Whipps v Workers' Compensation Regulator
[2017] QIRC 29
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Whipps v Workers' Compensation Regulator[2017] QIRC 29
- Add to List
Whipps v Workers' Compensation Regulator[2017] QIRC 29
Whipps v Workers' Compensation Regulator[2017] QIRC 29
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Whipps v Workers' Compensation Regulator [2017] QIRC 029 |
PARTIES: | Whipps, Daniel (Appellant) v Workers' Compensation Regulator (Regulator) |
CASE NO: | WC/2016/114 |
PROCEEDING: | Appeal against decision of the Workers' Compensation Regulator |
DELIVERED ON: | 6 April 2017 |
HEARING DATES: | 16 September 2016 (Mention) 8 and 17 November 2016 (Mention) 21 and 22 November 2016 (Hearing) 30 December 2016 (Appellant Submissions) 2 March 2017 (Regulator Submissions) 10 March 2017 (Appellant Submissions in Reply) |
HEARD AT: | Cairns (21 and 22 November 2016) |
MEMBER: | Deputy President Swan |
ORDERS |
|
CATCHWORDS: | WORKERS' COMPENSATION – APPEAL AGAINST DECISION – decision of Workers' Compensation Regulator – Appellant employed as Assistant Manager of Tavern – Complaints made by security officer of Tavern that Appellant had been engaged in misappropriate behaviour with a patron of the Tavern – Appellant claims deprivation of liberty on management's part – Upon receipt of email containing allegations Appellant claimed to have decompensated – Appellant did not return to work after receipt of correspondence – Injury excluded by s 32(5) of the Act – Appeal dismissed. |
CASES: | Workers' Compensation and Rehabilitation Act 2003 Ruddock v Taylor [2005] 22 CLR 612 R v Shaw 1991 57A Crim R 425 |
APPEARANCES: | Mr Daniel Whipps, the Appellant. Mr S. McLeod of Counsel, directly instructed by Ms C. Godfrey of the Workers' Compensation Regulator. |
Decision
- [1]On 22 February 2016, Mr Daniel Whipps (the Appellant) lodged an Application for Compensation for a psychological condition ("stress") with Woolworths Limited (Woolworths, a Self-Insurer).
- [2]Woolworths rejected that application on 18 March 2016 and the Appellant lodged an Application for Review in respect of that determination.
- [3]On 16 June 2016, the Workers' Compensation Regulator (the Regulator) determined to confirm the decision of Woolworths to reject that application.
- [4]On 7 July 2016, a Notice of Appeal was filed with the Industrial Registry at Brisbane, seeking to appeal against the decision of the Regulator of 16 June 2016.
NATURE OF APPEAL
- [5]This Appeal is made pursuant to s 550(4) of the Workers' Compensation Act 2003 (the Act) and conducted by way of hearing de novo. The onus of proof rests with the Appellant to establish that, on the balance of probabilities, his psychological condition falls within the definition of s 32 of the Act.
RELEVANT LEGISLATION
- [6]Sections 32(1)(b) and 32(5)(a) and (b) of the Act states as follows:
"32 Meaning of injury
(1) An injury is personal injury arising out of, or in the course of, employment if -
(b) for a psychiatric or psychological disorder -the employment is the major significant contributing factor to the injury.
…
(5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances –
(a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
(b) the worker's expectation or perception of reasonable management action being taken against the worker;"
- [7]The Regulator accepts that the Appellant was a "worker" for the purposes of s 11 of the Act.
WITNESSES
Witnesses for the Appellant were:
- Mr Daniel Whipps, the Appellant;
- Ms Gemma Chrichton, Gaming Supervisor, Woree Tavern;
- Ms Amy Gwilliam, Casual Bar Attendant, Woree Tavern;
- Ms Pearl Billam, Venue Manager, Woree Tavern;
- Mr Jaspar Jensen, Gaming Attendant, Woree Tavern;
- Ms Janet Hayes, Provincial Mental Health Nurse; and
- Dr Jack Hickey, General Practitioner.
- [8]Witnesses for the Respondent were:
- Mr Jacob Daniels, Security Guard, Woree Tavern; and
- Mr Darren Bedford, Manager, Woree Tavern.
[*The positions held at the Woree Tavern stated above, were the positions held at the relevant period of time.]
