venue Management and staff, being called a "troublemaker".  How can a responsible Senior Management 'knowingly' arrange a transfer to a "LIONS DEN" fully aware my good name has been destroyed prior my transfer by the partner of Ben Dyson?  Especially the Facebook threat clearly stating: "I hope Karma gets you before the line-up of people do!  The stronger threat naming 'Julio' has been deleted before it could be downloaded."  (Exhibit 4, emphasis and errors in the original)

  1. [308]
    It appears from a subsequent letter from the Appellant to Ms Wregg dated 17 February 2014 that the undated letter was an attachment to the letter from Mr Kuenstner Snr dated 15 January 2014.  The letter dated 17 February 2014 informed Ms Wregg that:

"due to in-actions reported by Chef 'Julio' on significant kitchen health issues for which Chef 'Julio' was set up/framed by the now dismissed Venue Manager and his circle of friends (refer to letters dated January 15, 2014) with the attached Facebook threat of serious repercussions, it generated serious work-related 'stress' issues, the stress issue was also noted in your letter dated January 21, 2014." (Exhibit 6, emphasis and errors in original)

  1. [309]
    At the hearing, the Appellant was asked to recall the reasons for his psychiatric or psychological injury.  He replied:

"Yeah.  I felt, like, depressed, and, like, my work ethic at work wasn't, you know, on a standard which - like, the posting on the Facebook incident, and, you know, just brought on a lot of anxiety, and would have a lot of stress, and stomachs all, and headaches.  I think that's all."  (T2:39)

  1. [310]
    In his evidence in chief, Mr Beck stated that he was aware of the Facebook post (Exhibit 8) and that he had a conversation with the Appellant about it.  In contrast to the Appellant's evidence, Mr Beck said that, in that conversation, he told the Appellant "it had nothing to do with him at all.  It was to do with personal problems between me and Grace and our family."  That remained the case at the date of the hearing.               Mr Beck added that he had never seen a similar post made by Ms Mills where she names the Appellant.  When cross-examined, Mr Beck confirmed his previous statement that Ms Mills told him that she had posted it about the family member that was not being very nice to her at the time. 
  1. [311]
    Ms Mills did not give evidence at the hearing.
  1. [312]
    Mr Pyers said that in the week or so before Christmas 2013 he had telephone conversations with the Appellant about a range of matters including the Facebook post that the Appellant had seen. 
  1. [313]
    According to Mr Pyers, when he and the Appellant discussed the Facebook post, they went through the content of it and Mr Pyers asked whether the Appellant felt any particular threat against himself as a result of this action.  The Appellant said "No."  When he was asked whether or not he wanted any action taken, he said "No",  at that stage. Mr Pyers told the Appellant that, if he was becoming stressed about this, ALH had an Employee Assistance Program ("EAP") that was available to him.  The Appellant needed to contact Mr Pyers when he decided to use the EAP.  According to Mr Pyers, the Appellant replied "Oh, look, I don't want to do anything right now, but, you know, thank you for providing that to me."  Mr Pyers mentioned the EAP to the Appellant on more than one occasion. 
  1. [314]
    Mr Pyers agreed that the EAP is independent of Woolworths and is a confidential program.  Had the Appellant consulted the EAP, no feedback would have been provided to Mr Pyers about what the Appellant discussed. 
  1. [315]
    It was put to Mr Pyers in cross-examination that, given the events that had taken place at the Captain Cook Tavern, the Appellant could not trust that he would get proper assistance through the EAP.[63]  Mr Pyers gave evidence that all conversations directly between him and the Appellant had been "positive" and said their relationship "seemed incredibly positive throughout the entire course of our interactions."  He had no indication through those direct conversations that their relationship would be affected in any way by anything that had occurred through the course of the Appellant's employment.  There was nothing to indicate that the Appellant would not feel comfortable or confident in Mr Pyers being the point of contact for the purpose of organising the EAP.  In any case, he was "only a referral."  In other words, having set up the contact, Mr Pyers had no further input past the point of referral.  Whatever happened with the EAP had nothing to do with him. 
  1. [316]
    Mr Pyers said that he asked the Appellant to provide a copy of the printout of the Facebook post.  Although that document was not received until some time in January 2014, the Appellant sent him a transcription of the text in a letter dated 23 December 2013.  After quoting the passage from the Facebook post, the letter states:

"The text with the name 'Julio', has been deleted - most of the staff commented, several staff liked the comment.  It was a threat much stronger worded!  Supported by Emma, Ben, Kara, and Kerri-Ann.

In the context of the sentence the threat/intimidation it is obvious 'KARMA' refers to 'destiny', it implies something is planned or going to happen."  (Exhibit 3)

  1. [317]
    Mr Pyers gave evidence that, when discussing the Facebook post originally, the Appellant said the first time he had seen it had his name as the heading.  Mr Pyers was not sure how the Appellant would have seen his name because, as far as he knew, someone cannot have a heading in Facebook posts.  In his opinion, "that was always very questionable from that regard."  He also queried how one would see the text as a particular threat. 
  1. [318]
    On the basis that the Appellant "made it very clear that he didn't believe any further action was required," Mr Pyers determined to take no further action after he received the copy of the Facebook post.  Mr Pyers said that, had he felt there was a genuine threat of violence or otherwise towards any particular person as a result of that relating to the workplace, he would have taken action.  However, on review of the text at the time and even at the time of the hearing, Mr Pyers did not see any particular threat (in terms of physical violence or otherwise) through the text.  He also noted that, by the time he received the copy of the Facebook post, the Appellant had been transferred from the Captain Cook Tavern at the Appellant's request. 
  1. [319]
    A significant issue in assessing the credibility of Stressor 11 is when and why                   Mr Dyson was dismissed from the Captain Cook Tavern.  In summary, the documentary and oral evidence was that:
  1. (a)
    having received the warning letter, on 8 December 2013 the Appellant wrote to Mr Pyers alleging that at around midnight on 16 November 2013 during a drinking session in the public bar Venue Manager Dyson acted inappropriately;
  1. (b)
    in his letter to the Appellant in reply dated 13 December 2013 (Exhibit 17), Mr Pyers stated that the new information provided in the Appellant’s letter that related to allegations of misconduct had been passed on to the appropriate parties for review and consideration for performance management, and he invited the Appellant to supply immediately to Mr Dyson and Mr Drane any additional evidence of misconduct and/or poor performance of other employees;
  1. (c)
    according to Mr Dyson, an investigation was conducted by Mr Drane after the Appellant’s complaint was received, Mr Dyson was suspended for a weekend after his day off (presumably a Friday) so that the investigation could be finalised and, following a performance management session at head office conducted by Mr Pyers, Mr Dyson’s employment was terminated about two weeks after the smelly chicken incident on 22 November 2013;
  1. (d)
    Mr Drane confirmed that he and HR terminated Mr Dyson's employment having investigated the complaint made by the Appellant. 
  1. [320]
    The Appellant also gave evidence that when others at the Captain Cook Tavern realised that Mr Dyson was not working, “they all basically looked at me as the number 1 suspect.”  Although no one said anything to him face-to-face, he “had cold shoulders.”
  1. [321]
    In the absence of precise evidence about the date of Mr Dyson's termination, I deduce from the evidence as a whole (including the letter dated 13 December 2013 which suggests that he was still employed as at that date) that he was dismissed some time in mid-December 2013, after 14 December 2013.
  1. [322]
    Appellant's submissions: The Appellant asserts that, following Venue Manager Dyson's dismissal in December 2013, bartender Gracie Mills (then the partner of Cook Sean Beck) posted during working hours on Facebook in December 2013 a message "threatening with retaliation."
  1. [323]
    In particular, the Appellant submits that:
  1. (a)
    Ms Mills posted the message on Facebook whilst at the workplace;
  1. (b)
    the message was posted during work hours after Venue Manager Dyson was dismissed;
  1. (c)
    the Appellant was still at work around the time Ms Mills launched the Facebook message;
  1. (d)
    the message was a threat/retaliation directed at the Appellant while not mentioning his name;
  1. (e)
    a member of staff alerted the Appellant to the threat soon after the Facebook posting, and the Appellant viewed the Facebook post some six or seven hours after it was posted;
  1. (f)
    Ms Mills was not called to give evidence, and the evidence from her partner Mr Beck was hearsay;
  1. (g)
    it is implausible that a female would threaten her female friend about a mild altercation with "a line up of people;" 
  1. (h)
    rather, the "sombre threat" was directed at the Appellant;
  1. (i)
    it was an "implied threat" directed at the Appellant only, not a family member;
  1. (j)
    subsequent to the posting of the Facebook threat, the Appellant experienced angst and anxiety, and feared for his safety and did not venture out at night;
  1. (k)
    the Facebook post was also a major contribution to the breakup of his relationship with his partner because he was not escorting her whilst shopping or going to entertainment at night;
  1. (l)
    the Facebook post was the cause of an increase of stressors originating from the workplace.
  1. [324]
    Respondent's submissions:  The Respondent submits in relation to the Facebook post that:
  1. (a)
    it does not refer to the Appellant in any way;
  1. (b)
    at no time did the Appellant see a post on Facebook from Gracie Mills where he was named;
  1. (c)
    the Appellant's evidence was that he received a telephone call telling him that he was named in the post, but by the time he got to the post his name was not on it;
  1. (d)
    it might be that the person who contacted the Appellant mistakenly thought that the post was a reference to the Appellant;
  1. (e)
    the Appellant perceived (wrongly) that the post was about him, perhaps because he was experiencing feelings of guilt about his role in having Mr Dyson dismissed;
  1. (f)
    although the Appellant raised his concerns about the Facebook post with Mr Pyers in a telephone conversation, and Mr Pyers asked the Appellant to tell him the contents of the post and to provide a copy of the post, it was not until mid-January 2014 that the Appellant provided a copy of it to Mr Pyers (see Exhibit 5); and
  1. (g)
    by that time, the Appellant had been transferred from the Captain Cook Tavern for three weeks.
  1. [325]
    The Respondent refers to the evidence of Mr Pyers in relation to this issue to the effect that:
  1. (a)
    when, in the course of a conversation about the Facebook post, the Appellant mentioned that he was stressed, Mr Pyers offered the Appellant the option of counselling through the EAP;
  1. (b)
    the Appellant asked him not to take any action in relation to the Facebook post;
  1. (c)
    Mr Pyers confirmed that, when he asked the Appellant whether he felt under any particular threat against himself as a result of the post, the Appellant said no, and Mr Pyers again mentioned the EAP to the Appellant;
  1. (d)
    although, when he first discussed the issue with the Appellant, the Appellant said that the first time he saw the post his name was in the heading, Mr Pyers noted that as far as he knew one cannot have a heading with Facebook posts, and the question was how one would see this particular post as a threat;
  1. (e)
    he took no further action because the Appellant made it clear that he did not want him to take any action;
  1. (f)
    had he felt that if there was a genuine threat of violence or otherwise towards any particular person as a result of that post, he would have taken action.
  1. [326]
    The Respondent also refers to the evidence of Mr Beck to the effect that:
  1. (a)
    he had a conversation with the Appellant after the post was put on Facebook where he told the Appellant that the post had nothing to do with the Appellant and that it was to do with personal problems between him and Ms Mills and their family, and that remained the case;
  1. (b)
    Mr Beck was "friends" with Ms Mills on Facebook and had never seen a post by her where she named the Appellant. 
  1. [327]
    In relation to this issue, the Respondent submits that:
  1. (a)
    the Commission could not be satisfied on the balance of probabilities that Ms Mills ever posted anything on Facebook that referred personally to the Appellant;
  1. (b)
    the Commission would also be satisfied that Exhibit 8 had nothing to do with the Appellant, and that his belief that it does refer to him arises solely from his misperception;
  1. (c)
    Exhibit 8 contains no physical threat to anyone and, in particular, does not include a physical threat to the Appellant;
  1. (d)
    it is unreasonable for the Appellant to hold any belief that he was being threatened by Ms Mills in Exhibit 8, particularly in light of his conversation with Mr Beck about the Facebook post;
  1. (e)
    accordingly, the fact that the Appellant apparently continued in that belief was because of his misperception and the Commission is entitled to draw the inference that it is a contrived misperception for the purposes of the workers' compensation application;
  1. (f)
    the Commission should reject Appellant's evidence about being in fear and not going out because of the Facebook message;
  1. (g)
    it would be appropriate for the Commission to make a finding that a private post by Ms Mills on her Facebook page (that the Appellant could not access and had to look to find) about a personal issue relating to her relationship with Mr Beck and their families, could not be considered to be a work-related matter; and
  1. (h)
    in any event, the actions taken by Mr Pyers as a consequence of the issue being raised with him by the Appellant constitute reasonable management action taken in a reasonable way. 
  1. [328]
    In summary, the Respondent submits that it was a post relating to a family member and not the Appellant and, in any event, was a private post by a co-worker on Facebook that the Appellant was not a "friend" to, and that he had to go searching for it.  Consequently, it is not sufficiently causally linked to the workplace for this event to give rise to a work-related injury. 
  1. [329]
    Consideration:  On the basis of the evidence summarised above, I find that:
  1. (a)
    Venue Manager Dyson was dismissed from his employment at the Captain Cook Tavern in mid-December 2013, soon after 14 December 2013;
  1. (b)
    Mr Dyson was suspended for a weekend after the day off work while the investigation about him was finalised;
  1. (c)
    Mr Dyson’s dismissal followed allegations about him made by the Appellant in a letter dated 8 December 2013 to the CEO of ALH;
  1. (d)
    Ms Mills posted the following message on Facebook at 3.04 pm on Saturday 14 December 2013:

"How is it that soo much pain and destruction can be caused by one person and yet that one person seems pretty much untouchable!...this is getting out of hand and fucked to say the least!  So many lives getting pushed to the limits because of you and you sit back n laugh!  I hope karma gets you before the line up of people do!"

  1. (e)
    the message did not contain a direct threat by Ms Mills against anyone, but expressed her hope that the person to whom it referred would receive some form of cosmic justice before the “line up” of unidentified people “got” that person;
  1. (f)
    the message did not identify the Appellant;
  1. (g)
    there is no evidence to support the Appellant’s allegation that there was another, stronger threat that named the Appellant but was deleted;
  1. (h)
    the Facebook message was not sent to the Appellant and, as he was not a Facebook "friend" of Ms Mills, he would not have read it on Facebook in the ordinary course of events;
  1. (i)
    having been alerted to the existence of the Facebook post by a person from his workplace, the Appellant took some time and effort to locate and read it;
  1. (j)
    the Appellant thought that the message referred to him, that it was in response to his letter earlier that week regarding Mr Dyson and the criticism Ms Mills made of him at work that day, and that it constituted a threat to him;
  1. (k)
    the text of the message does not invite or compel that interpretation;
  1. (l)
    in response to the message as he perceived it, the Appellant felt threatened, and feared going out at night;
  1. (m)
    in the circumstances surrounding the date on which the message was posted on Facebook and the way by which the Appellant found out about and read and interpreted the message, it is understandable that he responded in that way;
  1. (n)
    Mr Beck subsequently informed the Appellant that that the message had nothing to do with him but concerned personal problems between Mr Beck, Ms Mills and their family (or at least one family member);
  1. (o)
    despite Mr Beck’s description of the nature of the message, the Appellant persisted with the misconception that the message referred to him and constituted a threat to him.
  1. [330]
    On that basis, I find that even if the Facebook post was created at and sent from the workplace, the workplace was merely the setting for that action and the Facebook post was not related to the employment of Ms Mills or the Appellant.  Accordingly, Stressor 11 is not proven as a workplace stressor.

