Exit Distraction Free Reading Mode
- Unreported Judgment
Bartlett v Workers' Compensation Regulator QIRC 49
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Bartlett v Workers' Compensation Regulator  QIRC 049
Workers' Compensation Regulator
Appeal against a decision of the Workers' Compensation Regulator
31 May 2017
1, 2 March 2017
Industrial Commissioner Black
APPEAL AGAINST DECISION – Psychiatric or psychological injury – unreasonable management action alleged – whether injury caused by bullying and harassment by supervisor and manager – whether injury removed from s 32(1) by virtue of the operation of s 32(5).
Workers' Compensation and Rehabilitation Act 2003 s 32, s 550; WorkCover Queensland v Kehl; Q-COMP v Hohn; Prizeman v Q-COMP.
Mr T Bartlett, self-represented, Appellant;
Mr J Merrell, Counsel, directly instructed, for the Workers' Compensation Regulator.
- Mr Trevor Bartlett, the appellant, had been employed by BWS on a permanent full-time basis in the capacity of liquor assistant/relief manager for over five years. He submitted a claim for workers' compensation with Employers Mutual, the self-insurer, on 15 April 2016. When the self-insurer rejected the claim on 7 June 2016 the appellant asked the regulator to review the decision. However the self-insurer's position was confirmed by the regulator in a decision dated 28 July 2016. It is against this decision that the current appeal lies.
- In his application for compensation, the appellant stated that he had sustained a psychological injury which was caused by "intentional hardship from manager and area manager" occurring at the Benowa BWS facility between 8 March 2016 and 11 March 2016.
- The appellant did not resume work after completing his rostered work shift on Friday 11 March 2016. He informed his area manager in writing on 14 March 2016 that he was unfit for work duties "due to unforeseen matters relating from work". An attached medical certificate certified that the appellant would be unfit for work from 14 March 2016 to 30 March 2016.
- The respondent did not dispute that the appellant had suffered a work-related psychological injury, and that the injury arose out of, or in the course of, management action in connection with the appellant's employment.
- The matter for determination in the appeal is whether the appellant's injury arose out of, or in the course of, reasonable management action taken in a reasonable way. Case law instructs that "reasonable" should be treated as meaning "reasonable in all the circumstances of the case", and that reasonable management action should not be considered to equate with perfection. Further, in assessing management action, "it is the reality of the employer's conduct and not the employee's perception of it which must be taken into account".
- As I understand the appellant's submissions, he states that his injury is causally related to the following unreasonable management conduct:
- (a)Micromanagement by Mr Murphy and Mr Hansford designed to provoke failure and facilitate a termination of the appellant's employment;
- (b)Bullying and harassment by Mr Hansford and Mr Murphy;
- (c)Mr Murphy's abuse of the appellant in front of a customer;
- (d)Mr Murphy's failure to provide the appellant with a telephone number for the human resources department;
- (e)Mr Murphy's demand that stock labels be changed in an impossibly short period of time;
- (f)Mr Murphy's hostile reaction to the appellant's late arrival at work.
Conduct of Trial
- While the appellant did not raise objections during the course of the hearing, he made a number of assertions in his written submissions to the effect that the trial had been conducted unfairly, and that he had been treated less favourably than counsel for the regulator.
- Having reviewed the relevant sections of the transcript, I am satisfied that the appellant's appeal has not been prejudiced, nor his prospects diminished, by the manner in which the trial was conducted.
Scope of Appeal
- In his application for compensation, the appellant stated that he first noticed symptoms of depression and anxiety on 8 March 2016, and said that his injury occurred on 11 March 2016. In an injured workers' statement accompanying his application, the appellant described the cause of injury as "the actions of Michael Murphy Store Manager Benowa and Steve Hansford Area Manager". In his evidence in the proceedings he said (T1-57) that the stressors that caused his injury arose out of the "instant targeting" that he received from Mr Hansford and Mr Murphy during the period from 8 March 2016 to 11 March 2016.
- The appellant submitted that his workers' compensation claim had been incorrectly assessed by both the self-insurer and the regulator in that these assessments took into account stressors which he maintained did not contribute to his disorder. It was an error in the appellant's view to include any consideration of the disciplinary process associated with an incident at the Nerang store in late January 2016. He emphasised that disciplinary issues preceded events which he said contributed to his disorder, and submitted that such issues were not relevant in the determination of the appeal.
- The Nerang store incident occurred on 27 January 2016. Arising from the incident, the appellant had been presented with a show cause notice on 4 February 2016. The appellant was informed on 10 February 2016 that the allegation made against him had been substantiated and that he would be issued with a first and final warning. He was given correspondence to this effect at a follow up meeting at the Dublin Docks Tavern on 12 February 2016.
- At the 10 February 2016 meeting, the appellant told Mr Hansford that he did not wish to return to the Nerang store, and the issue of relocation to another site was raised. Subsequently, at the Dublin Docks meeting the appellant told Mr Hansford that he had lost his licence and that he wanted to be relocated to a store close to his home.
- It was the appellant's evidence in the proceedings that the Nerang incident ended when he was given a first and final warning by Mr Hansford on 12 February 2016. He said that he accepted the penalty imposed, and that the matter was closed. It was not a factor in the development of his psychological disorder.
- Whether factors other than those specified by the appellant contributed to the development of his disorder was a matter in contention in the proceedings. The possibility that other factors were relevant arose from a consideration of the appellant's testimony and some of the contemporaneous documentary evidence, particularly a workers' compensation statement and a report prepared by Dr Shaikh in May 2016.