BACKGROUND OF THE CLAIM
- [9]Mr Whipps was employed as an Assistant Manager at the Woree Tavern in Cairns (operated by the ALH Group). He commenced in that position on 30 November 2015 and remained in that position for "just under three months". [T4-10] During the period of his employment at the Woree Tavern, the Manager was Ms Pearl Billam for most of that time and there were three Assistant Managers. One week prior to the Appellant finishing work for the Tavern, Mr Darren Bedford became the Manager.
- [10]Mr Whipps said he had incurred a psychological injury lasting for a period of time with the symptoms commencing on 19 February 2016.
- [11]The Appellant nominated his date of decompensation as 22 February 2016.
THE STRESSORS CLAIMED BY THE APPELLANT
- [12]The Appellant made reference to the Stressors below which he says contributed to his injury.
- [13]It should be noted that the Appellant referred to the individual Stressors in his written submissions as Stressors 1, 2, 3, 6, 7 and 8. That numbering was adopted by the Regulator in its written submissions (in response to the Appellant's submissions) and similarly, that numbering has also been adopted and reproduced by the Commission in this Decision.
Stressor 1: "Having to do work of other people as they would not hire a kitchen staff person and made me send home the bar person early."
- [14]The Appellant says he was on duty as Manager on the evening of 16 February 2016 and the morning of 17 February 2016. He says he was required to go outside of the Tavern for five minutes to do a perimeter check which was part of his job. Notwithstanding the fact that there was a licensed security guard on duty who should have been able to perform these duties, the Appellant's job required him to ensure that the venue fully complied with all Statutory Legislation (i.e. covering areas such as "liquor licensing, gaming legislation, 'Aml', Employment, Food Safety, smoking, OH&S, trade practices, discrimination and bullying").
- [15]The Appellant claimed that his views were supported by a co-worker Ms Gemma Chrichton, when she said there had been no kitchen hand at the Tavern and Management were expected to do the dishes. [T4-50]
Regulator's Submissions (Stressor 1)
- [16]In response to this Stressor, the Regulator stated "the evidentiary foundation for this stressor is difficult to discern as limited evidence was given by the Appellant". (Regulator's Submissions)
- [17]What the Regulator said was elicited during cross-examination of the Appellant was:
"One of the responsibilities as an assistant manager was assisting in the day-to-day operation in the Tavern; this knowledge involved the control off efficiencies within all departments of the tavern such as the running of food, beverage, alcohol and the bar trade; his role was to take a hands on role in carrying out necessary tasks at the tavern; and he was required to ensure service levels were at an acceptable level." [T4-14]
- [18]While initially stating that he had to do the dishes at the Tavern, the Appellant said that he would send other staff to do the dishes while he would attend to the bar and normal assistant manager duties. [T4-42] When further pressed about this claim by the Regulator, he stated that he did not do the dishes on every shift.
- [19]The Regulator submitted that when one considered the Appellant's work duties, the requirement for the Appellant to assist (when necessary) in the kitchen would not represent management action which was unreasonable in respect of the Appellant carrying out his duties.
Conclusion (Stressor 1)
- [20]I have accepted that the Appellant's duties as Assistant Manager were wide and varied. The Regulator said the duties included the "running of food, beverage, alcohol and bar trade" and that the position was one of which required a "hands-on" approach.
- [21]There was no substantive evidence to show that the Appellant was restricted from performing his core duties if he was required on occasions to do the dishes. This claim was diluted somewhat when the Appellant gave further evidence to the effect that he would send other staff to perform these duties and that he wasn't required to do the dishes every shift.
- [22]The essence of this stressor relates to the Appellant's claim that on the morning of 17 February 2016, he was required to do a perimeter check because the person responsible for this job had not performed his duties.
- [23]All that can be taken from that claim is that the Appellant had no other reason to go outside of the Tavern, save for performing someone else's work. The Appellant had given evidence that he was able to direct other people to do particular chores. There is no evidence of the Appellant, speaking to the Security Officer on that evening and advising him to perform his duties.
- [24]There is no credible evidence to support the Appellant's claim in this stressor.
Stressor 2: "Being accused of not cleaning the bar when it was cleaned and in fact on some of these occasions there was CCTV footage even proved that it was cleaned. CCTV footage that was destroyed by ALH Group in an attempt to distort justice."
- [25]The Appellant called Mr Jasper Jensen who had worked with the Appellant during January and February 2016. Mr Jensen worked as a gaming attendant. He could recall the Appellant complaining about the cleaning roster, but was unable to provide any more evidence on the point. [T4-57]
- [26]Ms Amy Gwilliam worked in a casual bar position at the Tavern in February 2016. When asked by the Appellant if she was aware of instances between herself and Mr Joe Reckard (Assistant Manager), she was unable to recall anything. Ms Gwilliam did recall Mr Reckard writing on the cleaning rosters when jobs had not been done.
