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Watson v Workers' Compensation Regulator[2019] QIRC 163

Watson v Workers' Compensation Regulator[2019] QIRC 163

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Watson v Workers' Compensation Regulator [2019] QIRC 163

PARTIES: 

Watson, Brendan James

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2017/22

PROCEEDING:

Appeal against decision

DELIVERED ON:

29 October 2019

HEARING DATES:

17 April 2018; 18 April 2018; 15 August 2019

HEARD AT:

Brisbane

MEMBER:

Black IC

ORDER:

Appeal allowed

CATCHWORDS:

APPEAL AGAINST DECISION – Psychiatric or psychological injury – whether management action associated with claimed stressors reasonable and taken in a reasonable way – allegations made by appellant not substantiated – whether investigation of allegations adequate – whether subsequent termination of appellant's employment reasonable.

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003  s 32

APPEARANCES:

Ms S Anderson of Counsel, instructed by Mr J Peters of Australian Law Group for the appellant;

Mr P Rashleigh, for the Workers Compensation Regulator, directly instructed.

Decision

Introduction

  1. [1]
    Mr Brendan Watson (the appellant) appeals a decision of the Workers' Compensation Regulator made on 19 January 2017 in which the Regulator rejected his application for compensation arising from a psychological injury that he said he sustained during the course of his employment with Damorange Refrigerated Transport Pty Ltd (DRT) at the company's Rocklea Depot.
  1. [2]
    After an initial period of employment with DRT in Victoria between December 2007 and January 2009, the appellant secured further employment with DRT at its Werribee Depot on 12 January 2015 as an interstate or long haul driver.
  1. [3]
    Around November 2015, the appellant relocated from the Werribee Depot to DRT's Rocklea Depot in Brisbane where he was mainly engaged in local driving. The appellant said that he had wanted to relocate to Brisbane, but before he was able to progress the move, he tested positive to driving a truck while under the influence of drugs and was precluded from driving in Victoria. While this development might have brought the appellant's employment with DRT to an end, DRT agreed to keep the appellant on and to find him a position in the Rocklea Depot in Brisbane.
  1. [4]
    Operations at the Rocklea Depot were managed by Martin Fuller, the Depot Manager, and by Kyle Wallace the Assistant Depot Manager. Both managers worked an alternating four days on and four days off roster commencing work at 2.00 am and finishing between 10.00 am and 12.00 noon. Work at the depot was generally performed between 11.00 pm in the evening and 12.00 noon the following day. A driver and a fork lift operator would commence work at 11.00 pm. Local drivers, including the appellant, commenced work at 2.00 am and finished work between 10.00 am and 11.00 am.
  1. [5]
    The appellant performed fork lift driving functions in addition to his local driving duties. If he was driving the fork lift, he would typically commence work at 11.00 pm and perform this work until 2.00 am when he commenced truck driving. 
  1. [6]
    The initial depot function was to commence unloading the incoming interstate trucks and to start preparations for the local deliveries which would distribute the produce that had arrived from the interstate trucks. The transfer of goods to local destinations commenced around 2.00 am and continued through until 10.00 am or 11.00 am.
  1. [7]
    Local drivers were given the opportunity to work additional hours and earn additional income. They would, from time to time, undertake some long haul driving and also some shorter trips to Toowoomba which were referred to as "dog runs". While dedicated drivers serviced the long haul routes, the seasonal nature of the product sometimes required excess produce to be moved, and local drivers were offered the work.
  1. [8]
    The dog runs were necessary because interstate drivers hauling two trailers were not permitted to progress beyond Toowoomba and another prime mover was needed to bring one of the trailers from Toowoomba to Rocklea. The long haul trips involved round trips from Rocklea to Gayndah and return and from Rocklea to Guyra and return.
  1. [9]
    On 22 July 2016, the appellant warned management in the Victorian head office of DRT about the occurrence of drug use, theft and malingering in the Rocklea Depot. The allegations were investigated but not substantiated. Not long after these events, and on 17 August 2016, the appellant's employment with DRT was terminated. Soon after the termination, the appellant filed an unfair dismissal application, which was subsequently settled. 
  1. [10]
    The appellant attended on his general practitioner on 19 August 2016, two days after his employment was terminated. On 25 August 2016 the appellant was admitted to Princess Alexandria Hospital following an attempt at self-harm. On 31 August 2016, the appellant's general practitioner issued a workers' compensation medical certificate. The medical certificate was tendered subject to conditions imposed by the respondent in circumstances where the general practitioner was not called to give evidence.
  1. [11]
    The appellant was assessed by Dr Ian Curtis, a consulting psychiatrist, on 25 March 2017. Dr Curtis entered a diagnosis of "major depressive disorder complicated by partial PTSD phenomenology general anxiety and social phobia".

Evidence

  1. [12]
    Evidence in the proceedings was given by the following witnesses:

For the appellant:

  • Brendan Watson (appellant);
  • Brendan Sharp (co-worker);
  • Haami Crawford (co-worker);
  • Dr Ian Curtis (consultant psychiatrist).

For the respondent:

  • Shane Splatt (owner-director DRT);
  • Scott Splatt (managing director DRT);
  • Martin Fuller (DRT depot manager);
  • Kyle Wallace (DRT assistant depot manager);
  • Bruce Ogden (DRT local driver).

