Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2017
  4. McGuigan v Workers' Compensation Regulator - [2017] QIRC 36

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

McGuigan v Workers' Compensation Regulator[2017] QIRC 36

McGuigan v Workers' Compensation Regulator[2017] QIRC 36

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

McGuigan v Workers' Compensation Regulator [2017] QIRC 036

PARTIES: 

McGuigan, Stephen

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2015/294

PROCEEDING:

Appeal against a decision of Workers' Compensation Regulator

DELIVERED ON:

28 April 2017

HEARING DATES:

20 and 21 March 2017

HEARD AT:

Brisbane

MEMBER:

Industrial Commissioner Thompson

ORDERS:

  1. The Appeal is upheld.
  2. The decision of the Respondent to reject the Appellant's application for compensation in accordance with s 32(5)(a) of the Act is set aside.
  3. The claim is one for acceptance.
  4. The Respondent is to pay the Appellant's costs of and incidental to the Appeal.

CATCHWORDS:

WORKERS' COMPENSATION ‑ APPEAL AGAINST DECISION ‑ Decision of Workers' Compensation Regulator ‑ Appellant bears onus of proof ‑ Standard of proof ‑ Balance of probabilities ‑ Witness evidence – Whether personal injury is excluded or otherwise from being a compensable injury through the provisions of s 32(5) (a) of the Act – Personal injury – Disciplinary process – Unreasonable change of status – Medical evidence – Causal connection with employment – Personal injury arose out of or in the course of employment – Employment was the major significant contributing factor – Personal injury is compensable – Unreasonable management action

- Appeal upheld - Decision of the Respondent to reject application for compensation is set aside - Claim is one for acceptance - Respondent to pay Appellant's costs of and incidental to the Appeal.

CASES:

Workers' Compensation and Rehabilitation Act 2003, s 11, s 32, s 550

Coal Mining Safety and Health Act 1999

Coal Mining Safety and Health Regulation 1999

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

Labaj v WorkCover Queensland (2005) 174 QGIG 370

McDonald v Q-COMP (2008) 188 QGIG 180

Mission Australia v Q-COMP (unreported, Industrial Magistrates Court of Queensland, Lee IM, 26 July 2010)

MacArthur v WorkCover Queensland (2001) 167 QGIG 100

Nilsson v Q-COMP (2008) 189 QGIG 523

Lawnton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 99

Willie v Q-COMP (2009) 190 QGIG 233

Eric Martin Rossmuller v Q-COMP (C/2009/36) - Decision -

Misevski v Q-COMP (C/2009/29) - Decision -

APPEARANCES:

Mr R. Myers of Counsel, instructed by Hall Payne Lawyers for the Appellant.

Mr J. Merrell, Counsel directly instructed by Workers' Compensation Regulator, the Respondent.

Amended Decision

  1. [1]
    Stephen McGuigan (McGuigan) on 25 November 2015 lodged a Notice of Appeal with the Industrial Registrar pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Workers' Compensation Regulator (the Regulator) released on 19 November 2015.  The decision of the Regulator was to confirm the decision of Glencore [XtraCare] to reject McGuigan's application for compensation in accordance with s 32(5) of the Act.

Relevant Legislation

  1. [2]
    The Legislation pertinent at the time of this Appeal is s 32 of the Act:

"32 Meaning of injury

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

…

  1. (b)
    for a psychiatric or psychological disorder - the employment is the major significant contributing factor to the injury.

…

  1. (5)
    Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances -
  1. (a)
    reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
  1. (b)
    the worker's expectation or perception of reasonable management action being taken against the worker;
  1. (c)
    action by the Regulator or an insurer in connection with the worker's application for compensation.

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

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

Nature of Appeal

  1. [3]
    The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the Appellant.

Standard of Proof

  1. [4]
    The standard of proof upon which an Appeal of this nature must be determined is that of "on the balance of probabilities".

Evidence

  1. [5]
    In the course of the proceedings, evidence was provided by six witnesses.
  1. [6]
    The Commission, in deciding to précis the evidence of the witnesses and submissions notes that all the material has for the purposes of this decision, been considered in its entirety.

Witness Lists

  1. [7]
    The witnesses for the Appellant were:
  • McGuigan;
  • Jason Hill (Hill);
  • Kerrod Slatter (Slatter); and
  • Dr Scott Jenkins (Dr Jenkins).
  1. [8]
    The witnesses for the Regulator were:
  • Scott Dobbie (Dobbie); and
  • Scott Cowley (Cowley).

Appellant

McGuigan

  1. [9]
    McGuigan commenced employment as an underground coal miner on 1 September 2003 with Oaky Creek Coal and following induction worked for nine years in the development department at the coalface.  Subsequently he moved to the outbye department where he worked for approximately two years until he received a change of status sending him back into development.  There were clear distinctions between the two sections with the development role being very labour-intensive, very dirty, working in close proximity to heavy machinery in an unpredictable environment whereas in the outbye section the work entailed breakdowns, maintenance on conveyors, slight roadworks and repairing mine infrastructure.  Rarely in outbye would there be a requirement to work in close quarters with heavy machinery.
  1. [10]
    The proposed move back to development presented some challenges for McGuigan due to changes in production equipment and new technology in the workplace with there being equipment now in place that he had neither previously operated nor worked around.  He was required to undergo retraining in terms of equipment, familiarisation authorisation and to be assessed competent in respect of No Go Zones.  McGuigan approached the development superintendent (Cowley) to explain he had been out of the area for a considerable amount of time and that all of the equipment and procedures had changed at which point Cowley indicated he would organise all the appropriate paperwork for him when McGuigan arrived back at work.
  1. [11]
    McGuigan reported for work in development on 29 August 2014 at which time he approached his immediate supervisor Tony Gulliver (Gulliver) who had little idea about what was happening, which resulted in a visit to Cowley's office to seek the paperwork that had previously been discussed.  Cowley had forgotten about the paperwork which led to Gulliver assisting in obtaining the No Go Zone training information package [Exhibit 1] and the No Go Zone assessment sheet [Exhibit 2].  The status of the documentation was of the most importance to an underground miner as No Go Zones in the mining operations were at times the difference between life and death.  There were strict guidelines covering such areas as safety zones around certain vehicular equipment, identifying areas where "you can and can't go at particular times".
  1. [12]
    Issues arose with the content of Exhibit 1 in that it provided conflicting information around No Go Zone areas associated with the operations of shuttle cars being in one instance ten metres and 30 metres in another which were not reconcilable.  In the assessment phase [Exhibit 2] at question 12 there was a requirement to "using the graphic above what is the minimum boot and back No Go distance whilst the shuttle car is wheeling from the Continuous Miner".  There were four options available being:

"(a) 10 metres

  1. (b)
    15 metres
  1. (c)
    30 metres
  1. (d)
    20 metres".