- [27]The Appellant believed that the Regulator had conspired with the ALH Group to make sure that the CCTV footage at the Tavern which would assist him in his claim had been "either destroyed of just straight up not provided". [T4-12]
- [28]The Appellant stated that Mr Jensen, backed him up by saying "I only remember hearing about that". He also said that Ms Gwilliam, said she had recalled something being written on the cleaning roster.
- [29]The Appellant believed that Mr Reckard was the person who had complained about him. The Appellant said he told Ms Pearl Billam (then Venue Manager) on a number of occasions and all that he recalled her saying what that it was "childish and it really needed to stop". [T4-35]
Regulator's Submissions (Stressor 2)
- [30]The Regulator submits that there was limited evidence produced by the Appellant in this matter.
- [31]Ms Billam's evidence was that:
- She could not recall the Appellant coming to her on occasions complaining that he had been bullied by Mr Reckard;
- She said that Mr Reckard had not accused the Appellant of not cleaning the bar area when in fact it had already been done;
- Ms Billam denied communicating that Mr Reckard's behaviour was childish or something along those lines; and that
- There was no complaints by the Appellant directed at Mr Reckard's behaviour to him in the workplace. [T4-55]
Conclusion (Stressor 2)
- [32]I have not accepted that the CCTV footage on the night of 16 February and morning of 17 February 2016, was deliberately destroyed by the employer for reasons earlier stated.
- [33]There is no specific evidence given by the Appellant or other witnesses in this stressor to support this claim. While Mr Jensen said he "only remembered hearing about that", this is not sufficient to prove, on the balance of probabilities, that the Appellant was wrongly accused of not cleaning the bar. Also the evidence from Ms Gwilliam was that she recalled something being written on the cleaning roster. Nothing further was added. The allegation in the stressor is general and the Appellant did not nominate who had made the allegations.
- [34]I concur with those views expressed by the Regulator in regard to this Stressor.
Stressor 3: "On Monday the 15th of February he was deprived of his liberty by being locked in an office by Mr Darren Bedford who had only met the appellant 10 minutes maximum prior to the event. Well deprived of his liberty. The appellant was then threatened and intimidated by Mr Bedford and accused of smut talk which was something the appellant never does. I believe it may have been from the appellant's reactions here that Mr Bedford organised the scheme to get rid of the appellant by setting up the sexual harassment."
- [35]The Appellant said that on his first shift with Mr Bedford as Manager, Mr Bedford came into the cash room where the Appellant was and locked the door. The Appellant said he was not permitted to go to the toilet. He claimed that Mr Bedford commenced intimidating him, using "stand-over tactics" and accusing the Appellant of "smut talk". [T4-12] The Appellant said he was held in the room for around an hour and he became "frustrated and flustered". [T4-12]
- [36]The Appellant stated that the cash room was equipped with three CCTV cameras and he queried why the CCTV footage of that day was not able to be produced by Management of the Tavern (viz., ALH Group). Mr Bedford said he did not keep the CCTV footage of this event because he was unaware there was an allegation made by the Appellant about his "deprivation of liberty" on the part of Mr Bedford.
- [37]The Appellant believed that Mr Bedford's evidence was incorrect when he claimed that the doors to the cash room could not be locked. He said this evidence was incorrect as it was common knowledge that the cash room doors were always locked for security reasons.
- [38]The Appellant also made reference in his written submissions to an email sent from Mr Bedford to Ms Debbie Houghton, where Mr Bedford refers to the Appellant's claim that he was locked in the cash room. In the Appellant's view, this email showed that Mr Bedford was aware of the Appellant's claim of "deprivation of liberty". He said it again brought into question again the non-production of the CCTV footage from that room on that date. [This email was not submitted to the Commission.]
- [39]The Appellant cited Kirby J in Ruddock v Taylor[1] [in dissent but not as to this], where His Honour stated:
"Wrongful imprisonment is a tort of strict liability. Lack of fault, in the sense of absence of bad faith, is irrelevant to the existence of the wrong. This is because the focus of this civil wrong is on the vindication of liberty and reparation to the victim, rather than upon the presence or absence of moral wrongdoing on the part of the Defendant. A plaintiff who proves that his or her imprisonment was caused by the defendant has a prima facie case. At common law it is the defendant who must then show lawful justification for his or her actions."
