Anglo Coal (Capcoal Management) Pty Ltd v Workers' Compensation Regulator
[2017] QIRC 103
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- Unreported Judgment
- Anglo Coal (Capcoal Management) Pty Ltd v Workers' Compensation Regulator[2017] QIRC 103
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Anglo Coal (Capcoal Management) Pty Ltd v Workers' Compensation Regulator[2017] QIRC 103
Anglo Coal (Capcoal Management) Pty Ltd v Workers' Compensation Regulator[2017] QIRC 103
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Anglo Coal (Capcoal Management) Pty Ltd v Workers' Compensation Regulator & Etherington [2017] QIRC 103 |
PARTIES: | Anglo Coal (Capcoal Management) Pty Ltd (appellant) v Workers' Compensation Regulator (first respondent) & Etherington, John Brian (second respondent) |
CASE NO: | WC/2016/9 |
PROCEEDING: | Appeal against decision of Regulator |
DELIVERED ON: | 24 November 2017 |
HEARING DATES: | 30, 31 January, 1, 2, 3 February, 24 April 2017 |
MEMBER: | Deputy President O'Connor |
ORDERS: |
|
CATCHWORDS: | WORKERS' COMPENSATION – APPEAL AGAINST DECISION – PSYCHIATRIC OR PSYCHOLOGICAL INJURY – 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. |
LEGISLATION: CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32 Blackwood v Adams [2015] ICQ 001 Carlton v Blackwood [2017] ICQ 001 Commonwealth Bank v Reeve (2012) 199 FCR 463 Read v Workers' Compensation Regulator [2017] QIRC 072 Keen v Workers' Rehabilitation and Compensation Corporation (1998) 71 SASR 42 McMah v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 013 Newberry v Suncorp Metway Insurance Limited [2006] 1 Qd R 519 Prizeman v Q-COMP (2005) 180 QGIG 481 Qantas Airways Limited v Q-Comp (2006) 181 QGIG 301 Q-COMP v Foote (2008) 189 QGIG 802 Q-COMP v Glen Rowe (2009) 191 QGIG 67 Sabo v Q-COMP (C/2010/46) - Decision http://www.qirc.qld.gov.au WorkCover Queensland v Kehl (2002) 170 QGIG 93 |
APPEARANCES: | Mr G O'Driscoll, Counsel instructed by Ashurst, for the appellant. Mr S Gray, Counsel directly instructed by the first respondent. Ms S D Anderson, Counsel instructed by Turner Freeman Lawyers for the second respondent. |
Reasons for Decision
- [1]The second respondent in this matter, Mr John Etherington, commenced employment with the appellant, Anglo Coal (Capcoal Management) Pty Ltd, on 9 November 2011 firstly as a graduate surveyor at the Dawson and Drayton Mines and from 2 October 2014 as a mine surveyor at the Foxleigh Mine. Throughout his time at Foxleigh, Mr Etherington was supervised by Mr Chris Crosby, Technical Services Superintendent - Surveying, Drill and Blast, and Geotechnical Activities.
- [2]The appellant contends that the second respondent did not suffer a psychiatric injury pursuant to section 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) in that the injury did not arise out of or in the course of his employment and that his employment was not the major significant contributing factor to his injury.
- [3]However, the appellant argues that if the injury did arise out of or in the course of Mr Etherington's employment then his injury arose out of, or in the course of, reasonable management action taken in a reasonable way by the appellant, or his expectation, or perception, of reasonable management action taken against him.
- [4]Both the first and second respondents resist the appeal.
- [5]It is not in dispute between the parties that Mr Etherington suffered from a major depressive disorder. Nor is it in dispute that the second respondent is a "worker" for the purposes of section 11 of the Act.[1]
- [6]In short, the primary question to determine in this appeal is whether the second respondent suffered a compensable psychiatric or psychological injury for the purposes of section 32 of the Act.
- [7]Further, it must be determined whether his 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 and, if so, whether the second respondent's injury is thereby excluded from the definition of "injury" in s 32(1) of the Act by virtue of s 32(5) of the Act.
- [8]For the reasons advanced below, I have reached the conclusion that the second respondent's injury arose out of his employment and his employment was the major significant contributing factor to that injury. However, his 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. As a consequence, the second respondent's injury is excluded from the definition of "injury" in s 32(1) of the Act and the appeal must succeed.
Medical Evidence
- [9]Dr David Storor, a Specialist Psychiatrist undertook an independent examination of Mr Etherington on 28 August 2015 and subsequently prepared a medical report dated 31 August 2015.[2] In that report, Dr Storor identified the following three events which he believed contributed to Mr Etherington's injury. The first involved the issuing of a warning on 6 February 2015; the second involved the disclosure, without Mr Etherington's consent, of the Aspergers diagnosis; and, the third involved the laying out of pegs on the mine site.
- [10]As to whether Mr Etherington's injury arose out of, or in the course of, his employment and whether that employment was the major significant contributing factor to the injury, Dr Storor wrote:
"The chief significant contributing factor to the development of his condition, is a period of reported workplace bullying and harassment in the early part of 2015. Mr Etherington reports that his Line Manager Mr Chris Crosby, systematically undermined him and prevented him from properly carrying out his duties. Further, Mr Crosby divulged confidential information regarding his medical condition to work colleagues, causing Mr Etherington severe upset and distress."
- [11]In examination-in-chief, Dr Storor identifies the "unwarranted performance warning imposed on Mr Etherington" as the first significant event. He was asked:
"Mr Gray: All right. Well, because you go on in that paragraph where you talk about unwarranted performance warning imposed on Mr Etherington?
Dr Storor: Yes.
Mr Gray: Well, how important is that to the development of Mr Etherington's injury?
Dr Storor: Well, he – he relates it as the first event – the first significant event that –
Mr Gray: Yes?
Dr Storor: – That contributes to – to his workplace injury.
Mr Gray: All right?
Dr Storor: And it's the – he says that the – he said that it's following that that he – that he'd – that he develops a sense that – that Mr Crosby is undermining him.
Mr Gray: All right. So is it really the performance warning is the development of his injury, is it?
Dr Storor: Key factor, yes."[3]
- [12]Dr Storor expressed the opinion that the breach of confidentiality, namely, the disclosure of the Aspergers diagnosis was significant, but was of secondary importance. He was asked:
"Mr O'Driscoll: And the disclosure of the diagnosis of Aspergers was important, but secondary to that?