McGuigan had circled both the 10 and 30 metre answers as a result of the conflicting information provided in the accompanying documentation.  He became frustrated with the situation and as he was unable to address the situation with anyone from training at the end of the shift he decided to address the issue the next morning.

  1. [13]
    The next morning after speaking to several co-workers he raised the issue of the No Go Zone paperwork with management who whilst acknowledging there were issues told him to "just get down there and cut coal, get underground".  The response frustrated "the hell out of him" due to the serious nature of his concerns.  He descended underground with the crew where he was allocated work by Gulliver at which point he informed him he had not done the No Go Zones assessment which brought a response from Gulliver "why haven't you fucking done them".  Further discussion ensured between the pair during which McGuigan began to shake as there had been fatalities in the past in similar situations.  Gulliver instructed him to "initial the top that you understand there's a problem with the paperwork and go down to the face".  McGuigan told him that not being authorised was a serious breach of safety and if management turned up he could be sacked on the spot or worse he may be severely injured or killed or severely injure or kill someone else.  He sat at the crib table, his legs "went to jelly" and remembered he had "balled out his eyes".  The issue was raised with Slatter who had said that he could not initial the document as requested and reminded him of procedures.  McGuigan was escorted to the surface and was taken to the shift supervisors offices, later declining the opportunity to talk to Dobbie as he was a "blithering mess" at the time.  He was advised to initially see the company doctor but preferred to see his own general practitioner who was 90 kilometres away in Emerald.
  1. [14]
    The ramifications of the non-compliance with the designated areas would be discipline action with a "fair chance you will get sacked".
  1. [15]
    Under cross-examination evidence was given regarding McGuigan having been the Vice President of the Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (CFMEU) Lodge at Oaky North Mine and was aware the importance of safety of its members working at the mine.  McGuigan had through his Union involvement and employment a working knowledge of:
  • Oaky Creek Coal's operating procedure for training, assessment and competency;
  • Coal Mining Safety and Health Act 1999; and
  • Coal Mining Safety and Health Regulation 1999 [Transcript p. 1-27].
  1. [16]
    Upon commencement of employment an induction is carried out and employees are trained and assessed as competent for particular tasks and to operate machinery in a safe manner.  Training was provided for a range of competencies for different tasks depending upon which crew they worked on in the mine [Transcript p. 1-24].  Once an employee has been assessed as competent to all required functions or procedures they are able to perform tasks as directed and given refresher training every five years [Transcript p. 1-27].  McGuigan was taken through a Competency Report document relating to training provided to him for the period 14 October 2003 to 31 July 2014.  Reference was made to training for No Go Zones General completed on 10 May 2013 and valid to 10 May 2018 [Transcript p. 1-29] subject to any refresher training that may be required in that five year period [Transcript p. 1-30].  The work of development crews as opposed to outbye crews was that outbye crews included work underground and aboveground whereas development crews work was all underground [Transcript p. 1-32].  When working in outbye between mid-2012 and August 2014 he would come in close contact with mobile plant that included loaders and drift runners [Transcript p. 1-32] all of which operated in clearly defined zones established by the employer [Transcript p. 1-33].  The No Go Zone material in Exhibits 1 and 2 were the minimum distances to be observed [Transcript p. 1-34].
  1. [17]
    Just prior to being moved back to development in August 2014 he had been the subject of an investigation as a result of a sticker he had placed on his locker at work.  A coal mine worker had been offended by the sticker that likened the employer to Hitler [Transcript p. 1-35] and contained the following wording:

"'…we must reduce workers' salaries and take away their right to strike.' - Hitler 1933 - Sound Familiar." [Transcript p. 1-35]

  1. [18]
    At the time he was referred to the company's Equal Employment Opportunity (EEO) Policy that referred to harassment and included unintentional behaviour that offended, humiliated or intimidated a person [Transcript p. 1-36].  At a meeting on 8 August 2014 he was provided with a draft written warning letter which he indicated he would not accept and became upset [Transcript p. 1-37].  Ultimately he was given a formal written warning [Transcript p. 1-38].  A support person (for McGuigan) at the meeting informed the management that the sticker referred to the Australian Government, not the company and had nothing to do with his work [Transcript p. 1‑39].  The written warning provided detail of the finding and outcome of the disciplinary process and concluded with the following passage:

"Steve, you are reminded of your employment obligations to provide a workplace that is free from discrimination, harassment and victimisation.  Further breaches of this policy will be subject to further disciplinary action and this may include termination of employment."

  1. [19]
    In August 2014 he was advised that he was to cease work in outbye and go to the development crew with Cowley informing him on 29 August 2014 that he would be in the D3 crew.  Cowley was informed his tickets were out of date and that he needed refresher training [Transcript p. 1-41].  McGuigan accepted that he told Cowley that his transfer to D3 crew was "shit" but at the time he was unaware it was known as "zoo" crew or "onion" crew [Transcript p. 1-42].
  1. [20]
    A claim for compensation was made to XtraCare on 25 February 2015 and to determine if he had suffered an injury within the meaning of the Act he was examined by Dr Whittington a psychologist in March 2015.  At the time of assessment he provided a statement to the psychologist in which he identified three primary reasons as to why he had suffered a psychological injury in September 2014 [Transcript p. 1‑44].  McGuigan refused to accept that the disciplinary action taken against him had a connection with the injury he suffered on 1 September 2014 [Transcript p. 1‑49].  He did not accept the transfer to the D3 crew had a causal connection to his ultimate decompensation on 1 September 2014 although he believed the transfer had been made to "unsettle" him [Transcript p. 1‑49].  The issues of the disciplinary action and the transfer had been dealt with at the time and "then you move on" [Transcript p. 1‑50].
  1. [21]
    On Friday 29 August 2014 he worked underground with the D3 crew moving stores around on loaders [Transcript p. 1‑51], he did not on the day make close contact with shuttle cars or the feeder-breaker only coming into contact with loaders [Transcript p. 1‑52].  He worked similar shifts on 30 and 31 August 2014 undertaking the same work [Transcript p. 1‑53].  By 31 August 2014 he had completed the development familiarisation paperwork and had commenced the No Go Zone paperwork [Transcript p. 1‑54].  The previous assessment (dated 10 May 2013) had him as competent for No Go Zones General and did not include other specific areas in development [Transcript p. 1‑55].
  1. [22]
    McGuigan was questioned on his completion of the assessment [Exhibit 2] having firstly read the training material [Exhibit 1].  He acknowledged answering questions one to five however did not answer question six which dealt with No Go Zones but was not an area of contention in terms of the No Go Zone distances [Transcript p. 1‑76].  Other questions regarding restrictions around machinery (eight through to 11) were completed by McGuigan [Transcript pp. 1‑76 to 1‑77] as well as question 13 however he did not proceed past that point in the assessment documentation [Transcript p. 1‑77].  There were difficulties in answering question 12 because the distances in the training manual did not match up with the distances in the assessment book [Transcript p. 1‑77].  In answering question 12 he had circled options (a) and (c) out of four options when only one answer was required and then had put a question mark beside the question because there were conflicting distances in the documentation [Transcript p. 1‑78].  There was acceptance by McGuigan that the discrepancy between the training book and assessment book was in relation to the back end and boot end No Go Zone distances of a shuttle car in both directions [Transcript p. 1‑78].  McGuigan's problem was "there were different distances and I - I had no idea which was right and which was wrong" [Transcript p. 1‑78].  The difference in distances had cast a "huge confusion and dispersion" in his head and if this was being explained wrong what else was wrong [Transcript p. 1‑79].  McGuigan was taken to further sections of the training book regarding No Go Zone distances and agreed the confusion was whether the No Go Zone distance at the back and front end of the shuttle car was either 10 or 30 metres [Transcript p. 1‑81].  On whether the most risk adverse thing to have done would have been to observe the 30 metres distance McGuigan encountered by reiterating he was not authorised to work around the newly introduced equipment and could not therefore go to that area [Transcript p. 1‑82].  At the morning meeting of the D3 crew on 1 September 2014 McGuigan informed members of management that were present the training package was incorrect [Transcript p. 1‑86].  Members of the D3 crew present noted "that the training package was incorrect and they had gone to the face of the mine" [Transcript p. 1‑87].  At the same time he had discussions with Gulliver who directed him to write on the No Go Zone paperwork that he understood the distances in the paperwork were incorrect and to just "initial it" and get to the face.  McGuigan refused to initial the document [Transcript p. 1‑88].  McGuigan agreed the No Go Zone distances were available on the company's intranet but that could not be accessed at night or underground [Transcript p. 1‑88].  McGuigan refused the proposition that his concerns were about the company trying to force him out of employment and seeking to set him up [Transcript p. 1‑89].