- [40]On this ground alone, the Appellant claimed that his Appeal should be accepted.
Regulator's Submissions (Stressor 3)
- [41]With regard to the Appellant's claim that he had been deprived of his liberty by being locked in the cash room by Mr Bedford, the following evidence was given by Mr Bedford:
- He was the Manager of the Tavern, commencing duties in early February 2016.
- He had spoken to the Appellant in the cash room on a couple of occasions.
- These discussions related to shift briefings and other things happening at the Tavern;
- He recalled speaking to the Appellant in the cash room about his performance in the workplace.
- That occasion centred upon "some allegated [sic, alleged] smut talk … if it's happening, it needs to stop". [T5-34] At that time the Appellant had denied the allegation that he had used "smut talk".
- That the discussion on this topic lasted around 5 minutes rather than the 60 minutes as alleged by the Appellant. [T5-34]
- [42]Further evidence from Mr Bedford was that:
- The cash room door is a slam-shut door and is constantly locked. The Appellant agreed with this and that the door was locked for security reasons and that he was not concerned when this occurred on that occasion. [T4-36]
- The Appellant could have left the room at any time. [T5-39]
- He denied that the Appellant had asked to go to the toilet and was told that he couldn't by Mr Bedford. The Appellant said that when asking if he could go to the toilet, Mr Bedford had said "Hold on. I've got - I only want to speak to you for another 10 minutes." This was also denied by Mr Bedford. [T5-39]
- He denied intimidating the Appellant and said that the conversation in the cash room was laid back and no accusations were leveled at the Appellant. [T5-41]
- [43]The Regulator submitted the fact that Mr Bedford raised the allegation with the Appellant, was at all times reasonable in the circumstances. The reason for utilising the cash room for the conversation was to ensure the Appellant and Mr Bedford's privacy.
Conclusion (Stressor 3)
- [44]This Stressor is not substantiated on the evidence.
- [45]It is not accepted that the Appellant was deprived of his liberty when discussing issues with Mr Bedford in the cash room.
- [46]The matter at hand was somewhat sensitive and Mr Bedford took the correct approach in determining to conduct the conversation privately. Mr Bedford's evidence that this room was also used for other meetings on occasions with staff and that the Appellant had been in that room on some occasions for those purposes.
- [47]I have accepted Mr Bedford's evidence that the door was locked for security reasons but at any time the Appellant could have left the room.
- [48]I have accepted the evidence of Mr Bedford. The Appellant's evidence is not convincing. I have found it extreme in the circumstances. The Appellant was not deprived of his liberty.
Stressor 6: "The Appellant was sexually harassed on the night of the 16th morning of the 17th of February by a patron Ms B who was known to have solicited around the pub before. The appellant was followed out the pub by the patron. On the 19th February the appellant went into his shift where he was confronted by a Mr Darren Bedford. Darren Bedford asked the appellant about the night of the 17th and the appellant said about the fact Ms B had attempted to kiss him but he pushed her away and said to her that he was married. It was at this point that Mr Bedford started sexually harassing the appellant asking him questions that where not appropriate nor acceptable had Mr Bedford made the comments in reverse to a female we wouldn't even be discussing this. I still think it is entirely inappropriate for a manager to say 'I heard that your eyeballs where about to pop because she was sucking so hard' or that 'I heard she had cum all over the front of her shirt'."
- [49]On 17 February 2016, the Appellant said he was performing his work and at around 1:00am he went to do a perimeter check because the checks are supposed to be done hourly, but because there were insufficient staff on duty, this didn't happen.
- [50]He said that a "female patron came racing out behind me". He claimed that this person was known to the Tavern because she had been banned on one occasion for soliciting patrons. The Appellant's evidence of this occurrence is as follows:
"Anyhow, she came racing out behind me and followed me around - like, as I was heading around the corner of the public, she followed me around. She then tried to kiss me and I pushed her back, and told her to back off. I was married. She was still trying to push her way onto me and a security guard come around the corner - Mr Jacob Daniels. I've signaled to him to come to give me a hand but him being an incompetent guard that he is, didn't come to my aid and instead has made up this story the next day which, you know just absolutely pushed me to the edge, you know." [T4-12]
- [51]The Appellant said that the next day Mr Bedford confronted him with the information described in Stressor 6. The Appellant stated that he was disgusted by Mr Bedford's comments. Mr Bedford also accused him of leaving the venue unsafe. After a while the Appellant said that Mr Bedford told him that he didn't believe that he had committed a crime, but immediately after that Mr Bedford sent him an email saying that he had sex in a public place and that it constituted a criminal offence.
