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  4. Haack v Workers' Compensation Regulator - [2017] QIRC 115

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Haack v Workers' Compensation Regulator[2017] QIRC 115

Haack v Workers' Compensation Regulator[2017] QIRC 115

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Haack v Workers' Compensation Regulator [2017] QIRC 115

PARTIES:

Haack, Barry James

(appellant)

v

Workers' Compensation Regulator

(respondent)

CASE NO:

WC/2016/115

PROCEEDING:

Appeal against decision

DELIVERED ON:

22 December 2017

HEARING DATES:

3, 4 and 5 April 2017

MEMBER:

Deputy President O'Connor

ORDERS:

  1. The appeal is allowed.
  2. The decision of the respondent dated 14 June 2016 is set aside.
  3. The application for compensation made by the appellant is one for acceptance.
  4. The respondent is 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. 

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR

LEGISLATION:

CASES:

Acts Interpretation Act 1954 (Qld), s 14D

Workers' Compensation and Rehabilitation Act 2003 (Qld), s 32

Allwood v Workers' Compensation Regulator [2017] QIRC 088

Blackwood v Adams [2015] ICQ 001

Canadian General Electric Company Limited v The Ontario Labour Relations Board (1956) OR 437

Carlton v Blackwood [2017] ICQ 001

Commonwealth Bank v Reeve (2012) 199 FCR 463

Commonwealth Bank v Reeve (2012) 199 FCR 463

Davis v Blackwood [2014] ICQ 009

O'Brien v Q-Comp (2007) 185 QGIG 383

Read v Workers' Compensation Regulator [2017] QIRC 072

WorkCover Corp (SA) v Summers (1995) 65 SASR 243

WorkCover Corp (SA) v Summers (1995) 65 SASR 243

Yousif v Workers' Compensation Regulator [2017] ICQ 004

APPEARANCES:

Ms S.C. Anderson, Counsel instructed by Shine Lawyers for the appellant.

Mr S.P. Gray, Counsel instructed directly by the respondent.

Reasons for Decision

  1. [1]
    The appellant was employed as a charger/loader operator by Glencore Australia at the Lady Loretta Mine, an underground mine located north-west of Mt Isa.
  1. [2]
    The appellant's WorkCover compensation application was lodged on 16 January 2015.  XtraCare, the self-insurer for Glencore Australia rejected the application by reasons for decision on 6 March 2015. The appellant lodged an application for review on 6 March 2015. The Regulator set aside the decision of XtraCare on 13 July 2015 and returned the matter to XtraCare with directions, particularly in relation to obtaining further medical evidence. XtraCare obtained a report from a psychiatrist and then issued a new decision on 30 September 2015. XtraCare advised the appellant, by letter also dated 30 September 2015, that it had again rejected his application. On the same day the appellant sought review of this second XtraCare decision. The Regulator again set aside the decision of XtraCare and returned it to XtraCare with instructions to refer the matter to the Medical Assessment Tribunal. XtraCare complied with the Regulator's direction. The Medical Assessment Tribunal provided its report on 17 March 2016. With the report of the Medical Assessment Tribunal XtraCare rejected the appellant's application for compensation on 6 April 2016. The appellant sought review of that decision but the Regulator confirmed it on 14 June 2016. The appellant filed a Notice of Appeal to this Commission on 8 July 2016 pursuant to section 549 of the Workers' Compensation and Rehabilitation Act 2003 (Qld).  The Regulator resists the appeal.
  1. [3]
    The appellant contends that:

"The Employer's breaches of confidentiality and the failure to allow him to leave the mine site or to obtain appropriate psychiatric treatment caused him to decompensate so that he was unable to continue working. The actions of the Employer in breaching his confidentiality, twice, and in failing to allow him to leave the site, were unreasonable.

The Appellant was not provided with any or any adequate support or medical care while he was required to remain on site and isolated in his room even after the employer became aware that he was suffering from a psychiatric injury."[1]