Hill

  1. [23]
    Hill, a miner since 1993 including a period with Oaky North Coal was now an Industry Safety and Health representative in the employ of the CFMEU (Mining and Energy Division).  The current position is elected by members of the CFMEU, is a State-wide role and to hold the position one must have the qualification of a deputy's certificate or higher.  The Coal Mining Safety and Health Act 1999 provides powers and functions for the position that includes:
  • inspecting mines;
  • reviewing documents;
  • participating in investigations;
  • helping with safety initiatives;
  • power to stop operations or part operation if something unsafe is detected; and
  • right of entry provisions.
  1. [24]
    In his previous work at Oaky North most of his time was spent in development as a miner and at times a deputy or a controller in charge of development operations.  He had held the elected position of site safety and health representative for the Oaky Creek mine for about 11 years and had been an appointed trainer/assessor on site.
  1. [25]
    A scenario was put to Hill regarding paperwork for an assessment be signed off noting, perhaps, the errors that existed in it and to then get on with the work of coal mining.  Hill's response was:

"Don't sign the assessment.  To take it up with your supervisor.  Get clarification and request that they get you a copy of the assessment and training package that was up-to-date, and not to sign it or undertake - partake in that training until such time it was fixed up.  So that you knew exactly where you stood with what the rules are, whether it's 10 metres, 20 metres or 30 metres".

The consequences of carrying out the work without having been declared competent in accordance with the requirements could include:

  • putting yourself at risk;
  • may get seriously injured or worse; and
  • could be liable for disciplinary action.
  1. [26]
    Under cross-examination Hill agreed there were three types of No Go Zones being:
  • Restricted or Controlled zone;
  • No Standing Zone; and
  • No Go Zone to a particular area.

It was the personal responsibility of each individual miner to observe the No Go Zones as well as the operator of the plant [Transcript p. 1‑70].  To ensure the health and safety is the whole point behind a No Go Zone area and the specified distances are the minimum not maximum distances to be observed [Transcript p. 1‑71].  If an employee by whatever means knows the minimum distances they would not be able to operate safely unless they had been trained, authorised as competent [Transcript p. 1‑72].  In terms of the events on 1 September 2014 Hill had no involvement in the matter and was not aware at any time of McGuigan's assessed competencies [Transcript p. 1‑73].

Slatter

  1. [27]
    Slatter an underground miner of some 27 years' experience obtained the qualification as trainer assessor in or around the year 2000.  On 1 September 2014 he was working in the same crew as McGuigan and came across him in the North mine crib room where he observed him to be visibly stressed, irritable and sounding angry.  Prior to entering the crib room he had spoken to Gulliver who told him he was getting someone to run McGuigan out because he was stressed and needed to go to the surface.  McGuigan informed him he was distressed about the assessment of No Go Zones and an incorrect training package.  Slatter was shown the material, confirmed it was not the right training package and he needed to get the correct on.  McGuigan was referring to the No Go Zone distances to the shuttle car and it was necessary for him to do the retraining because there had been updated, bigger equipment since the last time he worked in development.
  1. [28]
    There were consequences with being provided with the incorrect material because the vision on the new shuttle cars was fairly restricted and if a person happened to be in the area where an operator could not see them then there was a chance of being injured or possibly killed.  There were ramifications for persons proceeding with incorrect paperwork with people in the past stood down or their employment ceased.  Once informed by McGuigan that he had been told to sign the document and acknowledge it was the incorrect package, Slatter spoke to Gulliver, telling him that was not the correct training and assessment procedure and as a trainer assessor he would not countersign the assessment, leaving McGuigan not authorised.  The new shuttle cars were first used in 2013 at which time concerns were raised about restricted vision which led to some modifications being made to the cabs and canopies which made them a "bit more" operator friendly but still with restricted vision.
  1. [29]
    Under cross-examination Slatter who had commenced employment at Oaky North in 2005 gave evidence that the function of the trainer assessor was to determine if a coal mine worker was competent to perform tasks in an underground mine [Transcript p. 2‑8].  New employees were required to undergo induction which was followed by training, assessment and competency procedures followed by competency and training needs analysis [Transcript p. 2‑8].  Slatter's work at Oaky North had been exclusively in the development area but he had an understanding of the other departments [Transcript p. 2‑8].  Those engaged in development are requested to be assessed as competent in the use of generic equipment, continuous miner or shuttle car, emergency responses and underground fire [Transcript p. 2‑9].  New No Go Zone paperwork was provided for the development area in 2013/2014 when new machinery was introduced which had a development component for the development people [Transcript p. 2‑10].  Slatter did not accept that in or about 2013 (as the new shuttle cars were introduced) that the No Go Zone General training package covered longwall, development and outbye, giving evidence they "just got the training package for development when the new shuttle cars [arrived]" [Transcript p. 2‑10].  Slatter responded to questions about the various No Go Zone categories in areas that were absolutely prohibited with the observation of that type of area primarily the responsibility of the individual coal miner [Transcript p. 2‑11].  In his discussions with McGuigan on 1 September 2014 he was shown a PowerPoint presentation and had asked to see the training book.  Slatter had not requested access to the assessment book [Transcript p. 2‑13].  The training book had the No Go Zone distance for the boot end of the shuttle car as 10 metres when it had changed to 30 metres for the new shuttle cars [Transcript p. 2‑13].  McGuigan was informed he had the wrong paperwork.  On the day McGuigan had not informed him he had been assessed as competent in respect of No Go Zones General in May 2013 [Transcript p. 2‑14].  An employee confused about a correct No Go Zone distance could ask their supervisor of someone like himself about the correct distance.