- The appellant's workers' compensation claim was investigated by an organisation called "Verifact". In a written statement provided to Verifact (Exhibit 9) on 11 May 2016, the appellant addressed a number of matters in a section headed "Incident Details" where he advanced the following propositions:
- (a)He believed that he had been placed at Benowa "to be terminated due to the investigations";
- (b)He was not happy that he was working with Mr Murphy because Mr Murphy was "the company witness in the interviews and he knew all of my private information from those interviews";
- (c)When he raised his travel difficulties with Mr Hansford on 8 March 2016, Mr Hansford said "too bad" and reiterated that the Benowa store was the best place for him to work;
- (d)That Mr Hansford "would often come into the store while I was working to check out what I was doing";
- (e)That Mr Murphy had asked him to change all the ticket labels in an unreasonably short period of time;
- (f)That when he arrived late for work on 10 March 2016, Mr Murphy asked him why he was late and what he was going to do about it;
- (g)He believed that Mr Murphy had been notified that he would be late for work, and that Mr Murphy only came into the store on 10 March 2016 for the purpose of disciplining him. He was angry at Mr Murphy's response because he had not previously been late to work, and had not previously been "written up";
- (h)That he was feeling bullied and victimised by Mr Murphy, that Mr Murphy had been on his back all week, and that Mr Murphy had written him up three or four times;
- (i)That Mr Murphy had "put me on late shifts and some nights there were no buses running late so I would have to get a taxi home, at great expense".
- The appellant made the following concluding observations at paragraphs 25 to 27 of his statement:
"While it was stressful going through the show cause interviews and being given the first and final warning, I found being watched and harassed by Michael Murphy and Steve Hansford was extremely stressful.
I had been a good employee for the time 5 years I had been working for BWS and I felt I did not deserve treatment that I was getting from Michael and Steve for one mistake that I made.
By 11 March 2016 I was feeling very down, depressed. I was having problems sleeping. I was anxious about being around Michael and Steve and I believed it was just a matter of time before I was terminated. I was also disappointed that I had taken leave for a month for no reason."
- Following the lodgement of his workers' compensation claim, the self-insurer referred the appellant to Dr Shaikh for an independent medical assessment on 31 May 2016. In his report (Exhibit 1), Dr Shaikh confirmed that the appellant was suffering from an adjustment disorder with mixed anxiety and depressed mood and that the condition had "a causal relationship to perceived stressors in his workplace". Dr Shaikh concluded that the most significant factors contributing to the appellant's disorder were:
- (a)Distress at not being provided a local location following his licence suspension;
- (b)Being provided a show cause notice arising from a workplace incident at Nerang; and
- (c)Perceived harassment at attending to work late on at least two occasions in his first week at the Benowa store.
- An examination of the workers' compensation statement and Dr Shaikh's report suggests that the following factors, in addition to those relied on by the appellant, contributed to the development of his psychological disorder:
- (a)The appellant's perception that Mr Hansford placed him at Benowa in order to facilitate the termination of his employment;
- (b)The appellant's belief that Mr Hansford could have, and should have, relocated him to a store near his home;
- (c)The appellant's claim that Mr Murphy had "put me on late shifts and some nights there were no buses running late so I would have to get a taxi home, at great expense";
- (d)The appellant's view that he should not have been subject to supervision by Mr Murphy, because of Mr Murphy's involvement in the disciplinary process.
- The determination of the appeal turns on an evaluation of the management action associated with the factors considered to be causative of injury. However the claim that the appellant was rostered on late shifts and some nights was patently false in circumstances where his finishing time, unless otherwise mutually agreed, was no later than 5.00 pm. Additionally, the proposition that it was unreasonable for Mr Murphy to supervise the appellant was misconceived. Mr Murphy was the store manager and entitled to know of the appellant's disciplinary record. Further, Mr Murphy's involvement in the disciplinary process as a management witness was entirely unexceptional. Unreasonable management action was not associated with either of these two factors.
Work Roster for Week Commencing 7 March 2016
- The appellant tendered a number of roster documents during his cross-examination of Mr Murphy. Exhibits 24 and 27 were headed "Draft Resource Builder Report" and included a warning to the effect that the report may contain unpublished shifts for the week starting 7 March 2016. Exhibit 24 included the roster for Benowa store employees, plus a number of other employees. The appellant's name was included in handwritten form. Exhibit 27 predominantly included the roster for Benowa store employees and included the appellant's name in typed form. Exhibit 28 was headed "Wall Schedule By Heading", and included the roster for the appellant only.
- Exhibit 29 comprised a copy of an email written by Mr Murphy with an attached roster. The attached roster was the same roster that formed Exhibit 27 except that some additional handwritten comments were included on the roster. The effect of the covering email and the handwritten note on the attached roster was that the appellant worked a full shift on 7 and 11 March 2016, but only completed the first half of his rostered shift on 8, 9, and 10 March 2016.
- Exhibit 24 showed that Mr Bartlett was rostered to work from 1.00 pm to 9.15 pm on 7 March 2016; from 12noon to 8.00 pm on 8 and 9 March 2016; from 11.00 am to 7.00 pm on 10 March 2016; and from 12 noon to 8.00 pm on 11 March 2016. However a handwritten alteration showed that the appellant worked from 1.00 pm to 9.00 pm on 11 March 2016. Exhibit 27 included handwritten alterations to the roster shown in Exhibit 24. The alterations indicated that the appellant did not work between 5.00 pm and 8.00 pm on 8 and 9 March 2016; and did not work between 4.00 pm and 7.00 pm on 10 March 2016. Exhibit 28 showed that the appellant worked between 1.00 pm and 9.15 pm on 7 March 2016; between 12 noon and 5.00 pm on 8 and 9 March 2016; between 11.00 am and 4.00 pm on 10 March 2016; and between 12 noon and 8.00 pm on 11 March 2016.