  1. [4]
    The forerunner of the psychiatric/psychological injury was a left wrist injury on 13 June 2014. As a consequence of the that injury, the appellant was placed on light duties for approximately six months some of which was worked above ground.
  1. [5]
    The appellant claims that he was the subject of bullying and harassment from his colleagues. Mr Mark Ireland was the appellant's immediate supervisor who the appellant said was "always on my back, riding me."[2]
  1. [6]
    During the period of the wrist injury, the appellant said that some of his co-workers would mimic him, and claimed that he was "milking and making up the injury." He told the Commission that some of his colleagues threatened to bring in white chocolate and some called the appellant "The Milky Bar Kid".[3]
  1. [7]
    The respondent admits that the appellant was brought up from underground on 30 November 2016 as a result of an episode which was described by the appellant as feeling like he was going to have a breakdown. He contacted Mr Chris Riley, the Shift Supervisor, and said "I'm not – not coping very well"[4] and he said "Take me out of the hole. I need to sort it out."[5] Mr Riley took the appellant to the surface.
  1. [8]
    Once aboveground, the appellant went to the Superintendent's office. Mr Ireland was the "fill-in" superintendent at the time. The appellant told Mr Ireland that he was not coping very well and that he was going to see the medic.[6] The appellant told the Commission that he left before Mr Ireland had had an opportunity to respond as he felt that he was about to start crying uncontrollably.[7]  The Medic at the relevant time was Mr Tim O'Callaghan. Mr O'Callaghan was a qualified paramedic. When the appellant was able to see Mr O'Callaghan he began to cry, with his head in his hands; he was unable to speak.[8]
  1. [9]
    Mr O'Callaghan asked what was wrong and the appellant explained that crew members had been giving him a "hard time", this appears to have included Mr Ireland. On hearing that and after a little discussion the appellant and Mr O'Callaghan agreed that he should go home.[9] 
  1. [10]
    The appellant and Mr O'Callaghan then went to visit Mr Pat Clifford, the Safety Officer, in his office.[10] The events were related to Mr Clifford, and, on the appellant's evidence, Mr Clifford "basically" agreed with Mr O'Callaghan's assessment that the appellant should go home.[11] At that point Mr O'Callaghan and Mr Clifford began to cursorily look at flight times.[12]
  1. [11]
    At some point during that meeting, Mr Martin Zgrajewski, the Underground Mine Manager, was sought-out by either Mr Clifford or Mr O'Callaghan. Mr Zgrajewski wanted to know that had happened and the appellant told him.[13] Mr Zgrajewski then suggested that a complaint form be completed, but the appellant did not want to do that.[14] No complaint form was completed at that point.[15]  
  1. [12]
    Mr Zgrajewski told the Commission that he gave the appellant two options; that his leaving the site would not solve the problem; that that issue needed to be addressed through the EEO complaint process; and, that if it did not work out then the appellant could go home.[16]
  1. [13]
    Following this the appellant, Mr Zgrajewski, and Mr Clifford went to the HR Office to see Mr Todd Sellers. Mr Zgrajewski appears to have left after a brief period with the group.[17] Mr Sellers told the appellant would need to complete an EEO complaint form to rectify the issue.[18] In response, the appellant informed Mr Sellers that he wanted to go home and that he wanted to get help.[19]The appellant told Mr Sellers that he had reservations about making a complaint and completing the form as felt that his colleagues would find out and that those people who were the subject of the complaint would find out too.[20] The appellant appears not to have been aware of the consequences of lodging a complaint.[21]
  1. [14]
    Mr Sellers appears to have insisted that the appellant complete the form until the appellant did so.[22] The complaint form contained an option to discuss the complaint with a line manager. The appellant said that he did not want to discuss his complaint with Mr Ireland. The appellant was convinced by Mr Sellers that it would be in his best interests to talk with Mr Ireland.[23] At the end of that meeting the appellant was not feeling very well, he was confused and shaking, and he still wanted to go home and get help.[24] The appellant then asked Mr Clifford when his flight home would be and Mr Clifford informed him that he would not be going home.[25] Mr Clifford also told the appellant that he would take him back to his room and that it would be "sorted out" by the afternoon.[26]
  1. [15]
    The appellant recalls that Mr Clifford took him back to his room.[27] The appellant then spoke to his wife, Melinda, and told her that he had had a breakdown, that "they" were looking up flights for him, and that he thought that he would be going home after "they" sorted out the "form".[28] Mr Sellers came to the appellant's room later that evening in order to tell him that a meeting was being organised with the crew for the following morning, the meeting was to be about bullying and harassment.[29] It was proposed that the crew members, Mr Ireland, Mr Zgrajewski, Mr Sellers, and the appellant would all attend the meeting.[30]
  1. [16]
    Prior to the meeting, it was proposed to Mr Ireland by Mr Zgrajewski and Mr Sellers that a "buddy system" be arranged. Mr Ireland approached Mr David Gadd and Mr Clint Harris to take on this role.  Both agreed, as they were friends of the appellant. However, nothing came of the arrangement as Mr Ireland never spoke to the appellant about putting it into place.
  1. [17]
    The meeting took place early the next day, 31 December 2014. The proposed attendees were all present and the companies' policies on bullying and harassment were covered.[31] Mr Zgrajewski told the crew that sometimes joking with workmates can "go too far", that the impact can be significant though unintended, and that the support of an affected person by a team is quite important.[32] Mr Sellers also spoke at the meeting, and the appellant then had an opportunity to address the crew and tell them how he felt.[33] Mr Ireland also spoke and told the crew that any team members should feel comfortable about coming to him about any issue.[34] The appellant was happy about the meeting and thought it was good that his employer was "putting it out there that this – this sort of thing shouldn't be happening". After the meeting some of those attending who had been part of the bullying of the appellant apologised.[35] Following this the appellant returned to his duties and went back underground.[36]
  1. [18]
    After finishing underground, the appellant started to wash his truck. He had a conversation with Mr Clint Harris, Mr Dave Barr was also present. The appellant said that he became suspicious when Dave Barr said he was not allowed to muck around anymore as he would get in trouble.[37]
  1. [19]
    After work the appellant went to the bar to spend some time with his friends. He did not have anything alcoholic to drink.[38] He discovered that what was discussed privately with Messrs Sellers, O'Callaghan, Clifford and Zgrajewski had been disclosed to his co-workers by Mr Ireland.[39] The appellant was concerned for his own safety because people had found out what he had said. He thought the bullying and harassment would start again.[40] 
  1. [20]
    The next morning, 1 January 2015, the appellant spoke to Mr Sellers to express his concern. Mr Sellers encouraged the appellant to complete a complaint form.[41] The form was completed but the appellant said "I felt like I couldn't trust anyone."[42] Mr Sellers appears to have encouraged the appellant to tick the "yes" box on this second complaint form which would allow the matter to be discussed with the appellant's supervisor, Mr Ireland. Mr Seller's justification for ticking the "yes", as relayed by the appellant, was so that Mr Sellers could properly investigate the complaint.[43] Mr Chas Eichmann witnessed the form's signing.[44]
  1. [21]
    The 1 January 2015 EEO complaint form records, under the heading "Please describe how this has effected you?", the following:

"I feel disappointed, let down, and have started doubting myself again. I feel sick. And I don't want to be around Mark Ireland or at work. (I have had enough). I can't eat or function properly due to feeling anxious and highly strung."[45]

  1. [22]
    Under the heading "Have you suffered harm or loss?" the following is recorded:

"I feel unwanted. The events have made me feel down. I feel stressed, tense & anxious. This is effecting my diet, sleep patterns and general wellbeing."[46]

  1. [23]
    While the appellant was with Mr Sellers and Mr Eichmann he, again, raised the issue of going home.[47] Mr Sellers told the appellant that the complaint would need to be sorted out first.[48] The appellant then went back to his room. While in his room he spoke to a number of his colleagues. He spoke to Mr O'Callaghan numerous times and asked him if he could go home.[49] The appellant also spoke to Mr Sellers about the location of his room as Mr Ireland's room was directly across from his own. Being sited directly across from Mr Ireland's room made the appellant feel as though he could not leave his room.[50]
  1. [24]
    Whilst there was a suggestion from Mr Sellers that there would be a change of rooms, nothing eventuated.[51] Mr Sellers was also told again, by the appellant, that he wanted to go home.[52] The appellant told the Commission that, in response, Mr Sellers said that if the appellant went home it would be considered annual leave, to which the appellant said "I don't care."[53]
  1. [25]
    Mr Sellers again mentioned needing to sort out the complaint form, even after the appellant mentioned that he would accept using annual leave in order to leave the mine site.[54] Mr Sellers did not provide any other reason for why the appellant was not able to go home.[55]
  1. [26]
    The appellant described to the Commission how he felt on the night of 1 January 2015:

"I was experiencing basically being trapped – trapped there. And it was like I was in a big dream that I couldn't get out of. And I was just – and no-one cared. And I – I rang my wife and she gave me the number of beyondblue, and I gave them a call."[56]

  1. [27]
    The appellant was not provided by his employer with any contact details for any employee assistance programs[57] or any external mental-health support lines.[58]
  1. [28]
    On 1 January 2015, Mr O'Callaghan emailed Mr Sellers and Mr Eichmann advising that:

"Just had a call from Barry Hack who asked if I knew what you guys were doing with him. I told him I would pass on the message."[59]

  1. [29]
    The next day, 2 January 2015, Mr O'Callaghan again emailed Mr Sellers and Mr Eichmann but this time also copied in Mr Shaun Van Der Merwe, the Underground Mine Manager at Lady Loretta. The email reads:

  "Barry Hack called me this am at 0500 and stated that he wanted to talk.

Barry has asked me once again to pass onto you his request to leave the site. Barry stated that he has contacted outside counsellors and has had lengthy discussions with his wife.

When talking to Barry it is clear his demeanour has changed. His body language is very different to yesterday. He has said that he is considering talking one of the NWCH drivers and catching a ride into town."[60]

  1. [30]
    Also on 2 January 2015 the appellant contacted his wife and told her that he was going to steal a truck and "drive out".[61]  Presumably the appellant was talking about driving out of the camp. He told the commission that he was "desperate."[62] Following that, Mr Sellers returned to the appellant's room (the appellant had been trying to contact him) and at that point the appellant "got pretty angry."[63] This seems to follow Mr Sellers telling the appellant that there should be a meeting between the appellant and Mr Ireland.[64] The appellant told Mr Sellers that he was "going mental" and that he needed to go home and get some help.[65] Mr Sellers told the appellant that he would get the other Line Manager, Mr Shaun Van Der Merwe, to come and speak to him.
  1. [31]
    During this period the appellant's wife contacted the Queensland Police Service seeking their assistance in relation to her husband.[66] The respondent admits that the Queensland Police Service contacted the employer regarding the appellant's safety.[67]
  1. [32]
    Mr Van Der Merwe came to the mine to see the appellant and to try and resolve the issue.  A meeting was convened in the wet-mess. The appellant was uncooperative and was swearing at Mr Sellers.[68] It was proposed that a conciliation be arranged between the appellant and Mr Ireland, but that suggestion was refused by the appellant.[69] The appellant was highly agitated in the meeting with Mr Van Der Merwe during which he tried to explain his concerns.[70] The meeting concluded with Mr Van Der Merwe and Mr Sellers going back to the office to arrange flights out of Mt Isa for the appellant.[71]
  1. [33]
    When Mr Van Der Merwe and Mr Sellers returned, travel arrangements had been put in place to fly the appellant to Brisbane with an overnight stay before flying back up to Mackay.[72] Arrangements were also put in place to chaperone the appellant to Mt Isa and for the appellant's wife to be flown to Brisbane.[73]
  1. [34]
    After arriving back home in Mackay, the appellant was admitted to the Mackay Base Hospital. Subsequently, the appellant attended on Dr Praveen Jayaram, a General Practitioner who issued a Workers' Compensation Medical Certificate with the stated cause as Depression/Anxiety.[74]
  1. [35]
    The EEO complaint process was conducted into the breach of privacy and Mr Ireland received a final written warning. Mr Eichmann conducted the investigation. Mr Ireland told the Commission that he told Mr Chris Reilly that the appellant had submitted a complaint. He said he told Mr Reilly about the complaint because "I just thought it was in Chris' best interest to be aware of everything." Mr Ireland also accepted that he told Mr Barr that he had been mentioned "…as an instigator in this whole affair."[75] He thought that Mr Barr had a right to know that an allegation had been made against him.[76]
  1. [36]
    Mr Eichmann accepted that the appellant's complaint was substantiated. He said that Mr O'Callaghan gave Mr Ireland the information and Mr Ireland had in turn given information to the A-Crew that Mr Barr was one of the people named by the appellant. The file note of Mr Eichmann dated 1 January 2015 records:

"Mark – Indirectly admitted to telling A Crew personnel that BH had nominated David Barr as instigator"[77]

 Issues to be determined

  1. [37]
    The ultimate question in this appeal is whether the appellant suffered a personal injury within the meaning of section 32 of the Act.  Within that question there are four other questions which must be answered:
  1. Did the worker suffer a personal injury, that being a psychiatric or psychological injury?
  1. Did the personal injury arise out of, or in the course of, employment?
  1. If the worker suffered a personal injury arising out of, or in the course of, employment was the employment the major significant contributing factor to the injury?
  1. If the answer to question 3 is 'yes', is the injury not compensable by virtue of it arising out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with the worker's employment?
  1. [38]
    For the reasons that follow, and in answering the questions above, I find that the appellant suffered a personal injury; the injury arose out of, or in the course of the appellant's employment; the appellant's employment was the major significant contributing factor to the injury; and, the appellant's injury was not excluded by operation of s 32 (5) of the Act.

Medical Evidence

  1. [39]
    Dr Karen Chau, a Consultant Psychiatrist, examined the appellant on 19 October 2015. In a medical report dated 27 October 2015, Dr Chau diagnosed the appellant with an adjustment disorder diagnosed with mixed anxiety and depressed mood, generalised anxiety disorder and social phobia.
  1. [40]
    Dr Chau identified the following four factors which contributed to the appellant's injury:

"

  • Mr Haack felt repeatedly harassed by Mark Ireland, his shift supervisor, over a sustained period of time.
  • It was reported that he felt harassed by Mr Ireland and work colleagues about his wrist injury. He believed that they doubted about the severity of his injury.
  • Mr Haack stated that his requests to leave the mine site were declined repeatedly despite him feeling desperate. He also stated that medical attention was not offered. He felt trapped.
  • He discovered that there was a breach of confidentiality of the contents of the HR meeting on 01 January 2015 (he thought this was the date). He stated that he felt unsafe as Mr Ireland was informed about the complaints. Mr Haack explained "I was worried about getting bashed" by Mr Ireland as a result."[78]
  1. [41]
    Dr Chau believed that the appellant's employment was the sole contributing factor to his injury. Dr Chau further states that the "factors mentioned in the body of the report between 30 December and 2 January 2015" as being "the significant contributing factor to his psychiatric injuries."[79]
  1. [42]
    In a file note dated 23 March 2017,[80] Dr Chau referred to the four factors identified at page 26 of her report. The first two factors caused the appellant to be more vulnerable to injury. The last two factors identified in the answer to Question 4 were factors which she believed to be the major significant contributing factors to the injury and both were work-related.

Arising out of, or in the course of employment

  1. [43]
    There is no question of the appellant's injury arising from anything other than his employment. The events, as outlined above, make it clear that the appellant's injury clearly arose out of, or in the course of, his employment at the Lady Loretta Mine.

Reasonable management action taken in a reasonable way

  1. [44]
    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,[81] 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 ..."[82]

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.[83] 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.[84]"[85] (Citations renumbered accordingly)

  1. [45]
    In Allwood v Workers' Compensation Regulator I was presented with a further opportunity to consider the meaning of "management action". In that case I wrote:

"The concept of management action in the context of a worker's employment, and for the purposes of the Act, is not so broad that it encompasses anything and everything that a manager does or says in the particular workplace, rather the expression "management action" relates to those actions undertaken when managing the worker's employment.  This statement is informed by the reasoning of Doyle CJ, with whom Prior and Williams JJ agreed in WorkCover Corp (SA) v Summers.[86]

In Summers, their Honours were called upon to construe the words "reasonable administrative action taken in a reasonable manner by the employer in connection with the worker's employment" in s 30(2a) of the Workers Rehabilitation and Compensation Act 1986 (SA). I note the similarities of that provision to the one under consideration in this matter. In Summers, Doyle CJ wrote:

"The appellant argued that "administrative action" referred to "every instruction given by the employer or action taken by the employer which relates to the performance of the worker's duties, whether directly or indirectly". That is how it was put in the appellant's outline. In his submissions counsel for the appellant said that administrative action embraced every instruction or action by the employer, indirectly or directly ….

