Your JavaScript is currently disabled. For the best experience viewing this website please enable JavaScript as described here.

Authorised Reports & Unreported Judgments

Exit Distraction Free Reading Mode

Please Note: You are about to print a copy of the onscreen version of this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please return to the case for PDF printing options.

Word Highlighter:
0of0
Change Font and Font Size
Font:
Font Size:
CITE

Unreported Judgment

Queensland Bulk Water Supply Authority v Workers' Compensation Regulator[2018] QIRC 109Membert Linnane VP
Add to List

Queensland Bulk Water Supply Authority v Workers' Compensation Regulator[2018] QIRC 109

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Queensland Bulk Water Supply Authority v Workers' Compensation Regulator [2018] QIRC 109
PARTIES:	Queensland Bulk Water Supply Authority (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2017/190
PROCEEDING:	Appeal against a decision of the Workers' Compensation Regulator
DELIVERED ON:	28 August 2018
HEARING DATES:	29 May 2018 9 and 10 July 2018
MEMBER: HEARD AT:	Vice President Linnane Brisbane
ORDER[S]:	The appeal is upheld. The decision of the Workers' Compensation Regulator dated 8 September 2017 is set aside. The worker's claim for workers' compensation is rejected. The Workers' Compensation Regulator is to pay the Appellant's costs of, and incidental to, this appeal.
CATCHWORDS:	WORKERS' COMPENSATION - APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR - whether injury to worker excluded under s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 - where management action was reasonable and taken in a reasonable way -Appeal allowed
LEGISLATION: CASES:	Workers' Compensation and Rehabilitation Act 2003 s 32 Davis v Blackwood [2014] ICQ 009 Simon Blackwood (Workers' Compensation Regulator) v Mahaffey [2016] ICQ WorkCover Queensland v Heit [2000] QIC 22
APPEARANCES:	Dr G Cross, Counsel, instructed by Allens, for the Appellant. Mr P O'Neill, Counsel, directly instructed by the Workers' Compensation Regulator, the Respondent.

Reasons for Decision

[1] This is an appeal by the Queensland Bulk Water Supply Authority trading as Seqwater (Appellant) against a decision of the Workers' Compensation Regulator (Regulator) dated 8 September 2017. That decision of the Regulator overturned an earlier decision of WorkCover Queensland (WorkCover) dated 19 July 2017 to reject an application by John Brewer for workers' compensation.

[2] The Regulator's decision dated 8 September 2017 set aside the decision of WorkCover and substituted a new decision to accept Mr Brewer's application in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Act). Essentially the Regulator found that the Appellant's management action (through Mr Michael Harkin) was reasonable in undertaking an investigation of Mr Brewer's conduct. The Regulator however concluded that Mr Harkin's management action miscarried such that the reasonable investigation was undertaken in an unreasonable manner due to the way in which a meeting on 27 March 2018 was conducted. It is against this review decision that the appeal was filed in the Industrial Registry on 9 October 2017.

Legal Framework

[3] The appeal relates to s 32 of the Act and in particular to sub-section (5). Section 32(1) and (5) of the Act provide:

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

(a)
for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury; or

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

…

(5)
Despite subsections (1) and (3), injury does not include psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances -

(a)
reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;

(b)
the worker's expectation or perception of reasonable management action being taken against the worker;

Issues in Dispute

[4] The Appellant indicated that the following issues were not in issue in this appeal:

that Mr Brewer was a "worker" as that term is defined in s 11 of the Act;

that Mr Brewer suffered a personal injury, being anxiety and depression; and

that the personal injury arose out of, or in the course of, Mr Brewer's employment and employment was the major significant contributing factor to the injury.

What is in issue in the proceeding is the following:

that Mr Brewer's personal injury was excluded because it arose out of, or in the course of, reasonable management action taken in a reasonable way by the Appellant in connection with Mr Brewer's employment (s 32(5)(a) of the Act); and

that Mr Brewer's personal injury was excluded because it arose out of, or in the course of, Mr Brewer's expectation or perception of reasonable management action taken against him (s 32(5)(b) of the Act).

[5] It was a meeting on 27 March 2017 that resulted in Mr Brewer's decompensation and only Mr Michael Harkin (the Appellant's Manager, Commercial Services) and Mr Brewer were in attendance at that meeting. An assessment of the credibility of both men is thus essential as their evidence of that meeting conflicts in a number of important respects. I thus intend to deal with the evidence on a number of what might appear to be irrelevant issues in order to make that assessment on credibility.

Onus of Proof

[6] The hearing of the appeal was conducted as a hearing de novo. The Appellant bears the onus of proving, on the balance of probabilities, that Mr Brewer's injury is excluded by the operation of s 32(5) of the Act in that his psychiatric or psychological disorder arose out of, or in the course of, reasonable management action taken in a reasonable way by the Appellant in connection with Mr Brewer's employment and/or in that his psychiatric or psychological disorder arose out of, or in the course of, his expectation or perception of reasonable management action taken against him.

[7] Whilst the onus is to be discharged on the balance of probabilities, the Commission must feel an actual persuasion before the alleged facts can be found to exist.

Evidence

[8] The Appellant relied upon the evidence of the following witnesses:

Darren Hayman, the Appellant's Manager of Property, Fleet and Facilities;

Michael Harkin, the Appellant's Manager, Commercial Services; and

John Ferguson, the Appellant's Portfolio Category Manager;

The Regulator relied upon the evidence of Mr Brewer.

[9] Relevant Documents: The provisions of a number of documents are relevant to the determination of this appeal. Included in those are Mr Brewer's Offer of Employment (Exhibit 15), the Appellant's Procedure for Fleet, Mobile Plant and Private Use (Exhibit 1) and the Appellant's Procedure for Discipline (Exhibit 16). The relevant provisions of each of those documents are dealt with below.

[10] Offer of Employment: The terms of Mr Brewer's employment with the Appellant was the subject of evidence. Relevantly, the offer of employment which Mr Brewer accepted contained the following terms:

Mr Brewer was appointed to a fixed term position with the Appellant;

the fixed term was from 19 December 2016 to 24 December 2017;

Mr Brewer reported directly to Mr Ferguson;

Mr Brewer was appointed to the position of Senior Sourcing and Contract Officer – Construction;

the Seqwater Certified Agreement 2016 – 2018 (Agreement) applied to Mr Brewer for conditions other than those outlined in the letter of offer;

the Appellant could terminate the contract prior to 24 December 2017 on the grounds of operational requirements;

Mr Brewer's initial place of work was Ipswich Icon, Central Region (Icon Building);

Mr Brewer may be required to travel as part of his duties and to work at places other than the Icon Building for short periods in accordance with the Agreement;

Mr Brewer may be required to change work locations in the future;

Mr Brewer's duties and responsibilities would be as previously discussed with Mr Ferguson, the Principal Portfolio Category Management and as outlined in the position description;

Mr Brewer's remuneration was determined in accordance with the Agreement, the position being graded as Administration Stream (AO) Level 8, Paypoint 1 which was $113,153.54 exclusive of superannuation;

Mr Brewer's ordinary hours of work were 38 hours per week with normal working hours between 6.00 am and 6.00 pm Monday to Friday;

Mr Brewer would be required to work such hours as are considered reasonable to perform his duties;

the Appellant would make superannuation contributions equivalent to 12.75% of his base salary with Mr Brewer contributing 5% of his base salary;

Mr Brewer was on a probationary period of three months commencing 19 December 2016 and ending 18 March 2017;

Mr Brewer was required to comply with instructions given for workplace health and safety;

there were various policies, procedures and a Code of Conduct that applied to Mr Brewer's employment which could be amended during his employment. Any breach of these policies or procedures could lead to disciplinary action up to and including termination of his employment; and

the Appellant was to provide Mr Brewer with the necessary business equipment for him to complete his work.

[11] Procedure for Fleet, Mobile Plant and Private Use: This was one of the procedures that Mr Brewer was required to comply with. Relevant provisions of that Procedure are as follows:

in establishing the requirement for fleet vehicles, the vehicle is considered a tool of trade that enables a worker or team to perform core business activities where the use of a pool vehicle is not practical, where a worker is required to frequently travel to and from multiple work sites and the provision of the vehicle would improve the Appellant's operational efficiency;

in establishing the requirements for pool vehicles, workers are routinely required to travel within or between Seqwater sites and they are not allocated a fleet vehicle and the provision of the vehicle will improve Seqwater's operational efficiency;

insofar as the allocation of pool vehicles is concerned, the Appellant maintains the fleet for workers who are required to travel between sites and to other locations to conduct core business activities. At the relevant time, pool vehicles were available from the North Pine WTP, the Ewen Maddock WTP, the Icon Building and the Hinze Dam Regional Office;

pool vehicles are booked through Microsoft @ Outlook Resources;

fleet vehicles are provided for use by workers and work teams to perform duties associated with their role within the organisation;

fleet vehicles must not be used for private use unless approved by the relevant General Manager;

fleet vehicles may be used by workers to commute to work in situations where a vehicle custodian can demonstrate that the use of the vehicle for commuting purposes will improve Seqwater's operational efficiency;

the requirements and justification for using a fleet vehicle to commute to work must be documented in an Operational Assessment Criteria Form which must be approved (and signed) by all relevant managers before a fleet vehicle can be used for commuting purposes;

the criteria for assessment of use of fleet vehicles for commuting includes the fact that the vehicle custodian holds a position that requires them to regularly start work at sites other than their principal work location (i.e. regularly start and finish work at different work locations), the vehicle custodian holds a position that requires them to regularly attend after-hour call outs as part of their position and the vehicle custodian lives within 50 kilometres of their principal work location;

pool vehicles are provided for the use of Seqwater workers to travel to sites to perform core work activities;

pool vehicles may only be used where a booking has been made in the Microsoft @ Outlook Resources;

pool vehicles must not be used for commuting purposes or for private use;

the in vehicle management system (IVMS) is a global positioning system installed in Seqwater fleet assets. The system provides current and historic data on vehicle usage, including route taken, speed of vehicle, vehicle idle time, vehicle ignition on and off time and location;

it is a mandatory requirement of using the vehicle that the driver logs onto the IVMS using his/her staff ID number before commencing a trip, and remains logged onto the IVMS until the trip is completed;

logging on to the IVMS as a different person is a breach of this procedure;

IVMS reporting will be provided to managers and coordinators as required or on a regular basis and this reporting will include vehicle usage data;

any issues with the use of the IVMS must be reported to the Fleet and Mobile Plant Coordinator;

if a Seqwater worker breaches the procedure during the operation of a fleet vehicle they may be subject to disciplinary action in accordance with the Discipline Procedure and/or lose the commuter use of the Seqwater fleet vehicle and/or be suspended from using a Seqwater fleet vehicle for a period of time;

use of any Seqwater fleet vehicle for private purposes or personal gain is considered to be a breach of this procedures and the Seqwater Code of Conduct Policy and will be subject to disciplinary action under the Discipline Procedure;

instances of suspected unauthorised/private use of Seqwater fleet vehicles will be investigated by the relevant Level 3 Manager; and

Appendix B outlines three examples of workers driving fleet vehicles

[12] Procedure for Discipline: The Procedure for Discipline is intended to promote fair and consistent management of the disciplinary process where incidents of misconduct have been identified and corrective action initiated in order to improve unsatisfactory performance or unacceptable conduct. Thus before the Discipline Procedure is implemented an incident of misconduct must have been identified, and secondly, a corrective action must have been initiated in order to improve unacceptable conduct.