Stressor 12

  1. [331]
    Stressor 12: "That after Chef Julio was transferred to the Petrie Hotel; he was shunned and called a "TROUBLEMAKER" by Bartender Ronan."
  1. [332]
    Evidence:  The Appellant gave evidence that, after he asked for a transfer out of the Captain Cook Tavern, he was transferred initially to North Lakes for one week about 18 December 2013.  After a week off work, he started at the Petrie Tavern in early January 2014.  He worked with Mr Dyson's partner, Kara Johnson, until she left about 20 January 2014.  The Appellant described Ms Johnson and Ronan Renikki, another worker at the Petrie Hotel, as close friends.  According to the Appellant's evidence, he noticed they would take smoko breaks together. 
  1. [333]
    On one occasion, Ronan Renikki walked slowly past the Appellant, who was doing dishes, and said "trouble maker" in his normal tone of voice.  The two men would have been about half a metre apart when that was said.  No one else was in the kitchen.  On the basis that, from his observation, Ms Johnson and Mr Renikki were friends, the Appellant perceived that what Mr Renikki said had some relevance to the events at the Captain Cook Tavern.  The Appellant did not discuss the comment with him because "I took it personal of what just happened to me at Captain Cook regarding about that Facebook."  That was the only incident that occurred at that venue.  The Appellant went off on sick leave after three weeks, about 27 January 2014. 
  1. [334]
    The Appellant recalled making a telephone call to Mr Pyers in mid-January 2014 in which he raised concerns about Ms Johnson spreading rumours about him at the Petrie Hotel.  Mr Pyers asked him where his concern had come from.  The Appellant recalled saying that Ms Johnson had not made any direct comments to him, and that (other than the incident involving Mr Renikki) nobody else had made direct comments to him.  Although Mr Pyers asked whether the Appellant could provide any examples of times that other staff had made related comments to or around him, the Appellant could not provide Mr Pyers with any examples.  Rather, the Appellant said, "they would give me cold shoulders. …  Like, you know, we know what happened." 
  1. [335]
    Although the Appellant apparently had no problems in ringing Mr Pyers, he did not raise his concerns with the relevant manager at the Petrie Hotel.  He asserted that he was "scared to" because of what would happen to him if he raised more problems or concerns, particularly with Mr Dyson's girlfriend and Mr Renikki there.  "Everybody knew the fact" that he had been transferred there from the Captain Cook Tavern, and he suggested that Ms Johnson was friends with all the management staff at the Petrie Hotel. 
  1. [336]
    The Appellant said that he did not ask (or did not recall asking) Mr Pyers or anyone else for a transfer from the Petrie Hotel, e.g. to the Warner Tavern. 
  1. [337]
    Mr Pyers agreed that the Appellant was transferred to the Petrie Hotel at his own request.  When the Appellant raised concerns in writing about the presence of                     Ms Johnson there and the investigation, Ms Wregg provided a response.  Mr Pyers provided some input to the response (offering his opinion and assessment and information in relation to the matters raised by the Appellant), but was not the author of that letter. 
  1. [338]
    Appellant's submissions:  The Appellant's submission states that after his transfer to the Petrie Hotel, with the partner of Mr Dyson working at the bistro and bar attendant Ronan Renikki calling him a "trouble maker", there was tension in the workplace.  It is submitted that the Appellant was scared (apparently by reference to incidents at the Captain Cook Tavern and because Ms Johnson was working at the Petrie Hotel and, he alleges, was spreading false allegations regarding the Appellant and her partner's dismissal).  At that time, it is submitted, the Appellant's work-related stressors were "raised to a high level." 
  1. [339]
    Respondent's submissions:  The Respondent notes that the only evidence before the Commission of this event occurring is from the Appellant.  There is no independent corroboration of the incident.  The Respondent submits that it would be unsafe for the Commission to act on his evidence alone, given that the Appellant has been less than truthful on occasions and is an unreliable and inaccurate historian. 
  1. [340]
    Furthermore, the Respondent submits, it is only the Appellant's perception that this was being said in relation to him and that it was somehow tied back to the events at the Captain Cook Tavern.  Once again, it appears that the Appellant has misread or misperceived scenarios as being related to him when they were not.
  1. [341]
    The Respondent also notes that, although Ms Johnson worked with the Appellant for two weeks, there is no evidence of anything untoward passing between them. 
  1. [342]
    In the Respondent's submission, the Commission should put this allegation to one side as being unsubstantiated. 
  1. [343]
    Consideration:  On the basis of the evidence summarised above, I find that:
  1. (a)
    on one occasion at the Petrie Hotel, Mr Renikki referred to the Appellant as a troublemaker;
  1. (b)
    the Appellant interpreted that statement as referring to recent events involving him at the Captain Cook Tavern;
  1. (c)
    there is no evidence that Ms Johnson spread rumours about the Appellant at the Petrie Hotel;
  1. (d)
    although the Appellant perceived that he was the subject of rumours and was being given the cold shoulder by other workers at the Petrie Hotel, there is no evidence before the Commission to support that perception;
  1. (e)
    if the effect on the Appellant of the comment made by Mr Renikki and the Appellant's perception about the rumours about him was that the Appellant’s stress was raised to a high level, then the intensity of his response was based on a misperception of the situation at the Petrie Hotel and preceding events at the Captain Cook Hotel.
  1. [344]
    Consequently, Stressor 12 is made out in part.

Stressor 13

  1. [345]
    Stressor 13: "That in January 2014 the Melbourne Head Office Recourse Manager Jenny Wregg informed Chef Julio "HIS WORK WITH ALH HAS BECOME UNTENABLE"."
  1. [346]
    Evidence:  The final stressor is beguiling in its simplicity and brevity, but there is much more to it.  The statement attributed to Ms Wregg has to be considered in the context of her letter to the Appellant dated 21 January 2014 in which it appears (Exhibit 14), and that letter has to be considered in the context of communications between the Appellant, his father and ALH management during the preceding six weeks.
  1. [347]
    As noted in relation to stressor 9, Mr Pyers conducted an investigation into the allegations of misconduct levelled against the Appellant and wrote to him on 3 December 2013 advising him that:
  1. (a)
    his conduct constitutes misconduct, and a breach of the Code of Conduct;
  1. (b)
    on that basis, he was provided with a written warning; and
  1. (c)
    any further breaches of company policy and/or inappropriate behaviour may result in further disciplinary action up to and including termination of the Appellant's employment (Exhibit 16).
  1. [348]
    Correspondence from the Kuenstners:  The Appellant signed a letter dated 8 December 2013 to Mr Pyers headed "Re: "WARNING LETTER" allegedly 'undermining' "HEAD CHEF", CHEF Julio wrongly accused of involving hotel patrons" (Exhibit 1).  The letter was copied to ALH management in Melbourne.  It was the first in a series of letters prepared by Mr Kuenstner Snr and signed by the Appellant.  It refers to the Appellant in the third person.  It is three pages long.  Much of it in in bold type and/or underlined.  Some of it is in capital letters, and some of those passages are also in bold type and/or underlined.  Not all the sentences are clearly expressed.  However, it is apparent that, in essence, the letter:
  1. (a)
    contended that the warning letter dated 3 December 2013 is discriminatory, focusing on the Appellant who was subjected to "manufactured allegations;"
  1. (b)
    rehearsed in great detail the "smelly chicken" episode on 21 November 2013;
  1. (c)
    referred to a "lengthy telephone conversation" in which "witness                        Hans Kuenstner" raised the issue of cross-contamination of chicken pieces with Mr Pyers;
  1. (d)
    asserted that Head Chef Speak had not been undermined, but rather that the Appellant had followed procedures by consulting Venue Manager Ben Dyson;
  1. (e)
    suggested that, although by his actions on 21 November 2013, the Appellant probably prevented hotel patrons from a potential salmonella poisoning incident, he was attacked on unfounded allegations without substance supported with bias by the Venue Manager;
  1. (f)
    asserted that there was no "procedural fairness" with the ALH group;
  1. (g)
    noted that on previous occasions when Head Chef Cranston and the Appellant cooked meals there were no returns, many compliments and no complaints;
  1. (h)
    stated that on repeated occasions Cook Sean Beck[64] failed to comply with directives and was reprimanded for a range of "kitchen concerns" which are listed in the letter (including "handing out free food to mates");
  1. (i)
    described the "false allegation made against Chef Julio" as "alarming" as they "destroy credibility, lasting stigma preventing a career in the hospitality industry" and have the support of the Venue Manager whose partner is a close friend of Cook Beck and his partner;
  1. (j)
    described the behaviour of the Venue Manager on 16 November 2013 and characterised it as "un-becoming."
  1. [349]
    In light of those and other matters particularised in it, the letter:
  1. (a)
    requested an "urgent early transfer to another venue;"
  1. (b)
    requested that the warning letter be erased "due to the fact stated allegations have been unfounded based on no foundation and hearsay;"
  1. (c)
    prayed that ALH management will "re-visit all stated issues and at least "THANK" Chef Julio for his professional concerns."
  1. [350]
    In a separate letter to ALH management dated 8 December 2013, and also headed  "Re: "WARNING LETTER" allegedly 'undermining' "HEAD CHEF", CHEF Julio wrongly accused of involving hotel patrons" (Exhibit 10), the Appellant wrote that he enclosed a copy of "significant kitchen issues" at the Captain Cook Tavern, and that "described events demonstrate there is a cowardly attack by Captain Cook Management on my persona, designed to destroy my competency and career in the hospitality industry.  Please rectify!"
  1. [351]
    The Appellant said that the purpose of his letter dated 8 December 2013 to Mr Pyers (Exhibit 1) was to "say what happened … after I was given this warning letter" and "basically, you know, to cancel my warning letter."  The letter was prepared by                   Mr Kuenstner Snr and was corrected by him in his own handwriting, but was signed by the Appellant who said that he did the "rough draft" and his father "basically corrected for me."
  1. [352]
    The letter to Mr Pyers included allegations about the behaviour of other employees on occasions before 22 November 2013.  First, the letter stated:

 "In consideration that listed staff members made untrue allegation witnessing the false complaint made by Cook Sean Beck against Chef Julio it can now be revealed 2 listed female staff members have been caught stealing, photographs have been taken of that event."  (Exhibit 1)

  1. [353]
    In his oral evidence, the Appellant identified the two staff members as Traci (Stanley) and Kerrie-Anne (Cole).  They had provided evidence against him.  He had taken photographs of them, without their permission, in the kitchen because "it's part of stealing, isn't it, in the kitchen. …  Because they were, basically, touching the kitchen without having a chef."  The Appellant denied that this was merely an opportunity to cause trouble for those staff members, contending that in his opinion "it's classified as stealing."  He agreed, however, that the passage in the letter had no relevance to the issue of the smelly chicken. 
  1. [354]
    Second, the Appellant's letter of 8 December 2013 also included a passage in which he described the "un-becoming" behaviour of Venue Manager Dyson around midnight on 16 November 2013 in the public bar.
  1. [355]
    In his oral evidence, the Appellant said that he had attended the function to farewell a staff member on their last day and stayed until about 1.00 am.  He had not raised any complaint with senior management from ALH about the incident before 1 December 2013.  Indeed, he agreed that he first raised his concerns in this letter after he had received a written warning. 
  1. [356]
    The Appellant said that he included that passage in his letter seeking rectification of the written warning because it was "regarding about him as a management … it's just an example of a, you know, show some example with your staff."  When asked why he would put such a passage in a letter in response to a warning letter about his behaviour, the Appellant continued:

 "I thought it would have been, like, just involved the whole thing - what's happening in the - in the venue itself and just - because otherwise I would, you know, just keep writing letters which I don't want to.  I just want to involve everything at once and just what's happening in the venue.  That's the reason why. …  I just want them to know as a - HR just to realise that, you know, this is what's happening.  I mean, you don't know.  That's the reason why, your Honour."  (T4:101)

  1. [357]
    Mr Dyson recalled a going away function for a member of staff at the Captain Cook Tavern before December 2013.  He and the Appellant attended the function.  In the next few days the Appellant did not raise with him any issue about that function.  However he was made aware that, in the week or so after the Appellant received the warning letter, the Appellant made a complaint to the CEO of the ALH group.  As a consequence, Mr Drane was sent to investigate the complaint and he viewed footage of the staff party.  The outcome was that, following a performance management session at head office conducted by Mr Pyers, Mr Dyson's employment was terminated. 
  1. [358]
    Mr Drane gave evidence that he was involved with HR in the termination of Mr Dyson's employment in December 2013.  The Appellant had made a complaint that Mr Dyson had been on the premises in an intoxicated state.  That was a breach of company policy.  Mr Dyson had no satisfactory reason for being on the premises in that state, and his employment was terminated.
  1. [359]
    Third, in relation to the allegations about Cook Beck, the Appellant said that he had previously raised concerns with Head Chefs Magnon and Cumberbatch (but not Steven Speak, because he was "just a new head chef" and had "just started").  Those concerns included Cook Beck's ability to work and "everything that's regarding about kitchen issues."  When asked what that had to do with Mr Dyson, the Appellant said "Because they were all mates.  They were all, like, friends."  He based that perception on the men having drinks together when "most of the staff was there" and having witnessed Mr Dyson dropping off Cook Beck who does not drive. 
  1. [360]
    Mr Beck gave evidence that staff were able to buy a meal using the discount so long as they were working and the manager on duty approved.  He did not know whether senior level managers were entitled to free meal, but recalled one occasion only within the first month of his employment that he sent a manager free meal and had to reconcile the situation by paying for the meal himself.  Mr Beck said that the Appellant told him that managers needed to pay for their meals, and accused him on more than one occasion of providing free meals to staff members.  Mr Beck denied doing that. 
  1. [361]
    Fourth, the letter also included a passage which referred to an incident that occurred at the Lawnton Tavern in or before December 2012 while the Appellant was undertaking his apprenticeship.  When asked why that passage was included in a letter seeking rectification of a written warning at a different place of employment 12 months later, the Appellant said that he "just realised now" that he should not have included passages "regarding about some issue."  He agreed that the matter had no relevance to the balance of the contents of his letter. 
  1. [362]
    When asked in cross-examination whether that was an example of his actions of re‑ventilating and trying to re-argue issues that had been left well behind, the Appellant replied "In a way, yes." 
  1. [363]
    Mr Pyers gave evidence that he reviewed the letter dated 8 December 2013 from the Appellant and tried to make some determination about whether what had been requested were suitable actions.  He prepared a written reply.
  1. [364]
    In a letter to the Appellant dated 13 December 2013 (Exhibit 17), Mr Pyers provided findings as they related to the Appellant's appeal for a review of the disciplinary action taken.  In summary, Mr Pyers found that:
  1. (a)
    all information relating to the Appellant's response to the allegations provided in the letter of 8 December 2013 had previously been provided (verbally and in writing) in the interview conducted on 2 December 2013 as part of the investigation;
  1. (b)
    the information provided by the Appellant on 2 December 2013 was considered as his response to the allegations and that, along with all other information gathered through the investigation (including witness statements and CCTV footage), were taken into consideration when making a finding into the allegations; and
  1. (c)
    procedural fairness had been provided to the Appellant throughout the investigation, and the Appellant had not been discriminated against through the investigation or by the allegations having been raised.

On the basis of those findings, Mr Pyers did not find it would be suitable to review the decision to provide a written warning, and hence the request for the warning letter to be erased would not be fulfilled at this time.

  1. [365]
    Mr Pyers gave evidence that a decision of this sort would be reviewed because either procedural fairness was not provided or new substantial information had been raised that would otherwise have meant, or possibly meant, a different outcome.  In this case, nothing of either type had been provided. 
  1. [366]
    Mr Pyers also wrote that:
  1. (a)
    the new information provided in the Appellant's letter that related to allegations of misconduct and/or poor performance of other ALH employees had been passed on to the appropriate parties for review and consideration for performance management action.  He invited the Appellant to supply immediately to Mr Dyson or Mr Drane any additional evidence of misconduct and/or poor performance of other employees;
  1. (b)
    the Appellant's request to be transferred to another ALH venue had been provided to Mr Drane for consideration; and
  1. (c)
    although it was expected that, as a chef within an ALH Group venue, the Appellant would ensure food safety standards are continuously met, ALH "are appreciative of your actions in ensuring that food safety standards are continuously meet [sic] and thank you for your ongoing efforts."

He invited the Appellant to contact him if the Appellant had any questions regarding this letter. 

  1. [367]
    Mr Pyers also gave evidence that, after he had sent the letter, he had telephone communications with the Appellant in the lead up to Christmas time.  A couple of those conversations were about complaints that the Appellant once raised against his venue manager (which had already been put in writing) and about a Facebook message that the Appellant had seen.  Mr Pyers recalled that, in response to comments about the Facebook message (somewhere between 17 and 20 December 2013) he told the Appellant that if he was becoming stressed about that, they had an EAP available to him.  (Evidence in relation to these communications is dealt with in more detail in relation to Stressor 11.)
  1. [368]
    There might also have been a conversation with Mr Kuenstner Snr regarding the venue manager.  Mr Pyers recalled a conversation with Mr Kuenstner Snr about the decision not to accept the appeal against the written warning.  The Appellant's father "was under the belief that the written warning should not have ever occurred and been provided."  During the conversations, "he kept coming back to the … provision of that warning."  
  1. [369]
    In a letter in reply to Mr Pyers dated 17 December 2013 headed "Re: clarification" (Exhibit 2), the Appellant, among other things:
  1. (a)
    referred to CCTV footage in the public bar which, he said, "distinctly shows there was no conversation with Kerri-Ann Cole or Tracey Stanley" at the public bar next to the kitchen;
  1. (b)
    stated that in regard to statements of witnesses "these allegations are refuted, as none of the allegation ever took place, it is slender [sic - slander?], hurtful and libellous;"
  1. (c)
    described Mr Pyers' investigation as having been conducted professionally but relying on material provided by Mr Dyson, yet evidence on hand confirms there was a "set up" and the alleged misconduct within the workplace had "no foundation" and was "based on fabrication and hearsay;"
  1. (d)
    provided further information and complaints about Head Chef Steve Speak from a "SOURCE" (discussed below);
  1. (e)
    advised that the Appellant had photographs which identify alleged witnesses stealing from the venue, which photographs would be handed to ALH on a written request.

The letter concluded:

"For further information Chef Julio clearing his good name, now has been vilified, publicly humiliated on Facebook-LIKE, many responding to that page (now deleted) by Grace, partner of Sean Beck and Kerri-Ann Cole, the later supported the Venue Manager with manufactured allegations.

This reply has been forwarded to you for clarification."