I am unable to accept this submission.

If it is correct, it means that it becomes necessary to identify all instructions and directions given by the employer which did contribute or might have contributed to the stress, and then to examine the reasonableness of each one of them. That would be a daunting task, and I would hesitate to conclude that Parliament intended that it be performed. …if the stress resulted from instructions or actions of the employer (and presumably an implied instruction would be as good as an express instruction), then the claim would fail unless the instruction or action was unreasonable. Commonsense suggests that many, and probably most aspects of a worker's work could be related back to instructions given by an employer or action taken by an employer. It is clear that Parliament intended to restrict stress claims, but it is another matter whether it intended to go as far as this….

Moreover, the words chosen by Parliament — "administrative action" do not seem apt to embrace every instruction of and action by an employer. The expression chosen suggests that Parliament had in mind a particular type of action by an employer, and something other than a mere instruction or requirement that the worker perform her duties. In my opinion the appellant's submission fails to give any effect to the adjective "administrative"."[87]

Summers was considered by the Full Court of the Federal Court in Commonwealth Bank of Australia v Reeve.[88] In that matter their Honours examined, amongst other things, s 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth). Gray J, in dismissing the appeal, wrote the following:

"The use of the word "administrative" in the exclusion is significant. In accordance with normal principles, it is not to be assumed that a word in a legislative provision has no function to perform. The word "administrative" must have been inserted to distinguish the kind of action to which the exclusion is directed from other kinds of action that might also be taken with respect to the employment of a particular employee. Such action that is not "administrative" could be operational, in the sense that it relates to the activities or business of the institution or enterprise in which the employee is employed. Thus, an instruction to perform work at a particular location, to drive on a particular route, or to perform particular duties would not be regarded as "administrative" action, but as operational action with respect to the employee's employment."[89]

 Rares and Tracey JJ, also dismissing the appeal, stated that:

"It is one thing to contemplate disciplining an employee or taking steps under his or her contract of employment, and quite another to define or delimit or supervise the employment, job or task entrusted to the employee for him or her to perform or to give directions to him or her as to how and when he or she is to perform it. The former is comprehended by the expression "administrative action" in s 5A(1); the latter deals with the way in which the employee carries out the employment for which he or she was engaged. The latter is not "administrative action"."[90]

 In discussing the definition of "administrative" their honours wrote:

"The ordinary and natural meaning of "administrative" concerns the management of a body or enterprise as opposed to the task or job entrusted to a person who is subject to that management. "Administrative" has the following relevant dictionary meanings:

  • relating to administration ("administration" being defined as "the management or direction of any office or employment") (The Macquarie Dictionary online);
  • pertaining to, or dealing with, the conduct or management of affairs (The Oxford English Dictionary online);[91]

The Workers' Compensation and Rehabilitation Act 2003 (Qld) 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.

 Section 14D of the Acts Interpretation Act 1954 (Qld) provides that:

  "14DExamples

  If an Act includes an example of the operation of a provision—

  1. (a)
    the example is not exhaustive; and
  1. (b)
    the example does not limit, but may extend, the meaning of the provision; and
  1. (c)
    the example and the provision are to be read in the context of each other and the other provisions of the Act, but, if the example and the provision so read are inconsistent, the provision prevails."

Accordingly, the examples set out in s 32(5) are not exhaustive. They act as an aid to interpretation as they elucidate which "actions" are appropriately deemed "management action".

I respectfully adopt the approach of Rares and Tracey JJ in Reeves. 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.

In Davis v Blackwood, Martin J observed as follows:

"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."[92]"[93] (Citations renumbered accordingly)

  1. [46]
    I see no reason to add to that extract for the purposes of disposing of this appeal.

Management action in this matter

  1. [47]
    The respondent broadly contends in its Statement of Facts and Contentions that if the appellant suffered a personal injury, which arose out of or in the course of his employment and his employment is the major significant contributing factor, then the appellant's psychiatric or psychological disorder has arisen out of, or in the course of, reasonable management action taken in a reasonable way by his employer in connection with the appellant's employment. Consequently, the respondent submits that the injury is excluded by virtue of s 32(5) of the Act.
  1. [48]
    The respondent's Statement of Facts and Contentions does not identify the management action said to enliven s 32(5) of the Act.
  1. [49]
    For my part, if reliance is to be placed on the exclusionary provision contained in s 32(5) then it is incumbent on the party relying on the exclusionary provision to identify, with a reasonable degree of particularity, the matters which it says constitutes management action.
  1. [50]
    In a series of decisions,[94] Martin J has taken the opportunity of examining the role and status of Statements of Facts and Contentions. In Yousif v Workers' Compensation Regulator his Honour notes:

"A Statement of Facts and Contentions is not attended with the same level of formality as pleadings in the traditional sense are. The Commission is relieved, by s 531 of the IR Act, of many of the strict rules which apply in the civil courts. But, the Commission is still in charge of its own procedure and may, consistently with the provisions of s 531, require parties to provide an outline of their respective cases."[95]

 His Honour went on to observe:

"It is consistent with the requirements of s 531 for a party in an appeal under the Act to set out its case by way of a Statement of Facts and Contentions. It alerts the other party to the case it will have to deal with and it identifies the issues which exist which, in turn, allow for a confinement of the matters in dispute. An appeal under the Act is not the time for a broad ranging inquiry into an unlimited number of complaints or grievances. The time and resources of the Commission are constrained and it is necessary for those constraints to be acknowledged in this way. Subject always to the Commission's power to allow appropriate amendments (so that s 531 may be observed) a party will be bound by its Statement of Facts and Contentions and may not lead evidence which is not relevant to the identified issues."[96]

 Management Action said to enliven s 32(5)

  1. [51]
    It would appear that the management action said to enliven s 32(5) of the Act comprised those actions associated with the handling of the bullying and harassment complaint raised by the appellant on 30 December; the response to the complaint through the EEO process and the crew meeting on 31 December; and, the employers response to the appellant's request to leave the mine site.
  1. [52]
    It cannot be said that the disclosure of the confidential information by Mr Ireland was management action. It did not relate to specific management action directed to the appellant's employment. As noted above, the expression management action does not embrace every instruction of and action by a manager.
  1. [53]
    The evidence of Mr Ireland was that he released the confidential information to co-workers and, specifically, Mr Barr on the basis that he believed that Mr Barr had a right to know. Counsel for the Regulator properly characterised the breach of confidentiality not as management action taken in connection with the appellant's employment, but action taken by Mr Ireland.[97]  As a consequence, it is not excluded by operation of s 32(5) of the Act. The medical evidence of Dr Chau, which I accept, suggests that the disclosure of the confidential information was causative of the appellant's psychological/psychiatric injury. It was on her evidence, and in my view, that the appellant's employment was the major significant contributing factor to the appellant's injury.
  1. [54]
    It is accepted by the respondent that the appellant had asked to leave the mine site on 30 December. Mr Zgrajewski told the Commission that he was told by the appellant that he wanted to go home. It is also accepted by the respondent that by at least 30 December 2014 the employer was aware of the appellant's vulnerability to sustain a psychiatric injury. It was apparent to Mr Zgrajewski and Mr Ireland that when the appellant returned to the surface on 30 December, he was in a highly agitated and distressed state.
  1. [55]
    The appellant was brought up by Mr Riley from the underground mine because he was not coping well and believed he had had a breakdown. He attended at the office of Mr Ireland who said appellant was "bawling".[98] It is admitted by the respondent that "…during the initial discussion, some enquiries were made to ascertain what flights were available for the Appellant to return home earlier than his arranged travel date".  However, for some reason, those investigations were abandoned.
  1. [56]
    Mr Ireland acknowledges that he was concerned that the appellant was emotionally upset and might be mentally unwell.[99] Aware of the appellants vulnerably to sustain a psychiatric injury his medical care was entrusted to a contract paramedic. I accept that the appellant sought medical attention on numerous occasions. It was therefore incumbent on the employer to ensure that the appellant was given access to appropriate medical attention not only because it was sought by him but because it was apparent that he was clearly unwell when he returned to the surface on 30 December and the following days until he left the mine site on 2 January 2015. It would have been a relatively easy exercise for the appellant's employer to arrange transport to take the appellant to Mt Isa to access medical care. It did not do so. Accordingly, the management action was unreasonable and taken in an unreasonable way.
  1. [57]
    I accept that the appellant repeatedly told Mr Sellers and Mr Zgajewski that he wanted to go home and that he needed help. Arrangements were not put in place for the appellant to leave the site but, instead, he was encouraged to stay and complete an EEO process. It was suggested that the appellant was given two options. The first was to go home; and the second, was to participate in the EEO process. I accept that the appellant did not wish to participate in a formal complaint process as he believed that the crew members who harassed and bullied him would become aware of the complaint. The appellant's reservations were, ultimately, and unfortunately, well founded.
  1. [58]
    Whilst the appellant did participate in a meeting held on 31 December he was left with little choice. He was reliant on his employer to make the arrangements for travel. He had no ability to independently leave the mine site. He was confused,[100] and not "…in a frame of mind to – to know what was going on."[101] Mr Sellers, in particular, had formed, in my view, a singular determination to go down the EEO complaint pathway. There was a focus on process rather than what was necessarily in the best interests of the appellant. To this extent the management action was unreasonable and taken in an unreasonable way.
  1. [59]
    Whilst it is contended by the respondent that the appellant was not prevented from leaving the mine site, the reality is a very different thing. The Lady Loretta mine is in an isolated location some two and a half hours north-west of Mt Isa. The usual means of transport for employees accessing the mine site was by company bus. Nothing was done to facilitate his return home until 2 January 2015.
  1. [60]
    Mr Van Der Merwe accepted that it was the standard protocol at the mine that if someone needed to leave the mine site for medical reasons then arrangements would be made for them to leave.[102] That protocol, however, appears not to have been followed in this matter.
  1. [61]
    It was, in my view, unnecessary for the appellant to have to stay at the mine for as long as he did. The appellant was after all the complainant and not the subject of an investigation.
  1. [62]
    On 1 January 2016 the appellant telephoned both Mr O'Callaghan and Mr Sellers requesting to go home. An email was sent by Mr O'Callaghan to Mr Sellers and Mr Eichmann asking what was happening in relation to the appellant. No arrangements were put in place on 1 January to send the appellant home.
  1. [63]
    On 2 January Mr O'Callaghan again emailed to express his concern for the appellant's wellbeing. By this time the appellant's mental state had further deteriorated.
  1. [64]
    The failure of the appellant's employer to respond to the appellant's obvious health issues and his deteriorating mental condition was, in my view, unreasonable. On 1 January neither Mr Sellers nor Mr Eichmann took any steps in relation to Mr O'Callaghan's email. No steps were taken by Mr Sellers as a consequence of the telephone calls from the appellant. 
  1. [65]
    It must be kept in mind that the failure to respond in a timely way is set against the background that the employer had knowledge of the appellant's vulnerability to sustain a psychiatric injury. It is also set against a history of repeated requests by the appellant to Mr Sellers to go home. So desperate was the appellant that he contemplated stealing a truck to get back to Mt Isa and, ultimately, to his home in Mackay.
  1. [66]
    By 2 January 2015 there was a realisation that the appellant did not wish to have future contact with Mr Ireland. He feared him. Extraordinarily, a proposal was put to the appellant by Mr Sellers that Mr Van Der Merwe would mediate between Mr Ireland and the appellant. This was notwithstanding that the appellant had made it clear to Mr Sellers on 1 January that he did not wish to see or have contact with Mr Ireland.
  1. [67]
    Mr Sellers played a significant part in the events of this matter, but he was not called to give evidence. The reason for his non-attendance was not explained. 
  1. [68]
    Travel arrangements were finally put in place for the appellant to leave the mine site on 2 January and fly to Brisbane, stay overnight and ultimately back to Mackay. Those arrangements were completed in a relatively short period of time notwithstanding that there were some added complications.
  1. [69]
    I am not persuaded that the appellant was provided with the necessary support to ensure that his safety and well-being was maintained during the relevant period. It was the appellant's wife who provided him with a contact for Beyond Blue. It appears that the appellant's wife was the only counselling that he had access to. I accept he was not given a contact for the Employee Assistance Program. The respondent contends that the appellant was not isolated in his room at the mine site. Whilst I accept the general thrust of that submission, I consider that the appellant felt isolated because his room was located adjacent to Mr Ireland’s room and he did not wish to encounter him; as a consequence of the breach of confidentiality the appellant felt that he could no longer trust anyone; and, his mental state by this stage had began to decline. 