[13] Any disciplinary matter is to be managed confidentially, respectfully and in a timely manner by the Appellant. It is not in dispute that Mr Harkin met the definition of "Manager" in the Procedure.

[14] All Appellant employees are expected to report suspected misconduct to either their manager or to a member of the People and Culture team with acts of serious misconduct being reported to the General Manager Service, People and Technology, and the reporting of possible corrupt conduct being made in accordance with the Fraud and Corruption Control Procedure.

[15] The Appellant is to conduct a comprehensive investigation (ensuring procedural fairness) into an allegation of misconduct. Such investigation is to occur within a reasonable timeframe after the allegation has been reported, having regard to the nature of the allegation and the extent and complexity of the required investigations.

[16] In carrying out an investigation, the following issues are to be taken into consideration:

records of discussions concerning the allegation;

any relevant personnel records;

statements or submissions made by, or on behalf of, the person/s the subject of the allegation;

the observations and statement of others, including colleagues, superiors or subordinates, or any other person with relevant information;

certificates, statements, testimonials or documents of a similar nature provided on the employee's behalf by third parties (e.g. medical practitioners); and

any other source of information relevant to the investigation that is considered appropriate.

[17] It is at this investigation stage that the General Manager Service People and Technology and the relevant General Manager are to consider whether the employee should be stood down on full pay to allow the investigation to be carried out, and to allow the employee the opportunity to prepare a response to the allegations.

[18] The Appellant is to be clear about what an employee is alleged to have done or failed to do. The principles of procedural fairness will apply and guide any investigation process. The principles of procedural fairness include:

the employee is to be advised of any allegations concerning their behaviour or conduct;

the employee is to be given a fair and reasonable opportunity to respond to any allegations;

if the employee's conduct or behaviour is determined not to be of an acceptable standard, they will be given a fair and reasonable opportunity to respond or make submissions in relation to the findings and proposed action to be taken;

the Appellant will take into account all available matters reasonably connected with the alleged behaviour which may mitigate any disciplinary action;

available evidence will be gathered (including interviewing all appropriate persons and collecting all relevant documentation);

the employee will be allowed to bring a support person or union representative to the investigative interview;

the employee will be provided an opportunity to respond to the allegation against them and the evidence obtained;

the employee's response and submissions will be given due consideration;

the Appellant will make a decision on the matters raised in the investigation, in a timely manner

the Appellant will maintain a record of all investigation details in writing; and

the Appellant will advise the employee in writing of any decision made.

[19] I will deal with the relevance or otherwise of these three documents later in this decision.

[20] Background: Mr Brewer commenced employment with the Appellant on 19 December 2016 after having been interviewed for a position with the Appellant by a panel of three, including Mr Ferguson. Mr Brewer was not successful in obtaining the position that he applied for, but was appointed to a position of Senior Sourcing and Contracts Officer – Construction on a fixed term contract. The Appellant was provided with correspondence dated 13 December 2016 confirming that appointed and outlining his terms and conditions (the offer of employment). Mr Brewer accepted that offer by signing the correspondence on 14 December 2016. The relevant terms and conditions of that offer of employment have previously been outlined.

[21] For the purposes of this appeal it is important to note that Mr Brewer's "place of work" was the Icon Building located at 117 Brisbane Street, Ipswich. Mr Brewer lived at 18 Willawong Crescent, Nerang. The distance between his residence and the Icon Building was approximately 93 kilometres. It is accepted that the time ordinarily taken to drive that distance was approximately 1 hour and 10 minutes.

[22] During Mr Brewer's first week of employment he was involved in the Appellant's induction process. He undertook this induction at the Appellant's Hinze Dam facility. The Hinze Dam facility is located approximately 13 kilometres from Mr Brewer's residence and it takes approximately 12 minutes to drive that distance.

[23] Mr Brewer's direct supervisor was Mr Ferguson, the Appellant's Portfolio Category Manager and Mr Ferguson was located at the Icon Building. Mr Ferguson was on leave during the Christmas period in 2016 i.e. 25 December 2016 to 2 January 2017. He was also on leave for a further couple of weeks later in January 2017.

[24] It was Mr Ferguson's evidence that, at the commencement of Mr Brewer's employment, he was asked to concentrate on two projects that were pressing i.e. the Molendinar Backwash Project and the Lake Macdonald Upgrade Project. Mr Ferguson said that Mr Brewer was made aware that there was a requirement for him, from time to time, to travel. That was also included in his offer of employment. His core substantive location however was always the Icon Building. As far as Mr Ferguson was concerned, if Mr Brewer was not at the Icon Building he was required to clear that with him. If Mr Brewer was required to travel to a particular site on any day, Mr Ferguson's evidence was that Mr Brewer was required to let him know of that travel in advance. Mr Harkin confirmed that Mr Brewer was employed to perform work at the Icon Building although staff were encouraged, especially in the capital expenditure environment, to work closely with the project managers and principal project managers at the various facilities and locations.

[25] Mr Ferguson said that a couple of the key players in the Molendinar project were based at the Hinze Dam facility and it made some sense for Mr Brewer to perform some work in the area. The Lake Macdonald project however was primarily a desk top exercise run out of the Icon Building.

[26] Mr Ferguson said that Mr Brewer would keep him informed in the early period of his employment as to where he was travelling to and from. As some of the team members at the Molendinar Project were based at the Hinze Dam facility then Mr Ferguson determined that Mr Brewer could spend some time at the Hinze Dam facility.

[27] Mr Ferguson returned to work from his Christmas leave on 3 January 2017 and noted that Mr Brewer was not working at the Icon Building on that day. Mr Ferguson spoke with Mr Brewer about him not being at the Icon Building in the course of that week. Mr Brewer's reasoning was that he was focused on the Molendinar work and he felt it best to work at the Hinze Dam facility. Mr Brewer's evidence was that he "expected" that Mr Ferguson did raise the issue of working from the Icon Building with him in January/February 2017.

[28] Mr Ferguson had reason to speak with Mr Brewer again about not working at the Icon Building in the following week when he had expected Mr Brewer to be working at the Icon Building. On 10 or 11 January 2017 Mr Ferguson made several attempts to contact Mr Brewer. He did speak to him on the telephone. Once again Mr Brewer advised Mr Ferguson that he felt that the Hinze Dam location was the best place for him to conduct the particular phase of the work that he was undertaking at the time. Mr Ferguson said that even at this time he was aware that there was an element of convenience for Mr Brewer working at the Hinze Dam facility.

[29] On 11 January 2017 Mr Ferguson sent Mr Brewer an e-mail which provided as follows:

"Hi John – sorry I missed our call yesterday and been tied up again in sessions most of today – can you give me a buzz in morning whenever suits you – quite a few things I need to discuss and we must find some face time before I go on leave middle of next week – I also want to discuss what the appropriate balance of HQ vrs remote office time should be going forward and to make sure that you are getting properly introduced to the team and key stakeholders – to this end note there is a Commercial Services meeting on Monday which you need to attend.

Hope the site visit goes well tomorrow – gonna be a hot one so make sure to cover up and hydrate!!"

[30] Mr Ferguson had a telephone conversation with Mr Brewer on the Thursday or Friday of that same week. Mr Ferguson said that he spoke to Mr Brewer about the need for him to be at the Icon Building, the need for him to attend the meeting on the following Monday and also the more general issue about him spending more time at the Icon Building as the bulk of the team were located at the Icon Building. According to Mr Ferguson, it was important for Mr Brewer to assimilate with the rest of the team and to get familiar with some of the Appellant's processes and systems.

[31] Mr Ferguson said that sometime between mid-January and early February 2017 other team members made him aware that Mr Brewer had not been seen much at the Icon Building. He then had the catch up with Mr Brewer on 6 or 7 February 2017 where he pressed upon Mr Brewer that he expected Mr Brewer to spend the bulk of his work time at the Icon Building. Mr Brewer's evidence initially was that he did not remember this and then said that the issue of him working at the Icon Building was not raised with him at this time. Mr Ferguson said that he detected a reluctance from Mr Brewer to carry out his work at the Icon Building. Mr Ferguson said that he had cut him a bit of slack in the period from Christmas time until his return from leave early in February 2017. Mr Ferguson did indicate that there was a genuine need for Mr Brewer to spend some time at the Hinze Dam facility but there was not the need for him to spend the substantial period of time at the Hinze Dam facility that Mr Brewer was spending at that facility. I prefer the evidence of Mr Ferguson that he raised with Mr Brewer on either 6 or 7 February 2017 that he was expected to spend the bulk of his work time at the Icon Building.

[32] When giving evidence about the crucial aspect of the claim for compensation (i.e. the meeting on 27 March 2017), Mr Brewer said that the implication from questioning by Mr Harkin was that I should have been working from the Icon Building and "yet this was not the indication that I was given as to how best to undertake my duties. So now he was giving me something that I wasn't provided with by Mr Ferguson that I should be working totally from Icon". I accept that Mr Ferguson had informed Mr Brewer that he was expected to perform the bulk of his work from the Icon Building.