- [52]After this event, the Appellant said he was feeling ill and that he was "under sexual harassment". He visited his General Practitioner viz., Dr Jack Hickey, the next day (20 February 2016) and was advised that he was suffering from anxiety. [In fact, the Appellant had seen a Nurse, Margaret Stewart who was Dr Hickey's nurse].
- [53]On 22 February 2016, he saw Dr Hickey who prescribed anti-anxiety medication (Valium) for the Appellant. [T4-12] The Appellant obtained a medical certificate and he did not return to the workplace after that. (Exhibit 6)
- [54]The Regulator asked the Appellant if he had been speaking to Ms B in the Tavern premises near the pokie machines on the evening/morning of 16/17 February 2016. The Appellant said he often spoke to patrons and he probably would have spoken to her at that time.
- [55]During cross-examination, the Regulator played the CCTV footage of the morning of 17 February 2016. When questioned as to whether the Appellant and Ms B had gone outside of the premises together, the Appellant restated that Ms B had run after him. [T4-21]
- [56]When asked by the Regulator where the Appellant had been standing when Ms B tried to kiss him, he said he was on a step between the Tavern and the bottle shop. The Appellant said when Ms B tried to kiss him he pushed her backwards on two occasions. [T4-21, 22]
- [57]The Appellant said he noticed the Security Guard, Mr Jacob Daniels at that time and signaled for him to come to his aid. The Appellant, at this time, had his hand on the woman's chest "down from her throat". [T4-22]
- [58]Having told Ms B that he was a married man and not interested in her, she had followed him back into the tavern.
- [59]The Regulator asked the Appellant if he had spoken to Mr Daniels when he came back into the Tavern as he had thought Mr Daniels was a coward for not helping him. The Appellant had not spoken to Mr Daniels as he said he had raised issues with Mr Daniels previously and "he's done this before on several occasions to me, mate. So, there's no - what is the point of saying anything to him". [T4-23]
- [60]Back in the Tavern, the Appellant had told Mr Jensen that Mr Daniels had run away from a fight yet again, but recalled, at this point, that he had spoken to Mr Daniels He said Mr Daniels asked him if he "had gotten a head job?" to which he responded, "no". [T4-24]
- [61]The Regulator put to the Appellant that the discussion he described as having with Mr Jensen had not occurred, but rather that the Appellant had come back into the Tavern and there was a general discussion about Mr Jensen's interest in bows and arrows. This was denied by the Appellant. [T4-24]
- [62]Mr Bedford, during the course of his evidence said he had spoken to Ms B and she had told him that no event of a sexual nature occurred with the Appellant on the night in question.
- [63]The Appellant believed that, given his denial of such an event occurring, together with the comments made by Ms B, it should have been sufficient for Management to desist from pursuing the matter. The Appellant submits that action instead should have been taken against Mr Jacob Daniels for spreading rumours.
Regulator's Submissions (Stressor 6)
- [64]The Regulator, in responding to this claim, referred to the evidence of Mr Jacob Daniels, security guard at the Tavern.
- [65]His evidence was as follows:
- Mr Jacobs commenced his shift on 16 February 2016 at 10:00pm and finished his shift at 4:00am on the morning of 17 February 2016.
- Part of Mr Jacob's duties involved carrying out a perimeter check of the Tavern.
- At around 1:00am, while conducting this check, he noticed the Appellant and Ms B at the base of a staircase. As he approached the Appellant he observed the Ms B had her hand on his penis. He chose to walk on and said that he did not speak to either person. [T5-27]
- Upon re-entering the Tavern he spoke with Mr Jensen and told him what he had seen. Mr Jensen ran out of the Tavern but tripped over in the process. Around this time, the Appellant and Ms B re-entered the Tavern together. [T5-28]
- Mr Daniels then saw Ms B enter the smoker's area and the Appellant approach the area in which Mr Jensen was standing. Mr Daniel's recalls talking about Mr Jensen purchasing a bow from America and that conversation continued for about ten minutes. The Appellant denied that this conversation had occurred.
- Mr Daniels said that at no time had the Appellant stated that he had been sexually harassed by a patron. [T4-24] This conversation was confirmed by the Appellant during cross-examination.