- Consistent with the commitment made by Mr Hansford in Exhibit 10, it was Mr Murphy's evidence that he did implement roster changes to assist the appellant (T2-76). The effect of his evidence was that he discussed a restructuring of the proposed roster with the appellant for the purpose of alleviating some of the difficulties he would experience in using public transport to get to and from work. He said that he amended the roster to provide that the appellant would only work the first half of what would otherwise be his normal shift to enable the appellant to catch public transport home. The effect of the arrangement was that the appellant would finish either at 4.00 pm or 5.00 pm.
- Despite all four exhibits indicating that the appellant worked on 7 March 2016, the appellant in his evidence in the proceedings maintained that he did not commence work at Benowa until 8 March 2016. It may have been that the appellant relied on a handwritten entry in Exhibit 27 which included the words "not worked" under the appellant's shift hours. However, Mr Murphy explained that these words were directed at the evening portion of the shifts rostered on 8, 9, and 10 March 2016. It was Mr Murphy's evidence (T2-86) that the appellant did work a full shift on 7 March 2016. He said that a full shift was worked because this was the appellant's first day at work, and that discussion about shift alterations had yet to take place. He also noted that while a full shift was also worked on 11 March 2016, the shift duration was at the request of the appellant who had arranged transport home with a family member.
- Further, despite what was contained in the various exhibits setting out the appellant's roster, the appellant suggested in his evidence that hours different to the roster were worked. On 8 March 2016, he said that he worked between 1.00 pm and 8.00 pm (T1-24), when according to the roster he finished at 5.00 pm. Further, on 10 March 2016 he said that he finished work at 7.00 pm (T1-26) while the roster specified a finishing time of 4.00 pm. Despite referring to these variations in his evidence, the appellant did not provide any supporting evidence and I prefer to rely on the roster documentation in arriving at any conclusions in respect to the issue. In my view the evidence is sufficient to support a balance of probabilities finding that the appellant worked the following hours in his first week of employment at Benowa:
Monday 7 March 2016: 1.00 pm to 9.15 pm
Tuesday 8 March 2016: 12 noon to 5.00 pm
Wednesday 9 March 2016: 12 noon to 5.00 pm
Thursday 10 March 2016: 11.00 am to 4.00 pm
Friday 11 March 2016: 1.00 pm to 9.00 pm
- The work rosters for the week commencing 7 March 2016 also attracted attention in the proceedings because some of the documents showed that Mr Murphy was scheduled to be absent from work on 8 and 11 March 2016 either on annual leave or a day off in lieu. Exhibit 24 disclosed that Mr Murphy was on annual leave on both days, while a cost report in the evidence as Exhibit 33 disclosed that Mr Murphy took annual leave on 8 March 2016, and time in lieu on 11 March 2016. In the end result there was no dispute about the fact that Mr Murphy was not scheduled to be at work on either 8 March or 11 March 2016 and the issue only attracted controversy because the appellant claimed that the sole purpose for Mr Murphy's attendance at work on 11 March 2016 was to harass or victimize the appellant for not arriving at work on time.
- The transfer issue initially arose when the appellant said during the disciplinary process that he did not want to return to the Nerang store. Subsequently however the appellant introduced a second reason. He said that he wanted a transfer to a store close to his home because his driver's licence had been suspended.
- The duration of the period of suspension was not disclosed by the appellant, but according to Dr Shaikh's report when he assessed the appellant on 31 May 2016, he was told that the appellant had "now reacquired his licence". If the appellant had got his licence back by the end of May 2016, any request to relocate presumably may have been focussed on a relatively short period of time.
- Mr Hansford met with the appellant on 12 February 2016 at the Dublin Docks Tavern for the purpose of concluding the disciplinary process. During the meeting the appellant offered to take annual leave while Mr Hansford sorted out a suitable location. While the appellant initially proposed taking one week's leave, this period was eventually extended to three weeks when he had not been successful in getting a suitable relocation.
- When the relocation issue had not been resolved by 26 February 2016, the appellant contacted Mr Hansford for an update. In response, Mr Hansford told him in an email dated 26 February 2016 (Exhibit 16), that there were no suitable positions in Area 3 and that a store would have to be found within Area 2. In this regard, Mr Hansford said that he was still looking at options and that he would let the appellant know the following week which store would be chosen. It was in this week (commencing Monday 29 February 2016), that the appellant would have been told that he would be transferred to Benowa.
- The appellant commenced work at Benowa in the week commencing 7 March 2016. On 9 March 2016, he again discussed his relocation request with Mr Hansford and stressed the difficulty that he was experiencing in getting to work via public transport. He said in effect that Mr Hansford was not sympathetic to his request. Later that day, Mr Hansford gave the appellant a letter or file note (Exhibit 10) which summarised Mr Hansford's perspective on the relocation issue. This is the most reliable record of Mr Hansford's perspective on the issue, given the contemporaneous nature of the note. In the file note, Mr Hansford expressed the following sentiments:
- (a)He had reviewed store capacity and concluded that the operations were best served by the appellant remaining at Benowa;
- (b)That it was the appellant's responsibility to attend for work in accordance with his roster;
- (c)Some flexibility around attendance would be allowed and the appellant could use annual leave or unpaid leave if he were unable to get to work on particular days;
- (d)The appellant should discuss his plans relating to the roster with his line manager (Mr Murphy);
- (e)He will continue to look for opportunities to relocate the appellant to a store closer to his home;
- (f)He remained available and willing to discuss the issue as the appellant's circumstances change.
- The effect of the appellant's submission was that his employer had an obligation to relocate him in circumstances where he needed to rely on public transport to get to work. The appellant considered that Mr Hansford had acted unreasonably in failing to relocate him and that there were a number of stores that were viable options for transfer. He submitted that Mr Hansford's evidence about the subject was less than honest and that while Mr Hansford had claimed in his evidence that he had made genuine attempts to get him an alternative position, the truth was something different and that at best, Mr Hansford was indifferent to his request.