[33] At the team meeting on 16 January 2017 there was discussion about working away from the Icon Building. Mr Ferguson informed the team about the need for seeking approval in advance. Mr Ferguson said that Mr Brewer would need to advise him about where he was working from, as Mr Brewer was no longer keeping Mr Ferguson aware of where he was working. Mr Brewer said that the issue may have been raised at this meeting. It became apparent that Mr Brewer, at no time after 16 January 2017, sought approval from Mr Ferguson to work away from the Icon Building. Mr Brewer said that he did not remember Mr Ferguson advising him that he was required to obtain prior agreement from his supervisor before working remotely. I prefer the evidence of Mr Ferguson that Mr Brewer was so advised at this time.

[34] Mr Harkin, on 24 February 2017, had reason to send an e-mail to members of the Commercial Services team, including Mr Brewer, with the subject of "Working away from Icon". That e-mail provided as follows:

"Lately, we have been receiving numerous advices regarding people working from locations other than Icon. These advices are being received on the day of the absence or in some circumstances no advice is received at all.

I would ask that you always speak to your team leader prior to working remotely so they can approve and at a minimum it is our responsibility to know where you are.

I don't know what happened to the review of the working away from site process but I would ask that this piece of work be completed."

[35] It was Mr Harkin's position that Mr Brewer should, at all times, have notified Mr Ferguson when he was working away from the Icon Building. Mr Brewer failed to notify Mr Ferguson, at least after being informed of this requirement on 16 January 2017, of his working away from the Icon Building.

[36] Mr Ferguson recalled having a face to face meeting with Mr Brewer towards the end of January 2017 wherein he said that the issue of time off in lieu was raised with Mr Brewer. This came up around Australia Day and Mr Brewer was seeking an ADO. Mr Ferguson said that he was a bit surprised when a person of relatively short period of employment raised such an issue. Mr Ferguson said that he did not vet Mr Brewer's time sheets as Mr Harkin (Mr Ferguson's supervisor) had that responsibility given that Mr Ferguson was a contractor and not an Appellant employee. Mr Ferguson was on leave towards the end of January 2017 so he said the face to face meeting may have been early February 2017. This was the first occasion that Mr Ferguson became aware of the long hours that Mr Brewer was working. Mr Brewer's evidence was that he could not recall any conversation with Mr Ferguson about this topic although he did say that he expected that he discussed with Mr Ferguson availing himself of the ADO.

[37] Mr Harkin said that he became aware of the long hours that Mr Brewer was working as a result of approving Mr Brewer's timesheets. His evidence was that he approached Mr Ferguson about the matter and that Mr Ferguson gave him some comfort. Mr Harkin said that he highlighted fatigue management to Mr Ferguson as some of Mr Brewer's hours were getting close to the twelve hour day that he had been familiar with in his previous employment.

[38] In an e-mail from Mr Harkin on 21 February 2017 with the subject being "John Brewer's timesheet", Mr Ferguson was advised as follows:

"Below is a screen shot of John's time for last week. Want to make sure you have visibility of this. I do notice he starts quite early and indicatively I am happy that these hours are reasonable. Might be worth considering a daily timesheet approval process for people working remotely."

[39] Mr Harkin said that, in sending the e-mail, he was seeking from Mr Ferguson that his people were working the hours indicated on their timesheets.

[40] Mr Ferguson said he had, around this time, ongoing discussions with Mr Harkin concerning Mr Brewer's timesheets and whether they were being completed correctly. The outcome of those discussions was that Mr Harkin would keep an eye on Mr Brewer's timesheets. Mr Ferguson said that he felt a bit uncomfortable with Mr Brewer's timesheets and his long working hours.

[41] Mr Ferguson's method of allocation of work involved him assigning work to his employees on the basis of his assessment of the particular employee's capacity and capability to do the work within ordinary or core hours, and the rule was if at any time an employee felt they were not able to achieve the outcome with respect to that work or they needed additional time they were to let him known. Mr Ferguson, in the absence of hearing from any particular employee, assumed that the employee was able to manage the work within their core time. Mr Brewer, at no stage, highlighted to him that he was working additional time. That was despite Mr Ferguson expressly telling Mr Brewer of the abovementioned process. At no stage did Mr Ferguson explicitly approve Mr Brewer working the hours he was alleging he worked.

[42] After becoming aware of the long hours that Mr Brewer was working Mr Ferguson sought to find out the cause and to also inquire why the Molindinar Project was taking longer than expected to finalise. As a result of that discussion Mr Ferguson said he was satisfied of the time that Mr Brewer was taking to finalise the Molindinar matter. Mr Brewer said that he could not recall any discussion about his hours of work other than at the Probation Meeting.

[43] Mr Ferguson said that the procedure for validating where an employee was working if not contained in the employee's Outlook Calendar, was very difficult. Mr Ferguson thus just accepted that Mr Brewer was working where he said he was working.

[44] Mr Ferguson recalled a Leads Catch Up Meeting in mid February 2017 i.e. a sort of work in progress review. In that meeting the issue of work location was raised. Mr Brewer, at that meeting, cited a relatively recent remark by the Appellant's Chief Executive Officer, about working locations and Mr Brewer was suggesting that it was up to team members to decide where and when they worked. Mr Ferguson said that he took issue with Mr Brewer at this meeting saying that his interpretation of what the Chief Executive Officer had said was incorrect. Mr Ferguson responded that Mr Brewer had to get approval from a line manager to work at a location other than the Icon Building as where an employee performed their work had to meet business requirements. Mr Ferguson said that the expressed view of Mr Brewer meant that the issue of working from the Icon Building was still "bubbling away" in February 2017. Mr Brewer, under cross-examination, could not remember this meeting although he did not question his attendance at the meeting and could not remember any specific conversation about this matter. As Mr Ferguson was able to give the context in which this issue was raised by Mr Brewer, I prefer the evidence of Mr Ferguson that he advised Mr Brewer at this meeting that he was required to gain approval from a line manager prior to working at a location other than the Icon Building. Mr Ferguson was Mr Brewer's line manager.

[45] Except for the early part of his employment, Mr Brewer failed to inform Mr Ferguson of the location he was working from. At this time Mr Ferguson recalled that he had regular discussions with Mr Harkin about Mr Brewer's work ethics.

[46] Probation Meeting: A probation review of Mr Brewer's employment was held on 14 March 2017 at which the attendees were Mr Brewer, Mr Harkin and Mr Ferguson. It is noted that Mr Brewer's offer of employment contained a three month probation period. Mr Brewer's probation period would thus have ended on 18 March 2017. Exhibit 9 is the Probation Review Form attached to which is a handwritten note from Mr Harkin which provided as follows:

"Identified that JB had been given projects with instructions to move forward and develop the procurement approach. Unwinding the process has been challenging and John B has worked well in delivering.

Communication is strong and he has built relationships within the PD team.

There is a need to identify that following a process that delivers to a time frame is important however quality needs to be maintained. Reference was provided to Chamhill contract where the bid from the Consultant was attached as the SOW. MH does not accept this as a meeting of the minds and expects pricing needs to be reflective of our determination of what is important.

Working with Team includes understanding that others are also under pressure, effort by all needed to ensure we function as one."

[47] Mr Ferguson said that the Probation Review meeting was a friendly business-like meeting, professional and pretty cordial. There were a couple of points raised which may have made Mr Brewer uncomfortable but there was no animosity. One particular issue raised was the manner in which Mr Brewer had developed a particular contract. Mr Ferguson said that he was not happy with the outcome and neither was Mr Harkin happy with Mr Brewer's performance in that regard and the unprofessional standard that Mr Brewer adopted in the contract. Mr Ferguson said that he had discussed this with Mr Brewer on a couple of prior occasions. Mr Brewer was notified that this was a good example of the sort of standard that neither Mr Harkin nor Mr Ferguson would wish to see repeated.

[48] Mr Ferguson said that Mr Brewer disagreed with Mr Harkin and his view about the contract documentation. Mr Brewer expressed the view that the contract was okay in the circumstances. Mr Ferguson said that they each agreed to disagree. However, both he and Mr Harkin said it was not of a standard that the Appellant expected from him and we made it clear that, going forward, he had to do better.

[49] The issue of the hours that Mr Brewer was working was also raised at this meeting. Mr Brewer's evidence concerning this meeting was that Mr Harkin "laughed" after he told him that he would be "working for free" if he accumulated more than 22.8 hours. Both Mr Ferguson and Mr Harkin denied that Mr Harkin laughed at this comment and I accept their evidence in this regard. Mr Ferguson could not recall any reference to "working for free" being mentioned at the meeting.

[50] According to Mr Ferguson, Mr Harkin was fair and professional during this meeting. Mr Ferguson commented that Mr Harkin was a straight talker who says what he feels but says it in a measured tone.

[51] Under cross-examination, Mr Ferguson could recall some reference to the time off in lieu question being raised and the need for that to be controlled. He could recall that Mr Brewer was advised that Mr Ferguson needed to know what staff he had available at all times. Mr Ferguson said that this issue was not a key aspect of the discussions on that day – it was mentioned in passing. It was then put to Mr Ferguson that Mr Harkin commented that any hours in addition to 22.8 hours accumulated by Mr Brewer would mean that he was effectively working or doing it "for free". Whilst Mr Ferguson recalled time off in lieu being spoken about at the meeting he did not recall any reference being made to working or doing it "for free". Mr Ferguson said that he had no personal knowledge of the rules for time off in lieu. Mr Ferguson denied that Mr Harkin laughed when he was referring to the time off in lieu matter saying that he would have recollected conduct of that kind as he would have found that inappropriate. He said he was absolutely sure that Mr Harkin did not laugh at the meeting.

[52] Mr Ferguson said that the use of fleet vehicles was not discussed at the probation review. From Mr Ferguson's perspective the matter was still being reviewed as at 14 March 2017.

[53] When asked why the Probation Review Form was not signed, Mr Ferguson said it was drafted and then sent to Mr Brewer within a day or two of the meeting for Mr Brewer's comments and/or signature and Mr Brewer never returned the signed Form.

[54] Mr Harkin also recalled the disagreement he had with Mr Brewer in terms of the requirements of the role that Mr Brewer was filling. Mr Harkin said that he had some quality issues particularly in relation to a contract that had been formed. Mr Harkin said that Mr Brewer was not in agreement with his view. Mr Harkin said that Mr Brewer had adopted a position with respect of this contract which he did not approve of. He advised Mr Brewer of his requirements concerning the quality of Mr Brewer's work in forming contracts. Mr Harkin said that he recognised that Mr Brewer was a strong relationship builder working with the Appellant's program delivery team and he was happy with the way that he was undertaking that role.