  1. [370]
    In his letter, the Appellant also stated that "the allegations submitted by Venue Manager Ben Dyson have been baseless, supporting his friend Sean Beck …"  The Appellant explained that his reference to Mr Dyson supporting his friend Sean Beck was based on his observation that every time a concern about Mr Beck was raised "nothing was dealt with.  That's the reason why.  Because those two were friends prior to him arriving."
  1. [371]
    When asked about the further information and complaints about Head Chef Speak, and the "SOURCE", referred to in the letter, the Appellant referred to a conversation which he and his father had with a bartender at the Murrumba Downs Tavern where Mr Speak had worked previously.  The Appellant had mentioned that his head chef used to work there and obtained information about Mr Speak used in the letter.  When it was put to the Appellant in cross-examination that the purpose of including the information in this latter was an attempt to discredit Mr Speak, the Appellant replied "In a way, yeah."  Although he denied that he and his father had gone to the hotel to seek evidence as part of their "investigation", he continued to the effect that he "basically just had to write everything down" and "basically get to know the fact of who he is.  That's what it is."  The Appellant reiterated the allegations against                 Mr Speak.  When asked what relevance that material had to the purpose of the letter, i.e. the issue of CCTV footage, the Appellant agreed that "in a way" it was a further example of him actively seeking to undermine Head Chef Speak. 
  1. [372]
    The Appellant denied that he had attempted to discredit people who he perceived had been involved in his downfall.  He acknowledged, however, that he photographed female staff members eating in the kitchen and that he put in correspondence to ALH management an allegation that those staff members were stealing. The Appellant confirmed that the reference in the letter to photographs was to the photographs of    Ms Stanley and Ms Cole who had provided information to the investigation conducted by Mr Pyers. 
  1. [373]
    Speaking more generally, the Appellant asserted that he was "the one who was being targeted" and, after receiving the allegations that he showed the chicken in front of patrons, he "realised that, you know, that they were all targeting me and this is what was happening."  He said that he was being targeted around about August to October, during the time of Head Chef Brad Magnon.              Although not clear, his explanation seemed to be that the head chef disliked Mr Beck because Mr Beck was sending out meals that were being returned, and the head chef relied on the Appellant to ensure that the kitchen was perfect when the head chef was not there.  Some members of staff who were friends with each other (Mr Dyson, Mr Beck and                Gracie Mills) would blame the Appellant for the food sent out by Mr Beck.  The head chef had the same problem as the Appellant of staff members disliking him.  The Appellant and head chef "got along."  The Appellant did not know the basis on which Head Chef Magnon was dismissed, but it appears that he was dismissed for reasons unrelated to those speculated about by the Appellant.  Mr Magnon did not give evidence.
  1. [374]
    The Appellant characterised the friendships in the workplace, particularly with the venue manager, as giving someone protection.  In his view, it was "like saying that, you know, it's all right. …  Whatever you - you know, what's happening.  Just let me know and I'll - you know.  … it's kind of like protection.  I'll protect you.  If - if Julio says something, it will be all right."  In his opinion, if a venue manager socialises with one or more staff members, "it looks bad because … it's a workplace." 
  1. [375]
    In light of the questions asked of him about the relevance of his allegations about other people and other events unrelated to allegations or findings about his behaviour, the Appellant seemed to accept that he should have narrowed his focus.  When asked what was in his mind when he signed those letters, the Appellant said:

 "In my mind, it would have been, like … my minds tend to involve, basically, mixtures of events and now, as I realised, you know, with - with this evidence, I should just stick to 1 point."  (T4:108)

  1. [376]
    Mr Pyers gave evidence to the effect that:
  1. (a)
    the description provided to him by Mr Dyson, which was considered at the investigation, was that the CCTV footage would not show the Appellant standing inside the public bar area with the smelly piece of chicken but that it would show the two girls standing on the side by the camera during the period of time that the Appellant was walking around with a piece of chicken;
  1. (b)
    the Appellant, in his interview and in a previous letter, described having a conversation with those girls, and the statement from Traci Stanley describes an account of that conversation, which all line up with the footage showing the two girls standing on the side of the frame as described by Mr Dyson to Mr Pyers;
  1. (c)
    in relation to allegations about Mr Speak and his former employment, it was not appropriate for the Appellant and Mr Kuenstner Snr to seek out former employers of the Appellant's manager to find out information about them, and Mr Pyers questioned the Appellant and Mr Kuenstner Snr "a lot" around the circumstances regarding speaking with Mr Speak's previous manager and was assured they were not trying to "dig up dirt, but it came naturally as part of a conversation;"
  1. (d)
    a person who becomes aware of misconduct in the workplace should report it to their venue manager and there was no reason why the Appellant could not provide that information to the acting venue manager as well as his operations manager (and employees are not meant to keep their mobile phone and use it during service or trade in the workplace);
  1. (e)
    he asked to see the photos and be provided with copies to see if they demonstrated the alleged misconduct. 
  1. [377]
    In a letter to Mr Pyers dated 23 December 2013 (Exhibit 3), the Appellant referred to a telephone conversation on Friday, 20 December 2013 in which Mr Pyers requested a copy of the Facebook text.  The transcribed text is included in the letter along with comments about it, referred to earlier in these reasons for decision (see discussion of Stressor 11).
  1. [378]
    Mr Pyers gave evidence that the letter would have been received after Christmas, as he would have been away.  He believed he would have called the Appellant and said he was still looking for a copy of the screenshot.  He discussed the Appellant's transfer with him and, by that stage, the Appellant had moved to a different venue, the Petrie Hotel.   Mr Pyers did not play any role in the arrangement of the transfer, which occurred at the Appellant's request. 
  1. [379]
    In a letter to Mr Pyers dated 15 January 2014 (Exhibit 5), Mr Kuenstner Snr referred to a "lengthy telephone conversation" on Friday, 10 January 2014 in which the following two concerns were raised:
  1. (a)
    "A possible transfer from the Petrie Tavern due to significant concerns of former Venue Manager Ben Dyson (now dismissed within days after Chef Julio lodged a written complaint) whose partner 'KARA' is employed at that venue
  1. (b)
    Not receiving a written reply on treats [sic – threats] recriminations lodged on Facebook by 'Graceville' partner of Cook 'Sean'."

In addition to those matters, the letter took issue with Mr Pyers' finding about the "smelly chicken" incident and referred to other matters in the workplace involving Mr Dyson, Mr Beck, and Mr Speak.  The letter concluded:

"As all stated matters from the early stages till the present have become disproportionate inconsistent to factual happenings, it created a prompt for father Hans Kuenstner to write this letter; you are now requested to clarify your version of events supported with the 'PROOF' that all significant issues raised in the "WARNING LETTER" are factual and can be supported with evidence you can provide - IF NOT A WRITTEN APOLOGY IS DEMANDED.  Should there be a failure to comply in writing within 10 working days, 3 party opinions will be solicited as Chef Julio is entitled to clear his good name. IN ANY CIRCUMSTANCES CHEF JULIO WILL STAND TALL!"

  1. [380]
    The following paragraph appears below the signature of Mr Kuenstner Snr, and above the Appellant's signature:

"I Chef Julio Kuenstner have read all and verify that to the best of my recollection all stated significant issues are true and correct - in addition I request a written reply on the Facebook incident as it causes undesirable stress related issues."

  1. [381]
    In his undated letter to ALH Management in Melbourne, apparently prepared on or about 15 January 2014 (Exhibit 4), the Appellant referred to:
  1. (a)
    his generally good relationship with staff in every Tavern where he had worked over the previous eight years;
  1. (b)
    having been "set up" by parties whose interests were contrary to ALH work requirements;
  1. (c)
    his "persona" having been "deliberately tainted/stained" by a flawed investigation, despite documented evidence including video footage;
  1. (d)
    resulting "measured pressures, touching on humiliation combined with finger-pointing by misinformed staff;"
  1. (e)
    the transfer to the Petrie Tavern  - a "LIONS DEN" where his good name had been destroyed prior to his transfer by the partner of dismissed Venue Manager Ben Dyson who works there;
  1. (f)
    the "Facebook threat clearly stating: "I hope Karma gets you before the line-up of people do!";
  1. (g)
    Mr Pyers' finding that the Appellant had done wrong, "therefore, the twisted investigation establishes a guilty verdict for conforming to ALH requirements."

The letter concluded:

"Please take note with all the documented events at the Captain Cook Tavern and now at the Petrie Tavern there has been a build-up of "STRESS" never experienced before, caused by an un-professional one-sided investigation overlapping mate ship arrangements.

Therefore, with all the facts before you a request is made to rectify work-related issues brought upon me through no fault of my own."

  1. [382]
    Ms Wregg's letter in response to the Kuenstners' correspondence: Ms Wregg has been the National Human Resources Manager of ALH for about 10 years.  She is based in Melbourne, and is responsible for about 12,000 employees, primarily those located in southern states.  On occasion, she is involved in matters involving the northern region. 
  1. [383]
    Ms Wregg's first dealings with the Appellant involved an issue about his apprenticeship.  The Appellant believed that he was entitled to complete the apprenticeship early.  He finished it earlier, but not on the date he believed he should have finished.  As noted earlier, she had also written to the Appellant about the category of chef position he was appointed to when transferred to the Captain Cook Tavern (see discussion of Stressor 6). 
  1. [384]
    Ms Wregg was aware of, but not involved in, the disciplinary process that resulted in the Appellant receiving a written warning in early December 2013.  Having become aware of subsequent correspondence sent to ALH management by the Appellant and Mr Kuenstner Snr,  Ms Wregg made some enquiries of Mr Pyers about what had happened (particularly the process and his investigation), and she prepared a written response dated 21 January 2014 (Exhibit 14). 
  1. [385]
    Mr Pyers gave evidence that he provided some input to Ms Wregg's response (offering his opinion and assessment and information in relation to the matters raised by the Appellant), but was not the author of that letter. 
  1. [386]
    Ms Wregg's letter was expressed to be in relation to the Appellant's employment and "the recent letters."  She specifically referred to an undated letter addressed to ALH Management - Melbourne (Exhibit 4) and a letter dated 15 January 2014 addressed to Mr Pyers (Exhibit 5).  To give an accurate and complete account of the position adopted by Ms Wregg, it is appropriate to quote from Exhibit 14 at length.  Having referred to those two letters, Ms Wregg wrote:

"In summary we have the following comments:

  1. Some of the details and assumptions in the letters are incorrect as an example, Ezra Pyers rejects the comments you claim that he has made.
  1. If you wish to seek a transfer of venue, the correct process is to speak with your Venue Manager or Operations Manager;
  1. ALH strives to be reasonable and objective when addressing incidents and performance matters and understand the recipients of disciplinary action may not be pleased.  Further, ALH keeps the details of disciplinary matters confidential and do not advise the outcome of investigations to those that raise allegations.  Similarly, those that raised allegations against you in December have not been provided with the findings of the investigation and the disciplinary action taken.
  1. You mentioned you are experiencing stress in relation to the matters you have recently been disciplined of and I am sorry to read this.  If you wish to speak with a counsellor for emotional support or some coping tactics, please contact Ezra Pyers and he will make arrangements. 

If you wish to talk through some of the matters that have been mentioned in the recent letters, please contact Ezra Pyers.

ALH have had a large amount of correspondence in relation to your concerns over the past 16 months.  I count at least 7 letters between August 2012 and April 2013 and at least 5 letters in relation to the recent disciplinary matters.  In addition, various representatives of ALH have spoken with you over the phone or in person on several occasions.  Unfortunately, the business does not have the resources to repeatedly respond to you or your father particularly when they are about the same issues.  We fully understand that you are often not satisfied with the response.  I am concerned your repeated contact is vexatious and request you and your father carefully consider the appropriateness of this course of action in the future.

We have become frustrated with the length, incoherency and frequency of the correspondence.  Moving forward, if you have reason to send more letters, please be advised we will consider the substance and contents and do not guarantee that you will receive a response.

Julio, your employment relationship with ALH is becoming untenable.  If you are not satisfied with working with ALH then I would understand if you seek employment elsewhere. 

Yours sincerely

(signed)

Jenny Wregg

Human Resources Manager"

  1. [387]
    Ms Wregg gave oral evidence that:
  1. (a)
    the purpose of her letter was "an attempt to try and summarise all the issues and where things were at in relation to his concerns;" 
  1. (b)
    Mr Pyers had advised her that the Appellant did not take up his offer to speak with a counsellor for emotional support;
  1. (c)
    the paragraph about having become "frustrated with the length, incoherency and frequency of the correspondence" was included because the correspondence was difficult to read, involved a lot of people and their time, and seemed to be going back to the same issues;
  1. (d)
    she was trying to stress that ALH tries to be fair and reasonable in addressing people's queries, but it was up to the Appellant to consider whether he needed to raise issues that had been raised before;
  1. (e)
    the statement in the final paragraph of her letter that the Appellant's relationship with ALH was "becoming untenable" was in response to all the issues that had been happening over a period of time where letter after letter would arrive somewhere within the organisation, and they (ALH) did not seem to be able to give the response that the Appellant was expecting, and so Ms Wregg was indicating that the situation was becoming very difficult;
  1. (f)
    the final paragraph of her letter was for the Appellant to consider his options because it was becoming very difficult to review all of the issues repeatedly;
  1. (g)
    the final paragraph was not intended to be a threat to the Appellant's employment or to destroy his career; and
  1. (h)
    at the time of the hearing, the Appellant was still employed by ALH and had been attending work. 
  1. [388]
    Ms Wregg also expressed the opinion that the letter dated 13 December 2013 from Mr Pyers to the Appellant (Exhibit 17) in reply to the Appellant's appeal for a review of the disciplinary action taken (Exhibit 1) was an appropriate and reasonable response. 
  1. [389]
    The Appellant's responses to Ms Wregg's letter:  When asked how he reacted after receiving that letter, the Appellant replied:

"Well, I felt like I did my best as a - a chef, you know, to maintain kitchen standard and, you know, produce, you know, a decent meal, and for - for that - to say that, you know, basically, I felt like my - my career's over by reading that, and I just felt like I just needed a new career."  (T2:102-103)

He continued:

"… I just felt like my career was over and, you know, it's just, you know, basically, that I have to, basically, find a new career by saying that, you know, I'm, basically, worthless.  That's my own opinion."  (T2:104)

  1. [390]
    In a letter to Ms Wregg dated 17 February 2014 (Exhibit 6), the Appellant thanked Ms Wregg for her "enlightening letter" dated 21 January 2014 and wrote that:
  1. (a)
    inaction in relation to significant kitchen health issues reported by him and for which he was "set up/framed" had "generated serious work-related 'stress' issues;"
  1. (b)
    he attached certificates issued by Dr Davison and "therefore, a work‑related claim is made on stated stress issues."
  1. [391]
    Responding to specific statements in Ms Wregg's letter, the Appellant wrote in effect that:
  1. (a)
    neither he nor Mr Kuenstner Snr "make assumptions" (at least in relation to the cross-contamination of chickens issue);
  1. (b)
    although a written and verbal request for a transfer had been made to work in another venue, the Petrie Hotel should have been excluded because Mr Dyson's partner Kara was employed there and she "trumpeted her version of events prior Chef 'Julio's" transfer, being called a "trouble maker", it created an unbearable situation on the assigned work place;"
  1. (c)
    in regard to the large amount of correspondence consisting of seven letters, "not even once you addressed significant issues of concern;"
  1. (d)
    there was "an incredulity" that the Human Resources Manager would state that materials of significant concern and forwarded to ALH Management were "vexatious;"
  1. (e)
    to address her "amateurish statement on 'incoherency'" (presumably in reference to Mr Kuenstner Snr's letter dated 15 January 2014), Ms Wregg was alerted to the fact that over a number of years the Appellant's father has communicated with prime ministers and other senior people on significant issues, and her statement was "rude and un-professional;"[65]
  1. (f)
    it is "beyond a beggars belief" that, after Chef Julio had complied with all ALH requirements over eight years in order to establish a career, ALH "resorts to a bottom of a barrel directive stating: "your employment relationship with ALH is becoming untenable" that could be tested in any legal forum." 

The Appellant concluded:

"This letter deserves a reply, however, should you choose not to reply it is your provocative!  [sic - prerogative?]."