Conclusion

  1. [70]
    On the evidence before the Commission, I am satisfied that the appellant suffered an adjustment disorder with mixed anxiety and depressed mood, generalised anxiety disorder and social phobia; the injury arose out of, or in the course of the appellant's employment; the appellant's employment was the major significant contributing factor to the injury; and the appellant's injury was not excluded by operation of s 32 (5) of the Act.

Orders

  1. The appeal is allowed.
  1. The decision of the respondent dated 14 June 2016 is set aside.
  1. The application for compensation made by the appellant is one for acceptance.
  1. The respondent is 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 Amended Statement of Facts and Contentions.

[2] T1-9, L 32.

[3] T1-10, Ll 6-8.

[4] T1-11, L6.

[5] T1-11, L7.

[6] T1-11, Ll 21-22.

[7] T-11, Ll 24-27.

[8] T-11, Ll 40-41.

[9] T1-12, Ll 5-6.

[10] T-12, Ll 5-17.

[11] T1-12, Ll 23-26.

[12] T-12, Ll 35-44.

[13] T1-12, Ll 27-40.

[14] T1-13, Ll 42-46 – T1-14, Ll 1-3.

[15] T1-14, Ll 5-6.

[16] T3-23, Ll 30-46 – T3-24, Ll 1-47.

[17] T1-14, L 15.

[18] T1-14, Ll 24-25.

[19] T1-14, Ll 27-28.

[20] T1-14, Ll 37-41.

[21] T1-14, L 35.

[22] T1-14, L 28.

[23] T-16, Ll 4-23.

[24] T-16, Ll 34-38.

[25] T1-16, Ll 42-47.

[26] T1-17, L 1-2.

[27] T1-17, Ll 10-11.

[28] T1-17, Ll 16-18.

[29] T1-17, Ll 28-35.

[30] T1-17, Ll37-40.

[31] T1-18, Ll 16-17.

[32] T1-29, Ll 28-37.

[33] T1-39, Ll 42-47 – T1-40, L 1.

[34] T1-40, Ll 12-13.

[35] T1-18, Ll 19-22.

[36] T1-18, L 24.

[37] T1-18, Ll 32-36.

[38] T1-44, L 1.

[39] T1-19, Ll 32-34.

[40] T1-19, Ll 40-42,

[41] T1-20, Ll 9-10.

[42] T1-20, Ll 38-39.

[43] T1-22, Ll 31-32.

[44] Ex. 3.

[45] Ex. 3.

[46] Ex. 3.

[47] T1-23, L 1.

[48] T1-23, Ll 3-7.

[49] T1-24, Ll 9-13.

[50] T1-24, Ll 23-24.

[51] T1-24, Ll 26 -38.

[52] T1-25, L 5.

[53] T1-25, Ll 11-13.

[54] T1-25, Ll 15-25.

[55] T1-25, Ll 30-31.

[56] T1-25, Ll 36-39.

[57] T1-26, L 1.

[58] T1-26, Ll 46-47.