Appellant's case

  1. [13]
    It was the appellant's case that his injury was caused by unreasonable management action arising out of or in the course of his employment at DRT's Rocklea Depot. Towards the middle of the year in 2016, the appellant was becoming increasingly concerned by behaviour in the workplace and when the conduct or behaviour did not change for the better, in July 2016 he decided to bring his concerns to the attention of management. In the first instance he reported the theft of fuel to Mr Fuller. Subsequently, on 22 July 2016, he reported a range of misconduct to Mr Scott Splatt.
  1. [14]
    An investigation conducted by management was unable to confirm any of the appellant's allegations and no inappropriate behaviour was discovered. Soon thereafter, the appellant said that a co-worker told him that he was going to be sacked. He was rostered off work on 13 and 14 August 2016 and did not present for work on either 15 and 16 August 2016. When he presented for work on 17 August 2016, Mr Fuller told him that his services were no longer required. The appellant believed that the termination of his employment was related to his decision to raise allegations of workplace misconduct.
  2. [15]
    In his Statement of Facts and Contentions, the appellant identified the unreasonable management action which he said caused or contributed to his injury. In summarised form, the unreasonable management action was said to involve:
  • Bullying and harassment by Mr Fuller;
  • A requirement to work excessive hours;
  • The employer's failure to adequately investigate allegations made by the appellant;
  • The employer's failure to maintain anonymity around the appellant's involvement in the investigation;
  • A negative and adverse response by Mr Fuller to the making of the allegations;
  • The termination of the appellant's employment which was said to be mainly based on the appellant's decision to raise the allegations and was related to sick leave taken by the appellant because of stress associated with the making of the allegations.
  1. [16]
    The Statement of Facts and Contentions identified the allegations as "smoking ice in the office at the Depot, stealing fuel and disappearing at work from the depot for no reason". The allegations were made by the appellant in relation to the workplace conduct of the assistant depot manager, Mr Wallace.
  1. [17]
    The appellant said that he was pressured into working long hours and that these hours were not worked in compliance with transport regulations. He said that under transport regulations, he was able to drive for twelve hours in any twenty-four hour period and that he was required to take a thirty minute break after each five hours of driving. However, when he was directed to undertake long haul trips, these trips were typically worked soon after the completion of his local driving shift and meant that he was driving much more than twelve hours in the relevant twenty four hour period.  
  1. [18]
    In terms of Mr Fuller's behaviour, the appellant complained about an aggressive, demanding and critical management style which involved the use of crude and obnoxious language, which did not accommodate any difference of opinion, and which did not accommodate the appellant's concerns about excessive working hours.

Medical Evidence

  1. [19]
    A report prepared by Dr Curtis on 22 May 2017 is in the evidence as Exhibit 2. In his report, Dr Curtis identified the appellant's presenting complaint as severe depression caused by alienation, vilification, bullying and unfair dismissal in the workplace. The report also included a diagnostic formulation to the following effect:
  • The appellant had no previous history of psychiatric illness;
  • The appellant developed a major depressive disorder caused by "workplace operating circumstances";
  • Maintaining experiences included subjective experiences of threat, the accompanying loss of employment, and the experience of being blacklisted in the industry.
  1. [20]
    The reliability of Dr Curtis' conclusion on causation was challenged on the basis that his conclusions were formed on a range of information, not all of which had been tendered as documentary evidence, or had been adduced through witness testimony. Consequently, the probative value of the information relied on could not be tested. In particular the respondent submitted that it was not permissible for Dr Curtis to rely on the history provided to him by the appellant's partner, in circumstances where his partner did not give evidence in the proceedings.
  1. [21]
    Some opinions formed by Dr Curtis were also challenged on the basis that they relied on a history provided by the appellant which was, in many respects, inaccurate or contained a version of events which was not consistent with the facts.
  1. [22]
    I accept that on a reading of Dr Curtis' report, it can be concluded that Dr Curtis' opinion about causation relied in part on an incorrect history provided by the appellant, and also in part on material that did not form part of the proceedings. I accept in these circumstances that Dr Curtis' report is to be construed with particular inconsistencies and limitations in mind.
  1. [23]
    Notwithstanding these limitations, I accept that Dr Curtis's evidence can be relied on to support findings that the appellant had suffered a psychiatric injury and that his injury was caused by events associated with the appellant's workplace.

Matters in contention 

  1. [24]
    Pursuant to s 32 of the Workers' Compensation and Rehabilitation Act 2003 (the Act), for the appellant to succeed he must establish that:
  1. He was a "worker" at the relevant time and had sustained a personal injury of a psychiatric or psychological origin;
  2. His injury arose out of, or in the course of, his employment with DRT;
  3. His employment was the major significant contributing factor to the development of his injury; and
  4. His injury did not arise out of, or in the course of, reasonable management action or his perception of reasonable management action as prescribed by s 32(5) of the Act.
  1. [25]
    The regulator conceded that the appellant was a "worker" pursuant to the provisions of the Act, but did not concede that the appellant had suffered a personal injury. If it were found that the appellant had suffered a personal injury, the regulator did not accept that the injury met the statutory test of association with employment, and if that proposition were not accepted, did not accept that the appellant's injury arose out of, or in the course of, unreasonable management action.
  1. [26]
    It is not in dispute that the appellant attended on his general practitioner on 19 August 2016 and 31 August 2016. The regulator admitted, in its Statement of Facts and Contentions, that the appellant reported "psychological symptoms" to his doctor on 19 August 2016.
  1. [27]
    On Dr Curtis' evidence, which I accept, on 25 August 2016 the appellant attempted suicide, was admitted to the Princess Alexandra Hospital, and was referred to the hospital's mental health unit.
  1. [28]
    It is also not in dispute that, on 31 August 2019, the appellant's general practitioner issued the appellant with a Workers' Compensation Medical Certificate. The appellant was not examined by Dr Curtis until 25 March 2017 when a diagnosis of a major depressive disorder was entered.
  1. [29]
    In my view, the evidence is sufficient to establish that the appellant had suffered a personal injury which was relevant to his application for compensation. While the appellant did not consult Dr Curtis until March 2017, he did attend on his general practitioner two days after his employment was terminated complaining of psychological symptoms and his referral to the Princess Alexandra Hospital's mental health unit also indicated that he was suffering from a psychological illness.
  1. [30]
    I am also satisfied that the appellant's injury was causally connected with his employment and that his employment was the major significant contributing factor to the development of his psychological disorder.
  1. [31]
    The Workers' Compensation Medical Certificate is prima facie evidence that the appellant's general practitioner had assessed the appellant as having suffered a work related injury. Dr Curtis' diagnosis and his conclusion about causation, although arrived at based on a history provided by the appellant, is prima facie evidence that the appellant had suffered a work related injury.
  1. [32]
    Dr Curtis, in diagnosing a psychiatric injury, was of the clear view that the injury was caused by events in the workplace leading up to and including the termination of the appellant's employment.
  1. [33]
    Further, no evidence was adduced to support a proposition that the stressors causing the appellant's psychological disorder, were other than stressors related to work.
  1. [34]
    In these circumstances, the determination of the appeal turns on whether the appellant's injury was removed from the scope of s 32(1) of the Act, by virtue of the operation of s 32(5) of the Act.