Dr Storor: Yes. Well, it was – well, they're both workplace events. The relative importance, I – I mean the – the alleged workplace bullying and harassment was the – triggered the injury and – and the breach of confidentiality compounded it. I mean, as to which was the greater, I'm – I'm not sure I could, with any – I could with any – you know, apportion with any accuracy whether one was 60/40 or 40/60. Don't know."[4]
- [13]In cross-examination by counsel for the regulator, Dr Daniel said that conflict in the workplace as described by Mr Etherington was causative of the injury, and specifically the issuing of the warning for misconduct was important to the development of his injury.[5] Dr Daniel noted that the breach of confidentiality in respect of the diagnosis of Aspergers was not relayed to him by Mr Etherington.[6]
- [14]Dr Daniel agreed with Dr Storor that Mr Etherington exhibited obsessive personality traits rather than a disorder.[7] He did not believe that Mr Etherington had an obsessive compulsive personality disorder. Dr Daniel observed that the conditions of an obsessive compulsive personality is identified in someone who demonstrates a preoccupation with detail, rules and organisation, lists, doing things a certain way, very conscientious and scrupulous.[8] In his oral evidence Dr Daniel said:
"Dr Daniel: …So that's where that kind of person who's describing themselves as being a bit black and white in their thinking style. So that would be consistent with an obsessional personality trait. So – So I think – I think that, you know, this self-description, coupled with this – Dr Storor's report of identifying some obsessional personality traits, you know, they – they tie in fairly well together as – you know, that – that would – I would think that would be what Dr Storor is referring to, which was picked up on his report."[9]
- [15]Dr Daniel said that both Aspergers and obsessional personality are characterised by some intractability, a tendency to be black and white in thinking, and exhibiting a rigidity and inability to think beyond a fairly structured, formal rule-based way.[10]
- [16]In cross-examination by counsel for the first respondent, Dr Daniel was asked:
"Mr Gray: Now, those matters you were discussing with my learned friend?
Dr Daniel: Yes.
Mr Gray: - in respect of the history you got from Mr Etherington, however, what he told you was that – what had caused the development of his injury was his conflict in the workplace. That's correct?
Dr Daniel: Sorry. If you could just repeat the last bit.
Mr Gray: Conflict in the workplace is what Mr Etherington described to you as causing his injury?
Dr Daniel: Yes, that's right.
Mr Gray: And specifically matters that he explained to you was that he was given a warning for misconduct?
Dr Daniel: Mmm.
Mr Gray: So that?
Dr Daniel: Yes, that's correct.
Mr Gray: Yeah. So that was very important in respect to the development of Mr Etherington's injury, wasn't it?
Dr Daniel: Yes, I think so. Yes.
Mr Gray: Yes. And also the fact that there had been a breach of confidentiality in respect of the diagnosis of the Aspergers that Mr Etherington had told his supervisor about?
Dr Daniel: Well, actually I didn't – I noted that incident from Dr Storor's report. When I – when I saw him, he didn't actually mention that, and he might've mentioned it, but I didn't actually document it. I'm pretty confident I didn't document that, but he – he described to me that there was this strong process in which he felt undermined and targeted. He did say that he found it hard to describe how bad it was."[11]
- [17]Whilst Dr Daniel accepted that the appellant's employment and, in particular, his interaction with Mr Crosby was a major contributing factor to the development of his injury, he nevertheless felt that that the report of Dr Storor:
"… just seemed a bit too black and white to say that it's all work-related when there's these other background issues also present, but they – they – they're probably of less significance but, you know, I still think it's worth noting them."[12]
- [18]In his report, Dr Daniel observed that:
"In this case there are significant psychosocial stressors, however I also consider that there are some vulnerability factors with a pre-existing history of an anxiety disorder and a family history of substance dependence. This I would consider that although the work bullying is a significant factor, it is not the only factor explaining his severe illness."[13]
- [19]Dr Daniel further observed that:
"Mr Gray: Yeah. Wasn't delusional?
Dr Daniel: No, no, no. Didn't – didn't seem delusional. You know, he certainly had a fairly strong perception that he was targeted and ostracised and undermined and discredited, yes."[14]
- [20]It was following the warning that Mr Etherington told Dr Storor that he developed a sense that Mr Crosby was undermining him. For Dr Storor, the key factor was the warning in the development of the injury.
- [21]However, in cross-examination, Dr Storor said that whilst the disclosure of the diagnosis of Aspergers was important, it was secondary to the warning. It was his evidence that it was the alleged workplace bullying and harassment that the triggered the injury and the breach of confidentiality compounded it. As to which was greater, Dr Storor was unsure.[15]
The verbal warning
- [22]On 2 February 2015, a difficulty arose between Mr Crosby and Mr Etherington when Mr Crosby sought Mr Etherington's assistance to calculate end of month ("EOM") figures. Mr Etherington gave evidence about the process involved in calculating the end of month figures, which, it was suggested, were necessary for Anglo Coal to use in their overall production counts and projections for the future. This process ended with Mr Etherington receiving a written warning for his failure to complete a task that someone else was required to do.
- [23]On 6 February 2015, Mr Crosby issued Mr Etherington with a Level 1 Counselling and Verbal Warning purportedly under the appellants Misconduct Management Policy.[16] In short, the need for the warning was prompted by the failure of Mr Etherington to fulfill an undertaking to complete the monthly volume calculations.
- [24]The Commission heard that the monthly volume calculations were important as they were the appellant's primary reporting mechanism to the regional head office in Brisbane, and ultimately to head office in London. The monthly report assisted the appellant in determining profitability for the month. It also formally documented the mine's achievement in terms of how much over-burden was mined compared to what was planned, and how much coal was mined against what was planned.
- [25]The evidence was that the volume calculations needed to be completed by 10.00 am on the Monday of the end of month ("EOM") of the Anglo Coal calendar. The appellant's EOM was not necessarily the same as a calendar month. The volume calculations were generated prior to the EOM. The process utilised the services of a laser scanner to scan the pit to generate surfaces and from those surfaces it was possible to generate a survey volume. Those volumes were then recorded and entered into the EOM spreadsheet. A correlation between the survey volumes and the truck count volumes needed to be performed in the hours prior to 10.00 am of the Monday morning.
- [26]Mr Crosby told the Commission that he instructed Mr Etherington to complete the EOM volumes on Friday 30 January 2015. He said that Mr Etherington was asked to prepare the report and was instructed to speak with Andreas Schroeder on the morning of the EOM to make sure that he obtained the EOM truck count figures from the weekend data.