[55] Mr Harkin approved the continuation of Mr Brewer's employment following the Probation Review meeting.

[56] Given that Mr Harkin had it within his power to terminate Mr Brewer's employment up to, and including 18 March 2017, I have great difficulty with many of Mr Brewer's comments during his evidence concerning Mr Harkin.

[57] Fleet or Pool Vehicle Use – Mr Ferguson's Evidence: Mr Ferguson became aware of Mr Brewer's use of pool vehicles through other members of staff mentioning to him that Mr Brewer was inappropriately utilising pool vehicles. He then decided to try and verifying the information he had been given. The information came to him sometime in February 2017. On 27 February 2018 Mr Ferguson sent an e-mail to Kylie McDonald with the subject being "Fleet Vehicle Usage" (Exhibit 18). Mr Harkin was copied into this e-mail. Ms McDonald was in the Facilities Group and the e-mail provided as follows:

"I need to check on the usage of any fleet by one of my team – his name is John Brewer and whilst he is based in ICON he has worked remotely from Hinze over last 2 months. I just want to check frequency and appropriateness of usage. I would also like to understand what authorisations are required in order for a fleet vehicle to be made available."

[58] Under cross-examination, Mr Ferguson said that he did not wish to raise the issue with Mr Brewer until he had been able to verify the information given to him by other staff members. Mr Ferguson was also of the view that he would have informed Mr Harkin that he was seeking further information in relation to Mr Brewer's use of fleet vehicles. Mr Ferguson did not receive a response from Ms McDonald and he did not follow up on his request. In relation to Mr Brewer's use of fleet vehicles, Mr Ferguson could recall that, in March 2017, advising Mr Harkin that he had not received a response to his e-mail. In that discussion Mr Harkin advised him that the matter was being looked into.

[59] In cross-examination Mr Ferguson was asked what the process was to book a fleet vehicle. Mr Ferguson's response was that he had never booked a fleet vehicle and he was not familiar with the process.

[60] Fleet or Pool Vehicle Use - Mr Hayman's Evidence: Mr Hayman was employed as the Appellant's Manager of Property, Fleet and Facilities and as such was responsible for the Appellant's property portfolio which consisted of 70,000 hectares of land, fleet mobile plant (vehicles, forklifts, boats etc) and facilities (offices for staff). Mr Hayman was referred to the Seqwater Fleet and Mobile Plant Policy and Procedures (Exhibit 1). I have previously summarised the relevant aspects of that Procedure in paragraph [11] of this decision.

[61] Mr Hayman said that staff can book vehicles or they are allocated to staff as a tool of trade. Private use of fleet vehicles is defined as that used by the Australian Taxation Office (ATO) in connection with fringe benefits. There are thus tax ramifications for the Appellant if its processes and procedures do not concur with the ATO standard.

[62] Mr Hayman first became aware of an issue of private use of a fleet vehicle in March 2017. Mr Hayman said that he was alerted to it in a private conversation with members of the Commercial Services team. Such staff had simply asked whether or not it was permissible for staff to use fleet vehicles for commuting or private purposes to drive from one Appellant location to another. Mr Brewer's name had been identified in this conversation.

[63] When the issue was first raised with Mr Hayman it was asserted the Mr Brewer was driving his own vehicle from his home to the Hinze Dam facility and then taking an Appellant fleet or pool vehicle from the Hinze Dam facility to the Icon Building. Then on the return trip Mr Brewer would drive a fleet or pool vehicle from the Icon Building to the Hinze Dam facility, collect his private vehicle and drive home to his residence. Mr Hayman then confirmed, to some extent, that information by obtaining reports on the usage of fleet vehicles by Mr Brewer. In so doing Mr Ferguson produced a series of activity reports that, prima facie, confirmed the details of the conversation he had with Commercial Services team members.

[64] Mr Hayman's evidence was that all Appellant vehicles had GPS tracking devices which identified when those vehicles have their ignition on and off, where the vehicle has travelled from and to and any deviations that the vehicle has made. Mr Hayman had also obtained a report from Outlook for the period 27 February 2017 on 21 March 2017. Mr Hayman then cross-referenced the Vehicle Activity Reports which noted an "unnamed driver" with the Outlook documentation which in turn connected Mr Brewer to the vehicle. Once Mr Hayman had identified the issue he then brought the matter to Mr Harkin's attention (Mr Brewer's Manager) via e-mail of 21 March 2017.

[65] The vehicle activity reports that Mr Hayman produced are contained in Exhibit 3 and were sent with the covering e-mail to Mr Harkin at 4:33 pm on 21 March 2017. The content of the e-mail is as follows:

"Please find attached a list of reports and outlook bookings for John Brewer for a pool vehicle from Hinze. Please let me know if I can assist with any further information. Essentially, the report highlights the time the vehicle is on (start of journey) and off (arrives at its destination). There appears to be a number of days a vehicle is booked to commute to Icon only."

[66] The first date of relevance was 7 March 2017. On this day the vehicle's ignition key commenced at 6:14 am and it was driven from the Hinze Dam facility directly to the Icon Building carpark and it arrived at that carpark at 7:34 am. That report also shows that the ignition was turned back on at 3:47 pm at the Icon Building carpark and driven directly to the Hinze Dam facility and arrived there at 5:07 pm. The Outlook Diary showed Mr Brewer booking the vehicle from 5:00 am to 6:00 pm on that day. The vehicle did not go to any other facility or site on that day. It is apparent from Mr Ferguson's evidence that Mr Brewer had not informed Mr Ferguson prior to making the booking of the fleet vehicle, or at any time thereafter, that he intended going to any other Appellant facility or location on 7 March 2017.

[67] The second day of relevance was 10 March 2017. On this day the ignition went on at the Hinze Dam facility at 6:41 am and the ignition went off at 8:15 am at the Icon Building carpark. The ignition went on again at 4:23 pm at the Icon Building carpark and went off at 5:57 pm at the Hinze Dam facility. The vehicle did not go to any other facility or site on that day. The Outlook Diary showed Mr Brewer booking the vehicle on that day. Once again Mr Brewer did not inform Mr Ferguson prior to, or at any other time, that he was booking a fleet vehicle and/or that he was travelling to or from any other Appellant facility or location on 10 March 2017 or that he was working at the Hinze Dam facility on that day.

[68] The third day of relevant was 21 March 2017 and this was the date of the e-mail that Mr Hayman sent to Mr Harkin. The Activity Report had only been partly completed when the e-mail was sent at 4:33 pm on that day. The vehicle left the Hinze Dam facility at 6:36 am and the ignition went off at the Icon Building carpark at 8:00 am. The only indication in Mr Brewer's Outlook Diary was a meeting at 1:30 pm at the Icon Building. The vehicle left the Icon Building carpark at 4:36 pm and arrived at the Hinze Dam facility at 5:52 pm. Once again Mr Brewer had not informed Mr Ferguson of his need for a fleet vehicle and had not informed him that he would be attending any other Appellant facility or location (including the Hinze Dam facility) other than the Icon Building on that day.

[69] Mr Hayman referred the material to Mr Harkin as he drew a conclusion that on the abovementioned three days the fleet vehicles had been used for commuting purposes only and was thus being used for private purposes.

[70] Mr Hayman outlined the process for booking fleet vehicles. All staff members have access to look for a fleet or pool vehicle that is available through the electronic Outlook system and reserve that vehicle. Once the booking is confirmed in Outlook then the vehicle is reserved for that person. That person can then pick up the keys to the vehicle. There is then a screen in the vehicle which the person is required to actually log in with their personal identification number. Even if they don't log in their personal details, the trip is still recorded. If the person logs in with their personal details then instead of "unknown driver" coming up it would register with that person's details. Mr Brewer did not log in with his person details on each of the abovementioned days as the Vehicle Activity Report has an "unknown driver" utilising the vehicles. This required Mr Hayman to cross-reference the separate booking system which identified Mr Brewer with the activity report and the Outlook system.

[71] Under cross-examination, Mr Hayman confirmed that the booking of a vehicle was at the discretion of the individual staff member and no permission or approval was required by a supervisor. Mr Hayman however would not have been aware of Mr Ferguson's instruction to Mr Brewer to gain his approval to work at a location outside the Icon Building. Whilst the policy may have required no permission or approval for use of a fleet vehicle, Mr Ferguson had required Mr Brewer to notify him when he was working away from the Icon Building. The only valid use of a fleet vehicle for Mr Brewer was when he was required to work at different facilities or locations on a particular day performing core work activities.

[72] The specific instructions from a supervisor would, in my view, override the general requirements of an Appellant policy or procedure, provided there was no conflict in the instruction. Mr Ferguson's instruction to Mr Brewer to seek approval before visiting any other Appellant facility or location and therefore before any fleet vehicle was booked, was a specific instruction that Mr Brewer was required to comply with. I accept Mr Ferguson's evidence that in February 2017 he gave that instruction to Mr Brewer. Mr Brewer decided not to comply with the instruction, at least on these three occasions in March 2017.

[73] Mr Hayman said that there is a procedure for signing in at all sites to record a staff member's entry and exit time and that procedure applied at the Hinze Dam facility. Mr Hayman said that it was conceivable that Mr Brewer may have swiped in and commenced work at the Hinze Dam facility sometime prior to starting the ignition key of the vehicle. Mr Hayman had no access whatsoever to Mr Brewer's Outlook Diary saying that he first saw Exhibit 2 (a page of Mr Brewer's Outlook Diary) during his examination-in-chief. Mr Hayman did however state that the Hinze Dam facility was not Mr Brewer's primary work location. Mr Brewer, in not signing in, on each occasion when he commenced to drive an Appellant fleet vehicle, was in breach of the Appellant's policy and procedure. It is as if he was attempting to disguise his use of the fleet vehicles where his use of the vehicle was at odds with the Appellant's policy on fleet vehicle usage.

[74] Mr Hayman simply passed on the information he had to hand to Mr Harkin and he had no further involvement in the matter.

[75] Mr Hayman was cross-examined as to why he did not keep any record of the meeting he had with members of the Commercial Services team and he responded that it was an informal conversation and that no complaint had been made. These staff members were not his staff members as they were peers of Mr Brewer from the Commercial Services team. I see no issue whatsoever in Mr Hayman not keeping a record of this conversation.