- In terms of the issue of reasonableness, no evidence was adduced supporting a proposition that Mr Hansford was under any obligation to transfer the appellant to a location of his preference and that the decision involved anything other than an exercise of Mr Hansford's discretion. In this regard, Mr Hansford said that he made his decision after establishing that the appellant's request could not be accommodated because of operational and human resource constraints.
- Further, if the file note in the evidence as Exhibit 11 provides an accurate reflection of Mr Hansford's approach to the issue, there is nothing unreasonable to be found in the management action described. As well as explaining his position, Mr Hansford undertook to keep the appellant's request under review and had the appellant remained at Benowa for longer than one week, it was possible that he may have got the relocation that he wanted.
Threat of Termination
- While the appellant maintained that the disciplinary process was closed and had no continuing impact on him, this was clearly not the case and numerous references in the evidence demonstrate that the outcome of the disciplinary process, and Mr Hansford's refusal to relocate him to a store closer to his home, generated anxiety and apprehension about his continuing employment prospects. The appellant did not accept that a location closer to home could not have been found and he formed the view that his placement at Benowa was to serve an ulterior purpose. It was his belief that in declining to relocate him to a store closer to his home, Mr Hansford wanted to keep him under close supervision at Benowa and look for opportunities to terminate his employment (T1-22):
" … I believe Mr Hansford placed me there at the BWS Benowa Tavern to be micromanaged by Mr Hansford, which I allege, I believe – which is in the case, I believe – what has happened to me for the period I was at the Benowa Tavern. I believe Mr Hansford placed me there at the Benowa Tavern in regards to my show cause notice where he failed to terminate my employment at that point, where he had every opportunity to, in regards to the sixpack issue. And then I believe, due to the actions of Mr – Mr Murphy and Mr Hansford at the Benowa BWS Tavern, I believe Mr – Mr Murphy was – just my own belief – was directed by Mr Hansford to write me up on performance issues as – so as to terminate my employment in a legal looking way."
- That the appellant's perception was not arrived at in retrospective analysis, and was anchored contemporaneously, is demonstrated by content that he included in a complaint letter that he had written on 22 April 2016 (Exhibit 12). In the letter, the appellant linked alleged harassment by Mr Murphy with a perceived intention on the part of Mr Hansford to terminate his services:
"I believe that Steve Hansford has purposely put me at Benowa store where his office is based to be terminated as I was continually documented by Michael Murphy who would pull out his book and write me up even for being late one day after I phoned ahead to let them know".
- Mr Hansford however denied any such intention: (T2-68):
"APPELLANT: I’ll get to the last bit here, Mr Hansford. I’m going to put this to you in a way of saying would it be fair to say, which is not saying you did or you didn’t. Would it be fair to say that as a result of your show cause notice where you had the opportunity to terminate my employment and failed to do so at that time due to the defence that I presented to you, that you then set out on a witch hunt on myself with the help of Mr Murphy so as to make it sound as a work performance issues so as to be able to terminate my employment in a legal possible way?‑‑‑No."
- Mr Hansford also denied that he had wanted to terminate the appellant's employment arising from the Nerang incident, but that he had been prevented from doing so by his line manager, Mr Barnett. The effect of Mr Hansford's evidence was that both he and his line manager agreed on the course of action to be taken (T2-26):
"Considering the serious wording in your show-cause notice dated the 9th of the 2nd, citing possible termination of my employment, can you explain to the court why you failed to terminate my employment at the show-cause interview at the Benowa Tavern?‑‑‑Absolutely. So with any investigation, if I’m doing the investigation, it’s not right for me to make a sole decision, so, therefore, I have to consult with my line manager, and if the line manager is not available, I then go to a HR representative. So, in particular, with this one, we consider the same things: years of service, whether there was a similar offence or previous – similar activities and whether or not we felt it’s going to be something, moving forward, that would be an ongoing issue.
So, Mr Hansford, what would you say the main reason, though, is why you never terminated my employment at that point – at that particular point?‑‑‑Certainly, it was your years of service, the fact that this ‑ ‑ ‑
Years of service?‑‑‑ ‑ ‑ ‑ was the first time we’d had an issue of this nature with yourself. That was the overriding ‑ ‑ ‑
Yes. But I’ve seen you terminate people for a lot lesser things than that, Mr Hansford?‑‑‑Correct.
Yes. What was Mr Barnett’s reason for advising yourself to issue me with a first and final warning at the show-cause inquiry rather than terminate my employment at that time where you had every opportunity to do so, taking into account the serious wording of your show-cause document? What was Mr Barnett’s reason? What did he advise you, and why?‑‑‑He advised me that – it was the discussion that we had, as I just mentioned: your years of service, whether there had been an issue previously and whether I felt it was an issue moving forward.
So that was what Mr Barnett stated to you?‑‑‑That was the discussion we had, and we came to the decision of not terminating.
No. But you actually went to Mr Barnett for the advice on what you should do?‑‑‑Correct.
Yes. And so Mr Barnett advised you that – to not terminate me ‑ ‑ ‑?‑‑‑Yes."
- In my view, the evidence does not support a finding that Mr Hansford would have preferred to terminate the appellant's employment as a result of the Nerang incident. Nor do I accept that Mr Hansford's decision to place the appellant at the Benowa store was a premeditated move intended to facilitate the termination of the appellant's employment. Firstly, Mr Hansford's evidence about why the appellant's services were not terminated is not consistent with any future intent to end his employment. Mr Hansford said that in a discussion with his line manager it was agreed that the appellant's exemplary service and the improbability of him re-offending were the main reasons why his employment was not terminated. Secondly, a predetermination to end the appellant's employment was not consistent with Mr Hansford's decision to implement supportive measures including his agreement to relocate the appellant away from Nerang, and his decision to restructure the appellant's roster at Benowa to accommodate travel by public transport.