Dr Jenkins

  1. [30]
    Dr Jenkins a qualified Psychiatrist, at the request of lawyers acting for the Appellant provided a report (dated 6 November 2015) in which the following was stated:
  • McGuigan was a regular patient since being originally seen on 17 October 2014;
  • his diagnosis was one of adjustment disorder with anxiety;
  • based on McGuigan's history and clinical presentation he believed that the employment was a major significant contributor to the onset of the diagnosed condition and ongoing ability to work;
  • the incident which occurred on 1 September 2014 was the critical cause of his decompensation leaving him totally incapacitated for work; and
  • McGuigan had discussed other workplace related issues with him and whilst he found some difficulty with them it was clear from his history that the underground incident occurring on 1 September 2014 was the trigger for his decompensation and ongoing incapacity.
  1. [31]
    Dr Jenkins confirmed in his evidence that the injury suffered by McGuigan in this instance had his workplace as the major contributor.
  1. [32]
    Under cross-examination it was the evidence that Dr McPhee a general practitioner from Emerald had initially referred McGuigan to his practice [Transcript p. 2‑18].  Dr Jenkins forwarded correspondence to Dr McPhee (dated 23 October 2014) in which he stated McGuigan had "substantial stressors in his workplace as a result of perceived bullying and harassment".  The use of the term perceived was used carefully as was his habit [Transcript p. 2‑19].  In reaching his conclusion he had relied upon information provided by McGuigan and had no independent verification at the time [Transcript p. 2‑19].  Another report was produced by Dr Jenkins (dated 10 February 2015) in which he referred to McGuigan's perception of bullying and harassment by management again using the word "perceived" very carefully [Transcript p. 2‑20].  The diagnosis of adjustment disorder mentioned in the report was made upon considerations of symptoms and history [Transcript p. 2‑21].  The other workplace issues referred to in his reports he acknowledged contributed to McGuigan's conditions was that they were not the final precipitating factors [Transcript p. 2‑23].
  1. [33]
    In re-examination Dr Jenkins' evidence was that McGuigan's condition was not just a fear of going underground but related to the actual policy and procedures aspect of the whole issue that were either incorrect or increased the risk of people working underground.  He had him being instructed to go ahead and work regardless, with the breach of policy and procedure making him extremely anxious to the point where he finally decompensated.

Regulator

Dobbie

  1. [34]
    Dobbie the Production Manager at the Oaky North underground mine and was working in that capacity in August/September 2014.  The role's responsibilities includes longwall development and outbye areas.  In August 2014 he had involvement in an investigation regarding McGuigan placing a sticker on his locker to which someone had taken offence.  Dobbie had in a meeting on 6 August 2014 informed McGuigan that the sticker may not have met the anti-discrimination policy.  A further meeting was held on 8 August 2014 which was attended by McGuigan and others where he was told he would be given a formal warning which was subsequently provided in correspondence dated 8 August 2014 [Exhibit 5].
  1. [35]
    Dobbie gave evidence around the functions of work in the outbye and development areas and of the transfer of McGuigan from outbye to the D3 crew in the development area.  The decision to make such transfer was in the hands of Cowley the superintendent of the department at the time.  McGuigan was required to undergo training prior to taking up work in the development area, in the form of area and familiarisation and No Go Zone training.  The training orientation involved the completion of paperwork and in the case of the actual No Go Zone paperwork was specific to the equipment operating in that zone.  Dobbie was familiar with the training and assessment books and indicated there was information available about No Go Zone areas in crib rooms (poster), and documents in areas upstairs (on the surface).  If a coal miner was uncertain about a particular No Go Zone distance they could ask their supervisor, trainer assessor or other workers.

Cowley

  1. [36]
    Cowley an ERZ Controller at Oaky North Mine was a Development Superintendent at the same location in August/September 2014 which entailed the weekly, monthly and six-monthly running of the development units at the mine.  The functions of development was to produce coal and included the utilisation of machinery that included the shuttle car and feeder-breaker.
  1. [37]
    In August 2014 a decision was made for McGuigan to be moved from the outbye crew to work in the D3 crew in development with Dobbie being responsible for the decision to move him from one crew to the other.  At the time McGuigan commenced with the D3 crew he had a conversation with him in which upon welcoming McGuigan to the crew was told it was a "shit" decision.  McGuigan would have done a No Go Zone refresher after being provided with training paperwork.  Cowley was familiar with the two booklets [Exhibits 1 and 2] and gave evidence of other methods relied upon to provide No Go Zone information to its employees which included training paperwork in the crib rooms and posters.  If an employee was unsure about a particular No Go Zone distance in respect of particular machinery they could check with their ERZ controller, miner drivers, other members of the crew and trainer assessors.

Submissions

Regulator

  1. [38]
    The Appellant at the material time was employed by Oaky Creek Coal Pty Ltd as a miner operator and on 20 February 2015 made a claim for workers' compensation for a psychological injury said to be casually connected to his employment.  The self‑insurer XtraCare rejected the application and that decision was upheld by the Regulator in a review decision (dated 6 November 2015).  A Notice of Appeal (dated 25 November 2015) was filed with the Commission.
  1. [39]
    The Regulator did not dispute that:
  • McGuigan was a worker within the meaning of s 11 of the Act;
  • he suffered a personal injury, namely an adjustment disorder with anxiety; and
  • the injury arose out of or in the course of his employment and his employment was the major significant cause for his personal injury.
  1. [40]
    The Regulator argued that the injury be withdrawn from being a compensable injury because:
  • the management action that had a causal connection with the injury was reasonable management action undertaken in a reasonable way in connection with his employment; and
  • in the alternative the injury arose out of or in the course of McGuigan's perception of reasonable management action being taken against him.