Excessive hours 

  1. [35]
    It was the appellant's evidence that he was regularly required to work excessive hours. Examples of excessive hours adduced from his evidence included the addition of dog runs to Toowoomba, or long haul trips to Guyra or Gayndah, to his standard working arrangements. The effect of his evidence was that he would frequently or regularly undertake these additional trips. These trips were commenced either at the conclusion of the appellant's local driving shifts at around 11.00 am or midday, or before the start of his local runs at 2.00 am.
  1. [36]
    The dog runs required the appellant to drive a prime mover to Toowoomba to meet an incoming interstate road train which usually arrived in Toowoomba between 9.30 pm and 10.00 pm. This meant that the appellant would leave Brisbane around 8.00 pm in order to get to Toowoomba by 9.30 pm. He would then hook up one of the road train trailers, and bring the trailer into Rocklea, arriving some time between 11.00 pm and 12 midnight. On the appellant's version of events, if he was required to drive the fork lift, on arrival back at the Rocklea Depot he would drive the fork lift until 2.00 am before commencing and completing his local driver shift until approximately 10.00 am the following day.
  1. [37]
    Mr Sharp had been employed by DRT as a local driver from July 2013 to July 2016. He said that during his time with DRT he had completed long haul work for his employer when he was required to do so. He said that he drove to either Gayndah, Guyra or Bundaberg once or twice a week. He said that he would commence his local driving at 2.00 am in the morning and finish about 10.00 am or 11.00 am.
  1. [38]
    The effect of Mr Sharp's evidence was that he would commonly be asked to undertake either a dog run or a long distance trip when his local driving shift ended around 12 noon. He said that during the season he could do two or three dog runs a week.
  1. [39]
    Mr Sharp's evidence about dog runs was different to that given by the appellant. Mr Sharp said that the dog runs involved not only picking up the trailer from Toowoomba and bringing it into Rocklea, but also returning the trailer to Toowoomba after it had been unloaded at Rocklea. Hence two return trips to Toowoomba and approximately eight hours of driving were involved. On Mr Sharp's evidence, sometime after the dog run was completed, he would commence his local driving shift at 2.00 am.
  1. [40]
    Mr Sharp said that in the case of long haul work, despite having completed a ten hour local driving shift, he would be required to complete a further ten hours of driving in completing the long distance work.
  1. [41]
    Mr Sharp implied that he did not want to perform the long distance shifts but that he was directed to do so. He said that if he told Mr Fuller that he did not want to work additional hours, Mr Fuller would tell him to "harden up" and tell him that if he did not perform the work, he would not get any further offer of additional hours or would be the last local driver to be offered additional work. Despite his complaints, Mr Sharp said that he always complied with the request and performed the additional work.
  1. [42]
    The effect of Mr Sharp's evidence was that, as he understood company policies, he should have been given a seven hour break before starting a long haul trip and he should have only performed long haul shifts on his rostered days off. He said in effect however that these policies were not enforced.
  1. [43]
    Mr Haami Crawford had been employed as a local driver and fork lift driver for DRT between 2014 and July 2016. He said that he commenced work at 2.00 am and usually finished work between 10.00 am and 11.00 am. He said that in addition to his local driving runs, he would complete the dog runs to Toowoomba.
  1. [44]
    As I understood Mr Crawford's evidence he would complete either single trip dog runs or double trip dog runs as described by Mr Sharp. The effect of his evidence was that he would make the trip to Toowoomba some time after he had completed his local deliveries. In some instances he might leave for Toowoomba soon after completing his local runs, but in other cases he would not commence the Toowoomba trip until later in the day.  In the case of the late departure, he would leave Brisbane around 8.00 pm and arrive at Rocklea in time to allow him to "jump into the bunk to have a sleep" before his started his local driving shift at 2.00 am.
  1. [45]
    Mr Ogden was also a local driver. He had been employed by DRT since 2015 and remained an employee of DRT at the time of giving his testimony in the proceedings. It was his evidence that his ordinary working hours extended from 2.00 am to 10.00 am or 11.00 am. He said that when the dog runs were in season, he might do a dog run once a week. He said that he would go home after his local runs finished and would not start on his dog run until 11.00 pm at night.
  1. [46]
    Mr Fuller gave similar evidence to that given by Mr Ogden about the timing of the dog runs. He said that after finishing at 10.00 am or 11.00 am in the morning, drivers would have nearly a twelve hour break before leaving Brisbane for Toowoomba at 11.00 pm at night. He said the round trip would take drivers about three hours and fifteen minutes and when they returned to Rocklea, they would commence their local runs.
  1. [47]
    Mr Ogden's evidence was that he would only occasionally perform a long haul run. He did not say how frequently he performed these runs, nor did he specify starting and finishing times. He said that once he completed 12 hours driving in any 24 hour period, he would stop work.
  1. [48]
    The appellant said that he would commence his long haul trips to Gayndah or Guyra immediately after finishing his local runs at or around 12 noon. The long haul trips involved a round trip in the order of 12 hours with ten hours driving and a break at Guyra or Gayndah for an hour or two while the truck was loaded. If the appellant's evidence were correct, he would not return to the depot until midnight and would have worked since 2.00 am. The appellant said that while he would take breaks from driving, there would be no opportunity for sleep. The effect of his evidence was that in some circumstances he might only get sleep "about every third day".
  1. [49]
    In terms of frequency, it was the appellant's evidence that across the nine months that he was employed at the Rocklea Depot, he completed 20 dog runs, 12 trips to Guyra, 12 trips to Gayndah, and three trips to Sydney. It was not clear on the evidence whether all these trips constituted work performed in addition to the appellant's local driving shifts. The effect of the appellant's evidence was that typically the trips in question were undertaken in addition to his normal work.
  1. [50]
    The appellant said that if he did not want to work additional hours or complained to Mr Fuller of tiredness, Mr Fuller would not be sympathetic, would call him a "soft cock", and would tell him to "harden up". If he did not perform the requested work, Mr Fuller would punish him by cutting his regular hours or limiting his opportunity for overtime work (T1-24).
  1. [51]
    Whether the appellant worked excessive hours was a matter in contention. If the appellant did work long or excessive hours, the issue for resolution in part was whether these hours were worked regularly or frequently. It was also a matter in dispute whether the appellant worked additional hours by choice in order to supplement his normal earnings, or whether he was, in effect, forced by an intimidating supervisor to perform additional work. The effect of the appellant's evidence was that he initially wanted to undertake the long haul trips to earn extra money, but over time he found that he was not able to exercise a choice and he was intimidated into completing the trips whether he liked it or not and notwithstanding the regulatory regime.
  1. [52]
    There was no unanimity in the evidence adduced. While the appellant and Mr Sharp gave clear evidence of an incidence of long hours, the evidence of Mr Ogden and Mr Crawford was not similarly directed.
  2. [53]
    It was the appellant's evidence that, across the course of his nine months employment, he had worked twenty-seven long haul trips and twenty two dog runs. The evidence does not establish that the performance of the dog runs would necessarily result in excessive working hours. A single dog run could be completed in 3.5 hours, and the local driving shift was typically eight or nine hours duration. Following the dog run, a driver might be able to take a two hour break before commencing the local driving shift.
  1. [54]
    In terms of the long haul trips, there was a conflict in the evidence about whether the local driver completed both the long haul trip and his local driving shift. It was also a factor that the long haul trip could have been completed on rostered days off and not worked contiguous with the local driving shift. On average, the appellant would have completed 2.5 long haul trips each month or one trip every twelve days. This rough analysis does not necessarily lead to a conclusion that excessive hours were worked.
  1. [55]
    However, I acknowledge that the effect of the appellant's evidence was that seasonal factors meant that an averaging approach was not appropriate and that the demand for drivers to perform long haul trips may have not have been evenly distributed over the course of his employment.
  1. [56]
    In the end result, it is my view that the evidence lacks sufficient forensic character to support a finding that the appellant and others were forced to work excessive hours. Neither local driver run sheets nor long haul log books were tendered into the evidence. Nor were time and wages records or other records which might establish the hours actually worked by the appellant across the course of his employment. This documentary evidence may have been pivotal to any finding.