- While I accept that the appellant may have perceived that Mr Hansford was on a mission to end his employment, this was not the reality and there is no factual basis to the appellant's perception of events. Neither the reasons given by Mr Hansford explaining why the decision was taken not to terminate the appellant's employment arising from the disciplinary process, nor the content of the contemporaneous file note (Exhibit 10) given to the appellant on 9 March 2016, demonstrate any intention to unreasonably end the appellant's employment.
Benowa Store Incidents
- The appellant said that he had been placed at the Benowa store to enable him to be micromanaged and to facilitate the termination of his employment. He said in his evidence (T1-23) that he believed that it would only have been a matter of time before this happened. The appellant's response to, or interpretation of, events occurring during the week commencing 7 March 2016 should be considered in this context.
- It is also relevant that, while the appellant alleged that he had been micromanaged and unfairly treated by Mr Murphy and Mr Hansford across the course of the week, these allegations need to be sustained by reference to supporting particulars. In this regard the only evidence advanced that had the potential to substantiate the allegations was the evidence associated with four exchanges or incidents occurring across the five day period:
- (a)Mr Murphy's hostile and threatening manner in correcting the appellant's response to a customer request;
- (b)Mr Murphy's refusal to promptly respond to the appellant's request for the telephone number of the human resources department;
- (c)Mr Murphy's hostile manner in demanding to know why the labelling task had not been completed;
- (d)Mr Murphy's response to the appellant's late arrival for work on 11 March 2016.
- It was the appellant's case that micromanagement by Mr Murphy was demonstrated by his over-reaction when responding to particular incidents at work. In terms of Mr Hansford's conduct, the proposition advanced by the appellant was to the effect that Mr Hansford made unnecessary visits to the store, and that he had formed the impression that Mr Hansford was unnecessarily monitoring his work. He claimed that Mr Hansford "would often come into the store while I was working to check out what I was doing".
- I am not persuaded however to accept the appellant's version of events in circumstances where:
- (a)Mr Hansford's office was located at the Benowa facility;
- (b)Mr Hansford had over arching responsibility for the operations of the store;
- (c)Mr Hansford could be expected to maintain a level of familiarity with the operations of the store and that therefore his regular presence in the store should not have been considered unusual; and
- (d)The appellant failed to provide supporting particulars. No evidence was adduced that would enable a finding to be made that Mr Hansford's activities went discernibly beyond a normal and reasonable level of visitation to the store and constituted behaviour intended to harass and intimidate the appellant.
- The appellant maintained that he had been unfairly treated by Mr Murphy while he was serving a customer in the store around 2.00 pm on 10 March 2016. The appellant said that when the customer entered the store and intimated that he wanted to buy a bottle of water, he directed the customer to a fridge which he said was about five metres away. When the customer proceeded to the fridge, Mr Murphy intervened and the following conversation ensued (T1-25):
" … At that point, I was at the sales counter. I think I was still ripping up – tearing up the shelf price tickets because they come in a – on a sheet that’s perforated. Mr Murphy, he did stand over me at that occasion and raised his voice at me in a loud, hostile manner, I believe, and he said, well, get over there. I quote, this is what he said, “Well, get over there and help the customer pick a bottle of water”. And I replied to Mr Murphy. I said to Mr Murphy, “There’s only a few types of water in the fridge”. Mr Murphy’s face did become quite red in colour. He stood in close proximity to me and he is a very large man. Again, he raised his voice at me in a loud, hostile manner, and said, “I don’t care. Get over there and help the customer pick a bottle of water. You’re a salesman. It’s your job”. I felt threatened at that point and I walked to the customer who was already on his way back to the sales counter with his bottle of water. Not long after that, I did notice Mr Murphy remove that small, black diary looking book from beneath the counter and write something in it."
- While Mr Murphy accepted that the incident occurred, he denied speaking to the appellant in the manner alleged, and he denied saying the words that the appellant had alleged. It was Mr Murphy's evidence that when the customer approached the appellant and asked where the bottled water was stored, the appellant pointed in the direction of the fridge which was located at the back of the store. His evidence was that he counselled the appellant while the customer was getting the water. He said that he told the appellant that the customer service policy was for the staff member to take the customer to the fridge and assist with the purchase. Mr Murphy said that he did not make a record of the incident in his personal diary.
- If the appellant did not follow customer service protocols in responding to the customer's request, Mr Murphy was entitled to chastise him for not actively assisting the customer with his purchase. The appellant agreed that the customer had headed off to the fridge when Mr Murphy intervened and I think that it is probable that the exchange between Mr Murphy and the appellant occurred in a manner which did not attract the customer's attention. On both accounts, it would have been a very brief exchange. I accept that Mr Murphy's demeanour may not have been friendly and that he may have been direct in telling the appellant to comply with customer service standards. However, Mr Murphy was entitled to correct the appellant behaviour, and was entitled to presume that a person of the appellant's status and years of service would be very familiar with customer service standards.
- The contemporaneous evidence does not support a conclusion that the customer incident was an event of any particular significance. Mr Murphy did not make a record of the incident in his diary, and neither did the appellant allude to the incident in the statement that he prepared for the Verifact investigator on 11 May 2016. The omission occurred notwithstanding that the appellant, in the statement, thought it appropriate to draw attention to a number of other incidents which he claimed evidenced unreasonable management action. In my view, if Mr Murphy's interpersonal style offended the appellant, his manner should appropriately be characterised as a blemish, but not unreasonable management action.