- While the Appellant had viewed Mr Daniel as a coward, he said he didn't see any point in talking about the event with him. [T4-43]
- [66]The Appellant had recorded being shocked by the incident and ultimately he spoke to Mr Jensen saying he was a "… fucking useless cunt. Ran away from a fight again as usual". [T4-24]
- [67]Concerning the Appellant's claim that Mr Jensen had asked him if "he had gotten a head job?"; and his response "I don't do black", Mr Jensen said he thought the Appellant may have said "if it's black, throw it back… might have been the exact term you used". [T4-58]
- [68]While the Appellant said he had been shocked by the incident, the evidence of Mr Jensen was that the Appellant appeared "just calm and casual" and did not appear to be frazzled. [T5-29]
- [69]Mr Daniel's evidence was that Ms B spoke to both he and Mr Jensen after the event saying that the Appellant approached her to perform oral sex, but she had not wanted to and went out with Appellant anyway, but after been caught by Mr Daniels, the Appellant wanted to continue but she said she didn't. [[T5-28]
- [70]Mr Daniels spoke to Mr Bedford the following morning. He told Mr Bedford what he had seen earlier that morning and he was asked to provide a written statement.
- [71]Upon receiving this account of events on that morning, Mr Bedford sought advice from the Relief Operations Manager and was told to contact ALH Group, Human Resources Manager for Queensland, Mr Ezra Pyers.
- [72]The advice given was to speak to the Appellant and enquire as to what had occurred.
- [73]Mr Bedford asked to speak to the Appellant and the Regulator says that his evidence of the discussion was as follows:
- He asked the Appellant what/anything happened on the Appellant's last shift. The Appellant replied, no. The Appellant's own evidence confirms that he was asked by Mr Bedford on two occasions whether anything had happened on this shift, with the Appellant on each occasion saying effectively there were no issues. [T4-26]
- There may have been some discussion about operation "talk" and Mr Bedford denied that he accused the Appellant of having sexual relations with Ms B. [T5-44]
- He asked the Appellant "were you … were you … like round near the back stairs?" and he said "Yes. Ms B tried to kiss me on the back of the stairs." [T4-28]
- Mr Bedford asked "is that all that happened" and the Appellant said "yeah absolutely I don't do black". The Appellant's evidence was that Mr Bedford said to him I have heard "she sucked so hard she tried to suck your eyeballs out" and this alleged commend fired up and upset the Appellant and he felt "a bit disgusted by the comment". Mr Bedford denied making any such statement. In addition, the Appellant stated that Mr Bedford accused him of leaving the venue unsafe. [T4-13, T4-28, T4-13]
- Mr Bedford said that he would need to call Mr Pyers and the Appellant then left the room for about 10 minutes. The Appellant agreed with this account of events. [T4-49]
- Mr Bedford stated that he told Mr Pyers about the discussion he had with the Appellant and was advised to suspend his employment with one day's pay and to investigate the matter. [T5-36]
- The Appellant subsequently returned to the room, with Mr Bedford advising him that he had spoken with Mr Pyers and that he was to be suspended. The Appellant gave evidence that when he returned to the office he said to Mr Bedford "If you believe that I have committed a crime, ring the Police. Anyhow, Mr Bedford then said that he didn't believe I had committed a crime…". [T4-13]
Conclusion (Stressor 6)
- [74]This Stressor was one of the core concerns being expressed by the Appellant.
- [75]It is not the case (as previously stated), that the Commission must determine that the event as alleged occurred. If there had been no evidence at all of any event that night, for example; had the Appellant not been seen on CCTV walking out of the Tavern in the morning of 17 February 2016, closely followed by Ms B and returning some short time afterwards still being followed by Ms B; had the Appellant not agreed that he had spoken to Mr Daniels and asked him for help when he said he was being accosted by Ms B; had there been no evidence of conversations the Appellant said he had with both Mr Jensen and Mr Daniels, then there would be nothing for Management of the Tavern to investigate.
- [76]Against that background, the Employer was required to investigate the matter.
- [77]The manner in which the employer undertook this task was reasonable and was conducted in a reasonable way.
- [78]No further investigation was able to be conducted as the Appellant did not return to the workplace.
Stressor 7: "I also think that is unacceptable for someone to continue to email people that they had sex or performed a sex act with no proof whatsoever. And why was he still sending me emails about it after being advised that I was on anxiety about it there was certainly no reason to send the email on the 7th of March."
- [79]The Appellant states that he is a Christian who has been married to his wife for 17 years and during that period of time he had been faithful to his wife. Against that background he had found the allegations intimidating and humiliating.