- [27]Mr Etherington completed an eight day roster on 28 January 2015 and was not rostered for work from 29 January 2015 to 5 February 2015. Mr Crosby granted Mr Etherington leave for 4 and 5 February 2015.[17]
- [28]Mr Crosby understood that Mr Etherington was on-site on 2 February 2015 but not formally rostered on.[18] Mr Crosby explained that:
"Mr Crosby: John is on a – what we call – a flexible work arrangement. The flexible work arrangement allows an individual to work a roster-type arrangement and spend more time at home with family, whatever they need to do. Which is essentially eight – eight days on, six days off. If the needs of the business are such that those dates and times need to be changed, it's at the superintendent's discretion – at my discretion. So I requested that John complete this end of month report, given the fact that I was not physically on site and Jonathan Clancy was not on site."[19]
- [29]On the morning of 2 February 2015, Mr Mitch Barnes, a Short-term Planning Superintendent, telephoned Chris Cosby asking where the end of month survey report was. Mr Crosby asked Mr Barnes if Mr Etherington was on site completing the task, and he was advised that he was not. Mr Crosby recalls telephoning Mr Etherington at around 11.40am on the Monday morning to ask him why he had not completed the end of month spreadsheet. Mr Etherington said that he was still waiting on the truck count figures from Andreas Schroeder. Mr Crosby told Mr Etherington that it was his responsibility to get the truck count figures from the engineers. He telephoned Mr Schroeder and asked that he send the figures to Mr Etherington. Mr Schroeder emailed the figures to Mr Etherington at 11.37am.[20]
- [30]In his email of 2 February 2015, Mr Etherington said:
"Hi Mitch. Sorry for the delay on the volumes. It is entirely my fault. Please accept my apology. I should have communicated the need for truck numbers directly to yourself. I am tied up in Sydney at a government department undertaking some research for my registration assessment and will not be able to complete the volume sheet until this afternoon. Chris has offered to complete them on my behalf and you should have them soon. Once again I apologise and this will not happen again. I will ensure that I better manage my responsibilities."[21]
- [31]Mr Etherington's evidence was that he only sent the email to Mr Barnes in order to diffuse the situation:
"Ms Anderson: Why did you send that e-mail?
Mr Etherington: Because, I don't know, at the time it was – everyone was upset, annoyed, apparently angry. The easiest way to alleviate people's concerns is to apologise. It was a standard way of diffusing the situation."[22]
- [32]In the statement of Mr Jonathan Clancy, a surveyor, dated 23 March 2016 and tendered by consent, Mr Clancy states that Mr Etherington committed to doing the monthly volume calculations by the deadline. Mr Casey said that he was unable to complete the monthly volumes report as he was participating in an induction programme at the Grasstree Mine on 2 February 2015.
- [33]Mr Clancy said that if Mr Etherington did not complete the task by the deadline then it was Mr Etherington who was responsible. Importantly, Mr Clancy further states:
"I do not recall having a meeting with Chris and John in regard to monthly volume. John explained to me what he was going to do about the monthly volumes. (i.e. complete the volume calculations using Lidor and have someone send the truck data to him.)"[23]
- [34]Mr Etherington was called over the radio to attend a meeting at the office. He said that he was not "initially" told what the meeting was about.[24] It was the case that only Mr Etherington and Mr Crosby were present during the meeting. Mr Crosby explained that it was not necessary to undertake a formal investigation as envisaged by the Misconduct Policy because Mr Etherington had, via an email of 2 February 2015, accepted fault for not submitting the end of month figures. Ms Amanda Baker, the Human Resources Manager at Capcoal supported the proposition that if there is an admission of fault, then ordinarily there is no need to progress through the formal investigation process.[25]
- [35]A Record of Discussion was prepared by Mr Crosby dated 6 February 2015. Mr Etherington signed the record confirming that he had received a copy of the document; confirmed that the contents had been explained to him; and that he understood and accepted the standard of behavior expected of all employees. Before issuing the Level 1 Counselling and Verbal Warning, Mr Crosby consulted with his Line Manager, Mr Nigel Sully, the Acting Technical Services Manager, and Mr Matt Norris, the Human Resources Superintendent.
- [36]In the statement of Mr Etherington dated 25 August 2015 he says:
"I could not believe that I'd been issued with a warning for something that was clearly not my fault. It was not possible for me to complete the monthly statistics report without the information that Mr Crosby had agreed to provide me with and for me to receive a warning for not completing the report on time was completely unfair and unreasonable in the circumstances. I was very upset after receiving this warning and I became very fearful and anxious about my job security. This was a very stressful event for me because it was then that I realised that Mr Crosby did not like me and was doing everything he could to get rid of me."[26]
- [37]The level 1 Counselling Verbal Warning is a low level outcome designed to correct specific behavior. In that regard, Mr Crosby was asked by counsel for the appellant:
"Mr O'Driscoll: What's a record of discussion for verbal counselling?
Mr Crosby: The record of discussion was for misconduct. It wasn't a performance management tool. It simply documents – formally documents a process whereby if a commitment was failed on a critical task that needed to be completed for the business, repercussions of not completing that task resulted in adverse impact to the business, and a corrective action to ensure that that – that misconduct doesn't happen again. It allows – it allows me to provide accountability for our team members, to make sure that we run an efficient operation and ensure that these aren't captured – these are captured – in future."[27]
- [38]Mr Gentle supported the decision of Mr Crosby to issue the verbal warning. He was asked:
"Mr Gray: Did you have any discussion with John at that stage with respect to what the level 1 record of discussion meant and entailed in answer to his concerns that it was a punishment and he thought it was oppressive?
Mr Gentle: Absolutely, yes. I spoke to John about that and I said to him, "It seems as though you're seeing this as a punishment. It's not. It really is just simply a record", and I strongly encouraged him to – to see that for what it was, and – and that would have no impact whatsoever on his relationship with Chris or myself or the team or – or his, I guess, professional development within – within Anglo, and it was – and the fact that I encourage all of my superintendents to make as many records of discussion as they possibly can so that they are able to, I guess, have that factual record from – when they need to call upon it."[28]
Breach of Confidentiality - The Aspergers Diagnosis
- [39]Shortly after the issuing of the verbal warning, Mr Etherington became increasingly unhappy in his role at Foxleigh.
- [40]Mr Etherington told the Commission that he could not understand why he was having this difficulty and why this was all happening to him. He was worried that he might lose his job and his reputation. He said he was willing to do anything to try and fix it.
- [41]In late February or early March 2015, Mr Etherington attended on Dr Pamela Seaton, a Clinical Psychologist for an assessment. In a report dated 31 March 2015, Dr Seaton observed:
"John Etherington presented to me for opinion regarding work related stress and anxiety. Formal clinical assessment including collateral information gathered from a variety of sources indicate that John's profile is consistent with Aspergers Syndrome (now described under DSM-V criteria as Autistic Spectrum Disorder, Level 1), which appears to be underlying his current employment stress and difficulties."[29]
- [42]In light of the psychologist's report, Mr Etherington decided to tell Mr Crosby and Mr Gentle of his diagnosis. He met with them both on 1 April 2015 at which time it was agreed that a small group of personnel would be informed of the Aspergers diagnosis on the basis that they might better understand his personality.[30]
- [43]Mr Etherington's statement records the following:
"Immediately following the meeting Mr Crosby began telling people of my diagnosis with my permission.