The Act

  1. [41]
    An appeal under the Act is not an appeal strictu sensu but a trial of the claim of the injured worker of which the Commission must be satisfied that the factual situation is such that the worker had suffered an injury within the meaning of the Act.  The Commission in dealing with the Appeal must feel an actual persuasion before the alleged facts can be found to exist and the mere possibility of a worker suffering an injury on mere conjecture is not enough.  Reliance was placed upon the following authorities:
  • Qantas Airways Limited v Q-COMP[1];
  • Labaj v WorkCover Queensland[2];
  • McDonald v Q-COMP[3];
  • Mission Australia v Q-COMP[4];
  • MacArthur v WorkCover Queensland[5]; and
  • Nilsson v Q-COMP[6].
  1. [42]
    The Act at s 32(5)(a) only operates to remove a psychological disorder from the statutory definition of "injury" where reasonable management is taken in a reasonable way with that responsibility falling to the management.  In Lawnton v Simon Blackwood (Workers' Compensation Regulator)[7] O'Connor DP in relation to s 32(5) of the Act relevantly stated:

"[64] In determining the reasonableness of the management action, reference is made to the reasoning of Hall P in Sabo v Q-COMP his Honour President Hall wrote:

'In the absence of argument, I do not accept that the exercise of determining whether a managerial decision is "reasonable" and "taken in a reasonable way" is so like an exercise of discretion that an appellant seeking to reverse a decision of a tribunal of first instance, should be required to meet the standard set by the principles in House v The King at 505 per Dixon, Evatt and McTiernan JJ; compare Macauslane v Fisher Paykel Finance Pty Ltd (a "reasonable notice" case). However, the exercise of assessing "reasonableness" for the purposes of s. 32(5)(a) of the Act, is evaluative as well as judgmental. There is room for difference of opinion. The judicial officer dealing with the matter at first instance should be allowed a measure of latitude; compare IOOF Building Society Pty Ltd v Foxeden Pty Ltd at 554 to 556 (a "reasonable notice" case).'

[65] In Keen v Workers' Rehabilitation and Compensation Corporation, Lander J, in dealing with s 30A of the Workers' Rehabilitation and Compensation Act 1986 (SA), and discussing whether 'the administrative action was reasonable and, if reasonable, whether it was taken in a reasonable manner by the employer', wrote:

'Both of these further matters will be an inquiry of fact to be determined objectively. Whether the administrative action is reasonable is simply a matter of fact. Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administrative action was taken in a reasonable manner by the employer.'

…

[67] In WorkCover Queensland v Kehl his Honour President Hall said that 'reasonable' should be treated as meaning 'reasonable in all the circumstances of the case'. It is thus the reality of the employer's conduct and not the employee's perception of it which must be taken into account.

[68] Management action need only be reasonable; it does not need to be perfect. Instances of imperfect but reasonable management action may, in the appropriate circumstances be considered a 'blemish'. Management action does not need to be without blemish to be reasonable."

  1. [43]
    The application of s 32(5)(b) of the Act relates to a workers otherwise compensable injury being withdrawn from being an injury within the meaning of the Act if the psychiatric or psychological disorder arose out of or in the course of the workers' expectation or perception of reasonable management action being taken against the worker, then the case is one of disentitlement to compensation under the Act.  Authorities cited in respect of s 32(5)(b) were:
  • Willie v Q-COMP[8];
  • Rossmuller v Q-COMP[9]; and
  • Misevski v Q-COMP[10].

Disciplinary action over the sticker

  1. [44]
    The employer in giving a formal warning to McGuigan on 8 August 2014 over the placement of a sticker on his locker was reasonable management action taken in a reasonable way and it was his perception that "they are dead set trying to get me".

Transfer to the D3 crew

  1. [45]
    The transfer in August 2014 of McGuigan to the D3 crew in development was regarded as a "shit" transfer because he perceived that crew as a "zoo" or "onion" crew that was being used to manage him out of the workforce.
  1. [46]
    In his own statement to a psychologist in June 2015 as part of the assessment of his workers' compensation claim he stated he had become distressed by the "sticker" and "transfer" incidents and in combination with the No Go Zone paperwork issue were a main cause of his stress.
  1. [47]
    If the management action taken against McGuigan had a causal connection with his decompensation it was his perception of the reasonable management action.

No Go Zone paperwork

  1. [48]
    On 29 August 2014 McGuigan was given No Go Zone paperwork and development familiarisation paperwork to complete with him having completed the familiarisation paperwork by 1 September 2014.  There was agreement by him in cross-examination that he had been assessed as competent in respect of No Go Zones General (the same assessment as undertaken through the completion of Exhibit 2 from 29 August 2014) on 10 May 2013 and was held competent for five years subject to refresher training.  In undertaking the refresher training McGuigan completed the assessment book for No Go Zones up to question 12 in an assessment format that did not require classroom training and examination by memory.  The reading of the assessment book and looking at the diagrams with the No Go Zones was the process to be undertaken in questions 12(i), 14, 15 and 16.  There were concessions from McGuigan and Hill that the No Go Zone distances to be observed were minimum distances and the personal responsibility of the individual miner.
  1. [49]
    The question that started to cause McGuigan problems in the completion of Exhibit 2 was question 12 where it was apparent that the No Go Zone distances in the training package (Exhibit 1) in respect of the boot and back end of a shuttle car provided that the No Go Zone distance was 10 metres or in another case 20 metres whereas in the assessment book the equivalent diagrams showed the No Go Zone distance being 30 metres in the front and back which was the only discrepancy about the zones.  The questions up to question 13 in the assessment were able to be successfully completed with question six not involving the No Go Zone distances.
  1. [50]
    McGuigan conceded in cross-examination that when he undertook the No Go Zones General assessment on 10 May 2013 the distances in respect of the boot end and back end of a shuttle car was 10 metres (and may possibly have been 30 metres).  In the period between leaving development in mid-2012 and returning to the D3 crew in late August 2014 new equipment was being used and the No Go Zone distances had changed.

McGuigan's injury is withdrawn as a compensable injury by virtue of s 32(5)(a) of the Act

  1. [51]
    In all circumstances it was submitted:
  • the graphics to questions 12(i), 14, 15 and 16 in the assessment book made it readily apparent what the new No Go Zone distances were;
  • McGuigan was an experienced miner which entitled the employer to give direction, rely upon his experience and assessed competencies; and
  • It was reasonable for Gulliver (supervisor) to direct McGuigan to write on the assessment book that he understood the distances in the training package were wrong and direct him to perform work on the coalface.
  1. [52]
    If there was confusion about whether the relevant No Go Zone distance for a shuttle car was 10 or 30 metres McGuigan could have maintained the largest distance or sought clarification from his supervisor.  There was no evidence of any action being taken against the employer or any individual under the Coal Mining Safety and Health Act 1999 or the Coal Mining Safety and Health Regulation 1999.