Inappropriate management behaviour  

  1. [57]
    The appellant was critical of Mr Fuller's interpersonal style and he complained about bullying and harassment and Mr Fuller's use of what he described as "grotesque sexual humour". He said that Mr Fuller deployed a very intimidating style in which he did not tolerate dissenting views and was direct in stating that if someone did not like the way he was running the depot they should, in Mr Fuller's words, "fuck off and find another fucking job". The effect of the appellant's evidence was that Mr Fuller did not tolerate any resistance to his operational decisions and if a worker did not comply, Mr Fuller would exact retribution by ensuring that opportunities for extra work or overtime were not offered.
  1. [58]
    Mr Sharp endorsed the appellant's complaints. He also complained about Mr Fuller's use of crude and sexualised commentary and said that Mr Fuller would consistently act in an aggressive manner and would subject him to verbal abuse.
  1. [59]
    Mr Crawford's evidence was more supportive of Mr Fuller. He said that when he had observed the appellant complaining to Mr Fuller about aspects of his job, he considered that Mr Fuller tried to deal with the matters raised as best that he could having regard to operational constraints. He said that he had not heard Mr Fuller threaten the appellant while at work.
  1. [60]
    Mr Ogden said that Mr Fuller spoke "pretty abruptly and straight to the point". While Mr Ogden agreed that Mr Fuller might tell drivers to "harden up" or "stop whinging", the effect of his evidence was that there was nothing offensive in the comments and that the comments may have been justified. Mr Ogden agreed that Mr Fuller made jokes about "blow jobs" and related matters, but the effect of his evidence was that everybody told similar jokes and that the use of that type of language was commonplace.
  1. [61]
    While Mr Ogden said that he had not heard Mr Fuller use offensive language toward the appellant, he acknowledged that in a letter that he had written (Exhibit 4), he had alluded to Mr Fuller "putting people down" and he said that sometimes "we'd say some terrible things to one another". He agreed that Mr Fuller had said some terrible things to the appellant. He diminished however the significance of any abusive behaviour and said that "it was part of stuff that just happened every day" and that we just "bag one another". Mr Ogden also accepted that in his letter he had suggested that he had been "belittled" by Mr Fuller.
  1. [62]
    It was Mr Wallace's evidence that drivers had not complained to him when they were asked to undertake the dog runs or the trips to Gayndah or Guyra, not did drivers complain to him about Mr Fuller asking drivers to complete the runs. He also said that he did not receive any complaints from drivers about Mr Fuller. While Mr Wallace said that Mr Fuller likes a joke, he denied that he made offensive comments.
  1. [63]
    I am not persuaded to conclude that the appellant's complaints about Mr Fuller's alleged use of obnoxious, crude, filthy, or offensive language, if accepted, assume any determinative value. In this regard, I am more inclined to accept Mr Ogden's rationalisation of the behaviour in question than to conclude that Mr Fuller's choice of words amounted to a stressor which, in any significant way, contributed to the development of the appellant's disorder. The appellant said that he had worked in the transport industry for 25 years. It is a male dominated industry and I subscribe to the view that crude and perhaps obscene commentary may not be uncommon. 