  1. [392]
    Ms Wregg gave evidence that she received that letter but, in accordance with what she had indicated in her letter of 21 January 2014, did not send any response to it. 
  1. [393]
    Appellant's submissions:  The Appellant's submission describes Ms Wregg's letter as being the result of "documented work related un-justifiable incidents." He suggests that she confirmed that the Appellant's pleadings for help on significant kitchen issues causing work-related stress had not been addressed.  The submission also refers to the Appellant's evidence that, upon receiving the letter, he felt that his career was over.  That caused him more stress, he could not sleep or eat, and he felt fear about going out in public.
  1. [394]
    The Appellant also criticised Ms Wregg's apparent reliance on Mr Pyers' advice and her inability to recall some details about the Appellant's employment history (e.g., the completion of his apprenticeship) and other matters of concern to him, or her telephone conversation with Mr Kuenstner Snr.
  1. [395]
    Finally, the submission highlights Ms Wregg's reference to the "incoherency" of correspondence received by ALH from the Appellant, and describes that adjective as "an outrageous insult."
  1. [396]
    Respondent's submissions:  The Respondent refers to:
  1. (a)
    the multiple items of correspondence sent by the Kuenstners to ALH HR in Brisbane and Melbourne (Exhibits 1 to 5) and to multiple telephone calls all agitating the same issues arising from the Appellant receiving a written warning, as background to the letter from Ms Wregg (Exhibit 14);
  1. (b)
    Ms Wregg's oral evidence that her purpose in writing the letter was an attempt to try and summarise all the issues and where they were in relation to the Appellant's concerns, and to have the Appellant consider whether he really needed to engage in further correspondence; and
  1. (c)
    Ms Wregg's oral evidence confirming that the correspondence was not intended to be a threat to the Appellant's employment.
  1. [397]
    The Respondent observes that Exhibits 1 to 5 only represent an attempt by                      Mr Kuenstner Snr to try and besmirch the reputation of anyone he perceived had been involved in giving evidence against his son.  In that respect, the Respondent notes that the Appellant conceded in cross-examination that Exhibit 2 could clearly be seen as a further attempt by him to undermine Head Chef Speak.  The Respondent goes further to submit that the Commission would be entitled to find that a key motivating force behind this application for compensation is not the Appellant but his father who is the true author of Exhibits 1 to 6, 9 and 12. 
  1. [398]
    However, the Respondent submits that Mr Pyers took reasonable management action in response to Exhibits 1-3 in that he considered their contents and the request for a review of the decision to provide the Appellant with a written notice, but determined that no basis had been established for that to be set aside. 
  1. [399]
    The Respondent notes that the Appellant's submission includes an assertion that                Ms Wregg failed to respond to the Appellant's requests for help.  That's assertion is misleading.  Ms Wregg gave evidence that she did not respond to one of the letters sent by the Appellant on 17 February 2014 (Exhibit 6), consistently with the approach she had outlined in her letter to him dated 21 January 2014 (Exhibit 14). 
  1. [400]
    Finally, the Respondent submits that Mr Pyers took further reasonable management action when he arranged for the Appellant, at the Appellant's request, to be transferred immediately from the Captain Cook Tavern. 
  1. [401]
    Against that evidentiary background, the Respondent submits that it was entirely appropriate for Ms Wregg to write the letter given that:
  1. (a)
    management at ALH had taken substantial steps to try and address the various concerns that had been raised by the Appellant and his father; and
  1. (b)
    there appeared to be no indication that there was going to be an end to the issues being re-ventilated.

Accordingly, the letter constituted a further example of reasonable management action. 

  1. [402]
    Consideration:  On the basis of the evidence summarised above, I find that:
  1. (a)
    the letters from the Appellant and Mr Kuenstner Snr to ALH mangers (even if not intended to be vexatious) were not consistent and logical[66] but disjointed, rambling,[67] repetitive, imprecisely expressed and demanding;
  1. (b)
    in order to understand them fully, a reader would need additional background information;
  1. (c)
    although the tone of the letters conveyed the strong dissatisfaction of both men and their sense of injustice, the letters:
  1. repeatedly traversed matters that, so far as management was concerned, had been dealt with in the course of appropriate processes;
  2. contained no new information in relation to those matters;
  3. contained information which, even if correct, did not address the issues of the Appellant’s behaviour but sought to criticise others for their behaviour;
  1. (d)
    Mr Pyers' responses to the matters raised in the correspondence, and the actions that he took, constituted reasonable management action taken in a reasonable way.
  1. [403]
    Having regard to the series of letters from the Appellant and Mr Kuenstner Snr and the full text of Ms Wregg’s letter of 21 January 2014, it is clear that Ms Wregg’s statement “Julio, your employment relationship with ALH is becoming untenable:”
  1. (a)
    expressed her assessment that the employment situation was becoming very difficult, and was coupled with a request that (if he was not satisfied with working with ALH) the Appellant could consider his options;
  1. (b)
    did not indicate that the Appellant's employment had ceased or would cease;
  1. (c)
    was not intended to be a threat to the Appellant's employment or to destroy his career.
  1. [404]
    I find that the tone of Ms Wregg’s letter and the approach outlined in it constituted reasonable management action taken in a reasonable way.
  1. [405]
    I also find that, in response to the letter from Ms Wregg, the Appellant felt that his career (at least with ALH) was over and that he felt worthless, and hence felt some degree of stress about his employment circumstances.
  1. [406]
    Finally, I note that although the Appellant said that, in the disciplinary process, his conduct was "twisted to … make me get - to lose my job," he agreed that he did not lose his job but received a written warning.  After that, there were no further consequences for him from that written warning.  Nonetheless he repeatedly focused on a dispute about whether he spoke to Traci Stanley and other staff members on               22 November 2013, and whether the CCTV footage would demonstrate the accuracy of his version of the event.  In other words, the Appellant appears to have been, and perhaps continues to be, focused on a relatively minor conflict about aspects of his alleged behaviour which had no impact on the findings and disciplinary action taken against him.  That matter seems to fuel his ongoing sense of grievance about the substantive allegations against him and the investigation.

The nature, cause and timing of the Appellant's injury: the Appellant's account

  1. [407]
    Two aspects of the Appellant's evidence show his understanding and assertions about the nature, cause and timing of his injury:
  1. (a)
    the Injured Worker Statement Form (Exhibit 12) and the Appellant's explanation in relation to what it contains; and
  1. (b)
    the Appellant's oral evidence at the hearing.
  1. [408]
    The Injured Worker Statement Form: The Appellant gave evidence that Mr Kuenstner Snr completed the Injured Worker Statement Form dated 25 February 2014 on his verbal instructions, and that the Appellant proofread and signed the document.  The Appellant confirmed that, at the time he signed the document, he was confident that the document was completely accurate and not misleading. 
  1. [409]
    He agreed that the document states that he first noticed symptoms in November 2013 being "progressive work related stress build up", and that there is no mention of any symptoms in February or March 2013, and no mention of there being anxiety, sweaty palms or sleeplessness earlier than November 2013.  Nonetheless, the Appellant contended that his evidence of symptoms occurring earlier was true.  He continued "I felt like I was basically bullied upon - when everything regarding about me not working for ALH and which I expressed to my dad." 
  1. [410]
    The Injured Worker Statement Form includes the following statement about how the injury of "work related stress" was sustained: "framed by the now dismissed Capt Cook management and his close friends."  At the hearing, the Appellant described that statement as correct. 
  1. [411]
    In his oral evidence, the Appellant repeated the contention that he believed he was the subject of a conspiracy "just basically to get my - to lose my - my - my employment."  He listed the conspirators as including Mr Dyson, Mr Pyers and Mr Drane.  Other employees who provided evidence in the course of the investigation (such as Traci Stanley, Kerri Ann Cole and Jodi Searston) were also part of the conspiracy.  He contended that "what they stated wasn't true."  He also referred to Sean Beck and Gracie Mills, although he said that Ms Mills did not make any allegations about him in the investigation about the chicken. 
  1. [412]
    He said that when others at the Captain Cook Tavern realised that Mr Dyson was not working (about mid-December 2013), "they all basically looked at me as the number 1 suspect."  Although no one said anything to him face-to-face, he "had cold shoulders."
  1. [413]
    In cross-examination, the Appellant accepted that the notice to attend the meeting for alleged misconduct was dated 1 December 2013, the meeting was on 2 December 2013, and that he received the written warning on 4 December 2013 - all well before Mr Dyson's dismissal.  When asked what was the conspiracy, set up or frame up in early December 2013, the Appellant replied to the effect that:
  1. (a)
    he had "noticed" that Head Chef Brad Magnon (who preceded Head Chef Speak) "was framed up" and "got sacked;"
  1. (b)
    his perception "was from Shaun Beck and Ben Dyson" who he witnessed taking photos of what the head chef was serving, including food in storage in the coolroom;
  1. (c)
    every time he turned up to work in November he kept to himself "after what happened to the previous head chef," and other people "wouldn't want to talk to me except for food." 
  1. [414]
    However, the Appellant agreed that, despite having received a written warning, he had not lost his employment and was still currently employed by ALH at the Petrie Hotel where he was transferred in January 2014.  At the time of the hearing, he had been there continuously apart from a period when he was away ill. 
  1. [415]
    The Appellant's oral evidence: Despite direct questioning about the impact of events in the workplace on his health, the Appellant's evidence was imprecise and unclear.
  1. [416]
    Speaking about the period from when he was transferred to the Captain Cook Tavern in December 2012 until January 2014 when he received the letter from Ms Wregg, the Appellant said that he "felt like … they didn't want me to work there," there was "a lot of stress and … fear and I just, like, I could not sleep at night … and eat and not go out in public, so I felt a lot of, you know, fear." He would ask managers for help and nothing was done, so "I did his best just to - to do the right thing." He seemed to suggest that his complaints would be "just washed off" because Mr Dyson and                 Mr Beck were friends. 
  1. [417]
    In cross-examination, the Appellant resiled from the suggestion that he began to experience symptoms from the commencement of his term at the Captain Cook Tavern.  He said that he started to experience symptoms a "couple of months" after his transfer to the Captain Cook Tavern, "around about the February mark, early February" 2013.  He explained that he "had problems … after getting told down there that, you know, I'm not a sous chef, and I thought, you know, I basically have to do my probation; that's three months."  He said that, at that stage, the symptoms were "overload of work" and "stress … mostly stress." The symptoms continued until Head Chef Cumberbatch was appointed in around March 2013 and circumstances started improving, including because Head Chef Cumberbatch told the Appellant that he would look after him.
  1. [418]
    The Appellant said that the next lot of symptoms commenced when he realised that Area Manager Dan Drane "was coming in and checking up on my day off."  According to the Appellant, if Mr Drane was present when he was working, Mr Drane would not say anything (such as "hello") to the Appellant.  However, Mr Drane would ask questions of the head chef about the Appellant on the Appellant's days off.  The Appellant accepted that Mr Drane was a busy man, who attended the Captain Cook Tavern to inspect various aspects of its operation, and that there may be good reason why he would not necessarily say "hello" to the Appellant on each occasion he visited.  However, the Appellant was concerned that Mr Drane spoke to the head chef rather than him.  The Appellant described his symptoms at that stage as feeling sweaty and being unable to sleep as much because he felt he was "getting targeted, targeted upon."  Those symptoms occurred "on and off" from April 2013.  The Appellant said that he reported the symptoms to head Chef Cumberbatch, but did not seek any medical treatment in 2013. 
  1. [419]
    The Appellant gave evidence that he loves food, maintains a high standard in the kitchen, and wanted to protect patrons against salmonella poisoning.  Accordingly, he considered that he was wrongly accused of undermining the head chef.  Indeed, when asked whether he undermined the newly appointed Head Chef Speak, the Appellant said: "No.  Like I said earlier, that I was only teaching him the [A]LH policy as first-time there for ALH."  The new head chef did not know such things as how to prepare the orders and do temp logs.  As a senior in the kitchen, the Appellant knew more than the other cook, including the code to the computer to log in and order food.
  1. [420]
    The Appellant said that, having spoken to management about his concerns, nothing had been dealt with.  He went to work each day and "if food was sent back and stuff, I just felt - it's just everything like gave me so much stress - of just, you know, nothing was dealt with and like, I don't know, it was just, you know - I felt like, you know -." He also stated that, although he would try to resolve issues with management, everything would remain the same. For example, if a meal that had gone out was raw and was returned, "no one wants to deal with it and I would have no mediation to resolve it." He referred to a build-up of stress when, despite him doing his best as a chef, managers would not put the blame on one person or have a mediation and confront the issue but "just basically washed it off and still will be the same."
  1. [421]
    The Appellant referred to getting "anxiety" around November and December 2013, when the investigation was under way, he was called to a formal meeting with Mr Pyers and was given a written warning. 
  1. [422]
    As recorded earlier in these reasons, the Appellant gave more specific evidence in relation to the effect on him of the Facebook post on 14 December 2013 (Stressor 11) and the letter from Ms Wregg dated 21 January 2014 (Stressor 13).
  1. [423]
    When asked to recall the reason for his injury, the Appellant said that he felt depressed and felt fear going home after work at night.  He referred particularly to the Facebook incident which he said "just brought on a lot of anxiety, and would have a lot of stress, and stomachs all, and headaches." 
  1. [424]
    I note the evidence of Mr Dyson that at no time while he was the venue manager at the Captain Cook Tavern and the Appellant was employed there as a commis chef did the Appellant make a complaint or report to Mr Dyson that he was experiencing stress and anxiety at the workplace. 
  1. [425]
    The Appellant submits that the effect of the evidence is that:
  1. (a)
    the Appellant's psychological injuries arose in the course of his employment;
  1. (b)
    there is "a long list of identified causes causing psychological injury;"
  1. (c)
    employment was the major significant contributing factor for the injuries sustained; and
  1. (d)
    at no time were there "prior outside stressors encountered, or responsible for Chef Julio's stressors - only employment was the major significant contributing factor."

Medical evidence

  1. [426]
    Three doctors gave expert evidence in relation to the nature of the injury to the Appellant, and the cause and date of the injury.  Two general observations in relation to such evidence are appropriate:
  1. (a)
    although it is quite common for the Commission to have regard to such evidence, the decision about the cause of an injury is one for the Commission not for medical experts; and
  1. (b)
    for expert medical evidence to be given weight, it must be based on facts which have been either conceded or proved by admissible evidence.[68]
  1. [427]
    The Appellant called two doctors to give evidence:
  1. (a)
    Dr Gopal Krishna Bhat, a general practitioner who the Appellant first saw on 19 May 2014 (when his usual general practitioner, Dr Davidson, was on leave) and about 25 times subsequently until 28 May 2015; and
  1. (b)
    Dr Sally Matheson, a consultant psychiatrist, who the Appellant saw on 11 August 2014.
  1. [428]
    Dr Matheson gave oral evidence of her examination of the Appellant on 11 August 2014 at the request of a case manager at Employment Mutual for the purpose of preparing an independent psychiatric report.  That was the only occasion on which she had any dealings with the Appellant.  The consultation would have lasted between one and a half and two hours. The written report, which she prepared on that date (Exhibit 13), was based on:
  1. (a)
    the documentation made available to Dr Matheson with the letter of instruction;
  1. (b)
    information supplied by the Appellant at interview; and
  1. (c)
    observations made during the direct mental state examination.
  1. [429]
    The Respondent called Dr Lindsay Margaret Davidson, who saw the Appellant on six occasions between 28 January 2014 and 8 May 2014, inclusive.  She was the only medical expert witness who saw the Appellant before he lodged his Injured Worker Statement Form.

Nature of the Appellant's injury

  1. [430]
    Dr Bhat gave oral evidence that the Appellant had been seeing him for anxiety symptoms from work-related stress.  The Appellant was seeing a psychologist prior to seeing him.[69]  Dr Bhat referred the Appellant to the same psychologist in June for further counselling and a mental health care plan review.  The Appellant was also referred to a psychiatrist in February 2015, but the Appellant did not see the psychiatrist for financial reasons (Exhibit 7).
  1. [431]
    Dr Matheson diagnosed the Appellant (by reference to the DSM-IV-TR multiaxial classification system) as suffering Adjustment Disorder with anxiety (Exhibit 13).
  1. [432]
    The Respondent conceded that the Appellant had sustained a psychological/psychiatric injury and submitted that, given Dr Matheson's specialist qualifications and experience, the Commission would accept her diagnosis.
  1. [433]
    Relying on Dr Matheson's diagnosis, and in the absence of any evidence to the contrary, I find that the Appellant sustained a psychiatric or psychological disorder which is an Adjustment Disorder with Anxiety.

Cause of the Appellant's injury

  1. [434]
    There is no evidence or suggestion that the Appellant's injury is, or is an aggravation of, a pre-existing psychiatric condition (see e.g. Exhibit 13).  The only issue is whether:
  1. (a)
    the Appellant's injury arose out of, or in the course of, his employment; and
  1. (b)
    his employment was the major significant contributing factor to his injury.
  1. [435]
    Dr Matheson's evidence:  In her report, Dr Matheson responded to specific questions posed by Employers Mutual including as follows:

"The stressors that gave rise to the diagnosed condition (if any).

I have outlined in the body of the report the various occupational stressors which [the Appellant] identified as being particular precipitants for his anxiety.  He denied any external psychosocial stressors impacting upon his mental state at the time.  It should be noted that I am not in a position to make a judgement regarding the relative voracity of the statements given by both [the Appellant] and his various co-workers.

However, it is certainly [the Appellant's] perception that he was subject to systematic workplace bullying and harassment and this perception was the most significant precipitant for the development of his Adjustment Disorder.

If you consider that [the Appellant] has suffered a psychiatric injury as a result of his employment do you consider that his employment was the major significant factor to the diagnosed injury?