McGuigan's injury is withdrawn as a compensable injury by virtue of s 32(5)(b) of the Act

  1. [53]
    It was reasonable management action for Gulliver to give the directions he had given and it was the Appellant's perception that the incident was designed by the employer to manage him out of the business.  The perception of McGuigan must be considered with the earlier perceptions about the disciplinary action and transfer to the D3 crew.
  1. [54]
    As a consequence the Appellant's injury arose out of or in the course of McGuigan's perception and it had been reasonable management action to:
  • discipline over the sticker on his locker;
  • transfer to D3 crew; and
  • directed to work at the face of the coal mine notwithstanding that he knew of inconsistencies in the No Go Zone paperwork about the boot end and back end of the shuttle car.
  1. [55]
    The submission further addressed certain aspects of McGuigan's case that included:
  • failure to complete the No Go Zone paperwork "may" have amounted to a breach of the requirements of the Coal Mining Safety and Health Act 1999;
  • failure to complete accurate No Go Zone paperwork could result in an underground incident causing serious injury or death and also led to disciplinary action including summary termination of employment if the discrepancy was identified by the employer or an inspector;
  • McGuigan had said words the effect "No, if something goes wrong I would be the first bastard they shoot" when told by Gulliver that they were all supposed to know what they were doing; and
  • McGuigan had not been assessed as competent in respect of all tasks identified under the mines training scheme which was a contravention of s 85(2) of the Coal Mining Safety and Health Regulation 1999.

Conclusion

  1. [56]
    For the reasons advanced McGuigan is not entitled to compensation by virtue of the application of s 32(5)(a) or (b) of the Act.
  1. [57]
    The Regulator seeks costs.

Appellant

  1. [58]
    There had been a complete absence by the Regulator to meet the Appeal brought by McGuigan, having turned the case into one where the Commission was being required to determine whether McGuigan was a competent person at the material time and simply should have gone underground at the time having regard to the paperwork that had already been completed.
  1. [59]
    The case brought by the Appellant is that the management action subject of the Appeal could not possibly be reasonable management action because of the concerns which led to the decompensation, against the background of one set of medical evidence from Dr Jenkins who as the treating specialist had seen McGuigan on a monthly basis since the time of the first consultation and had opined that the event of 1 September 2014 was the significant contributing factor to the injury in terms of s 32(1)(b) of the Act.
  1. [60]
    The management action was unreasonable to suggest McGuigan who was unauthorised to go underground to note (by initialling the document) the documentation was wrong by way of a discrepancy between 10 metres and 30 metres and then go underground.  There was evidence from Slatter and Hill that McGuigan could not do what had been requested of him and in respect of Slatter he had on the day observed McGuigan to be in such a state that a direction was given to "get him upstairs".
  1. [61]
    The incident regarding the sticker resulted from a person who had taken umbrage to reference regarding the reduction of workers' salaries and to take away their right to strike, attributed to Adolf Hitler.  There was evidence regarding the content being discriminatory which was hard to fathom unless it was Adolf Hitler who was being discriminated against because the person with usage of the locker was required to remove the sticker, then that may be discriminatory.  The suggestion of removing the right to strike and lower salaries was something that some people these days might think was not such a bad idea.  There were no tears, no lying in the foetal position by McGuigan in relation to the disciplinary action and it was submitted that it was a complete "red herring".
  1. [62]
    On the transfer, McGuigan had been happy working in outbye and he had raised with his superior why such a transfer was being effected when they were satisfied with his work.  The exchange that occurred did not reflect someone who had decompensated and Dr Jenkins had not treated the incident as one of decompensation.  Dr Jenkins when provided with all the information and having seen McGuigan monthly ultimately came to the conclusion that the decompensation was caused by the events of 1 September 2014.
  1. [63]
    McGuigan probably had a perception that he was being bullied at work but getting moved on from a position he liked to a position he did not like would not allow for his decompensation to be recognised under the Act because it was reasonable management action in the circumstances.  What was not reasonable management action was the direction to send a person underground who effectively had not been authorised to go down because his paperwork had not been signed and on its face was incorrect.  Slatter a trainer assessor had said "I'm not going to sign" the paperwork.  As far as Slatter and Hill were concerned they gave evidence that they would not have gone underground as they did not consider he was qualified, authorised and competent to go underground [at the specific time].
  1. [64]
    The paperwork was important because there had been new equipment introduced that required increased No Go Zones because of lack of vision from the new equipment and McGuigan ends up with bad paperwork, sloppy paperwork the type that leads to injuries and fatalities.
  1. [65]
    In the course of McGuigan's employment on the day he decompensated in circumstances that entitle him to statutory benefits pursuant to the legislation.  An illegality cannot be dressed up as management action.  Whether he appreciated the distance was 10 metres or 30 metres does not matter because he could not be authorised as the paperwork given to him to instruct himself was quite inaccurate.

Regulator In Reply

  1. [66]
    Dr Jenkin's opinion that McGuigan's employment, was a major significant contributing factor to his injury was conceded however Dr Jenkins had not gone on to say that the perceived bullying and harassment and other workplace incidents were excluded and in fact he had said when cross-examined they were precipitation factors to his decompensation.
  1. [67]
    McGuigan had in his evidence linked the disciplinary action and transfer to the D3 crew to his stress and decompensation.  The question of whether the injury is withdrawn because of reasonable management action taken in a reasonable way in connection with his employment becomes a mixed question of fact and medicine.

Conclusion

  1. [68]
    The Regulator in the course of the proceeding conceded that in the case of McGuigan:
  • he was at the relevant time a "worker" for the purposes of s 11 of Act;
  • had suffered a personal injury in the form of an adjustment disorder with anxiety;
  • the injury arose out of and in the course of his employment; and
  • the employment was the major significant contributing factor to the personal injury.

Matter for Determination

  1. [69]
    The matter for determination was of relatively short compass being whether the personal injury suffered by McGuigan is excluded or otherwise from being a compensable injury through the provisions of s 32(5)(a) of the Act in that the management action taken was reasonable management action taken in a reasonable way in connection with the employment.  Alternatively excluded or otherwise through the provisions of s 32(5)(b) of the Act being McGuigan's expectation or perception of reasonable management action taken against him.

Personal Injury - Causal Connection with Employment

  1. [70]
    The case prosecuted by McGuigan related solely to his decompensation occurring on 1 September 2014 following a direction from his immediate supervisor (Gulliver) that he was to proceed to the coalface to undertake work despite not having completed No Go Zone authorisation refresher training for that specific area.  McGuigan had taken issue with training material [Exhibit 1] provided to him that was in conflict with the content of the assessment documentation he was required to complete and the eventual instruction from management was to initial that he understood the distances in the training paperwork were incorrect and effectively commence work underground without having been properly assessed as competent in No Go Zone distances.  The assessment document [Exhibit 2] defined competent as being:

"The Assessor is to tick the 'Competence' box when satisfied that the candidate sufficiently identified hazards and controls and followed the procedures and work instructions relating to that activity."