The Head Surveyor, Nigel Atkinson, had approached me and advised me that he had a conversation with Mr Crosby during which Mr Crosby used my diagnosis as evidence that I was incompetent in my job. I had provided Mr Crosby with permission to inform as evidence that I was incompetent in my job. I had provided Mr Crosby with permission to inform Mr Atkinson of my diagnosis although I believe I should not have been used to back up his claims that I was incompetent in my job.
Mr Crosby also informed the safety team and human resources team of my diagnosis as evidence of my perceived performance issues/incompetency.
I was very upset to learn that Mr Atkinson, the human resources team and the safety team were informed of my diagnosis and that this was the cause of my perceived performance issues. At this point I felt that I had all of the staff believing that as a result of my condition I was incompetent in my job. I was very worried about the effect this would have on my future within the business. I felt there was no was no way of ever overcoming the stigma that would be forever associated with me as a result of my condition. This is when I felt my career with Anglo American was on very shaky ground which was a traumatising feeling to experience."[31]
- [44]Mr Crosby told the Commission that he had a statutory obligation under the Coal Mining and Safety Health Act 1999 (Qld) to give direction to other coal mine workers from the health and safety perspective under the Safety Health Management System. Given Mr Etherington's diagnosis and from what he had researched about Aspergers, Mr Crosby was concerned that Mr Etherington would have an inability to adapt to the various hazards that are evident in the pit. He said he was concerned for Mr Etherington's safety and how he might respond or react to certain situations, given the high risk nature of the mine surveyor's role.
- [45]Mr Crosby said that he spoke to Chris Gentle and relayed his concerns to him in respect of Mr Etherington's ability to manage. Mr Crosby said that Mr Gentle directed him to contact Ms Theresa Allen, the Acting Health and Safety Superintendent to get some advice and guidance on how best to formulate a management strategy. Mr Crosby wanted to ensure that he had covered off on all of the associated risks of Mr Etherington potential inability to appropriately respond to changing situations in the pit.
- [46]Ms Allen referred Mr Crosby to Ms Julia Lambie, the mine site's Occupational Therapist, to discuss how to assist Mr Etherington manage in his role. Mr Crosby recalled that Ms Lambie advised him that from her experience as an occupational therapist, people with Aspergers can struggle with having structure within their role in terms of adapting to change, and requested that he speak with Ms Amanda Baker, the Human Resources Manager, to discuss what could be done as a management team to ensure that Mr Etherington was not adversely affected by his diagnosis.
- [47]Mr Crosby was asked whether he contemplated that in speaking with other staff he may be breaching Mr Etherington's confidentiality. It was accepted by Mr Crosby that he did not tell Mr Etherington as he:
"…didn't feel it was relevant at that point of time, given the fact that we needed to – to escalate the situation to get the health and HR team's advice on how we could manage John with his recent diagnosis, and then the next discussion was to talk – talk with John through about what strategies that we could adopt to help him cope, and how he feels about the situation and what he was going to do to help himself with his psychologist and what approaches they could adopt."[32]
- [48]Mr Crosby did not dispute that he had shared Mr Etherington's diagnosis with his colleagues in the Human Resources and Occupational Therapy departments. However, he said that a limitation was placed upon disclosure. Mr Crosby told the Commission that he impressed upon those people he had told to keep the information confidential. He told the Commission that it was not something that he wanted broadcasted to "the rest of the world". The justification for speaking with the Managers of HR and OT was the concern that Mr Crosby had for Mr Etherington's safety and his statutory obligations under the Coal Mining and Safety Health Act 1999 (Qld) particularly having regard to the high risk role of a mine surveyor.
- [49]Ms Baker told the Commission that Mr Crosby had approached her seeking assistance. She said that he asked Ms Charne Kellerman, a member of the Human Resources Team, to speak with Mr Etherington to see if he needed any assistance, in particular, that he was aware of the Employee Assistance Program. Ms Baker said that she did not disclose the Aspergers diagnosis to Ms Kellerman.
- [50]Sometime around 31 March 2015, Mr Crosby contacted Ms Lambie about Mr Etherington's diagnosis. Mr Crosby sought advice and assistance from Ms Lambie on how to best support Mr Etherington in light of his Aspergers diagnosis. Ms Lambie's professional role involved assessing whether an employee was fit for duty. In that role, Ms Lambie spoke with Ms Baker concerning Anglo Coal's duty of care in terms of providing a safe and supportive workplace and whether further support needed to be provided to Mr Etherington.
- [51]Ms Lambie's discussions in relation to Mr Etherington's diagnosis did not extend beyond those people who needed to know outside her immediate duty of care, namely Mr Etherington's supervisor and the human resources team.[33]
- [52]Following Mr Crosby's discussions with HR and OT, it was agreed that Mr Cosby should have a discussion with Mr Etherington when he returned to site.
- [53]Mr Etherington wrote in his statement of 25 August 2015 that Mr Atkinson told him that during a meeting with Mr Crosby the Aspergers diagnosis was used as evidence to suggest that Mr Etherington was incompetent.
- [54]In examination-in-chief, Counsel for the appellant asked Mr Atkinson:
"Mr O'Driscoll: And with respect to the discussion you had with Chris?
Mr Atkinson: Yeah.
Mr O'Driscoll: Was there any discussion from Chris to you, with Chris saying that he was denigrating Mr Etherington or swearing about him in any way, shape or form?
Mr Atkinson: No. No. From my point of view, he was showing a concern that John had this. There was differences of opinion about how much we should say about it, and most of us said, well, at the moment we think we'll basically keep it under wraps. It's not a thing you want to go – in a mining situation, it's probably not a very smart move to jump up and down and say you've got Aspergers and it's affecting your work. So we just said, well, if John wants to bring it up, it's really" – from my point of view, it was John's responsibility to do that. But we weren't going to bring it up and publicly say anything bad about it.
Mr O'Driscoll: Were?
Mr Atkinson: And so we – sorry?
Mr O'Driscoll: I interrupted you. Sorry, you finish your answer?
Mr Atkinson: Yeah. We were – we said – well, both Chris and I got together and we said, we've just got to figure out some way of getting through this, and seeing how we can help John."[34]
- [55]Mr Etherington states that the disclosure of his diagnosis was used by Mr Crosby to verify his perceptions of Mr Etherington's poor performance and share his view with other people in the workplace.[35] He said he continued to have issues with Mr Crosby even after the disclosure of the diagnosis. He said he became disillusioned and traumatised by the treatment he was receiving and felt as if he was a "sitting duck" waiting for Mr Crosby to issue him with another warning or to do whatever he could to get rid of him.[36] He went on to state:
"As a result of the constant verbal and written attacks about my work performance, the lack of support that I have received from my managers after advising them of my concerns and a general lack of respect that I have felt from many of my managers and colleagues I have become very upset, anxious and depressed."[37]
Interaction with Filipe Lopez
- [56]On 21 April 2015 an altercation occurred between Mr Etherington and Mr Filipe Lopez, a Blast and Drill Engineer at the Foxleigh Mine drill bench in ML14. Mr Lopez had requested Mr Etherington to move some marker pegs further north so that a cleanup could commence.