As reflected in my previous answer, in the absence of other identifiable external psychosocial stressors, it was primarily [the Appellant's] perception of mistreatment in the workplace which led to his psychiatric condition."  (Exhibit 13)

  1. [436]
    When cross-examined in relation to her written report, Dr Matheson stated that her role as a psychiatrist is to make a diagnosis of psychiatric symptoms.  In performing that role she relies on what she is told by the examinee, particularly in a one-off kind of cross-sectional interview, unless there are glaring internal inconsistencies in what she is told.  Mr Matheson gave evidence that:
  1. (a)
    although the Appellant was "a little bit distressed" about his transfer to the Captain Cook Tavern in late 2012 was not what he anticipated (i.e. he was not a sous chef), the stressor (if it is one) is a "very minor one;"
  1. (b)
    the main focus of his explanation of why he had developed anxiety symptoms was on interpersonal difficulties with other staff;
  1. (c)
    her repeated references to the Appellant's perception of events were because she was not conducting an investigation and did not have independent verification of what he told her, but relied on his statements in the course of making a diagnosis of his psychiatric symptoms;
  1. (d)
    although observations of how the patient presents in mental state examination informs the making of a diagnosis, there can be difficulties in making an accurate diagnosis if an inaccurate history is provided;
  1. (e)
    the Appellant told her that his symptoms began early in 2013 (in January 2013, shortly after commencing work at the Captain Cook Hotel) and fluctuated through the course of the year but then became significantly worse from November 2013, and the events of November included an incident involving some chicken which the Appellant alleged to be off and as a consequence of that allegation he was required to attend a disciplinary interview;
  1. (f)
    the Appellant considered that the disciplinary procedure caused the increasing distress, as did an alleged increase in bullying in December 2013, his feeling of being more isolated by other staff, and that when he went to the new Tavern he felt that staff there had been told he was a troublemaker and difficult and so he was not able to fit into the new role;
  1. (g)
    there was a discrepancy between what Dr Davidson recorded about her assessment of the Appellant's condition in January and February 2014 and what the Appellant told Dr Matheson;
  1. (h)
    although Dr Vithanage recorded the Appellant saying that he was single at the time of the consultation on 4 March 2014, the Appellant reported to her that he broke up with his girlfriend at the beginning of April 2014.
  1. [437]
    In cross-examination, Dr Matheson agreed that if the Appellant sought no medical treatment in 2013 and made no contemporaneous report of his symptoms, it was "certainly possible" that the events to which the Appellant refers were not of a serious concerns for him.  However, the Appellant indicated to her that the period when his illness "became the worst, not when it started" was around November 2013 Consequently,  if the Appellant reported to Dr Bhat that the onset of his difficulties began with the event in November 2013, that would be inconsistent with the history he provided to Dr Matheson. 
  1. [438]
    Dr Matheson was asked whether the fact that the Appellant sought no medical treatment in December 2013 and there was no contemporaneous reporting of his symptoms suggested that he was not suffering from significant difficulties at that time.  In her opinion, the delay in accessing treatment

 (a) could reflect that he did not have symptoms; or

 (b) could be an example of the often significant delay in someone accessing treatment after the onset of psychological symptoms (particularly if the person has not experienced mental illness difficulties previously) because it can take several months for them to realise that their experience is not normal human emotion or stress.

  1. [439]
    Dr Matheson agreed that if the Appellant undertook additional work shifts for AHL at other places of employment towards the end of 2013 and at the start of 2014, that would be inconsistent with him experiencing the level of generalised anxiety that he had reported.  However, she suggested that, if his work-related anxiety was specific to a particular work venue, it is possible that he would be better equipped to perform shifts in other venues. 
  1. [440]
    Dr Matheson agreed that if the Appellant was undertaking extra shifts because his girlfriend was pregnant and there was some financial pressures, that might be a relevant stressor giving rise to the symptoms of anxiety that he reported to her.  The Appellant had not given that history to her.
  1. [441]
    Based on information provided to her by the Appellant, Dr Matheson also recorded in her report that the Appellant:

"separated amicably from his ex-girlfriend at the beginning of April 2014, and is currently single.  He has one daughter […[70]] who is four months old.  He enjoys a close bond with […], seeing her at least 4 times per week."

Dr Matheson continued:

"He denied any conflict with his ex-partner and has no difficulties of obtaining access visits with his daughter."  (Exhibit 10)

  1. [442]
    Dr Matheson was provided with a copy of the Appellant's letter to the Child Support Agency (Exhibit 19) dated 22 September 2014 (approximately one month after his consultation with her).
  1. [443]
    The letter referred to "fraudulent unsubstantiated allegations submitted by" his partner ("J")[71] and to "fraudulent submissions" pertaining to the Appellant's alleged income.  The letter described her as a "fraudster", and asserted that she "by deceiving through devious submissions convinced Child Support to fraudulently deduct without verification" a sum of money apparently for the period 29 May to 30 June 2014.  It asserted that the Appellant paid for a pram and child seat, a portable cot, and other items.  The letter also included the following statements:

"As a result of the fraudulent information supplied to Child Support, ATO and Centrelink, Julio's good name has been blacklisted, stigmatized by all departments - a fully documented system failure which relied on false information's supplied by 'J …'.

In addition due to the fact of the implemented fraudulent procedures which have the support of Child Support J…'s care percentage has been increased to 100%, from that time onward J … never answered telephone calls or text messages, J … prevented Julio to see daughter … ."  (Exhibit 19)

  1. [444]
    Dr Matheson agreed that the letter seemed to cast a completely inconsistent picture of the nature of the Appellant's ongoing relationship with his former partner when compared with what he had reported to her.  Indeed she agreed that, if the information in that letter was correct, he had provided a misleading history to her.  Furthermore, she said it would be "absolutely correct" to say that, if there was the level of angst and problems in the relationship between the Appellant and his former partner as indicated in that letter, that would be a very significant potential stressor. 
  1. [445]
    Dr Matheson gave oral evidence that, if she had the information with respect to the conflict with the Appellant's partner and difficulties with access at the time when she was preparing her report:

"my conclusion would have been that whilst the work-related stressors did seem to be a contributing factor but the conflict with his ex-partner and difficulty of access was likely to be at least as significant a factor in causing his symptoms."  (T3:75)

Dr Matheson opined that it was "certainly possible" that those issues involving the Appellant's ex-partner might be the major significant contributing factor to his injury.  Consequently, on the basis that she had not been provided with an accurate history, Dr Matheson was in the position that she could not express a concluded view about whether the Appellant's injury arose out of the workplace. 

The breakdown of the relationship between the Appellant and his partner

  1. [446]
    There was much discussion and conflicting evidence in relation to when the relationship between the Appellant and J broke down, and to the nature of their interpersonal relationship in subsequent months.  That issue was potentially relevant to:
  1. (a)
    the expert opinion evidence given by Dr Matheson about the cause of the Appellant's psychiatric or psychological disorder; and
  1. (b)
    the Appellant's credit as a witness in this appeal.
  1. [447]
    Evidence:  The evidence as to the relevant date of separation is, in summary, as follows:
  1. (a)
    the Appellant said that he started going out with J in about early May 2013; 
  1. (b)
    the letter dated 1 December 2013 to the Appellant about his alleged misconduct (Exhibit 15) included allegations that the Appellant shouted at Mr Beck on 7 November 2013 that he (Mr Beck) should not talk to J about what was going on at work and should not talk to her about anything.  The warning letter to the Appellant (Exhibit 16) records that, in response to allegations raised against him, the Appellant said that he asked Mr Beck not to speak with J as "she is pregnant and she doesn't need to be stressed by him comments regarding his personal life;" 
  1. (c)
    the Appellant agreed that he had warned Cook Beck from speaking to J.  He did so because she had a sensitive medical condition.  The Appellant appeared to be concerned that Cook Beck told her to stories about his personal life (and possibly about what was happening at work), and she would cry; 
  1. (d)
    the consultation notes of Dr Davidson for 11 February 2014 record the Appellant telling her that he was enjoying spending time with his partner and family;
  1. (e)
    in cross-examination the Appellant accepted that he was still involved in a relationship with J as at 11 February 2014, although he did not recall saying that to Dr Davidson;
  1. (f)
    the consultation notes of Dr Vithanage for 4 March 2014 record that the Appellant was "living with family. single";
  1. (g)
    although there is no issue that the Appellant is not married, in cross-examination, the Appellant did not agree that he told Dr Vithanage that he was single, and said "I never mentioned that we were single because my daughter was born on April 3 of 2014 and we were together," and "I didn't even mention my relationship to her;"
  1. (h)
    Dr Davidson reported on the consultation on 6 March 2014 that the Appellant's problems related to work "not home life";
  1. (i)
    Dr Davidson reported on the consultation on 1 April 2014 (in the absence of Mr Kuenstner Snr) that the Appellant's girlfriend was 38 weeks pregnant and he was excited about becoming a father;
  1. (j)
    on 1 April 2014 Dr Davidson referred the Appellant to a psychologist on a Mental Health Care Plan;
  1. (k)
    the Appellant denied that him being placed on the Mental Health Care Plan was linked to, or caused by, the breakdown of his relationship with J;
  1. (l)
    the Appellant said that he "was actually in hospital when she gave birth so we - I never broke up.  We never broke up", and that he was "there when she gave birth … I was there at everything.  We were still in a relationship;"
  1. (m)
    Dr Davidson reported on the consultation on 10 April 2014 that a baby girl was born on 3 April 2014, that the Appellant was happy about this and showing pictures, and that Mr Kuenstner Snr was struggling to accept the situation;
  1. (n)
    Dr Davidson's consultation notes for 8 May 2014 referred to the Appellant's ongoing stress through work related events, and state that he has little social support "outwith immediate family" but made no reference to his relationship to his partner;
  1. (o)
    Dr Bhat's notes for the consultation on 19 May 2014 that the Appellant stated that he still felt "anxious and panicky and needs his sister/father/girlfriend to go out with him most days;" (Exhibit 21)
  1. (p)
    in her report referring to the consultation on 11 August 2014, Dr Matheson wrote that the Appellant "separated amicably from his ex-girlfriend at the beginning of April 2014" (Exhibit 13);
  1. (q)
    in her oral evidence, Dr Matheson confirmed that the Appellant told her about the amicable separation in April 2014; 
  1. (r)
    in cross-examination, the Appellant stated that Dr Matheson was wrong and that he provided no history to Dr Matheson about his relationship with J, nor did he mention (or recall mentioning) his daughter to Dr Matheson or that he was seeing his daughter at least four times each week;
  1. (s)
    in cross-examination, the Appellant stated "we never broked up.  We were still together till May" or, more specifically "late May" 2014, and then he said "What happened was in May, that's when I mentioned that I was single.  Yes.  After May I was single …  not April … Like, I was single after May, like, mid-May … It was never April;"
  1. (t)
    the Appellant stated that his contact with his daughter stopped sometime in May 2014 and contact was denied until October 2014;
  1. (u)
    the letter to the Child Support Agency dated 22 September 2014 refers to the allegedly fraudulent deduction of money from the Appellant for the period 29 May to 30 June 2014 and states that, "from that time onward," J prevented the Appellant from seeing their daughter.
  1. [448]
    There is dispute as to how that evidence is to be interpreted and, where there are inconsistencies between witnesses, whose account the Commission should prefer.
  1. [449]
    The evidence about the reason for that separation and the nature of the interpersonal relationship between the Appellant and J thereafter is, in summary as follows:
  1. (a)
    in cross-examination, the Appellant said that before the break-up with J they had been seeing each other every day, or at least most days, but immediately upon the break-up occurring he no longer had a friendly relationship with her;
  1. (b)
    the Appellant said that his contact with his daughter stopped in May 2014, not because J was blocking him from seeing his daughter but "because I would not go out with her, like, go shopping or, you know, do all that stuff because I was at home with my dad or, you know, I wouldn't be going out.  That's the reason why;" 
  1. (c)
    the Appellant said that "the reason why she - we broke up in May is because I stopped from seeing - you know, going out in public and doing as a normal, you know, father would do;"
  1. (d)
    the Appellant explained that he stopped going out in public and doing those things because "she lives in North Lakes so I didn't feel like, you know, I would, you know, see people, like, from work, from, you know, other pubs and venues, you know, encountering them at, you know, shopping centres.  That's the reason why. …  I just didn't want to go out.  I didn't want to go away from home.  That's the reason why;"
  1. (e)
    the Appellant agreed that there was a bitter relationship between him and J and that she was not happy with him "because, yes, I would not, you know, go out with her, yes, in public," and their relationship became progressively more bitter;
  1. (f)
    the Appellant said that he did not see his daughter in June, July or August 2014, and that he could not remember telling Dr Matheson in August 2014 that he was seeing his daughter four times a week at that time;
  1. (g)
    the Appellant agreed that he was very upset about J not giving him access to his daughter, and about J not returning his calls;
  1. (h)
    the Appellant said that he experienced "some stress" at the time his former partner prevented him from seeing his daughter;
  1. (i)
    in about late June 2013 the Appellant sought legal advice to assist him in gaining contact with his daughter;
  1. (j)
    before seeking legal advice, the Appellant was, in his own words, "all over the place … I didn't know what to do;"
  1. (k)
    the lawyer told the Appellant not to worry because they had to follow legal procedure so the Appellant could see his daughter and consequently "it wasn't like a stress issue for me" because "I realised, you know, that's the way to follow procedures;"
  1. (l)
    the Appellant said that, having obtained legal advice, he did not tell Dr Matheson in August 2014 about the Child Support issue;
  1. (m)
    at the time of his letter to Child Support, 22 September 2014, he believed that J was acting fraudulently against him, and that she was acting vindictively against him, and he was very upset about the issue;
  1. (n)
    the fact that money was being taken out of his tax and given to J without his knowledge caused him "some stress," as was her failure to allow the Appellant to contact their daughter;
  1. (o)
    the Appellant said that the lawyer conducted a telephone conference involving J in about September 2014;
  1. (p)
    contact was resumed in October 2014. 
  1. [450]
    Appellant's submission:  The Appellant submits that his relationship with his former partner broke up:
  1. (a)
    in late May 2014; and
  1. (b)
    because of the accumulated work-related stressors, in particular the Facebook post. 
  1. [451]
    In relation to (a), the Appellant relies on his own evidence and the evidence of                 Dr Davidson that on her last consultation with the Appellant on 8 May 2014 she recorded there was no conflict between him and his girlfriend.
  1. [452]
    In relation to (b), I understand the submission to be that the Appellant would not go out shopping or do other outdoor activities with his former partner because his work-related condition generated fear and anxiety preventing him from venturing out at night. 
  1. [453]
    The Appellant repeatedly submits that his relationship with his partner broke up because of work stressors.  But there was no direct evidence to that effect.  Although that submission is plausible, one has to read disparate parts of the evidence carefully to draw such an inference.  The Respondent submits that such a finding is not open on the evidence, and that the more likely scenario is that the breakup occurred because Mr Kuenstner Snr did not like and did not approve of J.  (Respondents submissions in reply Para 30) 
  1. [454]
    Respondent's submission:  The Respondent submits that the Commission is entitled to draw the inference that the separation occurred sometime between 11 February 2014 and early April 2014. 
  1. [455]
    In support of its submission that the Commission should reject the evidence given by the Appellant that the break-up occurred some time in May 2014, the Respondent notes that because of the objection (ultimately overruled by the Commission) to the admissibility of what became Exhibit 19, the Respondent was denied the forensic advantage of cross-examining the Appellant about this issue before Dr Matheson gave her evidence.  By the time the Appellant came to be cross-examined, he was very alive to the significance of placing the break-up as late as possible and had ample time to prepare a version that best suited his case. 
  1. [456]
    In summary, the Respondent submits that the Appellant's evidence that his relationship with J broke up in mid or late May 2014 should not be accepted because:
  1. (a)
    he was a very unreliable witness;
  1. (b)
    he provided a more contemporaneous version of an earlier date of the ending of the relationship with J on the two occasions to two medical practitioners (i.e., Dr Vithanage on 4 March 2014, and Dr Matheson on 11 August 2013);
  1. (c)
    the Commission should prefer the evidence of the disinterested specialist medical practitioner who is experienced in taking accurate histories from patients;
  1. (d)
    an April break-up is supported by the consultation note of Dr Davidson on 10 April 2014 that the Appellant's father was struggling to accept the Appellant's relationship with J and, given the apparent significant influence that                       Mr Kuenstner Snr holds over the Appellant, the Commission would be entitled to draw the inference that the death knell had been sounded for the relationship.
  1. [457]
    Rather, the Respondent submits, the Commission would find on the balance of probabilities that the relationship had ended by early 2014 at a time when the Appellant presented for the first time with what Dr Davidson considered was a psychological/psychiatric disorder that required treatment.
  1. [458]
    Consideration:  Having considered carefully the written and oral evidence and the submissions set out above, I find that, despite the Appellant making some erroneous and misleading statements to Dr Matheson in August 2014, the evidence shows that:
  1. (a)
    the Appellant and his partner had a relationship before and at the time of the birth of their daughter on 3 April 2014;
  1. (b)
    the breakdown of that relationship occurred after the birth sometime in May 2014;
  1. (c)
    the breakdown of the relationship was not the reason for the Appellant being put on a Mental Health Care Plan on 1 April 2014; and
  1. (d)
    the Appellant felt increasing bitterness towards J after they separated, and particularly for the period including June, July and August 2014 when the Appellant was denied access to their daughter.