It is factual that McGuigan never completed the assessment nor was the document signed off by an assessor formally qualified to complete such a task.  McGuigan gave evidence that he could not accept the direction at the time and started to shake, legs went to jelly, "balled his eyes out" and he had to be escorted to the surface by a diesel fitter.  McGuigan in evidence refused to accept that there was a connection between the injury suffered on 1 September 2014 and other issues that included disciplinary action and transfer to the D3 crew, stating that he had "moved on" from those matters.

  1. [71]
    The Regulator accepted that the event of 1 September 2014 when McGuigan was directed to undertake work at the coalface had a causal connection to the personal injury suffered by him however notwithstanding the inconsistencies with the No Go Zone paperwork as it applied to the shuttle car, proffered the management action was reasonable and taken in a reasonable way in connection with the employment.  The Regulator's view on the causal connection between work and the personal injury included the 1 September 2014 event and also encompassed both the disciplinary process of early August 2014 and the transfer to the D3 crew at the end of that month.
  1. [72]
    In respect of the additional events the Regulator cited a statement [Exhibit 6] prepared by McGuigan (dated 10 June 2015) as part of the workers' compensation claim process in which he made reference to the cause of his stress having been a combination of factors that had occurred over time including some just prior to the cessation of work on 1 September 2014.  The report identified three events as distal factors he considered had contributed to his stress over time.  Those being:
  • use of house;
  • investigation into the multigrip safety event; and
  • allegations regarding company sensitive information.

None of these particular matters were the subject of evidence or submission in the proceedings.

  1. [73]
    Further in the statement there were events described as proximate factors leading to the cessation of work on 1 September 2014 which were said to be major stressors.  These were:
  • sticker incident and unreasonable discipline;
  • unreasonable change of status; and
  • No Go Zone incident and unreasonable management.
  1. [74]
    The Regulator adduced evidence in the proceedings from witnesses (Dobbie and Cowley) that pertained to the sticker incident and McGuigan's transfer from the outbye area to the D3 crew in development, to support a line of argument that these events were contributory to McGuigan's personal injury and as it was with the 1 September 2014 event the employer had engaged in reasonable management action taken in a reasonable way in the conduct of both events.

Disciplinary Process

  1. [75]
    A complaint from an unidentified coalmine worker had been made regarding a sticker that had been placed by McGuigan on his work locker which had contained the following wording "…we must reduce workers' salaries and take away their right to strike".  The source of the comment was said to have been [Adolf] Hitler who had made the comments in 1933 at a time when he was Chancellor of Germany and some six years prior to the outbreak of the second world war.
  1. [76]
    A disciplinary process was commenced with McGuigan summoned to attend a meeting on 6 August 2014 with management, followed by a further meeting two days later on 8 August 2014 where he was informed that his behaviour had breached the Equal Employment Opportunity, Discrimination, Harassment and Bullying Policy having displayed offensive material and he was to be issued with a written warning.  McGuigan not surprisingly was upset at the decision of management and there is evidence that he informed them as such in the course of the meeting.
  1. [77]
    On the evidence available to the Commission, scant as it may be, it is difficult to conclude that the wording in question was offensive, breaching EEO protocols particularly in the cut and thrust of industrial relations in the mining sector however it appears likely the reference to Hitler as the source may have been the trigger for the disciplinary outcome determined by the employer although there was no mention of that being the case in the warning letter (dated 8 August 2014) given to McGuigan.  We do know from the evidence that the employer was informed that wording related to events linked to the Federal Government of Australia and not the employer.
  1. [78]
    The written warning reminded McGuigan of his employment obligations, indicating further breaches of the policy may be the subject of disciplinary action which "may include termination of employment".
  1. [79]
    There was no evidence of McGuigan having availed himself of the opportunity to exercise a right to appeal the disciplinary decision nor was there evidence of him having displayed symptoms similar to those which led to his decompensation on 1 September 2014.  McGuigan had given evidence "the situation had been dealt with at those meetings and you move on" with no contrary position to his evidence offered in the proceedings.

Unreasonable Change of Status

  1. [80]
    McGuigan in the statement (dated 10 June 2015) indicated when informed he would be transferred from outbye to development he was told by his co-ordinator (Matt Geddes) it would enable them to "keep an eye" on him.  McGuigan spoke to Cowley about the reason for the move and was told it was a permanent move, a business decision because he was one of the "gun" miner drivers.  This was despite he was not a mine driver and the majority of his tickets in development were out of date or void.  Upon ending the conversation he held the view that the move was about getting a reaction from him.  McGuigan accepted that he regarded the transfer as being "shit", especially as the crew to which he had been assigned was seen to be a "zoo" or "onion" crew used to manage people out of the workforce.
  1. [81]
    The evidence from the Regulator's witnesses was contradictory in respect of the decision to transfer McGuigan in that Dobbie had stated the decision to make the transfer had been the superintendent's (Cowley) and in the evidence of Cowley it was put that the transfer had been the responsibility of Dobbie.
  1. [82]
    The Regulator argued that the transfer option was reasonably open to the employer and any causal connection between the injury and McGuigan's employment was as a result of his perception of reasonable management action taken against him.

Medical Evidence

  1. [83]
    Dr Jenkins the treating psychiatrist of McGuigan having first seen him on 17 October 2014.  A diagnosis of an adjustment disorder with anxiety was made by him with the incident causative of the personal injury occurring on 1 September 2014.  In the course of consultations McGuigan had discussed other stressors that had caused him some difficulty however Dr Jenkins remained of the view that the "trigger" for his decompensation was the 1 September 2014 event.  In correspondence [Exhibit 7] (dated 6 November 2015) Dr Jenkins stated the following:

"I believe that the incident which occurred on 1 September 2014 is the critical cause of his decompensation.  In addition I believe that this has resulted in Mr McGuigan being totally incapacitated for work.

Mr McGuigan has discussed other workplace related issues which he found difficult, but it was clear from his history that the underground incident occurring on 1 September 2014 was the trigger for both his decompensation and ongoing incapacity for work."

Causal Connection with Employment

  1. [84]
    The Regulator based on the content of McGuigan's statement [Exhibit 6] had grounds to question whether there were other stressors in play other than the 1 September 2014 event however the unchallenged medical evidence of Dr Jenkins is significant in the circumstances to allow for acceptance by the Commission that the causal connection between McGuigan's decompensation and his employment is confined to the event of 1 September 2014.  Dr Jenkins whose evidence remained largely undisturbed in the course of cross-examination, did in the course of that facet of his evidence acknowledge there were other workplace issues that contributed to McGuigan's condition but they were not the final precipitating factors.  Dr Jenkins findings were based upon information provided to him by McGuigan with acknowledgement of no independent verification however as his treating psychiatrist since October 2014 he was well placed to make findings based upon clinical evidence and the information provided by McGuigan.