[76] Under cross-examination it was suggested to Mr Hayman that it was Mr Harkin who first raised Mr Brewer's vehicle usage with him. Mr Hayman denied that suggestion, saying that he asked Karen Jones to produce the reports, that she e-mailed the reports to him at 4:22 pm on 21 March 2017 and he then forwarded them to Mr Harkin at 4:33 pm on the same day. Mr Hayman denied having any personal contact with Mr Harkin about Mr Brewer's use of a fleet or pool vehicle on that day.

[77] I accept the evidence outlined above of Mr Hayman as I found him to be a reliable witness.

[78] Fleet or Pool Use – Mr Harkin's Evidence: Mr Harkin recalled a morning tea where Mr Hayman approached him to advise that Mr Brewer had a vehicle that day and he had used that vehicle to travel from the Hinze Dam facility to the Icon Building. It appears that this discussion occurred on 21 March 2017. Mr Harkin said that having been so advised, he required information from Mr Brewer as to his use of the vehicle on that day.

[79] Mr Harkin said that he spoke with Mr Brewer following that discussion with Mr Hayman. According to Mr Harkin he said words to the effect "John, you have a company vehicle today. Can you please explain to me your reasons for having that vehicle". Mr Brewer's response was "My job's important" to which Mr Harkin responded with words to the effect of "All our jobs are important and we don't get to pick the vehicles up when we want to, we have to have careful consideration of when we use fleet within Seqwater". Mr Harkin said he asked him to return the vehicle that evening. Mr Harkin said he further informed Mr Brewer that before he used Appellant vehicles he was to consult with Mr Ferguson.

[80] According to Mr Harkin, at no time during that conversation did Mr Brewer say that he had been working at the Hinze Dam facility that morning and he did not say that he was visiting any other facility or location during the day. Mr Brewer gave no other explanation other than his job was important. Mr Harkin said that the conversation was a quick conversation and as far as he was concerned, when Mr Brewer acknowledged that he would seek Mr Ferguson's permission in obtaining vehicles in future, that was the end of the matter.

[81] Later that day Mr Harkin received the e-mail from Mr Hayman together with the Vehicle Activity Reports. Having read the material supplied to him by Mr Hayman, Mr Harkin said that on some days there appeared to be no other cause for Mr Brewer to have a fleet or pool vehicle than to commute to the Icon Building. There was however nothing on the face of the documentation he had, that indicated Mr Brewer's reasons for using the fleet or pool vehicle. Mr Harkin concluded at this time that there was evidence to suggest that, on some days, Mr Brewer had used the vehicles inappropriately. Mr Harkin was happy to let the matter rest at that time until the issue of Mr Brewer's timesheet approval arose.

[82] Timesheet Approval: On Friday 24 March 2017 Mr Harkin was involved in the approval of various timesheets. He had previously been appraised of Mr Brewer's fleet vehicle usage on 21 March 2018. Mr Harkin, on reviewing Mr Brewer's timesheet noticed that Mr Brewer had claimed as work time the period of travelling to the Icon Building from the Hinze Dam facility on 21 March 2017 and from the Icon Building to the Hinze Dam facility on that day. So not only had Mr Brewer appeared to have utilised a fleet vehicle for commuting purposes but had also claimed the time commuting to and from the Icon Building as work time.

[83] Mr Harkin then sent Mr Brewer an e-mail at 11:00 am on 24 March 2017 with a subject matter of "Timesheet Correction" and copied the e-mail to Mr Ferguson. That e-mail provided:

"Hi John

Please adjust your timesheet for 21 March as you have claimed for travel time. I need you to do this urgently to allow payroll to process."

[84] Mr Harkin received no response to his e-mail as apparently Mr Brewer, having received information on his TOIL at the Probation Meeting, decided to leave work early on 24 March 2018 so that he was not "working for free". Mr Harkin became aware of the fact that Mr Brewer had left the building early on that day via the payroll process who advised that Mr Brewer had taken an ADO for the balance of the day. Mr Brewer had sought no approval from either Mr Ferguson or Mr Harkin for taking an ADO on that day. It was however Mr Brewer's evidence that he read Mr Harkin's e-mail early on Monday 27 March 2017.

[85] Meeting on 27 March 2017: It is the meeting on 27 March 2017 that is at the heart of the Regulator's contention that the Appellant, through Mr Harkin, acted in an unreasonable manner. The participants in that meeting were Mr Harkin and Mr Brewer. It is not in dispute that Mr Harkin was a level 3 Manager at all relevant times. Mr Harkin sent a meeting request to Mr Brewer on 27 March 2017 with the subject being "Follow up to last week discussion on vehicle usage". Mr Brewer accepted the request at 1:26pm on that day. By this time Mr Brewer had also read the e-mail sent by Mr Harkin on 24 March 2017 requiring him to amend his timesheet for 21 March 2017. Mr Brewer had, at no time on 27 March 2018, sought to respond to that e-mail although Mr Brewer said he had read the e-mail early in the day.

[86] Mr Brewer did nothing on 27 March 2017 to find out why he received the e-mail from Mr Harkin on 24 March 2017. In my view, a reasonable employee with nothing to hide would have made contact with Mr Harkin immediately upon reading that e-mail. Yet Mr Brewer did nothing.

[87] Prior to the meeting scheduled for 2.30 pm, Mr Harkin met with the Chief Financial Officer who is his direct report, Donna Gregory. He explained to her the events of the last few days and informed her that he was having a dispute resolution get together with Mr Brewer to "get to the bottom of it". Ms Gregory was happy with the process that he had decided upon. Mr Harkin also spoke with the General Manager of Strategy and Safety, Nicky Colley, and she also was comfortable with the process he was suggesting. In addition, Mr Harkin also spoke with the Manager of Human Resources, Stuart Cleary, and Mr Harkin said that he was also comfortable with the process he was proposing. Mr Harkin had informed the three abovementioned persons what he was going to ask Mr Brewer whether he had undertaken the fraud training which Mr Harkin said was an essential element to understanding the Appellant's vehicle usage and timesheet claiming. Further, he wanted to give Mr Brewer an opportunity to give his reasons as to why he saw it appropriate to utilise the fleet vehicles on particular days. Mr Harkin said that Mr Brewer may have had some mitigating factors that should be considered given that he resided at the Gold Coast. Mr Harkin explained that whilst there were indications that something may have gone wrong, nothing absolutely stood out that there was anything that was deliberately malicious.

[88] It was Mr Harkin's evidence that he undertook to raise the matters with Mr Brewer as he wished to protect Mr Ferguson as he was required to work with Mr Brewer on a daily basis.

[89] Mr Harkin was very clear in his evidence that he was not utilising the Disciplinary Procedure at this time as there was not enough information available to him. I accept Mr Harkin's evidence that he was not utilising the Discipline Procedure at the meeting on 27 March 2018. I further accept that Mr Harkin was not required to utilise the Discipline Procedure at this meeting. My reasons are dealt with elsewhere in this decision.

[90] It was suggested to Mr Harkin during cross-examination that he had ambushed Mr Brewer in the manner in which the meeting was arranged. Mr Harkin's response was that he was confronted with an employee that appeared to be using a pool vehicle inappropriately for commuting to and from work. This was then compounded on the previous Friday when he reviewed Mr Brewer's timesheet and noticed that Mr Brewer had claimed that travelling time as work time. Mr Harkin said he had no other option but to act on the information and obtain a response from Mr Brewer. It is to be noted that Mr Harkin had, on 21 March 2017, a conversation with Mr Brewer about his use of a pool vehicle on that day instructing him to return the vehicle that day. Mr Brewer was also on notice early on 27 March 2017 that Mr Harkin had instructed him to amend his timesheet for 21 March 2017. Mr Brewer, when he received the e-mail titled "Follow up to last week discussion on vehicle usage" had notice of what the meeting was about. A reasonable person in an AO8 position such as Mr Brewer must have been aware that the meeting was to discuss his use of a pool vehicle. Having also received the e-mail about his timesheet for the exact same day (i.e. 21 March 2017), Mr Brewer was also on notice that his timesheet would also have been raised given that he had made no attempt whatsoever to speak with Mr Harkin about the e-mail he had read earlier that day.

[91] It was suggested to Mr Brewer that having seen Mr Harkin's e-mail about amending his timesheet, he must have known that something was up. Mr Brewer's response was "I probably did but I was busy with other things". Mr Brewer said that he did not think the instruction in the e-mail was something "that I considered I wanted to necessarily do without further instruction". I saw the instruction in the e-mail to be quite clear. If Mr Brewer was to dispute the contents then he should have approached Mr Harkin shortly after reading the e-mail. Instead he did nothing.

[92] I do not accept that Mr Brewer was ambushed in the calling of the meeting for 27 March 2017. I find that he had been provided with sufficient information to know that the meeting was in relation to his use of pool vehicles.

[93] Mr Harkin prepared a document to be utilised at the meeting with Mr Brewer. The document utilised by Mr Harkin was the attachment to Exhibit 12 less the reference to comments by Mr Brewer. Mr Harkin forwarded the document together with Mr Brewer's comments during the meeting via an e-mail forwarded at 4:07 pm on 27 March 2017 to Mr Brewer following the meeting.

[94] According to Exhibit 12 the purpose of the meeting was "to determine the facts around the use of vehicle and process for claiming time". At the meeting Mr Harkin said that the meeting was "not to determine an outcome but understand mitigating circumstances to, what appears to be, inappropriate use of Seqwater assets and incorrect timesheet preparation". I accept that Mr Harkin went through this document that he had prepared at the meeting with Mr Brewer on that afternoon.

[95] The document that Mr Harkin had before him at the meeting relevantly provided as follows:

"Purpose

Meeting set up in the context of dispute resolution. The purpose of the meeting is to determine the facts around the use of vehicle and process for claiming time. It is not to determine an outcome but understand mitigating circumstances to, what appears to be, inappropriate use of Seqwater assets and incorrect timesheet preparation.

The process of responding to formal questions outlined was noted. The purpose of the meeting was acknowledged at the outset and the response to the formal questions were recorded and agreed.

Question on completion of Fraud training

Have you completed Seqwater Fraud training in Our Learning? (This identifies use of Seqwater assets).

Do you acknowledge the use of assets for personal use is fraudulent?

MH highlighted that use of Statutory Authority assets was different to private sector. The people of South East Queensland own our assets and personal use is a fraudulent act.

Usage of Pool Vehicles –

Can you provide insights into your reasons for using Pool vehicles?

MH: identified that the travel incurred on the 21^st March actually represented an increase in travel.