- [57]There was a situation where Mr Etherington had a set of coordinates with respect to the laying of the surveying pattern, but a change had been made by management senior up to alter and to move the blast of the bench further north. Mr Lopez gave that direction to Mr Etherington. Mr Etherington thought it was unnecessary and refused to take on board the instruction given to him, and ultimately that task was done by Mr Lopez.
- [58]In the statement of Mr Etherington he says:
"I was tasked that morning to place out drill pucks at the northern extents of the pattern, to which I checked that the surface preparation was completed far enough to the north for northern most holes to be drilled. I checked this with my GPS and with one of the drillers and the driller agreed the surface was satisfactory. There were two exploration holes drilled on the surface of the pattern of which the holes cuttings needed to be cleared. Cuttings are the grinded material brought to the surface by drills, and are usually small i.e. 1m in diameter and approximately 40cm high. Orica, who load the explosives in the drill holes have a tractor that they use to clear between holes for trucks to drive, agree to push the cuttings out of the northern extents of the pattern, approximately 30-40 seconds of work. A couple of hours later, when I was completing tasks in a different area of the mine, I was contacted by Mr Lopez, an engineering graduate, that the pegs that were on the pattern were in a wrong place and need to be moved further north so he could arrange for the surface to be prepared to the northern limit. I informed Mr Lopez that any pegs that were up there were old and not the northern limit pegs, and that I had checked the northern limit with the driller and it has been sufficiently cleared. I also informed him that Orica would push off the cuttings."[38]
- [59]Mr Lopez had given Mr Etherington the northern pattern in the morning and spent two to three hours setting it out with one of the drillers.
- [60]Mr Lopez said that there was an extension required on the bench due to available resources, and the opportunity to extend the area to be blasted because they had the advantage of additional time. He inspected the site and observed that there were a couple of points of reference where the pegs had not been moved to the correct limit. He knew that the pegs were not in the correct location because he had a scan of the area and:
"…. you could see there were a couple of big piles of dirt that needed to be pushed and that was part of the – the drill bench, but the pegs were before those big piles of dirt that needed to be cleared in order for the area to be blasted. So, basically, when we noticed that the pegs were wrong, I called John over the radio and I ask him to rectify since they were not right from the information that I gave him, the data that I gave him."[39]
- [61]The Foxleigh mine operated differently to the Drayton Mine. First, there was a fluidity of operation at the Foxleigh mine so that it was in a position to be more responsive to opportunities and take advantage of the spot market. The evidence was that the price of coal was dropping, so efficiencies on the mine site were paramount.
- [62]It was also accepted that there was a different geological structure between Capcoal and Foxleigh. The key difference in the geology and structure of Foxleigh was that it is heavily faulted, steep dipping seams, through-seam requiring blasting practices which are not adopted at Capcoal. Mr Crosby's evidence was that Foxleigh, had smaller drill patterns in tighter areas, tighter locations and inconsistencies in the level of those benches. He said that if the holes were not correctly positioned "…we will risk damaging the coal which is not favourable for the business."[40]
- [63]It was Mr Lopez's evidence that whilst Mr Etherington had initially indicated that he was not going to come up to the bench but subsequently did so. Mr Lopez said that Mr Etherington drove to the site and stopped his vehicle very close to him. He said that he knew that Mr Etherington was angry by the way he moved and acted. He said that Mr Etherington raised his voice, stood close to Mr Lopez and pointed his finger.
- [64]Mr Lopez said in his evidence-in-chief that:
"He, basically, said that I was a graduate and I wasn't to tell him or give him directions. And then, like, he wasn't there to be pegging holes and so he just turned out into different – different things, but, basically, he was agitated and not really making sense. There was no really point of arguing over a – an extension of a pattern, but he was angry. He raised his voice. I – I felt disrespected by the way he was approaching me and I just, basically, said – said to John, "Hey, John. Look, you are not in a position to tell me what my job and what to do. I'm not in a position to tell you what your job is, but I can give you patterns. That's part of the – the job, your job and my job, give you patterns and give you coordinates so mining can occur," and – and that was – but he was agitated. He was angry."[41]
- [65]Mr Etherington was upset by what he felt was a threat to park up the digger. He was concerned that that sort of thing could go through the chain of management and look like he had done the wrong thing when he had made what he believed to be a professional decision within the rights of his work.[42]
- [66]In cross-examination, the following exchange took place in which Mr Etherington expressed the belief that he was being harassed:
"Mr O'Driscoll: All right. So nothing turned on that at all?
Mr Etherington: No, but it's the behaviour that I had to deal with which was unacceptable.
Mr O'Driscoll: Sure. That was the harassment, that there was a request by the supervisor to go and place a peg, which is part of your purvey but, from your perspective, subject to competing demands on your time?
Mr Etherington: No. The harassment was the threat of parking up the digger if I didn't do it immediately.
Mr O'Driscoll: All right. I understand that. But that example, as you've termed in your email as harassment, is the type of conduct you're talking about in a descriptive sense, that you thought was harassment to you, is implied threats that you would have some negative implications made against you by others about your performance as a surveyor?
Mr Etherington: Well, the EEO policy states out quite clearly what harassment is, and I believe that that sticks through to that.
Mr O'Driscoll: But I'm attempting to understand the factual basis or the type of behaviour that you are categorising as harassment?
Mr Etherington: Well, the harassment is, is people using threats to demand me to do things, is unacceptable behaviour. It's unprofessional. It shouldn't be in the workplace environment.
Mr O'Driscoll: Sure?
Mr Etherington: And it has the potential to cause harms.
Mr O'Driscoll: And there was another example, when a request was made for you to shift a peg. Same situation. "I'll get to it when I can". The assertion was made, "Yeah, well, if you don't do it, I'll grab the GPS and do it myself". Was that harassment?
Mr Etherington: In part.
Mr O'Driscoll: Okay. Well, which part was harassment, and which part wasn't?
Mr Etherington: Well, it depends on what magnitude you look at. I mean, as a surveyor, our job is to manage and prioritise our tasks based on what we have in front of us. Now, every single person on the mine has an interest in their task being done immediately, so of course people are going to become frustrated when I say to them, "Yes, your job's important. I will get to it, but I have other things that I need to get done first". They become upset. Now, there's a correct way, a professional way, of dealing with that, and then there's an unprofessional way of dealing with that. And the unprofessional way, which is against our policies, is to use threats and poor etiquette and behaviour to try and get your – your task put up the line further. I mean, it's just unprofessional behaviour."[43]
- [67]Mr Barnes contacted Mr Crosby and asked him to come to Foxleigh to meet with Mr Etherington following the altercation between Mr Etherington and Mr Lopez. A meeting was convened between Mr Etherington, Mr Barnes, and Mr Crosby to deal, in particular, with the concerns raised by Mr Lopez. Mr Etherington expressed concern that he had been spoken to in a disrespectful way by Mr Lopez.