- [80]The Appellant was critical of the employer sending the letter of 19 February 2016, to his home where his wife could see the allegations.
- [81]The Appellant stated that as Ms B had said the event had not occurred and he had said the same thing, then that should have been sufficient for the employer to discontinue its investigation. He believed the employer should have taken action against Mr Jacobs Daniels for "spreading rumours".
Regulator's Submissions (Stressor 7)
- [82]Mr Bedford contacted the Appellant for the purpose of having a meeting. In an email dated 19 February 2016, had as its heading "Notice to Attend Meeting, Alleged Misconduct and Poor Performance". [Exhibit 2]
- [83]A meeting time of 10:00am on 20 February 2016, was nominated. The Appellant was invited to bring a support person with him. This meeting never occurred as the Appellant was unable to attend for health reasons. [Exhibit 1]
- [84]Mr Bedford's evidence was that sometime after the event, he had spoken to Ms B who had said no sexual event had occurred. [T5-43]
- [85]The Regulator submitted that, having been advised of a complaint against the Appellant, the employer had a responsibility to investigate the complaint. It submits that whether or not the allegation was true or otherwise was not a matter for judgment. What was of relevance was how Mr Bedford dealt with the issue.
- [86]In arranging a meeting with the Appellant shortly after the alleged event, the Regulator states that Mr Bedford's actions were appropriate and reasonable. Mr Bedford had been advised by Mr Pyers as to how to conduct the meeting. The Regulator submits that:
"…seeking such advice and the subsequent manner in which the matter was handled cannot be categorised as unreasonable. The allegations raised against the Appellant were potentially of a serious nature and consequences. The decision to stand him down in the circumstances was reasonable". (Regulator's Submissions, point 51)
- [87]The letter which had been sent to the Appellant by Management detailed the allegations which had been made against the Appellant; stated that if the alleged incidents had in fact occurred then such conduct may be in breach of relevant company policies and expressly set out a time and place for a meeting to occur at the Tavern. The purpose of the meeting was to discuss the allegations.
- [88]The Regulator pointed out that a part of this nominated stressor referred to an alleged email on 7 March 2016, but that there had been no evidence as to what that email related to. The Regulator said that in any event if such an email existed it would have post-dated the Appellant's date of decompensation on 22 February 2016.
Conclusion (Stressor 7)
- [89]After considering the evidence on this point it was clearly reasonable management action for Management to advise in writing to the Appellant that it was investigating a complaint made against him. Further, that reasonableness continued where the Appellant was asked to attend a meeting to discuss the issues further. That the nature of the allegations related to sexual matters, was simply the reality of the situation.
Stressor 8 "That the Appellant was expected to work to wee hours of the morning with no protection as the security guard he was assigned was incompetent and could not be relied upon."
- [90]The Appellant was concerned that there had been no CCTV footage provided from all the times Mr Jacobs (the security officer) had "run from a fight".
- [91]He stated that Mr Jacobs had previously told him he would tell the truth in the hearing but had failed to do so. The Appellant said that a security officer should take into account detail and it was odd that Mr Jacobs, claiming to have seen the Appellant and Ms B engaged in some form of sexual activity, was unable to tell the Commission the size of the Appellant's penis. The Appellant described Mr Jacobs' response as "BS"
- [92]The Appellant said the evidence showed that Mr Jacobs was incompetent and, as such, the Appellant had been asked on a regular basis to undertake Mr Jacob's work.
Regulator's Submission (Stressor 8)
- [93]The Respondent said that the Appellant had not provided any evidence to support this stressor.
Conclusion on Stressor 8
- [94]The Commission accepts there was no specific evidence given by the Appellant sufficient to establish the veracity of this nominated stressor.
- [95]The Commission has been unable to find that Mr Daniels was not a reliable witness.
- [96]Other issues raised by the Appellant concerning the CCTV footage and the hearing before the Commission.
CCTV FOOTAGE
- [97]The Appellant had sought discovery of all available CCTV footage from the Tavern on the dates in question. This matter came before the Commission in a pre-hearing mention. The Commission was satisfied that all available footage had been made available to the Appellant. The submissions made to the Commission by the Regulator at that time were that CCTV footage was only kept for a particular period of time before being deleted. The only footage kept was that of the night of the alleged events the employer had believed that it may be relevant. As well, the area of the back steps of the Tavern did not have a CCTV in position.
- [98]I have not found that there had been any "cover-up" by the employer in this regard.