Allegations of misconduct

  1. [64]
    There was some inconsistency in the evidence about what it was that the appellant complained to Mr Fuller and Scott Splatt about. It was not in dispute that the appellant's allegations related to drug use, absences from duty by Mr Wallace, and the theft of diesel fuel from trucks. However, in the proceedings, references were also made to drug dealing and firearms trading.
  1. [65]
    It was Scott Splatt's recollection that the appellant had made a number of allegations against Mr Wallace. He said that it was alleged that Mr Wallace was using an illicit substance in the Depot, stealing diesel fuel, had possession of a firearm or firearms while in the depot, and was absenting himself from the office or depot for long periods of time. Scott Platt also accepted that the appellant told him that there were people within the depot who were dealing in ice.
  1. [66]
    Mr Fuller said that the allegations involved drug use and the theft of diesel fuel but did not include matters relating to firearms. Shane Splatt said that the allegations related to the use of drugs at the depot, the selling of drugs at the depot and the siphoning of fuel from the trucks. He did not know of any allegation relating to firearms.
  1. [67]
    In his statement of facts and contentions, the appellant alleged that Mr Wallace was "smoking ice in the office of the Depot, stealing fuel and disappearing at work from the depot for no reason".
  1. [68]
    It is my preference that, given the inconsistencies in the evidence, the allegations be confined to the matters addressed in the statement of facts and contentions. Within those matters, the clear preoccupation in the proceedings was with the allegations dealing with the theft of fuel and the use of drugs which also reflected the scope of the investigation conducted by the employer.
  1. [69]
    On the appellant's chronology, he initially reported fuel theft to Mr Fuller, and then at a later date he elected to fully brief Scott Splatt about what was happening in the workplace. It is not in dispute that this discussion took place on 22 July 2016. The appellant said that he told Scott Splatt about drugs, about Mr Wallace's absences from the workplace, about the theft of diesel, and about handguns being sold at the depot. The effect of his evidence was that he conveyed an impression to Scott Splatt that the workplace was out of control.
  1. [70]
    The appellant said that Scott Splatt told him to leave the matters with him and that he would call him back. He said that Shane Splatt telephoned him shortly thereafter and that he spoke in depth to Shane Splatt about the issues of concern. The appellant said that Shane Splatt asked him to take photographs of particular activities as they were occurring, but that he elected not to do so. It is probable that this request came from Scott Splatt who said in his evidence that he told the appellant he would be able to deal with the matter if the appellant could get some evidence.
  1. [71]
    It was Shane Splatt's evidence he had been informed of the appellant's allegations by Scott Splatt. He also recalled that the appellant had called him and talked to him about the matters in issue. Shane Splatt said that he had a duty to investigate the allegations and he accepted that the appellant's concerns were legitimately held. His recall was that the allegations related to drug use at the depot, the selling of drugs at the depot and the siphoning of fuel from trucks in the depot. Shane Splatt said that he told the appellant that he would investigate the allegations.
  1. [72]
    Mr Fuller denied that there had been any initial reporting of events to him by the appellant, but he did agree that he had heard rumours about Mr Wallace's drug use and that a number of drivers had spoken to him about that issue. He also said that there were rumours that Mr Wallace was disappearing during work and rumours about the presence of guns at the depot. Mr Fuller said that the appellant told him that Mr Wallace was smoking ice in the depot and stealing fuel.
  1. [73]
    Mr Fuller said that immediately after the appellant reported allegations to him, and on the same day, he reported what the appellant had told him to Shane and Scott Splatt (T2-102). He could not recall the date that the allegations were reported, but he denied that there was any interval between the appellant's reporting to him and his communication of the issues to Mr Scott Splatt.
  1. [74]
    Mr Fuller said there were a number of phone conversations between him and the Melbourne based managers and that he was instructed to carry out an investigation into the allegations. Scott Splatt confirmed that he had told Mr Fuller that he needed to investigate the allegations. Scott Splatt said that he told Mr Fuller to "find out what's going on, if something's going on".
  1. [75]
    It was Scott Splatt's evidence that when the appellant told him that he believed that Mr Wallace was using an illicit substance in the depot, he told the appellant that if the appellant could provide him with proof that the alleged conduct was occurring, he would be able to do something and that he would deal with the matter. The effect of Mr Fuller's evidence was that Scott Splatt told him the same thing and that he passed on the same comments to the appellant. The appellant confirmed that Mr Fuller told him that he required some proof to support the allegations. In his evidence, Mr Fuller said that he wanted proof sufficient to support a conviction.
  1. [76]
    The appellant said that about two weeks after he had spoken to Scott Splatt, Mr Fuller approached him and informed him that Scott Splatt had told him about the allegations and had asked him to investigate the allegations. The appellant said that Mr Fuller asked him about his conversation with Scott Splatt and about Mr Wallace's drug use, and told him that he was starting an investigation (T1-29).
  1. [77]
    Mr Sharp said in his evidence that both long haul drivers and local drivers used drugs while they were in their trucks. He said that he had not seen drugs used within the depot, but that he had witnessed the dealing in drugs within the depot. The respondent noted that this allegation had not been included in Mr Sharp's outline of evidence.
  1. [78]
    Mr Crawford said that he had witnessed illicit drug use at the depot and he identified the appellant and Mr Wallace as the users. He said that he had not witnessed the theft of fuel, nor had he witnessed any activities involving firearms.
  1. [79]
    Mr Ogden said that he had heard rumours that ice was being smoked in the depot, but that he had not directly witnessed the drug use. He said that he had heard a rumour about Mr Wallace stealing fuel.
  1. [80]
    Mr Sharp's evidence was that fuel was being siphoned out of his truck, and the trucks of the appellant and Bruce Ogden (T1-73). He said that he knew that fuel was being stolen because he saw diesel spillage marks down the sides of the fuel tanks. He also said that he had seen syphoning hoses and jerry cans in the back of Mr Wallace's car.  
  1. [81]
    The appellant had also concluded that the theft of fuel was occurring because "every morning there was diesel stains left down the side of the fuel tanks of the truck". He said that he had not previously witnessed these stains and that "you could see somebody was knocking fuel off".
  1. [82]
    Mr Wallace acknowledged in his evidence that he did carry a siphoning hose and jerry cans in his car, but he denied that this equipment was used to facilitate the theft of diesel. It was his explanation that he used the equipment to transfer fuel to the fridge motors in the vans in the event that the fridge motors ran out of fuel.
  1. [83]
    Mr Wallace confirmed in his evidence that he had pleaded guilty of a charge of possession of amphetamines, a charge of possession of an ice pipe, and a charge of possession of firearms. The offences were committed on 3 November 2016 when Mr Wallace was "picked up" after work in Sherwood Road, Rocklea. Mr Wallace agreed that the drugs, ice pipe and a child's cap gun were found in his car. He said that the firearm charges related to the child's cap gun, and to a replica 303 rifle which was found at his home. 
  1. [84]
    In his evidence, the appellant said that about a week prior to his sacking, Bruce Ogden called him over, handed him a three page letter, and told him to keep the letter. Mr Ogden agreed that he had asked the appellant to hold a letter (Exhibit 4) that he had written and which he had intended to give to, or discuss with, Mr Fuller. In the letter, Mr Ogden makes various statements which can be taken to be critical of certain activities in the workplace. The letter also included reference to the appellant's allegations. In the letter, Mr Ogden wrote that Mr Fuller had told him that the appellant had alleged that Mr Wallace "was smoking an ice pipe in the office". He also wrote that Mr Fuller had asked him whether he had seen Mr Wallace "milking" fuel.
  1. [85]
    In the letter, Mr Ogden appeared to reinforce or endorse the appellant's allegation when he wrote:

Well here's some more and I'm not leaving nothing out – Ice pipe smoked just outside the office, in the trucks, repairing these pipes in the office and outside in the cars – fair enough I am no angel but I hate that shit it fucks people – and it is not just Kyle – you have your No 1 forky and your bald headed mate whom we watched get all the work.