- [68]Mr Bourke, the Drill and Blast Supervisor, in an email of 21 April 2015, expressed concerned that if the pegs were not moved further to the north he would be unable to prepare the pad which would result in an unnecessary delay if the drills ran out of pattern. He asked Mr Crosby to address the issue.[44]
- [69]The meeting resulted in the conclusion that Mr Etherington had refused a direct request by one of his peers, a customer of the surveyor's process, and refused to move the pegs.
- [70]Mr Crosby followed up the meeting with an email to Mr Etherington on 21 April 2015. It said, in part:
"As discussed in our meeting just now. My expectation from this point forward is that any time you are tasked with a specific survey task, you communicate completion of that task by placing a peg and writing the appropriate information on that peg."[45]
- [71]Mr Etherington responded by email on 23 April 2015 expressing his disappointment with the meeting with Mr Crosby and Mr Barnes and particularly his disappointment that "…as a leader you would see me as having an assistant role within tech services and expect me to serve the engineers not service the engineers."[46] He expressed the view that he felt that both Mr Crosby and Mr Barnes were "...looking for an opportunity to give me another written warning." After expressing a regret that he had told them of his "disability". He concluded the email with, "Our discussion has caused me a great deal of stress and anxiety and I hope you approach situations like this differently in the future and consider my disability."[47]
- [72]Notwithstanding Mr Etherington's perception that he was being targeted, no disciplinary or other action was taken against him.
Management Action
- [73]In Read v Workers' Compensation Regulator, I wrote the following:
"Management action is not defined in the Workers' Compensation Act 2003. Indeed, very little has been written in this jurisdiction to assist in the interpretation of the expression "management action".
In O'Brien v Q-Comp, Linnane VP referred to the Canadian authority of Canadian General Electric Company Limited v The Ontario Labour Relations Board to assist in determining the scope of what is and is not management. In that case, it was stated that:
"... managerial means something pertaining to or characteristic of a manager and it is equally obvious that the word 'manager' means one who manages ... The word 'manage' is said to be equivalent to conducting or carrying on a business or under-taking or an operation, to conduct affairs. It is also said to be equivalent to controlling or directing the affairs of a household, institution or state, or as the taking of or attending to a matter. It apparently includes the action or manner of conducting affairs or administering and directing or controlling any matter. It is obvious ... that the essential meaning of the word is to control and direct and that must obviously include not only administration but direction of planning for any particular enterprise ..."
Management action does not embrace every instruction of and action by an employer. Rather, the expression contemplates a particular type of action by an employer, and something other than a mere instruction or requirement that the worker perform his or her duties. Management action must be something different to the normal duties and incidents of her employment as a Town Planner. In other words, it must be something more than what was part and parcel of her employment."[48] (Citations omitted)
- [74]In Read I expressed the view, adopting the approach of Rares and Tracey JJ in Reeves,[49] that the exclusory action in s 32(5) of the Act was, in my view, intended by Parliament to relate to specific management action directed to the appellant's employment itself, as opposed to action forming part of the everyday duties or tasks that the worker performed in their employment. Therefore the management action said to enliven s 32(5) of the Act must be something different to the everyday duties and incidental tasks of the appellant's employment.
Management action in this matter
- [75]The management action said by the appellant to enliven s32(5) of the Act included:
- (a)Issuing of the Verbal Warning on 6 February 2015;
- (b)Mr Crosby's disclosure of Mr Etherington's Aspergers diagnosis; and
- (c)The meeting held in response to the altercation between Mr Etherington and Mr Lopez.
- [76]The approach to be adopted by the Commission was outlined by Martin J in Davis v Blackwood:
"The Commissioner considered, in some detail, the evidence relating to the two stressors concerning his employment. In particular, he examined the relationship between Mr Davis and Ms Forster and the complaints Mr Davis made about the actions she took or failed to take.
After analysing the evidence with respect to those matters, the Commissioner turned to s 32(5) and dealt with the issue which that subsection raises by saying:
"[117] The starting point is to ask what would constitute reasonable management action in circumstances where it is accepted that Davis did find some aspects of his work stressful and did raise his concerns about these aspects with his supervisor."
That question is not, with respect, the question which should be put. "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."[50]
- [77]His Honour went on to observe in Blackwood v Adams that:
"In circumstances where the evidence is that the necessary trigger could be identified and, in other findings, it has been held that the trigger 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)."[51]
- [78]The Act sets out examples of actions that may be reasonable management actions taken in a reasonable way. That includes action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker or 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.
Conclusions
- [79]On the appellant's case, it was contended that the appellant had some underlying personality traits that exposed him to reacting in the way that he did, and that the major significant contributing factor for the appellant's injury are his underlying personality traits rather than any work-related issues.
- [80]Section 32 of the Act requires that the employment is "…the major significant contributing factor to the injury." While the test is now, relatively, a higher one, the remarks of Keane JA in Newberry v Suncorp Metway Insurance Limited are still relevant:
"… The requirement of s. 32 of the WCRA that the employment significantly contribute to the injury is apt to require that the exigencies of the employment must contribute in some significant way to the occurrence of the injury which the claimant asserts was caused by the breach of duty of the person (not the employer) against whom the claim is made."[52]
His Honour later continued:
"That having been said, however, I should also observe in passing that the fact that an injury has been suffered arising out of employment, or in the course of employment, is not sufficient to establish that the employment has been "a significant contributing factor to the injury". To read s. 32 of the WCRA in that way would be to read the latter words out of the section, and in my respectful opinion to accord scant respect to the evident intention of the legislature to require a more substantial connection between employment and injury than is required by the phrases "arising out of employment" or "in the course of employment".[53]
- [81]The evidence supports the conclusion that Mr Etherington's major depressive episode arose out of workplace events generally described by Dr Storor as "…a period of sustained workplace bullying and harassment."[54] It was his opinion that Mr Etherington's employment was the major significant contributing factor to the development of the psychological or psychiatric injury.
- [82]The key factor for the onset of Mr Etherington's injury was the decision of Mr Crosby to issue Mr Etherington with a verbal warning. The medical evidence of Dr Storor and Dr Daniel support the view that without the warning, Mr Etherington's injury would not have occurred.
- [83]The breach of confidentially by disclosing the diagnosis of Aspergers, whilst significant, was not, on the evidence of Dr Storor, the major contributing factor to the onset of the injury but was a compounding factor. Dr Daniel's report did not record the release of the Aspergers diagnosis as being a factor in his assessment of Mr Etherington.
- [84]The evidence supports a conclusion that Mr Etherington's personal injury arose out of or in the course of his employment and his employment was a major significant contributing factor to the development of his personal injury.