Date of the Appellant's injury

  1. [459]
    As noted early in these reasons for decision, the date of the Appellant's injury is significant in this case because of the amendment to the definition of "injury" in s 32(1) of the Act referred to earlier in these reasons for decision.

 (a) If the injury occurred before 29 October 2013, the Appellant will have to prove on the balance of probabilities that his employment was "a significant contributing factor" to his injury.

 (b) If the injury occurred after 29 October 2013, the Appellant will have to prove on the balance of probabilities that his employment was "the major significant contributing factor" to his injury.

  1. [460]
    Before recording and assessing the medical evidence in relation to when the injury occurred, it is appropriate to refer to documentary evidence provided by the Appellant.  The Injured Worker Statement Form (Exhibit 12) is not particularly precise or conclusive on this point.  On page 1 of that form, after "When did the injury occur?  (date & time to be included)" Mr Kuenstner Snr wrote "refer to written communications Human Resources Bullimba and ALH Melbourne."  However:
  1. (a)
    in response to question 22 "When did your injury occur?"  Mr Kuenstner Snr wrote "Nov 2013" rather than a period of time (although the following words are included at the end of the question: "(if the injury occurred over a period of time put O.P.T.));"
  1. (b)
    in response to question 23 about where the injury happened, an "X" was inserted against "During the course of your ordinary work hours;" and
  1. (c)
    in response to question 24, "If over a period of time, when did you first notice symptoms?", Mr Kuenstner Snr wrote "November 2013 progressive work related stress build up."
  1. [461]
    The written communications with the employer referred to in response to the question on page 1 of the Form presumably include, or comprise, the correspondence signed by the Appellant addressed to management in the period between 8 December 2013 and 17 February 2014.  Although the earlier correspondence listed numerous concerns and complaints, the first reference to stress arising out of incidents complained of by the Appellant is in his postscript to a letter dated 15 January 2014 from Mr Kuenstner Snr in relation to "Un-substantiated accusations in need for urgent rectification."  The Appellant's signature appears after the following paragraph:

"I Chef Julio Kuenstner have read all and verify that to the best of my recollection all stated significant issues are true and correct - in addition I request a written reply on the Facebook incident as it causes undesirable stress‑related issues."  (Exhibit 5)

The "Facebook incident" was said to have occurred on Saturday, 14 December 2013.

  1. [462]
    An undated letter signed by the Appellant, apparently received by ALH management at about the same time as the letter of 15 January 2014, included the following paragraph:

"Please take note with all the documented events at the Captain Cook Tavern and now at the Petrie Tavern there has been a build-up of "STRESS" never experienced before, caused by an un-professional one-sided investigation overlapping mate ship arrangements."  (Exhibit 4, emphasis added)

It is not clear from that statement whether the alleged build up of stress relates to all the documented events at both Taverns or (as the expression "caused by" suggests) only the events after the investigation was conducted in late November and early December 2013.

  1. [463]
    In a letter dated 21 January 2014 to the Appellant, written in response to Exhibits 4 and 5, Ms Wregg wrote:

"4. You mentioned you are experiencing stress in relation to the matters you have recently been disciplined of and I am sorry to read this. If you wish to speak with a counsellor for emotional support or some coping tactics, please contact Ezra Pyers and he will make arrangements." (Exhibit 14)

  1. [464]
    The letter dated 17 February 2014 signed by the Appellant, in reply to Ms Wregg's letter, included the following paragraph:

"You are hereby informed that due to in-actions reported by Chef 'Julio' on significant kitchen health issues for which Chef 'Julio' was set up / framed by the now dismissed Venue Manager and his circle of friends (refer to letters dated January 15, 2014) with the attached Facebook threat of serious repercussions, it generated serious work related 'stress' issues, the stress issue was also noted in your letter dated January 21, 2014.  Find attached certificates issued by treating Dr. Lindsay Davison, therefore, a work related claim is made on stated stress issues."  (Exhibit 6, emphasis in original)

The certificates issued by Dr Davidson were not evidence in these proceedings but presumably were for the periods 26 January 2014 to 18 February 2014 and                      11 February 2014 to 4 March 2014 (see [461] (a) and (b)].

  1. [465]
    Dr Davidson's evidence:  Against that background, it is instructive to read the notes prepared by Dr Davidson in relation to consultations with the Appellant between 28 January 2014 and 8 May 2014 (Exhibit 21).  Dr Davidson was the first medical practitioner to see the Appellant in relation to his claim for compensation.  The first two consultations preceded the lodgement of that claim.
  1. (a)
    At the initial and "long" consultation on 28 January 2014 (the reason for which was recorded as "stress"), the Appellant reported almost 16 months of "problems with work."  He described "discrimination and bullying at work" and told Dr Davidson that he had reported an incident in which meat that was not fit for consumption was to be prepared for public consumption.  The Appellant alerted management to this and he had been "accused of inappropriate behaviour."  He had "proof" of threatening behaviour towards him through Facebook messages and told Dr Davidson that he had also been "physically threatened."  He said that he wrote to head office "but was told his complaint was not valid" and he was "very distressed by this."  Although he had been offered counselling through work he "seems reluctant."  The Appellant denied other stressors in life, but he was sleeping with more difficulty than previously, was preoccupied with thoughts of work, and was eating less.  Despite that, Dr Davidson reported that the Appellant "Does not appear depressed."[72]  Rather, he maintained good eye contact and good rapport.  He agreed that "work-related stress seems to be the main issue."  He was "keen for time off work" and was given a medical certificate from 26 January 2014 until 18 February 2014.

In her oral evidence, Dr Davidson said that the Appellant always "came across very well" and was always very well presented.  He had good eye contact, did not avoid her gaze and "never came across as depressed."  His father did a lot of the talking during that and later consultations.  Dr Davidson did not prescribe medication as she did not feel it was appropriate at that time. 

  1. (b)
    At the consultation on 11 February 2014 (also for "stress"), the Appellant reported feeling "better since being off work and enjoying spending time with partner and family."  He had minimal contact with work since                 28 January and was experiencing no stress without work.  Dr Davidson reported that the Appellant needed to discuss with management/HR "in order to achieve some kind of resolution to this problem it seems."  However she reported that the Appellant:

"Does not appear anxious or distressed in consultation and no evidence of mental illness noted.[73]  Not keen for counselling and would not qualify for MHCP [Mental Health Care Plan] at this stage."

He was given a medical certificate for the period from 11 February 2014 until 4 March 2014.

In her oral evidence, Dr Davidson said that the Appellant would not have qualified for a MHCP because he did not show evidence of mental illness of some description.  Indeed, he appeared to be better since taking time off work, and "all his anxieties were so caught up in work."  She noted that, although Mr Kuenstner Snr was present, the Appellant did more talking during that consultation. 

  1. (c)
    In Dr Davidson's absence on leave, the Appellant saw Dr Vithanage on 4 March 2014 and obtained a medical certificate for the period 4 to 10 March 2014.
  1. (d)
    On 6 March 2014, the Appellant saw Dr Davidson and asked for a new certificate.  It was another "long" consultation and she reported that the Appellant was "Much the same clinically.  Problems relating to work, not home life."  No treatment was provided or medication prescribed.
  1. (e)
    The Appellant saw Dr Davidson on 1 April 2014 for the purpose of obtaining a mental health care plan ("MHCP") and a chat.  She recorded:

"Several months history of low mood and anxiety symptoms triggered by alleged bullying and discrimination at work which resulted in him leaving his job as a chef.  Currently not working.

Now has problems going out due to anxiety and worry about who he may see.  Fearful to go out of the house alone and usually accompanied by father or sister for this.  Gets panicked thinking about this.  Poor sleep.  Occasional flashbacks to events with ?panic attacks.  Feelings of hopelessness and depression.  Low self esteem.  Ruminations of previous events.

….  Investigation by Company ongoing.  Several people have been fired as a result he tells me."[74]

Dr Davidson recorded a private conversation with the Appellant (i.e. without Mr Kuenstner Snr, who was present at all other consultations).  His girlfriend was 38 weeks pregnant, and the Appellant told Dr Davidson "he is excited about becoming a father."

Dr Davidson also noted: "Requests to see a psychologist.  Referral done on MHCP."[75]  She wrote a letter in relation to mental health assessment and a mental health plan. In her oral evidence, Dr Davison explained that by that stage, given the symptoms he was experiencing, the Appellant would definitely qualify for the MHCP. 

  1. (f)
    The Appellant consulted Dr Davidson on 10 April 2014 in relation to stress.  They had a "long" discussion in relation to the ongoing investigation and an updated WorkCover certificate was prepared.  Dr Davidson noted that a baby girl was born on 3 April.  She continued "Happy about this and showing pictures.  Congratulated.  States dad struggling to accept situation but no other concerns re their relationship."

In her oral evidence, Dr Davidson stated that the Appellant was referring to concerns about the relationship with his father.  The Appellant did not ever provide her with a history of there being problems with his girlfriend, and Dr Davidson did not recall ever talking to him about problems in that relationship. 

  1. (g)
    The Appellant again consulted Dr Davidson on 8 May 2014 in relation to stress and a medical certificate.  She recorded:

"Ongoing stress through work related events.

Dad explains ongoing investigation by company.

Overall improvement in anxiety.  Has 'panic-like' episodes when comes across someone from his work but functioning reasonably well otherwise.

Little social support however, outwith immediate family.

Has been playing soccer but states this is by himself.  Encouraged to exercise.

Still seeing a psychologist.

Worsening advice given." 

He was scheduled for review on 12 June 2014 or sooner if needed.

  1. [466]
    In her oral evidence, Dr Davidson confirmed that, if she accepted the following facts:
  1. (a)
    the Appellant was transferred at his request from the Captain Cook Tavern where he alleged he had been bullied and discriminated against in the week before Christmas 2013;
  1. (b)
    thereafter he had no contact with his former management, or anyone from that workplace;
  1. (c)
    he was ultimately transferred to the Petrie Tavern;
  1. (d)
    the only contact with the previous workplace was that Ms Johnson                       (Mr Dyson's partner) worked there, but she was transferred from the venue on 20 January 2014,

it would be unusual (though not impossible) for the Appellant's condition to develop some two months down the track.  Rather, Dr Davidson would have expected it to be an ongoing kind of issue.  She assumed however, that there might be some follow on from moving between premises within the same company. 

  1. [467]
    In her oral evidence, Dr Davidson confirmed what she had recorded in her consultation notes, namely that Mr Kuenstner Snr had been present at each consultation (other than the private session with the Appellant during the consultation on 1 April 2014) and had played an active role in those consultations.  Her consultation notes record that "Dad did much of the talking" on 28 January 2014, and "Julio did more talking" on 11 February 2014.  On 6 March 2014 she described Mr Kuenstner Snr as a "forceful character," by which she explained in oral evidence, she meant that he was quite a strong character in getting his point across in both his manners and the descriptions he gave.  At the consultation on 8 May 2014 she recorded "Dad explains ongoing investigation by company."
  1. [468]
    Dr Bhat's evidence:  Dr Bhat, who saw the Appellant from 19 May 2014, said the Appellant had seen him for "anxiety symptoms from work-related stress caused by an incident that happened at work in November 2013" when he reported about the smelly chicken to his manager.  The Appellant reported that since then he "felt that he was bullied at work and that's what led to his mental health symptoms."  Dr Bhat's evidence was that the Appellant did not indicate to him any other events before November 2013 that caused him concern.  The Appellant told Dr Bhat subsequently that there was bullying at work and that his concerns were not listened to and "this led to the anxiety symptoms."  Dr Bhat noted that the Appellant already had those symptoms when he started seeing him.  Dr Bhat indicated that he had seen the Appellant's about 25 times in the period from 17 May 2014 to 28 May 2015, but the Appellant had not provided him with any particulars as to what treatment he had received at his workplace after the smelly chicken incident.  In cross-examination, Dr Bhat agreed to the suggestion that the history provided to him was of a very broad brush allegation of bullying subsequent to the incident on November 2013. 
  1. [469]
    Dr Bhat's consultation notes had not been exhibited when he gave his oral evidence.  It is apparent from the patient history from the Lawnton Country Market Medical Centre that were tendered subsequently (Exhibit 21) that the majority of the consultations involved the Appellant coming to obtain further medical certificates. 
  1. [470]
    On 30 June 2014, the Appellant requested a review of the MHCP and a new referral as advised by his psychologist so that he could obtain six more sessions of counselling, which he found helpful.  The reason for visit was recorded as "Anxiety disorder."  Among other things a letter was written to psychologist, Ms Jo Erlich, about the MHCP review. Consultation notes for subsequent visits record the reasons for those visits as "stress" (11 and 21 July 2014), "Anxiety disorder" (8 August 2014), and "adjustment disorder with anxiety" (29 August 2014).  
  1. [471]
    Dr Bhat gave evidence that Mr Kuentsner Snr used to attend most of the consultations with the Appellant and that both father and son did an equal amount of talking.  Dr Bhat would ask questions of the Appellant which he answered, and his father "contributed to some of the worries that he had."  Dr Bhat's notes show that                    Mr Kuentsner Snr attended on at least five of the six occasions when Dr Bhat saw the Appellant between 19 May 2014 and 29 August 2014 (approximately the time the Appellant saw Dr Matheson).
  1. [472]
    Dr Matheson's evidence:  The relevant passages from Dr Matheson's report of 11 August 2014 (Exhibit 13) should also be considered against the background outlined above.  It is clear from her report and her oral evidence that Dr Matheson relied on the history of events related to her by the Appellant (see [436]).  Dr Matheson wrote that:
  1. (a)
    the Appellant recalled that he began to experience work-related stress in late 2012 when he was transferred to the Captain Cook Tavern;
  1. (b)
    the Appellant reported that he began to experience symptoms of anxiety in January 2013, shortly after commencing work at the Captain Cook Hotel (and he described anticipatory anxiety prior to work shifts and increased social withdrawal; he began to ruminate excessively about work-related issues and suffered frequent headaches; and his sleep deteriorated somewhat);
  1. (c)
    the Appellant described increasing anxiety symptoms throughout 2013 in the context of conflict with co-workers at the Captain Cook Tavern;
  1. (d)
    the Appellant's mental state deteriorated further from November 2013 with increasing anxiety symptoms (and a further reduction in hours of sleep per night, significantly diminished appetite with associated weight loss, and becoming more socially withdrawn, finding it increasingly difficult to concentrate), but he denied any significant symptoms of pervasively depressed mood;
  1. (e)
    the Appellant ceased to work on 27 January 2014 "in the context of work related stress;" and
  1. (f)
    the Appellant went on stress leave on 28 January 2014.
  1. [473]
    Appellant's submissions:  The Appellant's written submissions did not address this issue directly.  However, as noted earlier, the Appellant contends that his symptoms commenced soon after his transfer to the Captain Cook Tavern, and at least by February 2013.
  1. [474]
    Respondent's submissions:  The Respondent submits that:
  1. (a)
    the Commission would reject the Appellant's evidence that he had begun to experience symptoms in either December 2012 or early 2013; and
  1. (b)
    the Commission would find on the evidence that the Appellant did not experience any significant symptoms before November 2013 and began to experience some mild anxiety in December 2013 in the context of him being the subject of a disciplinary process but these mild symptoms did not amount to a psychiatric injury until well into April 2014.

Because the Appellant's injury was sustained after October 2013, he has to prove that his employment was the major significant contributing factor to his injury.

  1. [475]
    In support of the first limb of that submission, the Respondent submits that:
  1. (a)
    the Appellant did not provide any evidence of experiencing anxiety in January 2013, despite being given every opportunity to do so;
  1. (b)
    the Appellant provided clearly inconsistent versions as to when he experienced an onset of symptoms;
  1. (c)
    the Appellant's evidence of an early onset of symptoms (including in his history provided to Dr Matheson) was very unconvincing;
  1. (d)
    there was no contemporaneous report by the Appellant either to a medical practitioner or anyone else (whether at the workplace or outside it) that he was experiencing symptoms in December 2012 or 2013, and no evidence of any treatment being provided to him in 2013;
  1. (e)
    the early onset of symptoms is inconsistent with what the Appellant said in his application for compensation form (Exhibit 12); and
  1. (f)
    the early onset of symptoms is inconsistent with the history that the Appellant provided to Dr Bhat and Dr Davidson.
  1. [476]
    In support of the second limb of that submission, the Respondent submits that:
  1. (a)
    the stressors or factors that the Appellant consistently identified to Dr Davidson and Dr Matheson as the alleged causes for his psychiatric injury were the events that occurred from November 2013 to January 2014;
  1. (b)
    Dr Matheson confirmed that if the sous chef issue was stressor at all it was a very minor one, that the Appellant had not given any specific history of an onset of symptoms following being reprimanded by Mr Dyson in March/April 2013, that the Appellant reported that his symptoms fluctuated throughout 2013 but significantly worsened after November 2013, and that the disciplinary procedure definitely caused the Appellant's increasing distress;
  1. (c)
    the Appellant has not reported to any medical practitioner that events prior to November 2013 have caused his injury;
  1. (d)
    the Injured Worker Statement Form (Exhibit 12) states that the injury occurred in November 2013 and because the Appellant was "framed by the now dismissed Capt Cook management and his close friends" which could only sensibly be interpreted as referring to the investigation and disciplinary process;
  1. (e)
    the first mention of stress in the correspondence referred to in the Injured Worker Statement Form (i.e. Exhibit 4) could only be interpreted as an assertion by the Appellant that the build-up of stress occurred in December 2013/January 2014 as a consequence of events in November and the investigation and disciplinary process in December 2013.