  1. [86]
    The weight to be attached to the letter is a matter for consideration. The original was not provided and a photocopy of the letter was entered into the evidence. There is also a doubt about how an alteration made on page three of the letter had come about in circumstances where Mr Ogden claimed that he did not make the alteration. Finally, Mr Ogden said that he was depressed and under the influence of alcohol when he wrote the letter.
  1. [87]
    Despite these considerations, Mr Ogden's testimony in the proceedings was generally consistent with the majority of views expressed in the letter. In my view the letter can be relied on to provide broad support for the appellant's claims that crude language was commonplace, that Mr Fuller employed an uncompromising, direct and abrasive management style, and that there was a suspicion that drug use and the theft of diesel fuel was occurring within the depot.

The investigation

  1. [88]
    Scott Splatt did not investigate the appellant's concerns, but asked Mr Fuller to investigate the allegations. He said that while he mainly dealt with Mr Fuller over the phone, he trusted Mr Fuller who had worked in DRT's Werribee Depot for about seven years before transferring to Rocklea where he had worked for eleven years. He said it was Mr Fuller's responsibility to manage the depot including the personnel issues. As I understand Scott Platt's evidence, he provided Mr Fuller with details of the allegations and he told Mr Fuller that the allegations had been made by the appellant. While Mr Fuller agreed that Scott Splatt had directed him to investigate the allegations, the effect of his evidence was that Shane Splatt gave the same direction.
  1. [89]
    Despite the evidence of Mr Fuller and Scott Splatt, Shane Splatt said that he did not know that Mr Fuller was investigating the allegations. He said that while he told Mr Fuller about the allegations, told him to be on the alert, and had asked him to "look around", he did not ask Mr Fuller to investigate anything.
  1. [90]
    Mr Shane Splatt also said that he did not direct Mr Fuller to speak to anyone about the allegations and he said that if this had occurred, he would not have tolerated such an activity. He agreed that it would not have been appropriate for Mr Fuller to be speaking to Mr Ogden, Mr Sharp or the appellant about the allegations.
  1. [91]
    Shane Splatt said that he did not speak to Mr Wallace about the allegations until after he had been informed of the outcome of the surveillance conducted by the Brisbane Trust.  
  1. [92]
    Scott Splatt said that he was unaware of how Mr Fuller conducted his investigation and he did not know if any statements were taken from other employees or other persons who may have a relevant view on the subject.
  1. [93]
    Mr Fuller however did explain how he went about his investigation. He said that he spoke to some DRT employees and to some Costa employees, and that he had reviewed some CCTV footage (T2-79):

All right.  Now, you did an investigation?Yes.

How did you do that?  What did you do?We have video footage of inside.  I spoke to – not Damorange staff.  I spoke to Costa staff, who are in depot – it’s their depot, so they start a lot earlier than us.  Asked certain people there did they see anything unusual, seen anything they shouldn’t, you know – you should say – say something about.  Found nothing.  No one came forward with any evidence – any proof.

With – you said about fuel stealing, were there any CCTV cameras that might record where the trucks   ?I checked with Costa’s.  There is a camera that sits – if this was the building here – the front of the building our trucks were parked on the far left.  But there’s only one camera.  Virtually just shows the front of Costa’s.  It doesn’t the side few.

All right?So I checked the CCTV footage.  It doesn’t show our prime movers or our trailers.

All right.  What else did you do?I spoke to a couple of staff members and asked them.  And I just said is there anything going on that’s, you know, that shouldn’t be going on, like, that I should know about.  I said, you know, all I need to know is what’s happened.  Someone’s made allegations.  I need to find out if it’s true or not.

And what were the results of your investigations?Nothing.

  1. [94]
    Mr Fuller did not identify the staff members that he spoke to as part of his investigation. The effect of Mr Crawford and Mr Sharp's evidence was that Mr Fuller did not question them about the allegations. However, Mr Ogden said that Mr Fuller did question him about drug use, diesel theft, and Mr Wallace's absences from the office. Mr Ogden said that he told Mr Fuller that he was not aware of, nor had he seen, any such activity.
  1. [95]
    It was the appellant's evidence that on the same day that he had reported his allegations to Mr Scott Splatt, he was approached by Bruce Ogden who told him that he had been questioned by Mr Fuller. The appellant did not indicate whether Mr Ogden said that Mr Fuller had named the appellant as the person who had made the allegations. However, the relevant effect of Mr Ogden's letter was that Mr Fuller had told him that the appellant had made particular allegations.
  1. [96]
    The effect of Shane Splatt's evidence was that the allegations could be effectively investigated through a review of CCTV footage. In this regard he relied on the surveillance capacity of the Brisbane Market Trust. He said that the Trust had full surveillance of whatever DRT does in in that facility.
  1. [97]
    Shane Splatt said that he informed the Brisbane Market Trust of the allegations of drug use and drug selling. He said that when he informed the Trust of the allegations, the Trust commenced surveillance of DRT activities. Shane Splatt said that the Trust informed him that the surveillance did not disclose any evidence of wrongdoing.
  1. [98]
    While Scott Splatt did not review the CCTV footage himself, he said that a review of the footage did not disclose that fuel was being siphoned out of vehicles. He said that CCTV coverage of the markets was extensive and that Costa's had checked their footage but could not find any evidence of diesel being stolen.
  1. [99]
    Mr Fuller's evidence was different in that he said that he had checked the CCTV footage but that the footage did not capture the area where DRT's prime movers and trailers were parked.
  1. [100]
    Mr Scott Splatt also said that he was able to review data which matched the quantity of fuel burned in a particular vehicle to the number of kilometres travelled by the vehicle. He said that he examined this data but that it did not disclose any irregularity or suggest that fuel was being stolen.
  1. [101]
    Mr Scott Splatt said that he thought it improbable that Mr Wallace would be stealing fuel because he was in possession of a company fuel card which meant there was no reason for him to steal fuel. However, there was some evidence to the effect that Mr Wallace did not have a fuel card at the time. Mr Wallace agreed that his fuel card expired some time in 2016, but he said that the card was renewed.
  1. [102]
    While the central focus of the allegations appeared to be illicit drug activity occurring in Mr Wallace's office, there was a conflict in the evidence about the potential for CCTV to monitor activities occurring within the DRT office. There were also significant inconsistencies in the evidence about the coverage of CCTV cameras in relation to the detection of fuel theft. 
  1. [103]
    Mr Scott Splatt agreed that CCTV cameras would not capture activities being conducted within the Depot office. Mr Fuller agreed that the DRT office was not covered by CCTV cameras. However, Mr Shane Splatt's evidence was different. He said that the Brisbane Trust's camera surveillance extended to all the common areas and also the DRT office and the cool rooms. When clarification was sought around the issue, Shane Splatt said "Mr Watson probably wouldn't know but if they looked all around, there's full cameras in all the common areas and the office and next to our office there's Costa Personnel".
  1. [104]
    Mr Fuller said that he did not speak to Mr Wallace about the allegations as part of the investigation, but that he did speak to him about the use of drugs some time after the internal investigation, and also after police charges were laid in early November 2016. Mr Fuller said that he had been told by Shane Splatt not to mention the appellant's name, and that he did not tell Mr Wallace that the appellant had made the allegations.
  1. [105]
    It was not in dispute that at the conclusion of the investigation, the appellant was informed that the investigation had been completed but that it did not reveal any evidence of wrongdoing.