You may have been provided with a letter of award that identifies Ipswich as your primary location, what makes you think travel direct (to and fro) would be anything other than personal?

Timesheet and claiming of travel time.

From the IVSM in the vehicle your hours from Hinze to Hinze are 10:75 which matches up to your timesheet claim for this day. Why have you claimed travel time?

Have you claimed travel time previously?

Currently you have a maximum ADO accrual of 22.8 hours

Can you provide assurance that this is made up of legitimate working hours and not travel time?

Notifications. As a Statutory Authority we have reporting obligations to various bodies when there has been inappropriate use of Seqwater's assets. I have already notified P & C (Stuart Cleary) and CFO of the possible issue.

You need to prepare a statement to declare why you saw fit to use our vehicles in the manner in which you have and why you believe you were entitled to claim 10:75 hours on 21 March 2017.

The statement is required by 28 March 2017."

[96] If was put to Mr Harkin, in cross-examination, that at no time during the meeting, did he give Mr Brewer a copy of the abovementioned document. Mr Harkin's response was that he could not recall. In his evidence Mr Brewer had stated that he was not provided with a copy of the abovementioned document at the meeting. During the course of Mr Brewer's claim for compensation he made several statements to WorkCover. In one such statement on 11 May 2017, Mr Brewer advised that the meeting on 27 March 2017 went for approximately one hour and that Mr Harkin provided him with a document that contained statements, questions, allegations as to fraudulent activities. Whilst this statement was provided to WorkCover over the telephone, the content of the statement was forwarded to Mr Brewer for him to amend where necessary and to sign the document. The statement is contained in Exhibit 21 and Mr Brewer whilst making significant amendments to the statement, did not amend the abovementioned references.

[97] In his evidence before the Commission Mr Brewer said that the meeting scheduled for 2.30 pm did not commence on time and was five to ten minutes late and was finished by 3.00 pm or slightly thereafter. Once again Mr Brewer's recollection of events on 11 May 2017 is more preferable to his recollection on 10 July 2018.

[98] In his evidence Mr Brewer could recall Mr Harkin reading from the abovementioned document during the course of the meeting. I thus accept that Mr Brewer was provided with the abovementioned document at the meeting on 27 March 2017 given that this statement to WorkCover was made on 11 May 2017 at a much closer time to 27 March 2017 than his evidence before the Commission on 10 July 2018. The fact that Mr Harkin read from the document during the meeting gives some credence to Mr Harkin's evidence concerning the 27 March 2017 meeting. In the circumstances I accept that Mr Brewer was provided with the abovementioned document at the meeting on 27 March 2017 and that Mr Harkin read from the document during the course of the meeting.

[99] According to Exhibit 12, Mr Brewer responded in the affirmative to have completed fraud training. However his evidence was that he had completed fraud training in other employment but had not undertaken the Appellant's fraud training. His response to whether the use of assets for personal use was fraudulent was "it depends". As for question 2, Mr Brewer responded that he used pool vehicles because the Chief Executive Officer identified that "he believed people should be working out of offices closer to home to reduce travel". As for his use of the pool vehicle on 21 March 2017, Mr Brewer responded that he "worked at Hinze on 21^st March 2017. This may have been delivering documents, picking up documents or as the result of the fluid nature of work within his space". In response to the question about travelling direct from Hinze Dam facility to the Icon Building to be anything other than personal, Mr Brewer responded "It depends. The fluid nature of work involves multiple sites and can be subject to change".

[100] In response to the questions raised under item 3, Mr Brewer responded that he claimed travelling time because he "started work at Hinze therefore entitled to travel time". The document reveals that Mr Harkin supported Mr Brewer's position subject to him providing facts to support that he started work at the Hinze Dam facility. In response to the question asking whether he had claimed travel time previously, Mr Brewer said "when work commitments require it".

[101] As indicated previously, Mr Harkin provided this document, together with Mr Brewer's responses, to Mr Brewer at 4:07 pm on 27 March 2017. Mr Brewer was asked to review the document and comment if he felt anything Mr Harkin had described was different to what was discussed at the meeting. Mr Harkin also stated that the outcome of the meeting was for Mr Brewer "to provide a statement of what occurred on the 21^st March 2017 that gave rise to the need for you to have a pool vehicle and claim 10:75 hours. This statement is to be supported by corroborative evidence and to be provided to me by 28 March 2017". Mr Harkin also advised Mr Brewer that he could access the assistance of People and Culture should he have any issue with the procedure.

[102] Attached to the document forwarded to Mr Brewer that afternoon was "Notes" which provided as follows:

"It was noted that JB took an ADO for 5.6 hours on Friday 24 March and this will need to be corrected in next pay period's timesheet.

Communication of location and whereabouts is essential to meet duty of care to the employee and onus of responsibility to Seqwater. JB acknowledged that he will seek permission from Portfolio Category Manager for working remotely and obtaining Pool vehicles prior to occurrence.

The process of fact based discovery was highlighted at the end and the lack of tangible evidence may lead to a requirement for further investigation."

[103] This last sentence is further proof that the Discipline Procedure was not being utilised by Mr Harkin on 27 March 2018 but was preliminary to any such investigation.

[104] According to Mr Harkin, Mr Brewer at no time during the meeting said that he was doing any work at the Hinze Dam facility on 21 March 2017. Further, he did not say that he had left his computer at the Hinze Dam facility and had to go there to collect the computer before going to the Icon Building. Mr Harkin's evidence was that Mr Brewer's response concerning the Chief Executive Officer's comments was seen by Mr Harkin as Mr Brewer believing he had an entitlement to use the pool vehicles. Mr Harkin said that Mr Brewer's response basically was that if he started work at the Hinze Dam facility he was entitled to travel time to the Icon Building.

[105] Mr Harkin said that he gave Mr Brewer ample time during the meeting for Mr Brewer to provide him with a response as to his use of the pool vehicle on 21 March 2017 but Mr Brewer did not avail himself of the opportunity.

[106] Mr Brewer accused Mr Harkin of acting in an aggressive manner during this meeting, of being threatening in his demeanour and as having pre-judged the issues. Mr Harkin denied any such conduct on his part. Mr Brewer also accused Mr Harkin of saying words to the effect of "If you don't like it you can vote with your feet". I asked Mr Brewer to explain the context in which this comment was made. All Mr Brewer responded with was "we were discussing a number of issues" and he then referred to the discussion about public/private ownership of assets. I then explained to Mr Brewer that Mr Harkin had given a very plausible version of the circumstances in which such a comment was made and I wanted him to give his version of the context in which the comment was made. I indicated that I found Mr Harkin to have given very credible evidence and that I needed him to explain in detail the meeting of 27 March 2017. Mr Brewer's response was "I'm sure Michael's version of events are quite plausible". Mr Brewer then said he wished to explain how he was feeling at this meeting. He said that it was like the "world was closing in". I indicated to Mr Brewer that I needed him to give more detail about the conversation on 27 March 2017.

[107] Mr Harkin's evidence was that during the meeting the extent of Mr Brewer's travel was raised given that Mr Brewer lived at the Gold Coast and his place of work was at the Icon Building. Mr Harkin expressed the view that the travelling was onerous but further stated to Mr Brewer that he had accepted this when he accepted the position. Mr Harkin said during this aspect of the discussion that Mr Brewer, like any employee who is not satisfied with the conditions of employment, can vote with their feet. Further, it was put to Mr Harkin in cross-examination that the meeting came across as an interrogation or a cross-examination of Mr Brewer. Mr Harkin did not agree with the suggestion.

[108] Once again in cross-examination it was suggested that when Mr Harkin raised the issue of fraud training, his tone and demeanour became quite accusatorial and aggressive. Mr Harkin's response was "no, quite the contrary". Mr Harkin said that he highlighted to Mr Brewer that the use of a statutory asset was different to the use of an asset in the private sector and that the people of South East Queensland owned the assets and personal use of such assets was fraudulent. Mr Harkin explained that this type of issue was dealt with in the Appellant's fraud training. Mr Harkin saw the fraud training as a valuable piece of information for all employees. Mr Harkin further explained to Mr Brewer that driving to the supermarket on the way home from work in a pool vehicle was viewed as fraud. According to Mr Harkin, the aim of this aspect of the conversation was to advise Mr Brewer if he had not done the Appellant's fraud training then he needed to undertake that training. Mr Brewer's evidence was that the raising of this issue led him to believe that Mr Harkin had "passed judgment already, that some fraud had occurred".

[109] Mr Brewer also asserted that Mr Harkin provided no explanation to him during the meeting of any further process or investigation that he intended to undertake. Mr Harkin said that his intention in having the meeting was to get a statement from Mr Brewer as to the circumstances for his use of the pool vehicle. Mr Harkin had no other intention at this time.

[110] Mr Brewer also accused Mr Harkin of stating at the meeting that Mr Brewer was guilty of fraud and that he intended to press for prosecution. Mr Harkin's response was "absolutely not". Mr Brewer further asserted that Mr Harkin said words to the effect "If I don't get you on this, I'm going to get you on something". Mr Harkin's response was that Mr Brewer's assertion was a lie. Based on the evidence of the meeting provided by both Mr Brewer and Mr Harkin, I accept that Mr Harkin made no such comments at the meeting on 27 March 2017. As mentioned previously, Mr Brewer's recollection of the meeting is questionable e.g. the time taken for the meeting, whether he received the document from Mr Harkin during the meeting etc. I also note that Mr Brewer had stated that he felt like his "world was closing in" during the meeting. This leads me to accept Mr Harkin's evidence that he never made the abovementioned comments attributable to him by Mr Brewer at the meeting.

[111] Mr Brewer said that Mr Harkin's tone just got "darker" as the meeting progressed. I had previously attempted to get Mr Brewer to explain what he meant by "threatening" and he was unable to respond to my question. He was asked to explain further about his allegation that Mr Harkin was "aggressive". Once again Mr Brewer was unable to give any detail about the allegation. When he talked about Mr Harkin's tone getting darker, I again asked Mr Brewer to give further details. His response was that it got darker through the questioning – it got worse and worse. Mr Brewer then said that Mr Harkin was asking questions more quickly. I got no further explanation from Mr Brewer.

[112] Mr Brewer regularly referred to the aggressive nature of Mr Harkin during the meeting. I had asked him to further explain what he meant by aggressive. I said that having heard his explanation of the meeting on 27 March 2017 I found nothing that could be classified as "aggressive" about the meeting. Counsel for the Regulator then asked Mr Brewer to adopt the persona of Mr Harkin and tell me, in the same way, in the same tone, in the same volume that Mr Harkin asked his questions at the meeting. Mr Brewer's response was "I don't know that I can do that. I don't know that I feel that I can put myself in his position and – and act like he did".