- [85]The second respondent's submission is that the issuing of the verbal warning was unreasonable because Mr Etherington had not done anything wrong; he was off roster; he had waited for the volume figures to be sent to him, and they were not sent, so he assumed that everything was good. I do not accept those submissions.
- [86]Mr Etherington was granted leave for 4 and 5 February 2015. Whilst Mr Etherington was not formally rostered on, he was nevertheless on a flexible work arrangement. I accept that if the needs of the business were such that the dates and times need to be changed it was at Mr Crosby's discretion as superintendent to make that determination.
- [87]I accept the evidence of Mr Crosby that he instructed Mr Etherington to complete the EOM volumes report and that he was required to speak with Mr Schroeder on the morning of the EOM to make sure he obtained the EOM truck count figures.
- [88]The second respondent submitted that if it was accepted that the issuing of the verbal warning was appropriate the method by which the warning was given was inconsistent with the appellant's misconduct policy and with reasonable management action.
- [89]The second respondent appears to submit that the meeting with Mr Crosby and Mr Etherington on 6 February 2015 was somehow an "ambush". It was contended that it was not reasonable management action because Mr Etherington was called over the radio and asked to attend a meeting: he was not told what the meeting was about; and, he was not allowed to have a witness.[55]
- [90]It was not unreasonable that the purpose of the meeting was not broadcast over the radio. Mr Etherington's evidence was that he was not "initially" told what the meeting was about. But it is apparent from the evidence, in my view, that Mr Etherington was aware of the meeting and what it involved. It was the case that only Mr Etherington and Mr Crosby were present during the meeting. However, I do not accept the submission that Mr Etherington was not allowed to have a witness. It must be borne in mind that the meeting was convened against a background of a great deal of conversation about the failure to complete the end of month tasks as required. Mr Etherington together with other members of the survey team had been sent an email on 2 February 2015 expressing his disappointment that the EOM spreadsheet had not been completed and that that was unacceptable.
- [91]Mr Crosby explained that it was not necessary to undertake a formal investigation as envisaged by the Misconduct Policy because Mr Etherington had, via an email of 2 February 2015, accepted fault for not submitting the EOM figures. Ms Baker supported the proposition that if there was an admission of fault then ordinarily there was no need to progress through the formal investigation process.[56]
- [92]I also accept the evidence of Mr Clancy which confirms that Mr Etherington committed to doing the monthly volume calculations and if Mr Etherington did not complete the task by the deadline then he was responsible. Mr Etherington did not complete the task as agreed.
- [93]Mr Crosby was entitled to rely on the email of Mr Etherington accepting responsibility for not completing the EOM volumes report. I do not accept that the email was sent by Mr Etherington to diffuse the situation. It was sent, in my view, because Mr Etherington knew that he had committed to preparing the monthly volumes calculations report and he did not do so.
- [94]It was further submitted by Mr Etherington that the investigation of the alleged misconduct against him and the preparation of the record of discussion were inconsistent with the Misconduct Management Policy.
- [95]The appellant's submission is based, in part, on the argument that there was a non-compliance with the appellant's misconduct policy. The misconduct policy relevantly stated:
"5.1 Investigating Misconduct
Where it is alleged that misconduct has occurred, the employee's team leader/supervisor will, as soon as possible after becoming aware of the issue, investigate the matter to establish the facts and conduct a meeting with the team member."[57]
- [96]In Carlton v Blackwood it was argued that a letter which constituted allegations of diminished performance enlivened a certain provision of the Human Resource Policy Manual. On appeal it was agreed that the employer did not follow its own policies and, as a result, undertook management action that was unreasonably taken.[58] Martin J in dealing with the question expressed the view that even if the letter was not created in accordance with the employer's own policies, there needed to be evidence to support a connection between the appellant's decompensation and that alleged fact.[59] Equally in this matter there is no evidence to suggest that the failure to follow the policy was causative of the second respondent's decompensation. In any respect, as I have said above, the issuing of the warning was not unreasonable.
- [97]The issuing of the verbal warning was at level 1, the lowest level of disciplinary proceedings under the appellant's Misconduct Policy. Whilst Mr Etherington had a perception that the warning would lead to his dismissal, the evidence before the Commission does not support such a view.
- [98]Mr Etherington identified that he had communication issues and sought professional advice from a clinical psychologist. As the evidence demonstrates, the psychologist diagnosed Mr Etherington with Aspergers. That diagnosis was contested principally by Dr Storor but it was noted by both medical experts that Mr Etherington demonstrated obsessive personality traits.
- [99]It is accepted by the parties that it is not necessary for the purposes of this appeal for the Commission to make a determination as to whether or not Mr Etherington had Aspergers.
- [100]Following the consultation with the clinical psychologist, Mr Etherington sought assistance from Mr Crosby and Mr Gentle in dealing with the Aspergers diagnosis. Mr Gentle, Mr Crosby, and Mr Etherington agreed that Sean Halliday, Mitch Barnes and Ben Lorne should be told of the diagnosis. The apparent rationale for letting them know was so that they might better understand Mr Etherington's behavior if they had an awareness of his condition.
- [101]Mr Crosby was confronted with Mr Etherington's diagnosis. He made a decision to confide in the HR Manager and OHS Manager for the purposes of obtaining advice on how best to handle the situation. In that context, and having regard to Mr Crosby's position and obligations as the registered mine surveyor, it was not in my view unreasonable for him to disclose the diagnosis in order to obtain that advice. Mr Crosby's intention was to talk through with Mr Etherington what strategies the appellant could adopt to help him cope.[60] I accept that Mr Crosby was concerned for the safety and wellbeing of Mr Etherington.
- [102]Equally, it was not unreasonable for Mr Crosby to have a discussion with Mr Atkinson about Mr Etherington's diagnosis. Mr Atkinson was, on the evidence of Mr Etherington somewhat of a mentor and a person for whom he had a great deal of respect.[61]
- [103]The dissemination of the diagnosis was on a limited, "need to know" basis. Mr Crosby advised only Mr Atkinson, HR and OHS on a confidential basis appreciating the sensitivity of the matter. It was not, to use his words, "… something that you would go and broadcast to the rest of the world…."[62] I accept the evidence of Ms Baker that she did not divulge the nature of the second respondent's condition.[63] I also accept that both Ms Allen and Ms Lambie were acutely aware of the need to keep the information confidential.