Anonymity

  1. [106]
    The appellant's concern about anonymity was emphasised in his evidence and reflected in the history that he provided to Dr Curtis. Support for the appellant's sensitivity around anonymity was also to be found in the evidence of Mr Ogden when he explained why he was not prepared to inform management about behaviour that he had witnessed (T2-129).
  1. [107]
    While I accept that the appellant's concern was a real and pressing consideration for him, it was not clear on the evidence how it was that he concluded that anonymity had not been preserved.
  1. [108]
    Shane Splatt denied that the appellant expressed a concern about being known in the industry as a "dog" or a "dobber". He accepted however that "possibly" the appellant told him that he was worried that people might find out that he was the one making the allegations.
  1. [109]
    While Shane Splatt denied that he told the appellant that he would have "complete anonymity", he agreed that the appellant had a right to keep his name confidential and that it should not be disclosed to other people working in the depot. In his evidence he agreed that he did not want the allegations to be become common knowledge and he agreed that he told the appellant that he did not want the allegations to become common knowledge.
  1. [110]
    Scott Splatt said that he was not aware that any guarantee of anonymity had been given to the appellant. He agreed that he had told Mr Fuller who it was that had made the allegations, but he was more circumspect in claiming that he told Mr Fuller not to mention the appellant's name during the investigation. In this regard he arrived at his answer in a very laborious manner (T2-48) and his evidence was fashioned more on a view of what he thought he would have done, rather than any clear recollection of what he had told Mr Fuller. Mr Fuller for his part denied that he had named the appellant when he questioned people about the issues contained in the allegations.
  1. [111]
    The appellant's evidence in the proceedings was that he concluded that anonymity had been lost when Mr Fuller discussed the allegations with him and told him that Scott Splatt had asked him to investigate the allegations. The only other evidence suggesting that anonymity had not been preserved was found in the letter written by Mr Ogden where it was suggested that Mr Fuller had told Mr Ogden that the appellant had made allegations.
  1. [112]
    It is arguable in my view that the appellant's name could or should have been withheld from Mr Fuller. On Scott Splatt's evidence, Mr Fuller had been asked to conduct the investigation because he was the manager of the depot and it was his responsibility. It is also the case that the appellant had already brought at least some allegations against Mr Wallace to Mr Fuller's attention.
  1. [113]
    While the appellant may have preferred that Mr Fuller not be involved in the investigation, there was, on my reading of the evidence, no explicit request that Mr Fuller be excluded from the process. Mr Fuller was the manager of the depot and the allegations were made about a direct report to Mr Fuller. It may have been impracticable to consider conducting an investigation without Mr Fuller's involvement. 
  1. [114]
    Notwithstanding this, I accept that the appellant would have been concerned about consequences for his actions and, in particular, concerned about how his disclosures might be received by Mr Wallace and his co-workers. He explained in his evidence how he felt when he realised during his discussion with Mr Fuller that his identify had not been withheld from Mr Fuller, and perhaps others (T1-29):

How did you feel about that?I felt gutted, betrayed.  It was a horrible horrible feeling, you know what I mean, like, I just – my name has got out as a dog, and I didn’t know, really, how to react.

The termination

  1. [115]
    The appellant suggested that his relationship with Mr Fuller deteriorated substantially after the allegations had been made. He formed the impression that Mr Fuller was angry with him. He said that Mr Fuller had bailed him up in the back of a van and said that he did not like to be threatened and that he got rid of people who threatened him.
  1. [116]
    It was Mr Fuller's evidence that when the appellant did not show up for work on 15 and 16 August 2016 and did not respond to calls or texts enquiring about his whereabouts, he had discussed the matter with the DRT general manager (Mr Portoglou). Mr Fuller said that he spoke to the appellant when the appellant presented for work forty-five minutes late on 17 August 2016 (T2-81):

All right.  And so he came to the work, I think you said at a quarter to 3 that morning instead of   ?Two o’clock.

   2 o’clock.  Then what happened then?I was unloading a truck.  I think it had come down from Gayndah and Brendan walked in and I asked him, “Well, one, you’re late, two, where’ve you been”.  He couldn’t give me a good enough excuse.  And I’d already spoke to the general manager prior that day.

 

You spoke to Mr Portoglou.  What did you do after you spoke to Mr Portoglou?That would have been the day that Brendan Watson come in late.  Spoke to Brendan.  Asked him where’s he been.  Did he want a job, because he hadn’t turned up.  No phone calls, no nothing.  I just virtually said to him, “You can work out the rest of the week if you want, or you can finish up on the spot.”  With that he just turned around, walked out, and I never seen him again.