[113] With that response I indicated to Mr Brewer that I had witnessed Mr Harkin give evidence the previous day and at no stage did he become aggressive. Mr Brewer then said that Mr Harkin did not raise his voice at the meeting on 27 March 2017. Mr Brewer's response to my statement was to state the following:

"Michael is, in my observation of him, it's only my observation, he has a position to hold and he will do certain things in a certain manner to advance whatever it is that he is attempting to do at that time."

[114] Given the evidence before me, it was apparent that Mr Harkin had very little to do with Mr Brewer during the three months of his employment with the Appellant. Mr Ferguson was his direct supervisor. Mr Brewer made very strong comments about a person he had very little communication with during the three month period of his employment.

[115] After this Mr Brewer said that it was more the body language of Mr Harkin where he expressed his aggressiveness. It was more in the structure of the wording of the questions and his "ongoing diatribe at me", the emotion that was displayed by him. Once again Mr Brewer did not explain what he meant by Mr Harkin's "body language" or the structure of the wording of the questions being asked by Mr Harkin.

[116] Mr Brewer, on a number of occasions, stated that he knew that Mr Harkin was trying to get him to leave and that Mr Harkin was going to do whatever he could to facilitate that outcome. If Mr Harkin had that view then he could have facilitated that outcome very easily up until 18 March 2017 without any adverse effect. Mr Brewer was on probation until 18 March 2017 although the Probation Review Meeting occurred on 14 March 2017. If Mr Harkin was trying to get Mr Brewer to leave, he could simply have not confirmed Mr Brewer's employment as at 18 March 2017. I do not accept that Mr Harkin held the view attributable to him by Mr Brewer on 27 March 2017 either prior to, or during, the meeting on that day. My view is somewhat confirmed by the Exhibit 12 documentation where it is noted that Mr Harkin supported Mr Brewer's response to question 3 subject to Mr Brewer supplying supporting documentation that he started work at the Hinze Dam facility. This record was not disputed by Mr Brewer.

[117] According to Mr Harkin, he left the Icon Building at about 6.00 pm that evening and Mr Brewer was still in the building. Mr Harkin approached Mr Brewer and asked him if he was okay and Mr Brewer responded "yes, sort of". Mr Harkin said that he was genuinely interested in Mr Brewer's well-being. I accept his evidence in that regard.

[118] Mr Brewer never returned to his employment with the Appellant and Mr Harkin had no further communication with him until about June 2017. At this time the Human Resources Manager, Michael Butler, provided him with a statement from Mr Brewer as to his reasons for the use of the vehicle on 21 March 2017. Mr Harkin responded to Mr Brewer in correspondence dated 23 June 2017 which indicated that Mr Harkin was satisfied with the explanation that Mr Brewer gave for the use of the pool vehicle on 21 March 2017.

[119] Mr Brewer's explanation of his use of a Pool Vehicle on 7, 10 and 21 March 2017: It was the evidence of Mr Brewer that on the three evenings prior to 7, 10 and 21 March 2017 he left his computer at the Hinze Dam facility, thus on the three mornings he had to go to the Hinze Dam facility to collect his computer before travelling to the Icon Building to perform work. Mr Brewer's Outlook Diary contained no work or meetings to be attended at any location other than the Icon Building on those three days. Under cross-examination, Mr Brewer said that he could not remember what his reason was for using the pool vehicle as he was being asked to recall something that occurred fifteen months ago. When confronted with the Vehicle Activity Reports, Mr Brewer said that he could not correlate that it was he that was using the vehicle. His evidence was that the report showed that the vehicle did the kilometres identified.

[120] I found Mr Brewer's evidence in this regard to be evasive and perhaps dishonest. He knew he was giving evidence and he had the relevant information for a considerable time.

Findings

[121] Mr Brewer's Credibility: I found Mr Brewer not to be a reliable witness and, in some cases, not to be a credible witness. It appears as though Mr Brewer may have utilised the Appellant's pool vehicles for commuting to and from the Icon Building upon being directed to work the great bulk of his time at the Icon Building and where he had no other location or facility to travel to during a particular day. As mentioned previously, I found his failure to log on when starting the journey to the Icon Building on 7, 10 and 21 March 2017 and on leaving the Icon Building on those days to be a breach of the Appellant's Procedure for Fleet, Mobile Plant and Private Use and I saw this as an attempt to hide the fact that he was utilising the vehicle for commuting purposes.

[122] Other members of the Commercial Services Team became aware of Mr Brewer's misuse of pool vehicles. Those persons were sufficiently concerned about the matter to raise it with both Mr Ferguson and Mr Hayman.

[123] Mr Brewer's misuse of the pool vehicles casts doubt on his credibility but the fact that he also claimed the commuting time between the Hinze Dam facility and the Icon Building and vice versa as work time takes the matter one step further. Mr Brewer's evidence lacked detail in a number of respects but particularly it lacked detail about the meeting on 27 March 2017. His evidence, at times, was quite evasive.

[124] Where Mr Brewer's evidence conflicts with that of Mr Ferguson and Mr Harkin I prefer the evidence of Mr Ferguson and Mr Harkin. I found both these witnesses and Mr Hayman to have given credible and reliable evidence although there was some differences in their evidence on inconsequential matters.

[125] Mr Brewer's use of the fleet vehicles on 7, 10 and 21 March 2018 did not meet the requirements of the Appellant's procedure for use of fleet or pool vehicles in the following ways:

there was no evidence before me that would suggestion that Mr Brewer's use of the fleet vehicles was intended to, or did in fact, improve the Appellant's operational efficiency;

at no time was Mr Brewer's use of fleet vehicles documented in an Operational Assessment Criteria Form approved and signed by all relevant managers. At no time did Mr Brewer meet the criteria for assessment of the use of fleet vehicles for commuting;

on the three relevant dates Mr Brewer did not comply with the mandatory requirement of logging into the IVMS using his staff ID number before commencing the trips. They were each documented as an "unknown driver";

the use of the disciplinary procedure where breaches of the procedure were identified did not require Mr Harkin to undertake disciplinary action against Mr Brewer in accordance with the Discipline Procedure. The Disciplinary Procedure was simply available to a manager where breaches of the procedure were identified; and

Mr Harkin was required to investigate "suspected unauthorised/private use" of fleet vehicles.

[126] Whether the Appellant's Procedure for Discipline was the appropriate process for Mr Harkin to have utilised at the meeting on 27 March 2017? It is contended by the Regulator that Mr Harkin, on 27 March 2017, was conducting an investigation pursuant to the Procedure for Discipline, and, in so doing, he failed to provide Mr Brewer with procedural fairness. In my view, on 27 March 2017 no incident of misconduct had been identified. Mr Harkin had certain information before him which identified a possible issue of misconduct, however, he was attempting to obtain from Mr Brewer his reasons for the use of the pool vehicle and his reasons for claiming as time worked, the travel on 21 March 2017 from the Hinze Dam facility to the Icon Building and the return journey from the Icon Building to the Hinze Dam facility.

[127] Certainly no corrective action had been initiated in order to improve Mr Brewer's unacceptable conduct. What Mr Harkin was attempting to do was get a response from Mr Brewer as to why he had used a pool vehicle on 21 March 2017 and why he had claimed for the travel time between the Hinze Dam facility and the Icon Building as time worked.

[128] Mr Brewer was unable to provide him with an informed response at the meeting on 27 March 2017 and so Mr Harkin gave Mr Brewer the opportunity to provide that information within the next 24 hours. Mr Brewer indicated that he had already attempted to obtain the necessary information to respond to the questions raised by Mr Harkin prior to finishing work on 27 March 2017 and had copied certain documentation to enable him to complete his response.

[129] Mr Harkin certainly had information before him which highlighted the potential for misconduct. Certain Appellant employees had notified Mr Harkin of some suspected misconduct. Mr Harkin had not reported any "act of serious misconduct" to the General Manager Service, People and Technology and he certainly had not reported any "corrupt conduct' under the Fraud and Corruption Control Policy or the Fraud and Corruption Control Procedure.

[130] At the meeting on 27 March 2017, no incident of misconduct had been identified and no corrective action had been initiated against Mr Brewer which would warrant utilisation of the Appellant's Procedure for Discipline. I do not accept the Regulator's contention that, in the meeting on 27 March 2017, Mr Harkin was required to comply with the Appellant's Procedure for Discipline. Mr Harkin was not, as at 27 March 2017, investigating, pursuant to the Appellant's Procedure for Discipline, any incident of misconduct. He was simply seeking from Mr Brewer a response to the information he had to hand as at 27 March 2017.

[131] I do not accept the Regulator's position that Mr Harkin was utilising the Discipline Procedure in calling the meeting on 27 March 2017 nor do I accept that Mr Harkin was required to utilise the Discipline Procedure in respect of that meeting. The Procedure for Fleet Vehicles does not require a worker to be subject to disciplinary action in accordance with the Discipline Procedure for breaching the Procedure for Fleet Vehicles. The Procedure simply states that a worker may be subject to disciplinary action in according with the Discipline Procedure where a worker has breached the Procedure. It is to be noted that Mr Harkin was not dealing with Mr Brewer's breach of the Procedure in failing to log on to the IVMS using his staff ID number as at 27 March 2017. Mr Harkin was simply seeking a response from Mr Brewer in connection with his use of fleet or pool vehicles and his accounting for what appeared to be commuting time as work time.

[132] Appellant's Concessions: The Appellant has conceded, and I accept, that:

Mr Brewer was a "worker" within the meaning of that term in s 11 of the Act;

that Mr Brewer suffered a personal injury, being anxiety and depression; and

that the personal injury suffered by Mr Brewer arose out of, or in the course of, Mr Brewer's employment and employment was the major significant contributing factor to the injury.

[133] Management Action: I further accept that the actions of Mr Harkin in conducting a meeting with Mr Brewer on 27 March 2017 involved "management action" for the purposes of s 32(5) of the Act.