[59] Ex. 9.

[60] Ex. 10.

[61] T1-26, Ll 19-20.

[62] T1-26, L 20.

[63] T1-26, Ll 22-23.

[64] T1-28, Ll 35-44.

[65] T1-26, Ll 25-26.

[66] T1-26, Ll 37-38.

[67] Respondent's Amended Statement of Facts and Contentions.

[68] T1-27, Ll 10-12.

[69] T2-44, Ll 31-38.

[70] T1-27, Ll 42-45. T1-28, Ll 1-6.

[71] T1-28, Ll 12-13.

[72] T1-28, Ll 22-23.

[73] T1-27, Ll 24-25.

[74] Ex. 4.

[75] T3-11, Ll 4-5.

[76] T3-11, Ll 10-11.

[77] Ex. 8.

[78] Ex. 6.

[79] Ex. 6.

[80] Ex. 7.

[81] O'Brien v Q-Comp (2007) 185 QGIG 383, 401.

[82] Canadian General Electric Company Limited v The Ontario Labour Relations Board (1956) OR 437, 443.

[83] WorkCover Corp (SA) v Summers (1995) 65 SASR 243, 247.

[84] Commonwealth Bank v Reeve (2012) 199 FCR 463, 474 [33], 483 [60].

[85] Read v Workers' Compensation Regulator [2017] QIRC 072, [8]-[10].

[86] WorkCover Corp (SA) v Summers (1995) 65 SASR 243.

[87] Ibid 247.

[88] Commonwealth Bank v Reeve (2012) 199 FCR 463.

[89] Ibid 473-4 [31].

[90] Ibid 486 [74].

[91] Ibid 548 [52]. 

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

[93] Allwood v Workers' Compensation Regulator [2017] QIRC 088, [60]-[69].

[94] Blackwood v Adams [2015] ICQ 001, [19]; Carlton v Blackwood [2017] ICQ 001, [18]; Yousif v Workers’ Compensation Regulator [2017] ICQ 004, [13], [15].

[95] Yousif v Workers' Compensation Regulator [2017] ICQ 004, [13].

[96] Ibid [15].

[97] T3-53, Ll 19-20.

[98] T3-16, L 4.

[99] T3-16, Ll 3-7.

[100] T1-17, L 5.

[101] T1-17, Ll 5-6.

[102]  T2-50, Ll 7-9.

Close

Editorial Notes

  • Published Case Name:

    Haack v Workers' Compensation Regulator

  • Shortened Case Name:

    Haack v Workers' Compensation Regulator

  • MNC:

    [2017] QIRC 115

  • Court:

    QIRC

  • Judge(s):

    O'Connor DP

  • Date:

    22 Dec 2017

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
Allwood v Workers' Compensation Regulator [2017] QIRC 88
2 citations
Jump To
Cite 1 - [2017] QIRC 88
Cite 2 - [2017] QIRC 88
Belal Yousif v Workers' Compensation Regulator [2017] ICQ 4
4 citations
Jump To
Cite 1 - [2017] ICQ 4
Cite 2 - [2017] ICQ 4
Cite 3 - [2017] ICQ 4
Cite 4 - [2017] ICQ 4
Canadian General Electric Company Limited v The Ontario Labour Relations Board (1956) OR 437
2 citations
Jump To
Cite 1 - (1956) OR 437
Cite 2 - (1956) OR 437
Carlton v Workers' Compensation Regulator [2017] ICQ 1
2 citations
Jump To
Cite 1 - [2017] ICQ 1
Cite 2 - [2017] ICQ 1
Commonwealth Bank v Reeve (2012) 199 FCR 463
7 citations
Jump To
Cite 1 - (2012) 199 FCR 463
Cite 2 - (2012) 199 FCR 463
Cite 3 - (2012) 199 FCR 463
Cite 4 - (2012) 199 FCR 463
Cite 5 - (2012) 199 FCR 463
Cite 6 - (2012) 199 FCR 463
Cite 7 - (2012) 199 FCR 463
Davis v Blackwood [2014] ICQ 9
2 citations
Jump To
Cite 1 - [2014] ICQ 9
Cite 2 - [2014] ICQ 9
O'Brien v Q-Comp (2007) 185 QGIG 383
2 citations
Jump To
Cite 1 - (2007) 185 QGIG 383
Cite 2 - (2007) 185 QGIG 383
Read v Workers' Compensation Regulator [2017] QIRC 72
2 citations
Jump To
Cite 1 - [2017] QIRC 72
Cite 2 - [2017] QIRC 72
WorkCover Corp (SA) v Summers (1995) 65 SASR 243
5 citations
Jump To
Cite 1 - (1995) 65 SASR 243
Cite 2 - (1995) 65 SASR 243
Cite 3 - (1995) 65 SASR 243
Cite 4 - (1995) 65 SASR 243
Cite 5 - (1995) 65 SASR 243
Workers' Compensation Regulator v Adams [2015] ICQ 1
2 citations
Jump To
Cite 1 - [2015] ICQ 1
Cite 2 - [2015] ICQ 1

Cases Citing

Case NameFull CitationFrequency
State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2024] QIRC 532 citations
State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2020] QIRC 972 citations
Townsend v Workers' Compensation Regulator [2022] QIRC 1052 citations
1

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