Instruction to Change Labels
- The appellant said that on 9 March 2015 Mr Murphy directed him to change all the price ticket labels on product in the store (T1-25):
" … On that same day, on the 9th of the 3rd, at the end of Mr Murphy’s shift, he told me to change all the store’s – store’s price ticket labels, which are the little white labels that are behind the plastic stripping of each thing that has a barcode on them. Every six months they need to be changed to – because the price – prices change with the government excise tax. So every six months they change. And in that store there is about 3000 labels."
- There was no issue with the instruction, and the appellant was familiar with the task to be performed. However a problem arose the following day when the appellant said that he was admonished by Mr Murphy for not having completed the entire task (T1-25):
" … On the 10th of March was the day three 2016. Mr Murphy, when I did arrive at the store, he asked me why I had not done all the store’s price ticket labels, which is about 3,000. He did state all of them. Mr Murphy, I believed, then that he removed some sort of black looking book which resembled a diary from under the counter and wrote something in it ….".
- Mr Murphy denied that he had instructed the appellant to complete the labelling function within a specified period of time. It was his evidence that he instructed the appellant to perform the task, but he did not tell the appellant that he must complete the task on 9 March 2016. Mr Murphy agreed that he asked the appellant on 10 March 2016 how much progress he had made with the labelling task, but denied that he communicated with the appellant in a hostile manner.
- While in his evidence the appellant said that Mr Murphy proceeded to write him up over the incident, this proposition was not put to Mr Murphy during cross-examination, nor is there an entry relating to the matter in Mr Murphy's personal diary that was tendered into the evidence.
- Mr Murphy agreed that he passed on the label instruction toward the end of his shift, which would have been around 5.00 pm on 9 March 2016. Given that the appellant was rostered to finish work at 4.00 pm, it would appear that the instruction would have been passed on close to the end of the appellant's period of work. In the circumstances it is unlikely that Mr Murphy would have had any serious expectation that the labelling exercise would have been completed by the time that the appellant arrived at work the following day. The appellant said that over 3000 labels needed to be replaced and that the task could take three to four days to complete. It would have been evident to both men therefore that the job would not be finished until some time after 10 May 2016.
- It is difficult to read much into Mr Murphy's enquiry about the status of the labelling project on 10 March 2016. He was entitled to enquire about progress. While the appellant maintained that Mr Murphy expected the task to have been completed, Mr Murphy said that he simply wanted to ascertain how much progress had been made.
- Whether Mr Murphy was abrupt or abrasive in his discussion with the appellant is difficult to determine given the conflict in the evidence, but it appeared that the discussion was only a brief or fleeting exchange which did not lead to any consequences or follow-up action. There was no evidence, for example, of any operational emergency which required additional staff to be called in at short notice. Nothing at all appeared to hinge on the matter which was consistent with a conclusion that Mr Murphy never had an expectation that the task could have been completed in such a short period of time and that it is likely that the appellant misunderstood the nature of his enquiry or the motivation behind the enquiry.
- The evidence is not sufficient in my opinion to support a finding that Mr Murphy's interaction with the appellant about the status of the labelling task should be construed as unreasonable management action.
- It was not in dispute that the appellant arrived approximately one hour late for work on both 10 and 11 March 2015. It was Mr Murphy's evidence (T2-77) that on 10 March 2016, the appellant phoned him between 10.00 am and 11.00 am to inform him that his scheduled bus did not arrive and that he would be late for work. The appellant was also late for the work the next day, but as Mr Murphy was on leave, the appellant phoned a co-worker, Mr Morton, and informed him of his delayed arrival. Mr Morton in turn informed Mr Murphy. It appears that there was no adverse reaction from Mr Murphy in respect to the late arrival on 10 March 2016, but he showed his displeasure when the appellant failed to attend on time the following day.
- It was the appellant's evidence that Mr Murphy was already at work when he arrived on 11 March 2016. He said that Mr Murphy demanded to know in a loud, threatening and hostile voice what his reason was for arriving late. In response, the appellant told him that a connecting bus failed to arrive. In response, Mr Murphy demanded to know what the appellant was going to do about the matter. The appellant's evidence about what transpired after that is set out below (T1-27):
" … I stated to him that it was out of my control that the bus didn’t arrive and I had – I – I just was – I – I couldn’t have – have any control over the matter. Mr Murphy then said to me, he said it in a threatening, hostile manner again, I quote. He said, “So, what are you going to do about it”, and I said to Mr Murphy that it was out of my control and all I could do was ring the bus company to make sure my connecting bus arrives on time. That’s what I – that’s what I stated to Mr Murphy. Mr Murphy did reply to me at that time, and I quote, “Well, is that your answer”, and I quoted back to him, I said, “Yes, Mr Murphy, it is”. Mr Murphy then removed this small black diary looking book, which I now believe it’s personal diary, from beneath the sales counter, not from the back of the sales counter where the store diary is kept, and said, “Well, that’s what I’m going to write as your answer”. And he did write something in his diary, although his diary wasn’t presented to me so I could look."
- Mr Murphy denied approaching the appellant in a hostile and threatening manner and said that he responded to the appellant by telling him that other staff rely on him turning up on time and that he needed to make a better effort to get to work on time. Mr Murphy said that he made a record of the appellant's late arrivals in his personal diary (Exhibit 23). The entry in his diary was to the effect that Mr Murphy reminded the appellant of his obligation to get to work on time and pointed out the impact of his late arrival on the working arrangements of other staff. He said that he kept both a work diary and a personal diary, and that to keep matters confidential he recorded staff issues in his personal diary.
- Mr Morton was in the store when the conversation between the appellant and Mr Murphy occurred. It was Mr Morton's evidence that he was aware that a conversation took place between the appellant and Mr Murphy after the appellant had arrived late for work on 11 March 2016. However he said the conversation was none of his business, and that he did not pay any attention to it.