THE APPELLANT'S ALLEGATION CONCERNING WITNESSES
- [99]When the Appellant was in the course of giving his evidence, he was advised by the Commission during various breaks in that process that he should not talk to anyone about his evidence.
- [100]However, the Appellant said he was aware that during one of the breaks, someone from the Regulator had spoken to a witness he had called to give evidence and who, at that stage, had not given their evidence.
- [101]That mater was considered by the Commission. Ultimately the Appellant was advised by the Commission that there was "no property" in witnesses (see R v Shaw[2]).
- [102]One particular witness, Ms Billam gave evidence to dispel the Appellant's claim that she had been told what to say in her evidence i.e. to say that she couldn't remember anything - by the Regulator, by stating that it had definitely not occurred. I have accepted that evidence.
- [103]Unfortunately for the Appellant, it would be fair to state that none of the witnesses called by him gave any significant evidence which was supportive of his claim.
A PATRON OF THE TAVERN
- [104]Named in the allegation against the Appellant was a person known as "Ms B" who was a patron of the Tavern. Ms B was not called to give evidence.
CONSIDERATION OF EVIDENCE AND CONCLUSION
- [105]The Appellant did not appreciate the fact that the onus of proof rested upon him to prove his claim on the balance of probabilities.
- [106]The contention from the Regulator that it was not for the Commission to determine whether or not the Appellant had engaged in the alleged event of the morning of 17 February 2016, is accurate.
- [107]The reality was that an allegation was made against the Appellant to Management of the Tavern that a particular event had occurred involving the Appellant and a patron of the Tavern.
- [108]There is no question that Management had to give consideration as to how it managed this allegation. Rightly so, Mr Bedford sought a response from the Appellant and then, on advice, called for a more formal meeting by way of correspondence with the Appellant to discuss the issue. This meeting was called expeditiously - some two days after the allegation was made.
- [109]Upon being stood down from work for the purpose of investigating the matter, the Appellant, for health reasons, said he was unable to attend the meeting.
- [110]Medical evidence shows that the Appellant visited his General Practitioner, Dr Hickey on 22 February 2016. Dr Hickey issued him with a medical certificate and he was away from work from that time.
- [111]Dr Hickey gave telephone evidence that the level of anxiety preventing the Appellant from returning to the workplace was at a moderate to severe level and he thought that "it's reasonable to expect the cause of recent anxiety is workplace bullying". [T5-21] Dr Hickey however, was not able to recall any specific allegations made by the Appellant concerning alleged bullying from the employer. [T-24]
- [112]In cross-examination, Dr Hickey said he had not been shown any correspondence by the Appellant from the employer concerning allegations of possible misconduct.
- [113]Dr Hickey's evidence was that the Appellant had a chronic pre-existing condition to depression/anxiety and that he considered the workplace had exacerbated that anxiety.
- [114]The Appellant said he had also called Ms Hayes who was a provincial mental health nurse. Contrary to the Appellant's evidence, Ms Hayes was not a Psychologist and Dr Hickey had not referred the Appellant to her. The Appellant said that because of her lack of expertise, limited weight should be given to her notes. (Exhibit 5)
- [115]The Regulator stated:
"…although Dr Hickey is not an expert, it would appear that the Appellant may have suffered an exacerbation of his underlying depressive disorder (whatever that particular diagnosis may be) due to various workplace incidents. It follows that the Appellant's date of decompensation was 22 February 2016."
- [116]Even if that is the case, and it is accepted that the Appellant incurred an injury in the course of his employment, where the employment is the major significant contributing factor to the injury, the exclusionary provisions of s 32(5)(a) operate such as to exclude the injury for the purposes of the Act.
- [117]It has been found that reasonable management action was taken in a reasonable way by the employer in connection with the worker's employment pursuant to s 32(5)(a) of the Act.
- [118]The employer's actions in this matter related to one discussion with Mr Bedford, followed by correspondence to the Appellant detailing the allegations made against him and the employer's intention to discuss these allegations with him in the presence of a support person, if the Appellant so wished.
- [119]The mater did not proceed any further as the Appellant did not return to the workplace. The alleged incident and the request to speak to the Appellant in a formal situation occurred over no more than two days. There had been a speedy response on the part of the employer to discuss more fully the allegations with the Appellant. This, in my view, does not represent unreasonable management action.
- [120]The Appeal is dismissed.
- [121]The Appellant is to pay the Regulator's costs of, and incidental to the Appeal.
- [122]Order accordingly.