Was the Appellant's injury work-related?

  1. [477]
    As noted earlier in these reasons for decision, the Appellant bears the onus of proving on the balance of probabilities that:
  1. (a)
    he suffered an injury that arose out of, or in the course of, his employment;
  1. (b)
    the employment was either a significant contributing factor to the injury or the major significant contributing factor (depending on the date of the injury); and
  1. (c)
    his injury did not arise out of, or in the course of reasonable management action taken in a reasonable way.
  1. [478]
    The legal tests in relation to those aspects of s 32 of the Act are summarised earlier in these reasons.
  1. [479]
    Appellant's submissions: The Appellant did not make specific submissions in relation to each of those criteria to demonstrate that he suffered an "injury" as defined in s 32.  However, he submits that his psychological injuries were:

"in the course of his employment, the proof employment was the major significant contributing factor for the injuries sustained.  Furthermore, the court proceedings provided the 'proof ' management actions are the major contributing factor in respect to a build-up of work related stressors …"

  1. [480]
    He also contends that "reasonable management action was never considered by management."  The import of the Appellant's case is apparent from the list of 13 Stressors and his submissions in relation to each of them.  They are considered earlier in these reasons for decision.
  1. [481]
    Respondent's submissions: The Respondent made extensive and detailed written submissions in relation to each of the criteria. 
  1. [482]
    Whether injury arose out of or in the course of employment: The Respondent submits, first, that the Appellant has failed to meet his burden of proof to establish that his injury arises out of, or in the course of, his employment because, at its highest, the Appellant's evidence establishes that he may have experienced some stress from the investigation and the disciplinary process.  That did not cause him to take any sick leave or to seek any medical treatment until late January 2014, well after the relevant stressors and after he had been removed from the workplace and any of the former co-workers involved in the stressors. 
  1. [483]
    The Respondent points to evidence that indicates that:
  1. (a)
    despite the Appellant leaving the workplace on or about 27 January 2014, his treating general practitioner, Dr Davidson, was not satisfied at her first three consultations with him over a period of almost two months that the Appellant was suffering from a mental illness, and during that period no treatment was prescribed to him;
  1. (b)
    at the second consultation on 11 February 2014, Dr Davidson noted an overall improvement in the Appellant's condition as reported by him and that the Appellant's presentation was not that of someone who was anxious or depressed, and she noted no evidence of mental illness and did not believe that the Appellant would qualify for a MHCP at that time;
  1. (c)
    at the third consultation on 6 March 2014, Dr Davidson noted that the Appellant remained much the same clinically as on 11 February 2014;
  1. (d)
    Dr Davidson confirmed that the sudden worsening of the Appellant's condition in early April was "unusual", given that he had been away from the workplace for about two months and the alleged stressors took place some three and a half months earlier;
  1. (e)
    Dr Matheson, who was the only specialist psychiatrist to examine and report on the Appellant, could not confirm (in light of Exhibit 19) that his injury arose out of, or in the course of employment or that his employment was the major significant contributing factor to his injury.
  1. [484]
    As noted early in these reasons, before expert medical evidence can be of value, the facts upon which it is founded must be proved by admissible evidence.  If an expert has been misinformed about the facts, or has taken irrelevant facts into consideration or has omitted to consider relevant facts, their opinion is likely to be of little or no value.[76]  It will be apparent that a number of the aspects of the evidence given in this case by some doctors depends on factual circumstances beyond the knowledge of those doctors.  In particular, they depended heavily, and perhaps exclusively, on the history of events given to them by the Appellant.  The Respondent submits that, to the extent that that history is incorrect, little or no weight should be given to the opinions based on it.  (See Respondent's submission paras 126-130)
  1. [485]
    As the Respondent notes, neither Dr Davidson nor Dr Bhat expressed an opinion whether the Appellant's injury arises out of or in the course of his appointment, or whether the Appellant's employment was the major significant contributing factor to his injury or condition.  (Respondent's Submission para 131)
  1. [486]
    The Respondent also submits that, because the Appellant has failed to provide an accurate history of his relationship issues to any of the medical practitioners, their evidence about causation must be given limited weight.  (Respondent's Submission para 132) In particular, the Appellant had failed to reveal to any of his treating medical practitioners or to Dr Matheson:
  1. (a)
    the breakdown of his relationship with his partner, J;
  1. (b)
    the fact that his father did not approve of that relationship;[77]
  1. (c)
    J's ongoing denial of the Appellant seeing his newly born daughter;
  1. (d)
    an increasingly bitter and acrimonious relationship between the Appellant and J which appeared to involve a complete breakdown in communication between them;
  1. (e)
    some financial stress later in 2014 caused by J's actions in providing information to the Child Support Agency. 
  1. [487]
    However, the Respondent submits that the Commission would accept the revised opinion expressed by Dr Matheson that, although the work-related stressors did seem to be a contributing factor, the conflict with the Appellant's ex-partner and difficulty of access to their daughter was likely to be at least as significant factor in causing his symptoms.  Indeed, Dr Matheson went on to opine that it was entirely possible that the relationship issues were in fact the major significant contributing factor giving rise to the Appellant's injury. 
  1. [488]
    The Respondent also submits that the significant and unusual role played by Mr Kuenstner Snr in his adult son's application for workers' compensation is such that the Commission would have concerns whether it is a genuine claim for a work-related injury. 
  1. [489]
    Accordingly, the Respondent submits that the appeal must be dismissed. 
  1. [490]
    Major significant contributing factor: Secondly, the Respondent submits that the Appellant sustained his injury after October 2013 and therefore he must establish that his employment was "the major significant contributing factor" to his condition.  In the Respondent's submission, for reasons similar to those set out in the preceding paragraphs, the Commission would not be satisfied on the balance of probabilities that the Appellant's employment was the major significant contributing factor to his injury.  In particular, the Respondent submits that:
  1. (a)
    none of the medical witnesses confirmed that the Appellant's employment was the major significant contributing factor to his injury and, as noted above, Dr Matheson now appears to conclude that personal stressors are the major significant contributing factor to his injury;
  1. (b)
    based on the medical evidence, the Commission would find that there are only two operative stressors that could be related to work (Stressor 9 - being provided with a notice to attend the meeting on to December 2013, the investigation process, and being the subject of a disciplinary process arising from his conduct, and Stressor 11 - the Facebook post by Gracie Mills, although that was not sufficiently causally linked to the workplace to give rise to a work-related injury);
  1. (c)
    to the extent that the injury arises from work events, it arises not from the reality of workplace events but from the fact that both the Appellant and Mr Kuenstner Snr have a flawed perception of those events (e.g. that there was some conspiracy involving managers and other employees to have the Appellant sacked, and that the Facebook post from Ms Mills referred to the Appellant and constituted a threat towards him). 
  1. [491]
    Reasonable management action: Third, the Respondent submits that s 32(5) of the Act operates to exclude the Appellant's claim because this is a very clear-cut case of reasonable management taken by ALH in relation to each of the matters that are raised by the Appellant in his Statement of Stressors.  In particular, the Respondent submits that:
  1. (a)
    the actions and alleged inaction of Head Chef Cumberbatch, Venue Manager Dyson and Area Manager Drane (who were in the direct line management structure above the Appellant) would clearly constitute relevant management action for the purpose of s 32(5) of the Act;
  1. (b)
    the actions of Mr Pyers (in conducting an investigation into the allegations against the Appellant, handling the disciplinary process, and interacting with the Appellant and Mr Kuenstner Snr after the Appellant was issued with a written warning) would constitute relevant management action for the purposes of the Act;
  1. (c)
    consequently, the Commission would be satisfied on the balance of probabilities that the Appellant's injury arises out of or in the course of management action taken in connection with his employment. 
  1. [492]
    Hence:
  1. (a)
    if the Commission accepts that Stressors 8, 9 and 13 are the only relevant stressors, then each of those stressors clearly involves reasonable management action taken by ALH; or
  1. (b)
    if the Commission finds that each of the numbered Stressors must be considered, then each Stressor that can be substantiated and has given rise to stress for the Appellant is touched by some form of reasonable management action. 
  1. [493]
    The Respondent also submits that it was the Appellant's flawed perception after receiving Exhibit 14 that his career was over.  More generally, the Respondent submits that the Appellant's entire case is based on a series of flawed perceptions and misunderstandings of what has always been reasonable management action taken by ALH. 
  1. [494]
    Consequently, the Respondent submits, the Commission would be satisfied on the balance of probabilities that s 32(5) of the Act operates to exclude the Appellant's claim. 
  1. [495]
    Consideration:  My conclusions in relation to the outcome of the appeal are based not only on the medical evidence just considered but the evidence as a whole.  For reasons set out in detail earlier, I have concluded, in summary, that:
  1. (a)
    Stressors 1 and 2 were only partially proven and that, although management took appropriate actions in response to the Appellant's requests, those actions were not permanently successful;
  1. (b)
    Stressors 3 and 4 were only partially proven, Area Manager Drane did not "target" the Appellant, and the action taken by Mr Dyson was reasonable management action;
  1. (c)
    Stressors 5 and 6 were not proven, and management acted reasonably in relation to the Appellant's concerns about the sous chef issue;
  1. (d)
    Stressor 7 was not proven;
  1. (e)
    Stressors 8 and 9 were not proven, and ALH management took appropriate action in a reasonable way in relation to the smelly chicken incident and other allegations against the Appellant;
  1. (f)
    Stressor 10 was not proven;
  1. (g)
    Stressor 11 was not proven;
  1. (h)
    Stressor 12 was proven in part;
  1. (i)
    Stressor 13 was proven but Ms Wregg's letter constituted reasonable management action taken in a reasonable way, and ALH management took reasonable management action in a reasonable way in relation to the communications from the Appellant and Mr Kuenstner Snr that preceded              Ms Wregg's letter;
  1. (j)
    the relationship between the Appellant and J broke up in May 2014.
  1. [496]
    That summary gives only the barest outline of what might lead to the outcome of the appeal.  The specified Stressors were somewhat awkwardly worded, and to reach the correct conclusion on the appeal it is necessary to:
  1. (a)
    take into account the evidence and specific findings in relation to those Stressors;
  1. (b)
    take into account the medical and other evidence considered following the consideration of the Stressors; and
  1. (c)
    make a global assessment of management actions taken by ALH managers in relation to the circumstances described or alleged across the range of stressors.
  1. [497]
    Having regard to the evidence as a whole, I find that:
  1. (a)
    the Appellant experienced various degrees of concern in relation to actions and perceived slights in the work place from around February 2013 when it was made clear to him that he was not a sous chef, but that and other interactions with fellow workers were of little or no significance to what became his psychiatric or psychological disorder;[78]
  1. (b)
    the Appellant first experienced significant symptoms of anxiety and distress in November and December 2013 in response to the investigation following the smelly chicken incident and the subsequent disciplinary actions (about that incident and other matters)[79] including the warning letter;
  1. (c)
    the Appellant did not accept the basis on which he was disciplined and, having made allegations about Venue Manager Ben Dyson which led to Mr Dyson’s dismissal, became concerned that he was being shunned, isolated or criticised by others in the workplace;
  1. (d)
    his concerns were increased by his perception of the Facebook post by                    Ms Mills on 14 December 2013,[80] the comment made to him by Mr Renikki at the Petrie Hotel in January 2014[81] and Mr Wregg's letter dated 21 January 2014;[82]
  1. (e)
    all these events and interactions occurred after October 2013;
  1. (f)
    the Appellant's level of anxiety was reduced when he left work on sick leave from 28 January 2014 and, although he was not depressed at that stage and his symptoms fluctuated over successive weeks, his condition was such that he qualified for a Mental Health Care Plan by 1 April 2014;
  1. (g)
    most of the significant contributing factors to his condition of Adjustment Disorder with Anxiety arose out of, or in the course of, his employment;
  1. (h)
    one factor, the Facebook post, although created by a work colleague was not strictly speaking a work-related Stressor;
  1. (i)
    the major significant contributing factor to the Appellant's psychiatric or psychological disorder was the action taken by management in relation to:
  • his conduct in the smelly chicken incident and other aspects of his behaviour in the workplace which were investigated and for which he was given a written warning (and in respect of which he and Mr Kuenstner Snr engaged in persistent communications with senior ALH management); and
  • subsequent communications culminating in Ms Wregg's letter dated 21 January 2014;
  1. (j)
    the comment by Mr Renikki was a contributing factor to the Appellant's condition but the Appellant misperceived the context in which it was made.
  1. [498]
    Those findings about which events did (or did not) contribute to the Appellant's injury are supported by:
  1. (a)
    the Appellant's statements in Injured Worker Statement Form, and the written communications with his employer referred to in that Form;
  1. (b)
    the Appellant highlighting to Dr Davidson the smelly chicken incident, the disciplinary proceedings that followed it, and Facebook messages;
  1. (c)
    the Appellant not telling Dr Bhat that any events before the smelly chicken incident in November 2013 caused him concern;
  1. (d)
    the Appellant's statements to Dr Matheson that his symptoms became significantly worse from November 2013 and that the disciplinary procedure in December 2013 caused increasing distress (i.e. his illness did not start but became worse around November 2013);
  1. (e)
    Dr Matheson's assessment that the Appellant's mental state deteriorated further from November 2013 with increasing anxiety symptoms and other significant and specific symptoms.
  1. [499]
    Dr Davidson's consultation notes and her oral evidence demonstrate that:
  1. (a)
    before and after the MCHP the symptoms experienced by the Appellant were work-related  (as she put it, "all his anxieties were so caught up in work");
  1. (b)
    for a period of at least, his health improved when away from the workplace;
  1. (c)
    by 1 April 2013, given the symptoms he was experiencing, the Appellant definitely qualified for a MHCP.
  1. [500]
    I accept Dr Davidson's opinion that the Appellant's condition could develop some two months down the track (given that he had moved premises within the same company) and Dr Matheson's opinion that this could be an example of the often significant delay in someone accessing treatment after the onset of psychological symptoms (particularly if the person has not experienced mental illness difficulties previously) because it can take several months for them to realise that their experience is not normal human emotion or stress.
  1. [501]
    The findings are made on the balance of probabilities.  They are the most favourable that the Appellant could reasonably expect having regard to the evidence as a whole, particularly given the inconsistent and at times misleading statements he made to some of the people who gave evidence in these proceedings.
  1. [502]
    However those findings do not result in the appeal succeeding.  As is clear from the detailed consideration of the relevant stressors, I am readily satisfied that the actions taken by ALH management in relation to the Appellant's behaviour and subsequent communications (including the offer of counselling) constituted reasonable management action taken in a reasonable way.  To that extent, s 32(5)(a) of the Act applies and the Appellant's psychiatric or psychological disorder is withdrawn from the definition of "injury" in s 32(1).
  1. [503]
    Another provision of the Act is relevant.  It is apparent from some of the listed Stressors that not only does the Appellant criticise specific management actions (or management's failure to take action), he also alleges that certain managers acted with improper motivation or intent towards him.  In particular, he alleges that he was "targeted" by Mr Drane (Stressor 4), he was "targeted" by Mr Drane and Mr Dyson for dismissal (Stressor 7), he was "wrongfully accused" of undermining Head Chef Speak (Stressor 8), he was "framed with false allegations" and "concocted evidence was produced" by Mr Dyson with the support of Mr Pyers, and they arranged a "trumped up investigation" claiming he undermined Head Chef Speak (Stressor 9).  More broadly, the Appellant alleges that the specified incidents (plus many more) caused a build-up of work related psychological injuries "deliberately manufactured by ALH management with the intent to create a reason to dismiss" him.
  1. [504]
    On the basis of the evidence given to the Commission and for the reasons given earlier, I am not satisfied that any of those contentions about the motivation or intention of ALH management or individual managers is supported let alone proved.  It is the reality of the employer's conduct, and not the Appellant's perception of it, that must be taken into account.  Consequently, to the extent that he experienced symptoms of stress and anxiety because of such a misperception of the management actions taken against him and the motivations of ALH managers, his appeal must fail by operation of s 32(5)(b) of the Act. 
  1. [505]
    Finally, to the extent that he misconstrued a relatively innocuous event or interaction (e.g. Stressor 12) his claim cannot succeed.