- The appellant attached a sinister motivation to Mr Murphy's appearance at the store on 11 March 2016. The appellant did not consider it a coincidence that Mr Murphy elected to come into the store on his day off on 11 March 2016. Nor did he accept Mr Murphy's explanation that he was at work on 11 March 2016 for the purpose of completing a stock take. He maintained that when Mr Morton made Mr Murphy aware that he would arrive late for work, Mr Murphy came into the store for the express purpose of checking up on the appellant and reprimanding him for his late arrival.
- In articulating his claim that Mr Murphy had not come into the store for the purpose of completing a stock take, and that no stock take had been undertaken, the appellant relied on the following facts and considerations:
- (a)When the appellant sought discovery of relevant stock take reports to verify the conduct of the stock take, no such documents were forthcoming from BWS;
- (b)Mr Murphy was not in the store long enough to complete a stock take. The appellant said that the evidence indicated that Mr Murphy arrived at the store between 11.15 am and 1.00 pm, and left around 1.40pm. It was the appellant's submission that a stock take would take at least two hours to complete;
- (c)The record of a stock-take produced by Mr Murphy in the proceedings did not include a start time which was the standard, and that the finishing time entered of 12.56 pm confirmed that, given Mr Murphy's arrival time, insufficient time was available to complete a stock take; and
- (d)Had the appellant been able to obtain CCTV footage it would have disclosed that Mr Murphy performed only very limited activities related to stock take, and had left the store soon after reprimanding the appellant.
- However when Mr Murphy gave evidence in the proceedings he produced a copy of the stock take report (Exhibit 22). This led the appellant to assert that the exhibit was something produced after the event, and amounted to a fabrication. This state of affairs according to the appellant was part of a cover up by Mr Murphy and Mr Hansford to disguise the true reason for Mr Murphy's attendance in the store on 11 March 2016 which was to document the fact that the appellant had arrived late for work, and to lay the ground for future disciplinary action.
- The appellant's attack on Mr Murphy's credit extended to Mr Murphy's reliance on entries in his personal diary. He argued that no probative value should be attached to the content of the diary. He alleged in effect that the content of diary may have been entered well after the event and that it represented a fabricated version of events. The allegation relied on two propositions:
- (a)There were insufficient entries in the diary. There was only one entry in the diary prior to 10 March 2016. This entry was made on 23 February 2016 and comprised two telephone numbers only. Entries relevant to the appeal were made on 10 and 15 March 2016. The next entries, unrelated to the appeal, were made on 24 April 2016.
- (b)The appellant's belief that Mr Murphy made entries in the diary relevant to both his late arrival and the customer incident. However, only an entry relating to the late arrival was included in the diary tendered into the evidence. It was the appellant's evidence (T1-26) that immediately after the customer incident on 10 March 2016, he saw Mr Murphy make an entry in his personal diary.
- While a proven allegation in this regard may be relevant to a finding of credit, outside of this prospect, nothing of consequence turns on the issue. While the diary did not include an entry about the customer incident, it was not in dispute that an incident had occurred. Whether a decision by Mr Murphy to make a record of the incident, as opposed to not making a record, could be said to have made a significant contribution to the development of the disorder, is difficult to determine. But if it did, it would not assist the appellant's cause, because any decision to make a record could not be said to constitute unreasonable management action.
- The starting point in an evaluation of the reasonableness of management action is to consider whether the appellant's conduct warranted the intervention of the supervisor. The appellant thought not. In his view, his late arrival was beyond his control and was attributable to a failure of the bus service, not of any negligence on his part. Further, he had called in to his employer in advance of shift start time to advise that he would be late for work. He considered that if his employer were sympathetic with his circumstances, he should not have been reprimanded for his late arrival. The decision to reprimand reinforced his belief that Mr Murphy was out to get him.
- In my view however, while the appellant was not happy to be working at Benowa, he was obliged to comply with his roster. Further, it was a roster that had been specifically modified by Mr Murphy to accommodate his travel circumstances. Attendance at work one hour late on two successive days is a significant offence. Particularly given the proximity to the first and final warning, it was not surprising that the employer wanted to firmly address the issue and correct the errant behaviour.
- Mr Murphy was justified in expressing his displeasure at the appellant's late attendance for work on two successive days and it was appropriate for Mr Murphy to make a record of the incident. It was not inappropriate for Mr Murphy to ask the appellant "what he was going to do about it" and to seek assurances from the appellant regarding his compliance with the roster going forward. Mr Murphy was the one who had responsibility for arranging coverage in the store. His job was going to be made significantly harder if he could not rely on the appellant to comply with his roster.
- It was neither here nor there that Mr Murphy was in the store on a rostered annual leave day. Even if the appellant were correct and Mr Murphy attended at the store for the sole purpose of counselling the appellant, this was his prerogative and it was not inappropriate for Mr Murphy to want to confront the issue on a timely basis in circumstances where he would not have known whether the appellant would also be late the next day.
- It was also immaterial whether the stock take work was in response to operational exigency or was simply an activity that Mr Murphy completed while he waited for the appellant to arrive. Mr Murphy did not need to contrive a reason to be at work on his day off. This was not a situation where the facts were in dispute or that there was any denial by the appellant that he had arrived at work late. It was Mr Murphy's choice whether he chose to address the appellant's recalcitrant behaviour on the day in question, or whether he chose to address the issue with the appellant on the day that he was next rostered to work. Either way, there was never going to be anything unreasonable about Mr Murphy calling on the appellant to account for why he was late for work and to ensure the appellant understood the difficulty this caused the operations, including the impact on co-workers.