- [104]It was submitted on behalf of Mr Etherington that he should have been advised by Mr Crosby that he had spoken to Mr Atiknson, HR and OT about his diagnosis. Mr Crosby gave his reason for not doing so. Even if I were to accept that Mr Crosby should have spoken to Mr Etherington and advised him that he had spoken to others, I am not of the view that that omission was unreasonable. As I wrote in McMah v Simon Blackwood (Workers' Compensation Regulator):
"Management action need only be reasonable; it does not need to be perfect. Instances of imperfect but reasonable management action in this context may be considered "blemishes". Management action does not need to be without blemish to be reasonable."[64]
- [105]I do not accept that Mr Crosby used the diagnosis to denigrated Mr Etherington to Mr Atkinson. Mr Atkinson made it clear in his evidence that Mr Crosby made no such disparaging remarks. Rather, his evidence was that Mr Crosby showed concern for Mr Etherington. Whilst Mr Etherington may have been under the belief that he had been denigrated the evidence does not support such a view.
- [106]The evidence before the Commission suggests that by 1 April 2015 Mr Etherington felt that Mr Crosby was trying to get rid of him.[65] He was under the perception that Mr Crosby was intimidating him, undermining him, talking about him behind his back and taking steps to dismiss him.
- [107]As Mr Etherington made clear in his statement, he was worried about the effect that the disclosure would have on his future with Anglo American. He felt that there was no way of ever overcoming the stigma and thought his career with Anglo American was on very shaky ground. This, he said, was a traumatising feeling to experience.[66]
- [108]Dr Storor noted a past history which suggested that Mr Etherington by temperament was "an obsessional fellow prone to mild anxiety" and that personality types always are exacerbated under times of stress. Dr Storor expressed the view that Mr Etherington's "…obsessional features are at that stage going into overdrive."[67]
- [109]
- [110]In assessing management action, it is the reality of the employer's conduct, and not the appellant's perception of it, that must be taken into account. As the authorities clearly demonstrate,[70] the Commission's role is to assess the reasonableness of the management action. Such an exercise must be undertaken objectively. As Hall P wrote in Q-COMP v Foote:
"Where the psychological disorder develops out of a worker's perception of reasonable management action being taken against the worker, it is withdrawn from the definition of injury (see s 32(5)(b) of the Act). Where the psychological disorder arises out of or in the course of reasonable management action taken in a reasonable way by an employer in connection with the worker's employment, the psychological injury is withdrawn from the definition of 'injury,' whatever the worker's perceptions may have been (see s 32(5)(a))."[71]
- [111]The altercation between Mr Etherington and Mr Lopez and the subsequent meeting with Mr Crosby and Mr Barnes appears to me to have been a less significant factor in the onset of the injury. Neither Dr Storor nor Dr Daniel make much reference to it in their report and reference it only by way of background.
- [112]Mr Etherington experienced symptoms of stress or anxiety because of a misperception of the management action, the appeal must succeed by operation s 32(5)(b) of the Act.
- [113]I am satisfied that the relevant management actions taken by the appellant namely the issuing of a verbal warning, discussing with Mr Atkinson, HR and OT, the Aspergers diagnosis, were in the circumstances reasonable management action taken in a reasonable way.
- [114]The onus rests on the appellant to establish that the decision of the Regulator was wrongly made by demonstrating to the requisite standard that any one of the elements of s 32(1) or (3) of the Act are not satisfied or, alternatively, by satisfying that the injury is excluded by operation of s 32(5) of the Act. For the reasons given above, I am satisfied that the appellant has discharged the onus of establishing that Mr Etherington did not have a compensable injury.
- [115]Accordingly, this appeal must also succeed by operation of s32(5)(a) of the Workers' Compensation and Rehabilitation Act 2003 (Qld).
- [116]I make the following orders:
- The appeal is allowed.
- The decision of the first respondent dated 12 December 2015 is set aside.
- The application for compensation made by the second respondent is not one for acceptance.
- The first and second respondents are to pay the appellant's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.
Footnotes
[1] Appellant's Statement of Facts and Contentions filed on 23 May 2016.
[2] Ex. 6.
[3] T3-68, Ll 37-46; T3-69, Ll 1-2.
[4] T3-77, Ll 25-31.
[5] T3-92, Ll 31-40.
[6] T3-92, Ll 42-46.
[7] T3-71, Ll 10-15.
[8] T3-90, Ll 21-28.
[9] T3-90, Ll 26-32.
[10]T3-90, Ll 34-39.
[11] T3-92, Ll 24-46; T3-93, Ll 1-2.
[12] T3-95, Ll 37-40.
[13] Ex. 7, [12].
[14] T3-95, Ll 6-8.
[15] T3-77, Ll 26-31.
[16] Ex. 5.
[17] T2-56, Ll 36-37.
[18] T2-56, Ll 39-44.
[19] T2-56, Ll 4-11.
[20] Ex. 2, p. 84.
[21] Ex. 2.
[22] T1-36, Ll 6-8.
[23] Ex. 18.
[24] T1-38, L 26.
[25] T3-54, Ll 37-43.
[26] Ex. 2.
[27] T2-57, Ll 45-47; T2-58, L1-5.
[28] T5-10, Ll 19-29.
[29] Ex. 2.
[30] Ex. 2.
[31] Ex. 2.
[32] T2-61, Ll 26-31.
[34] T2-81, Ll 11-28.
[35] Ex. 2.
[36] Ex. 2.
[37] Ex. 2.
[38] Ex. 2.
[39] T4-62, Ll 20-25.
[40] T3-64, Ll 20-27.
[41] T4-65, Ll 30-40.
[42] T2-6, Ll 28-35.
[43] T2-7, Ll 25-45; T2-8, Ll 1-14.
[44] Ex. 4.
[45] Ex. 2.
[46] Ex. 2.
[47] Ex. 2.
[48] Read v Workers' Compensation Regulator [2017] QIRC 072, [8]-[10]; See also the longer discussion in Allwood v Workers' Compensation Regulator [2017] QIRC 088, [57]-[68].
[49] Commonwealth Bank v Reeve (2012) 199 FCR 463, 474 [33], 483 [60].
[50] Davis v Blackwood [2014] ICQ 009, [45]-[47].
[51] Blackwood v Adams [2015] ICQ 001, [21].
[52] Newberry v Suncorp Metway Insurance Limited [2006] 1 Qd R 519, 529-30 [27].
[53] Ibid 533-34 [41].
[54] Ex. 6.
[55] Submissions of Second Respondent.
[56] T3-54, Ll 37-43.
[57] Ex. 5.
[58] Carlton v Blackwood [2017] ICQ 001.
[59] Ibid [42].
[60] T2-61, Ll 26-31.
[61] T2-10, Ll 31-32.
[62] T2-61, Ll 2-3.
[63] T3-48, L 32.
[64] McMah v Simon Blackwood (Workers' Compensation Regulator) & BHP Billiton Coal Pty Ltd [2014] QIRC 013, [37].
[65] T1-60, L 44.
[66] Ex. 2.
[67] T3-75, Ll 10-15.
[68] T3-95, L 19.
[69] T3-95, Ll 6-8.
[70] Q-COMP v Glen Rowe (2009) 191 QGIG 67, 71.
[71] Q-COMP v Foote (2008) 189 QGIG 802, 810.