Is McGuigan's personal injury suffered on 1 September 2014 excluded from being compensable through the provisions of s 32(5)(a)?

  1. [85]
    In the course of the proceedings certain factual matters were established that included:
  • McGuigan had worked in the development area from 2003 to 2012;
  • in 2012 McGuigan was transferred to the outbye area;
  • in 2013 new shuttle cars came into operation in the development area for which there were new No Go Zone distances;
  • in August 2014 McGuigan was transferred back to development as a member of the D3 crew;
  • McGuigan was assessed as competent in No Go Zone General on 10 May 2013 until 10 May 2018 however prior to taking up his role in the D3 crew he had to undertake refresher training specific to equipment operating in that area;
  • the training package provided to McGuigan in August 2014 [Exhibit 1] contained incorrect information relating to No Go Zone distances for shuttle cars;
  • McGuigan became aware of the inaccurate information on the No Go Zone distances as they related to the minimum distances for the boot and back end No Go Zones;
  • McGuigan in completing the No Go Zone assessment was unable to correctly address question 12 due to the incorrect distance information supplied;
  • McGuigan raised his concerns with his direct supervisor (Gulliver) who directed him to initial the information on distances provided to him by the employer was wrong and get to work on the coalface;
  • McGuigan refused the direction from Gulliver and at or around the same time raised his concerns with Slatter who confirmed the information was incorrect in the training package and that as a trainer assessor he would not countersign the assessment documentation; and
  • at the time of his discussion with Slatter he was exhibiting symptoms of decompensation.
  1. [86]
    In essence taking into account the abovementioned factual evidence the question is whether it was reasonable management action taken in a reasonable way for McGuigan to be directed by his supervisor to undertake work at the coalface despite the fact that he had declined to complete a No Go Zone assessment, which was in effect a mandatory requirement for undertaking such work, because the training package contained inaccurate information pertaining to the minimum distances that must be observed when a shuttle car is in the operation.  Further was it reasonable management action to direct McGuigan to initial the paperwork acknowledging that the No Go Zone information in the training package provided by the employer was incorrect but to complete the assessment in any event.
  1. [87]
    In an industry where workplace health and safety is considered paramount to the extent there exists legislation in the form of the Coal Mining Safety and Health Act 1999 that specifically regulates the health and safety of the coal mining industry on a standalone basis, and in this particular case where the consequences of being provided with inaccurate information by the employer regarding the minimum distances to be observed when working in proximity to shuttle cars could lead to injury or possibly death surely the more appropriate approach would have been to obtain the correct information applicable to the distances in question and have the assessment completed under those circumstances.
  1. [88]
    The evidence of Slatter was of importance in that his refusal as a trainer assessor to countersign the assessment for No Go Zones in the circumstances which McGuigan found himself, provided legitimate support to the stance taken by McGuigan around his concerns relating to the correct distances not being properly document in the training package.
  1. [89]
    The direction given to McGuigan on 1 September 2014 to initial the documentation provided in the training package that was inaccurate and to go to the coalface as directed to undertake work in his capacity as an underground coal miner was not reasonable management action taken in a reasonable way due to the potential safety risk to which McGuigan and fellow workers may have been exposed and the fact he was not authorised competent (at the relevant time) in relation to the No Go Zone requirements for the specific area.

S 32(5)(b) of the Act

  1. [90]
    Having found that the management action engaged upon by the employer on 1 September 2014 was not reasonable management action taken in a reasonable way in connection with McGuigan's employment this section of the Act as it applies to his expectation or perception is not enlivened.

Findings

  1. [91]
    On consideration of the evidence, exhibits and submissions before the Commission, the following findings are made:
  • McGuigan at the relevant time was a "worker" pursuant to s 11 of the Act;
  • McGuigan sustained a personal injury of a psychiatric/psychological nature pursuant to s 32 of the Act;
  • McGuigan's personal injury arose out of or in the course of his employment and the employment was the major significant contributing factor to the injury;
  • the personal injury suffered by McGuigan is compensable on the basis that the management action said to be causative of the personal injury was found not to have been reasonable management action taken in a reasonable way in connection with his employment.
  1. [92]
    The Appeal is upheld and the decision of the Respondent to reject McGuigan's application for compensation in accordance with s 32(5)(a) of the Act is set aside.  The claim is one for acceptance.
  1. [93]
    The Respondent is to pay the Appellant's costs of and incidental to the Appeal.
  1. [94]
    I order accordingly.

Footnotes

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

[2] Labaj v WorkCover Queensland (2005) 174 QGIG 370

[3] McDonald v Q-COMP (2008) 188 QGIG 180

[4] Mission Australia v Q-COMP (unreported, Industrial Magistrates Court of Queensland, Lee IM, 26 July 2010)

[5] MacArthur v WorkCover Queensland (2001) 167 QGIG 100

[6] Nilsson v Q-COMP (2008) 189 QGIG 523

[7] Lawnton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 99

[8] Willie v Q-COMP (2009) 190 QGIG 233

[9] Eric Martin Rossmuller v Q-COMP (C/2009/36) - Decision -

[10] Misevski v Q-COMP (C/2009/29) - Decision -

Close

Editorial Notes

  • Published Case Name:

    Stephen McGuigan v Workers' Compensation Regulator

  • Shortened Case Name:

    McGuigan v Workers' Compensation Regulator

  • MNC:

    [2017] QIRC 36

  • Court:

    QIRC

  • Judge(s):

    Thompson IC

  • Date:

    28 Apr 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
Labaj v WorkCover Queensland (2005) 174 QGIG 370
2 citations
Jump To
Cite 1 - (2005) 174 QGIG 370
Cite 2 - (2005) 174 QGIG 370
Lawton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 99
2 citations
Jump To
Cite 1 - [2015] QIRC 99
Cite 2 - [2015] QIRC 99
MacArthur v WorkCover Queensland (2001) 167 QGIG 100
2 citations
Jump To
Cite 1 - (2001) 167 QGIG 100
Cite 2 - (2001) 167 QGIG 100
Nilsson v Q-Comp (2008) 189 QGIG 523
2 citations
Jump To
Cite 1 - (2008) 189 QGIG 523
Cite 2 - (2008) 189 QGIG 523
Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301
2 citations
Jump To
Cite 1 - (2006) 181 QGIG 301
Cite 2 - (2006) 181 QGIG 301
Stephen Horace MacDonald v Q-COMP (2) (2008) 188 QGIG 180
2 citations
Jump To
Cite 1 - (2008) 188 QGIG 180
Cite 2 - (2008) 188 QGIG 180
Willie v Q-COMP (2009) 190 QGIG 233
2 citations
Jump To
Cite 1 - (2009) 190 QGIG 233
Cite 2 - (2009) 190 QGIG 233

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.