Conclusions and Orders

  1. [506]
    Having regard to the evidence and for the reasons set out above, I find that:
  1. (a)
    the Appellant sustained an injury in the form of a psychiatric or psychological disorder which is an Adjustment Disorder with Anxiety;
  1. (b)
    his injury occurred in response to events in relation to his employment between late November 2013 and late January 2014;
  1. (c)
    his injury arose out of his employment;
  1. (d)
    his employment was the major significant contributing factor to his injury;
  1. (e)
    the Appellant's injury arose out of:
  • reasonable management action taken in a reasonable way in connection with his employment; and
  • his perception of reasonable management action being taken against him.

Consequently, the Appellant's injury is excluded from the definition of "injury" in s 32(1) of the Act and the appeal cannot succeed.

  1. [507]
    In light of those findings:
  1. (a)
    the appeal is dismissed;
  1. (b)
    the decision of the Respondent is confirmed;
  1. (c)
    the Appellant is to pay the Respondent's costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.
  1. [508]
    I order accordingly.

Footnotes

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

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

[3] Coombes v Q-COMP (2007) 185 QGIG 680, 681 (Hall P); see also Newman v Blackwood [2015] ICQ 014, [4], [7] (Martin J).

[4] Avis v WorkCover Queensland (2000) 165 QGIG 788; WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6. 

[5] Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324.

[6] Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, 484 (Mason CJ, Deane, Dawson and McHugh JJ)

[7] See Calder v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 101, [34] (O'Connor DP); Cooper v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 38, [23]-[24] (Fisher C).

[8] Macquarie Dictionary, 5th edn, 2009, 1010.

[9] The Australian Concise Oxford Dictionary, 7th edn, 1987, 652

[10] Mater Misercordiae Health Services Brisbane Limited v Q-COMP (2005) 179 QGIG 144; Ward v Q-COMP (C/2011/39)

[11] See Davidson v Blackwood [2014] ICQ 008; Q-COMP v Parsons (2007) 185 QGIG 1, 3 (Hall P); Davis v Blackwood [2014] ICQ 009, [51] (Martin J).

[12] Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519, 529 [27]. 

[13] Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519, 532, [42]-[43].

[14] Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100.

[15] WorkCover Queensland v Buchanan (2000) QGIG 124.

[16] Q-COMP v Riggs (2005) 179 QGIG 251. 

[17] Boyd v Q-COMP (2005) 180 QGIG 1129. 

[18] Misevski v Q-COMP C/2009/29, [30].

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

[20] Q-COMP v Foote (No 2) (2008) 189 QGIG 802, 810 (Hall P).

[21] Q-COMP v Foote (No 2) (2008) 189 QGIG 802, 810 (Hall P).

[22] Simon Blackwood (Workers' Compensation Regulator) v Adams [2015] ICQ 001, [21].

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

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

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

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

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

[28] See Q-COMP v Hohn (2008) 187 QGIG 139, 144; Q-COMP v Glen Rowe (2009) 191 QGIG 67, 71.

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

[30] See WorkCover Queensland v Kehl (2002) 170 QGIG 93, 94 (Hall P); 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.

[31] Bowers v WorkCover Queensland (2002) 170 QGIG 1, 2 (Hall P).

[32] Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301, 307 (Blades C); McMah v Simon Blackwood [2014] QIRC 013, [37] (O'Connor DP).

[33] Misevski v Q-COMP, C/2009/29, 6 November 2009, [27]; Christine McHours v Q-COMP, C/2012/12 [10].

[34] Hansen v WorkCover Queensland (Unreported, Industrial Magistrates Court, Industrial Magistrate Taylor, 15 November 2001) 16.

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

[36] Delaney v Q-COMP Review Unit (2005) 178 QGIG 197, 198 (Hall P).

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

[38] WorkCover Queensland v Heit (2000) 164 QGIG 121, 122 (Hall P). 

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

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

[41] The Licensed Investigator IDIS Group Report was not in evidence in these proceedings.

[42] Simon Blackwood (Workers' Compensation Regulator) v Mahaffrey [2016] ICQ 010, [39].

[43] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027, [7]; Simon Blackwood (Workers' Compensation Regulator) v Mahaffrey [2016] ICQ 010, [37].

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

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

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

[47] Simon Blackwood (Workers' Compensation Regulator) v Mahaffrey [2016] ICQ 010, [35].

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

[49] Blackwood v Adams [2015] ICQ 001, [19].

[50] Browne v Dunn (1894) 6 R 67; Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1; (1983) 44 ALR 607. 

[51] See T5: 4, 11-44

[52] See paragraphs [66] to [406].

[53] See paragraphs [407] to [425].

[54] See paragraphs [426] to [445] and [459] to [472].

[55] See Bowers v WorkCover Queensland (2002) 170 QGIC 1, 2 (Hall P); see also Elizabeth Miller v Q-COMP (C/2009/20).

[56] The Appellant described the different types of snack food (including sandwiches and deep fried snacks) that are served to patrons while they are playing poker machines. 

[57] According to the Appellant, he asked for a transfer to the Warner Tavern in discussions with his head chef and venue manager (before Mr Drane was involved). Warner Tavern had a larger kitchen and the reason the Appellant was transferred was to get signed off on his apprenticeship.  He had to do a 48 service. 

[58] Note: Mr K Snr says it was 10-13 minutes.  But that was not put to him by JK.

[59] Mr Pyers said that it was possible that admin Officer Jodi Searston would have been present, but he could not recall whether she was.  Mr Dyson seemed to agree that Ms Searston was present and taking notes.

[60] I understand "friend" in this context to be someone who has contact with a person on this social network, not necessarily that those people have a personal relationship that would be described as a friendship.

[61] Exhibit 1.

[62] With the exception of issues created by former Lawnton Tavern Venue Manager, Jessica Mathews

[63] As noted at [256], the Appellant said that the reason he did not access the EAP was because he had been "set up/framed by ALH management," he could no longer trust management.

[64] Who the Appellant described as a friend of Venue Manager Dyson before his employment.

[65] At the end of his cross-examination of Ms Wregg, Mr Kuenstner referred to the incomprehensibility description as "a real insult to me."

[66] I.e "coherent": Macquarie Dictionary, fifth edition, p. 336.

[67] I.e "incoherent": Macquarie Dictionary, fifth edition, p. 845.

[68] See Coombes v Q-COMP (2007) 186 QGIG 680, 681 (Hall P); Newman v Blackwood [2015] ICQ 014, [4], [7] (Martin J).

[69] The psychologist, Ms Jo Ehrlich, was not called to give evidence.

[70] The Appellant's daughter is not named in these reasons for decision.

[71] The Appellant's former partner is not named in these reasons for decision.

[72] Mr Kuenstner Snr gave oral opinion evidence that Dr Davidson's observations "were totally wrong and untruthful because that was not the case … that was the reason why I - I decided to become a witness."  (T2:27)

[73] Mr Kuenstner Snr said in relation to this statement, "It is totally untrue, not correct" which is "what I'm there for."  (T2:29)

[74] The Respondent notes that this was an embellished or exaggerated statement.  The only person who was fired was Mr Dyson and that was not as a consequence of any investigation into the dealings with the Appellant, but as a consequence of the Appellant's complaint.

[75] The referral was to Ms Jo Erlich, a psychologist, who did not give evidence in these proceedings.

[76] See e.g. R v Turner [1975] QB 843, 840 (Lawton LJ), Pollock v Wellington (1996) 15 WAR 1, 3 (Anderson J). 

[77] But see Dr Davidson's consultation notes of 10 April 2014, Exhibit 21.

[78] Accordingly, Stressors 1 to 7, and 10, can be put to one side.

[79] Stressors 8 and 9.

[80] Stressor 11.

[81] Stressor 12.

[82] Stressor 13.

Close

Editorial Notes

  • Published Case Name:

    Kuenstner v Workers' Compensation Regulator

  • Shortened Case Name:

    Kuenstner v Workers' Compensation Regulator

  • MNC:

    [2016] QIRC 83

  • Court:

    QIRC

  • Judge(s):

    Neate IC

  • Date:

    09 Aug 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
Allied Pastoral Holdings P/L v Federal Commissioner of Taxation (1983) 44 ALR 607
1 citation
Jump To
Cite 1 - (1983) 44 ALR 607
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
2 citations
Jump To
Cite 1 - [1983] 1 NSWLR 1
Cite 2 - [1983] 1 NSWLR 1
Avis v WorkCover Queensland (2000) 165 QGIG 788
4 citations
Jump To
Cite 1 - (2000) 165 QGIG 788
Cite 2 - (2000) 165 QGIG 788
Cite 3 - (2000) 165 QGIG 788
Cite 4 - (2000) 165 QGIG 788
Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324
2 citations
Jump To
Cite 1 - [2009] NSWCA 324
Cite 2 - [2009] NSWCA 324
Bowers v Workcover (2002) 70 QGIC 1
1 citation
Jump To
Cite 1 - (2002) 70 QGIC 1
Bowers v WorkCover Queensland (2002) 170 QGIG 1
2 citations
Jump To
Cite 1 - (2002) 170 QGIG 1
Cite 2 - (2002) 170 QGIG 1
Boyd v Q-COMP (2005) 180 QGIG 1129
2 citations
Jump To
Cite 1 - (2005) 180 QGIG 1129
Cite 2 - (2005) 180 QGIG 1129
Browne v Dunn (1894) 6 R 67
2 citations
Jump To
Cite 1 - (1894) 6 R 67
Cite 2 - (1894) 6 R 67
Calder v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 101
2 citations
Jump To
Cite 1 - [2014] QIRC 101
Cite 2 - [2014] QIRC 101
Cf Delaney v Q-Comp Review Unit (2005) 178 QGIG 197
3 citations
Jump To
Cite 1 - (2005) 178 QGIG 197
Cite 2 - (2005) 178 QGIG 197
Cite 3 - (2005) 178 QGIG 197
Coombes v Q-Comp (2007) 186 QGIG 680
1 citation
Jump To
Cite 1 - (2007) 186 QGIG 680
Coombes v Q-Comp (2007) 185 QGIG 680
2 citations
Jump To
Cite 1 - (2007) 185 QGIG 680
Cite 2 - (2007) 185 QGIG 680
Cooper (as the legal representative of the late Leslie Cooper) v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 38
2 citations
Jump To
Cite 1 - [2015] QIRC 38
Cite 2 - [2015] QIRC 38
Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100
2 citations
Jump To
Cite 1 - (1997) 156 QGIG 100
Cite 2 - (1997) 156 QGIG 100
Davidson v Blackwood [2014] ICQ 8
2 citations
Jump To
Cite 1 - [2014] ICQ 8
Cite 2 - [2014] ICQ 8
Davis v Blackwood [2014] ICQ 9
4 citations
Jump To
Cite 1 - [2014] ICQ 9
Cite 2 - [2014] ICQ 9
Cite 3 - [2014] ICQ 9
Cite 4 - [2014] ICQ 9
Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500
2 citations
Jump To
Cite 1 - (1987) 163 CLR 500
Cite 2 - (1987) 163 CLR 500
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
Lackey v WorkCover Queensland (2000) 165 QGIG 22
2 citations
Jump To
Cite 1 - (2000) 165 QGIG 22
Cite 2 - (2000) 165 QGIG 22
MacArthur v WorkCover Queensland (2001) 167 QGIG 100
2 citations
Jump To
Cite 1 - (2001) 167 QGIG 100
Cite 2 - (2001) 167 QGIG 100
Mater Misericordiae Health Services Brisbane Limited v Q-COMP (2005) 179 QGIG 144
2 citations
Jump To
Cite 1 - (2005) 179 QGIG 144
Cite 2 - (2005) 179 QGIG 144
Mayo v Q-COMP (2004) 177 QGIG 667
2 citations
Jump To
Cite 1 - (2004) 177 QGIG 667
Cite 2 - (2004) 177 QGIG 667
McHours v Q-COMP [2012] ICQ 15
1 citation
Jump To
Cite 1 - [2012] ICQ 15
McMah v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 13
2 citations
Jump To
Cite 1 - [2014] QIRC 13
Cite 2 - [2014] QIRC 13
Misevski v Q-COMP [2009] ICQ 2
3 citations
Jump To
Cite 1 - [2009] ICQ 2
Cite 2 - [2009] ICQ 2
Cite 3 - [2009] ICQ 2
Newberry v Suncorp Metway Insurance Ltd[2006] 1 Qd R 519; [2006] QCA 48
3 citations
Jump To
Cite 1 - [2006] 1 Qd R 519
Cite 2 - [2006] 1 Qd R 519
Cite 3 - [2006] 1 Qd R 519
Newman v Workers' Compensation Regulator [2015] ICQ 14
3 citations
Jump To
Cite 1 - [2015] ICQ 14
Cite 2 - [2015] ICQ 14
Cite 3 - [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
Pollock v Wellington (1996) 15 WAR 1
2 citations
Jump To
Cite 1 - (1996) 15 WAR 1
Cite 2 - (1996) 15 WAR 1
Prizeman v Q-COMP (2005) 18 QGIG 481
2 citations
Jump To
Cite 1 - (2005) 18 QGIG 481
Cite 2 - (2005) 18 QGIG 481
Q-COMP v Foote (2008) 189 QGIG 802
3 citations
Jump To
Cite 1 - (2008) 189 QGIG 802
Cite 2 - (2008) 189 QGIG 802
Cite 3 - (2008) 189 QGIG 802
Q-Comp v Hohn (2008) 187 QGIG 139
2 citations
Jump To
Cite 1 - (2008) 187 QGIG 139
Cite 2 - (2008) 187 QGIG 139
Q-COMP v Parsons [2007] 185 QGIG 1
2 citations
Jump To
Cite 1 - [2007] 185 QGIG 1
Cite 2 - [2007] 185 QGIG 1
Q-COMP v Riggs (2005) 179 QGIG 251
2 citations
Jump To
Cite 1 - (2005) 179 QGIG 251
Cite 2 - (2005) 179 QGIG 251
Q-COMP v Rowe (2009) 191 QGIG 67
3 citations
Jump To
Cite 1 - (2009) 191 QGIG 67
Cite 2 - (2009) 191 QGIG 67
Cite 3 - (2009) 191 QGIG 67
Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301
2 citations
Jump To
Cite 1 - (2006) 181 QGIG 301
Cite 2 - (2006) 181 QGIG 301
R v Turner [1975] QB 843
2 citations
Jump To
Cite 1 - [1975] QB 843
Cite 2 - [1975] QB 843
Re Yu and Comcare [2010] AATA 960
2 citations
Jump To
Cite 1 - [2010] AATA 960
Cite 2 - [2010] AATA 960
Sabo v Q-COMP [2010] ICQ 47
2 citations
Jump To
Cite 1 - [2010] ICQ 47
Cite 2 - [2010] ICQ 47
State Government Insurance Commission v Stevens Bros Pty Ltd (1984) 154 CLR 552
2 citations
Jump To
Cite 1 - (1984) 154 CLR 552
Cite 2 - (1984) 154 CLR 552
Versace v Braun (2005) 178 QGIG 315
2 citations
Jump To
Cite 1 - (2005) 178 QGIG 315
Cite 2 - (2005) 178 QGIG 315
Ward v Q-COMP [2011] ICQ 33
2 citations
Jump To
Cite 1 - [2011] ICQ 33
Cite 2 - [2011] ICQ 33
WorkCover Queensland v Buchanan (2000) QGIG 124
2 citations
Jump To
Cite 1 - (2000) QGIG 124
Cite 2 - (2000) QGIG 124
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
2 citations
Jump To
Cite 1 - (2002) 170 QGIG 93
Cite 2 - (2002) 170 QGIG 93
WorkCover v Heit (2000) 164 QGIG 121
2 citations
Jump To
Cite 1 - (2000) 164 QGIG 121
Cite 2 - (2000) 164 QGIG 121
Workers' Compensation Regulator v Adams [2015] ICQ 1
5 citations
Jump To
Cite 1 - [2015] ICQ 1
Cite 2 - [2015] ICQ 1
Cite 3 - [2015] ICQ 1
Cite 4 - [2015] ICQ 1
Cite 5 - [2015] ICQ 1
Workers' Compensation Regulator v Mahaffey [2016] ICQ 10
4 citations
Jump To
Cite 1 - [2016] ICQ 10
Cite 2 - [2016] ICQ 10
Cite 3 - [2016] ICQ 10
Cite 4 - [2016] ICQ 10

Cases Citing

Case NameFull CitationFrequency
Deshong v Workers' Compensation Regulator [2021] QIRC 2052 citations
Duggan v Workers' Compensation Regulator [2023] QIRC 3092 citations
Gillan v Workers' Compensation Regulator [2021] QIRC 3153 citations
Grace v Workers' Compensation Regulator [2021] QIRC 2852 citations
Kelly v Workers' Compensation Regulator [2022] QIRC 3662 citations
King v Workers' Compensation Regulator [2020] QIRC 1801 citation
Martyn v Workers' Compensation Regulator [2016] QIRC 994 citations
Murphy v Workers' Compensation Regulator [2022] QIRC 2644 citations
O'Neill v State of Queensland (Queensland Ambulance Service) [2021] QIRC 3702 citations
Sarkaria v Workers' Compensation Regulator [2017] QIRC 962 citations
State of Queensland (Queensland Police Service) v Workers' Compensation Regulator [2021] QIRC 3663 citations
1

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