[134 Was Mr Harkin's action in requiring Mr Brewer to attend the meeting on 27 March 2017 reasonable in all the circumstances? In this regard the Regulator relied upon the decision of President Martin in Davis v Blackwood^[1] and in particular the following comments:

"The task of the Commission when applying s 32(5) does not involve setting out what it regards as the type of actions that have been reasonable in the circumstances. There may have been any number of actions or combinations of actions which would satisfy s 32(5). The proper task is to assess the management action which was taken to determine whether it was reasonable and whether it was taken in a reasonable way. Sometimes, that may involve considerations of what else might have been done but that will be relevant to whether what was done was, in fact, reasonable."

[135] The Regulator further relied upon the decision in Simon Blackwood (Workers' Compensation Regulator) v Mahaffey^[2] and the following comments of President Martin:

"The difficulties in construing s 32(5) support the conclusion that more than one interpretation of s 32 is available and that, therefore, the beneficial interpretation approach should be applied. In the cases decided in this Court any attempt to provide some type of formula or application of dominant cause has been rejected. Section 32 must be applied in the light of the evidence accepted by the Commission. If, after considering all the relevant evidence and weighing up the factors which were accepted as having given rise to the personal injury, the Commission forms the conclusion that any of the conduct referred to in s 32(5) does not, on balance, displace the evidence in favour of the worker then a finding in the workers' favour must follow."

[136] On 27 March 2017 Mr Harkin had more than sufficient material before him of a potential misuse of both the Appellant's fleet or pool vehicles and the claiming of travelling time as work time by Mr Brewer. The evidence suggests that Mr Brewer did not accept the fact that he was being required to work from the Icon Building which was some substantial distance from his residence. Even after being informed that he was required to work substantially from the Icon Building and to have obtained the approval of Mr Ferguson before working at another facility or location, Mr Brewer did not comply with that direction. Mr Brewer then continued to state that he was working at the Hinze Dam facility, without the approval of Mr Ferguson, on 7, 10 and 21 March 2017.

[137] It then appears that Mr Brewer set out to manipulate the Appellant's systems and procedures by visiting the Hinze Dam facility ostensibly to collect his computer that he had conveniently left at the Hinze Dam facility the nights prior to 7, 10 and 21 March 2017, and then to claim that he had commenced work at the Hinze Dam facility prior to going to the Icon Building. On those three days it seems apparent that Mr Brewer set out to abuse his employment conditions. He had been required to advise Mr Ferguson when he was working other than at the Icon Building. On 7, 10 and 21 March 2017 he never advised Mr Ferguson that he was working at the Hinze Dam facility. The attendance at the Hinze Dam facility prior to 6.45 am on each of those three days was contrary to the instructions given to him by Mr Ferguson. Yet Mr Brewer continued to defy those instructions and go to the Hinze Dam facility simply to avail himself of a pool vehicle to travel to and from the Hinze Dam facility and thus avoid using his own petrol or diesel to commute to work at the Icon Building. In collecting his computer from the Hinze Dam facility, Mr Brewer was not performing "core work activities" as provided for in the Procedures for Fleet Vehicles.

[138] In my view it did not matter whether Mr Brewer collected documents or his computer from the Hinze Dam facility or not. The use of a pool vehicle, according to the Appellant's Procedure, was for undertaking "core business activities" at other locations. Mr Brewer knew that what he was doing would not have been condoned had Mr Ferguson or Mr Harkin been made aware of his activity. His fellow workers in the Commercial Services team became aware that Mr Brewer's conduct in utilising the pool vehicle was not appropriate. Those fellow workers were unaware of Mr Brewer claiming the travelling time as time worked. Given that Mr Brewer's peers were aware of his inappropriate conduct then one would expect that Mr Brewer should also have been aware. Further, there was nothing in Mr Brewer's Outlook Calendar for 7, 10 or 21 March 2017 that would support the need for a fleet or pool vehicle.

[139] Mr Harkin had a responsibility to attempt to obtain a response from Mr Brewer as to his use of a fleet vehicle on 7, 10 and 21 March 2017. The prima facie position was that Mr Brewer had misused the Appellant's fleet vehicles. Further, Mr Harkin also had a responsibility to obtain a response from Mr Brewer as to his claim for the time spent travelling to and from the Icon Building on 21 March 2017 as work time. Once again the prima facie position was that Mr Brewer was claiming commuting time as work time.

[140] In Mr Harkin requesting Mr Brewer to attend the meeting on 27 March 2017 without complying with the Appellant's Disciplinary Procedure he was, in all the circumstances, taking reasonable management action. Mr Harkin was not required to utilise the Appellant's Disciplinary Procedure in arranging for the meeting with Mr Brewer on 27 March 2017. Nor was he required to advise Mr Brewer that he was entitled to have a witness present during the meeting. In any event the Disciplinary Procedure simply provides that an employee "will be allowed to bring a support person" to an interview. Mr Brewer never sought to bring a support person to the interview.

[141] Mr Brewer was on notice that the meeting was to discuss his use of fleet vehicles (already raised with him on 21 March 2017) and he had received and read the e-mail from Mr Harkin by the time of the meeting on 27, March 2017 concerning his time sheets. He had not bothered to respond to Mr Harkin's e-mail on time sheets when the meeting commenced on that day. Mr Harkin provided Mr Brewer with a document outlining the issues to be discussed during the meeting (paragraph [95]) and, at the meeting itself, Mr Harkin read from the document. Further, Mr Harkin provided that document which also contained Mr Brewer's comments at the meeting to Mr Brewer by 4:07 pm that afternoon (Exhibit 12). Exhibit 12 sought from Mr Brewer comment if anything contained in the document was incorrect. Mr Brewer provided no response to that document although he was in the office until 6:00 pm that afternoon. Mr Harkin was seeking a response from Mr Brewer as to the reasons for his use of fleet vehicles and to his claiming of commuting time as work time. Mr Brewer could not provide a suitable response at the meeting and Mr Harkin gave him until 28 March 2017 to provide a written response. Each of the actions taken by Mr Harkin was reasonable management action in all the circumstances.

[142] Was the manner in which Mr Harkin conducted the meeting on 27 March 2017 reasonable in all the circumstances? In this regard the Regulator relied upon the decision of President Hall in WorkCover Queensland v Heit^[3] and the following comments:

"It was an inevitable consequence of Ms Heit's claim that Ms James had been bullying her, belittling and cutting her down and "riding her" day after day, that she was asked when, where and what about? Once evidence of examples were given, attention focussed on s 34(4)(a). In short form s 34(4)(a) withdraws from the concept of 'injury' a psychiatric or psychological disorder arising out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with the worker's employment. With the benefit of hindsight, the question whether the action taken by Ms James on the various occasions was reasonable management action displaced from the prominence which they should otherwise have had, the issues relating to Ms James's language, tone of voice and demeanour. All of those matters were of course relevant to whether the action was taken 'in a reasonable way', and to the broader issue whether over a period of time Ms James had engaged in a course of conduct more likely than not to have caused Ms Heit's disorder."

[143] The Regulator submitted that I must consider issues of Mr Harkin's language, tone of voice and demeanour during the meeting of 27 March 2017 in determining the issue as to whether his actions amounted to reasonable management action taken in a reasonable way.

[144] I have dealt with each of the issues raised by Mr Brewer concerning the manner in which Mr Harkin conducted the meeting on 27 March 2017. His recollection of the meeting was hazy at best and wrong in a number of respects. I have preferred the evidence of Mr Harkin as to the manner in which the meeting was conducted as Mr Brewer was unable to satisfy me that Mr Harkin's language, tone or demeanour was anything other than reasonable in the circumstances.

[145] The contents of Exhibit 12 show that Mr Harkin had not pre-judged the outcome at the meeting on 27 March 2017. Mr Brewer was given every opportunity to give a detailed account of the meeting however he simply used terms such as "threatening", "aggressive" or "accusatorial" without any particulars of the words used by Mr Harkin or the conduct displayed by him. Nothing in Mr Harkin's giving of evidence supported Mr Brewer's account of his conduct at the meeting.

[146] The outcome of the meeting on 27 March 2017 was outlined in Exhibit 12 which was provided to Mr Brewer by 4.07 pm on the same day i.e.

"You need to prepare a statement to declare why you saw fit to use our vehicles in the manner in which you have and why you believe you were entitled to claim 10:75 hours on 21 March 2017.

The statement is required by 28 March 2017."

[147] Mr Brewer did not seek any extension of time within which to respond.

[148] I have thus formed the view that the manner in which Mr Harkin conducted the meeting on 27 March 2017 was reasonable management action taken in a reasonable way in all the circumstances.

Conclusion

[149] I therefore find that Mr Harkin in organising the meeting on 27 March 2017 with Mr Brewer involved reasonable management action taken in a reasonable way. I further find that the manner in which Mr Harkin's conducted that meeting on 27 March 2017 did not involve any unreasonable management action taken in an unreasonable way.

[150] In those circumstances, Mr Brewer's entitlement to workers' compensation is excluded by s 32(5) of the Act. I therefore making the following orders:

The appeal is upheld.

The decision of the Workers' Compensation Regulator dated 8 September 2017 is set aside.

The worker's claim for workers' compensation is rejected.

The Workers' Compensation Regulator is to pay the Appellant's costs of, and incidental to, this appeal.

Footnotes

[1] Davis v Blackwood [2014] ICQ 009

[2] Simon Blackwood (Workers' Compensation Regulator) v Mahaffey [2016] ICQ

[3] WorkCover Queensland v Heit [2000] QIC 22

Editorial Notes

Published Case Name:
Queensland Bulk Water Supply Authority v Workers' Compensation Regulator
Shortened Case Name:
Queensland Bulk Water Supply Authority v Workers' Compensation Regulator
MNC:
[2018] QIRC 109
Court:
QIRC
Judge(s):
Membert Linnane VP
Date:
28 Aug 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Davis v Blackwood	[2014] ICQ 9	2 citations Jump To Cite 1 - [2014] ICQ 9 Cite 2 - [2014] ICQ 9
WorkCover Queensland v Heit	(2000) QIC 22	2 citations Jump To Cite 1 - (2000) QIC 22 Cite 2 - (2000) QIC 22
Workers' Compensation Regulator v Mahaffey	[2016] ICQ 10	2 citations Jump To Cite 1 - [2016] ICQ 10 Cite 2 - [2016] ICQ 10

Cases Citing List of cases on Queensland Judgments citing this Judgment

No judgments on Queensland Judgments cite this judgment.

Exit Distraction Free Reading Mode

Change Font and Font Size

Queensland Bulk Water Supply Authority v Workers' Compensation Regulator[2018] QIRC 109