- I accept that Mr Murphy may not have not disguised his displeasure at the appellant's conduct in arriving to work one hour late on two successive days, and that it is likely that he would have required the appellant to acknowledge the seriousness of the offence and to provide assurances that the behaviour would not be repeated. It is unlikely that his demeanour could be characterised as friendly or affectionate. I am not however prepared to conclude that Mr Murphy's conduct amounted to unreasonable management action for the following reasons:
- (a)The appellant did not have any complaint about Mr Murphy's demeanour when he called in late the previous day and Mr Murphy must have made allowances for the appellant's circumstances on this occasion;
- (b)Perhaps provocatively, the appellant did not appear to take accountability for his actions. Having already adjusted the appellant's roster to accommodate transport difficulties, Mr Murphy was understandable annoyed at the appellant's reaction;
- (c)It is difficult to reconcile the conflict in the versions provided by Mr Murphy and the appellant;
- (d)Mr Morton was aware of the exchange between the appellant and Mr Murphy, but he did not give any evidence supporting the appellant's version.
HR Phone Number
- After Mr Murphy had reprimanded the appellant relating to his late arrival, the appellant intimated to Mr Murphy that he wanted to speak to some one in the human resources department. He said that he asked Mr Murphy for the HR number, but that Mr Murphy declined to provide the number. The appellant then proceeded to obtain the number from other avenues. He then called HR and requested an immediate transfer. The appellant said he was on the phone between thirty and sixty minutes, after which he resumed normal work.
- Mr Murphy had prepared a written statement relevant to the issue on 22 April 2016 (Exhibit 31). In the statement, and in his evidence, Mr Murphy agreed that the appellant had asked for the HR number. The effect of what he said in his statement was that while he initially told the appellant that he did not know the number, he was able to retrieve the number soon thereafter. When he provided the number to the appellant, the the appellant was already on the phone to HR.
- The appellant's evidence was not significantly different. He said that when Mr Murphy told him that he did not know the number, he responded by saying, "don't worry" and telling Mr Murphy that he would get the number from a co-worker who worked at another store. When he obtained the number, he contacted HR and discussed his concerns with them. During his discussion with HR, the appellant said that Mr Murphy appeared and presented him with the number.
- It is difficult to conclude that Mr Murphy's failure to immediately provide the HR number to the appellant should be considered a significant management failure. While the appellant believed that Mr Murphy did know the number and could have quickly provided it to him, the omission was inconsequential in that the appellant immediately sourced the number from another person, and proceeded to discuss his grievance with a human resources officer without difficulty or obstruction. Further the appellant received a timely resolution to his enquiry or grievance when, later the same day, an email (Exhibit 34) from the HR officer set out the procedure to be followed in the event of a transfer request.
- Any disappointment that the appellant felt at Mr Murphy's initial response to his request is not sufficient to support a finding of unreasonable management action.
- The appeal turns on findings to be made in respect to management behaviour associated with factors causative of the appellant's disorder. While the appellant claimed that these factors were limited to the conduct of Mr Hansford and Mr Murphy in the week commencing 7 March 2016, in my view other factors were also in play. Most significant of these was the underlying stress arising from the appellant's belief that when he commenced at Benowa he would be unfairly managed, and his services terminated.
- It is more likely than not, that the appellant commenced work at Benowa on 7 March 2016 in a disaffected and anxious state of mind. He did not accept Mr Hansford's explanation that he had done all he could to relocate him to a store close to home, he resented "wasting" three weeks annual leave to give Mr Hansford sufficient time to find a suitable store, he was unhappy that he had to endure the inefficiencies of public transport, and he was apprehensive about entering a work environment where his managers' were determined to find excuses to end his employment. It followed that the appellant would have been particularly sensitive to management action that was critical of the way he performed his work. It is likely that the appellant's fear of termination would have been magnified by any anxiety that he felt arising from the contentious supervisory interventions.
- These underlying considerations were part of the contributory matrix which explained the development of the appellant's disorder. The other factors arose from the particular incidents said to have occurred in the week commencing 7 March 2016 and in respect of which the appellant perceived that he had been treated unfairly or unreasonably.
- The factual basis for some of the allegations of unreasonable management action made by the appellant has not been made out. The evidence does not support findings that the appellant was a victim of a premeditated campaign to end his employment, nor does it establish that Mr Hansford excessively monitored the work of the appellant. The appellant failed to particularise this allegation, and no evidence was adduced of specific instances where Mr Hansford entered the appellant's work area and conducted himself unreasonably.
- There was no basis for the appellant's fear of termination. The employer did not terminate the appellant's services when it had the opportunity to do so. The reason they did not terminate his services was because they regarded his past service as exemplary, treated the Nerang incident as an aberration, and believed that the prospects of the appellant re-offending were low. There was no legitimate basis for the appellant to conclude that his continuing employment was in jeopardy.
- In circumstances where the appellant had only worked with Mr Murphy for five days, and the first three days of that period were incident free, it would be difficult to argue that the evidence was capable of establishing a pattern of bullying or harassment. The appellant's criticism of Mr Murphy's behaviour related to four incidents which took place on 10 and 11 March 2016. On my assessment of the evidence, there was nothing unreasonable about Mr Murphy's response to the appellant's late arrival at work on 10 March 2016; the appellant's failure to get a phone number from Mr Murphy could not be said to be a significant contributor; and Mr Murphy's response to the customer incident, to the extent that it involved interpersonal failures, should be ranked no higher than a blemish. Finally, in terms of the label incident, while the conflict in the evidence is difficult to reconcile, I am not persuaded that Mr Murphy's conduct associated with the incident should be characterised as unreasonable management action.
- Consequently, whether the evaluation of management action proceeds on an incident by incident basis, or on a collective basis, the evidence is insufficient to sustain the appellant's appeal.
- The appeal is dismissed. The decision of the regulator dated 28 July 2016 is confirmed. The matter of costs is reserved.
- Published Case Name:
Trevor Bartlett v Workers' Compensation Regulator
- Shortened Case Name:
Bartlett v Workers' Compensation Regulator
 QIRC 49
31 May 2017