  1. [117]
    While Mr Fuller said that he spoke with Mr Portoglou about the issue, it was also his evidence that he liaised with both Shane and Scott Splatt in relation to the matter (T2-108):

MS ANDERSON:   No, no.  I was just asking what report was made about it to Scott Splatt, not about what you said to Mr Watson.  So is that what you reported to Scott Splatt?I reported Chris Portoglou for starters, as protocol says, general manager first, then to the owners, word for word.

  1. [118]
    This method of reporting is consistent with Mr Fuller's evidence in an unrelated area when he said in effect that, in his communications with head office, there was a protocol to be followed in which in the first instance he spoke to the general manager, Mr Portoglou. After this, the line of communication was firstly with Scott Splatt and then with the "head honcho", Shane Splatt.
  1. [119]
    The evidence of Shane and Scott Splatt was consistent with this. Both said that they were informed by Mr Fuller of the relevant developments. The effect of Scott Splatt's evidence was that his understanding of the facts and circumstances associated with the termination relied on what he was told by Mr Fuller. The effect of Shane Splatt's evidence was that while he relied on information provided by Mr Fuller, he also had spoken to Mr Wallace and to the appellant about the attendance issues. Confirmation that these discussions had occurred however was not a subject raised during the evidence of either Mr Wallace or the appellant.
  1. [120]
    The effect of Mr Fuller's evidence was that the appellant had a history of failing to come to work when rostered to do so. He said that around every four weeks the appellant would take two or three unauthorised days off. He said that the absences occurred "often enough to get to the stage where his job was the line", and that he had spoken to the appellant about the issue on many occasions (T2-80).
  1. [121]
    Shane Splatt said that he was to be consulted on hiring and firing decisions. He said that both Mr Fuller and Mr Wallace had made him aware of the appellant's failings in terms of attendance and told him that the appellant was not turning up for work (T3-10). He also said that both he and Mr Fuller had spoken to the applicant about his attendance on "quite a few times". He said that the appellant was informed that if he did not correct the problem "he would have to be terminated". Shane Splatt considered that there was a pattern of poor attendance which he said would become evident from a perusal of attendance records.
  1. [122]
    Shane Splatt said that he made the call to terminate the appellant's employment. He said that, prior to the appellant's termination, he had been told by Mr Fuller that the appellant was not turning up for work and that "this was not a new problem". Shane Splatt said that Mr Fuller told him that sometimes the appellant did not turn up for work at all, without any notification or explanation.
  1. [123]
    The effect of Shane Splatt's evidence was that when he was informed that the appellant had failed to attend for work on 15 and 16 August 2016, he had instructed Mr Fuller to tell the appellant that he would be given notice and that he could exercise an option of working out his notice in the depot. Shane Splatt said that the appellant chose not to work out his notice and "walked out". Shane Splatt said that the appellant "would have", prior to his termination of employment, been given a final warning for unsatisfactory attendance by Mr Fuller.
  1. [124]
    While Shane Splatt's evidence was clear cut on an intention to terminate the appellant's employment, Mr Fuller's evidence was more nuanced, and it could be inferred on his evidence that there was no explicit instruction to sack the appellant and that he was open to the possibility that the appellant's services would not be terminated (T2-106):

Now, when he came in, you said you were loading goods on the forklift.  We’ve already talked about the conversation, but what I wanted to ask you about is in the DRT processes that you undertook, you didn’t normally sack someone because they hadn’t turned up to work for a day or two.  Is that right?I’ve answered that question and I’ve never sacked him.  I’ve never sacked anybody.

Okay.  Well, we’ve heard evidence about what you said to him.  You said, "You can either finish up today or you can work out the end of the week."  That’s your evidence?That’s what I said, and with that he just turned, never said a word, walked out.  And I’ve never seen him again. 

Well   ?It’s pretty simple.  It’s pretty straightforward.

It’s just, Mr Fuller, that when you tell someone that they’re done today or on Friday, they’re done working for you, that’s sacking, isn’t it?I didn’t sack him.  He walked out.

Okay.  But when you say those words your intention was that he would stop working.  Correct?Well, in a way, yes, but then my intention was maybe he would go, oh, you know, I might lose my job here.  I better, you know, have a chat and maybe pull my head in.  But, obviously, he didn’t want to do it.

Well, did you say to him, well, look, if you talk to Chris Portoglou in a couple of weeks or months you might be able to come back on board?That’s right, exactly.  I did say that to Brendan.

And what you were trying to do was encourage him to straighten up   ?Pretty much, yeah.

  1. [125]
    The appellant agreed that Mr Fuller told him that he might get his job back. The communication of this proposition by Mr Fuller suggested that there was less than full conviction in the decision to end the employment, or that a decision to terminate was not necessarily final. However, the effect of the appellant's evidence was that he did not interpret Mr Fuller's comment in the same way. He understood that he had been sacked and that he was given the option of finishing up immediately or working through until the end of the week. In this regard, he elected to finish immediately.
  1. [126]
    Scott Splatt's understanding of the relevant facts and circumstances was different to what was communicated in the evidence of Shane Splatt and Mr Fuller. It was his evidence that he had no contemporaneous awareness that the appellant's attendance record was unsatisfactory. It was his understanding, based on what he was told by Mr Fuller, that the appellant had been away from work without notice for four or five days and that the appellant had abandoned his employment. It was his impression that when the appellant came into the depot on 17 August 2016, he did so for the purpose of telling Mr Fuller that he was finished and would not be working at the depot any more (T2-39):

All right.  Now, was there some issue with Mr Watson in and around August 2016 about his performance of his work?Well, I was – then I was led to believe that he hadn’t been – Brendan hadn’t been turning up for quite a few days.

Who told you that?Martin Fuller.

All right.  Did you have any discussions with Fuller about what should happen?Well, you just need to find out what’s going on.  Find out why Brendan isn’t at work.  Has he just walked away from his job?  Or find out what – what the problem is there, yeah.

And did you – did you find out what the problem was?  Did Mr Fuller advise you of what the outcome of that might have been?Well, he said that once then Brendan came in, he just said he didn’t know why he didn’t come in.  But on a 2 o’clock he came in one morning at 2 am and he confronted him about not being in for the previous four to five days of working.  So it was either four or five days, I can’t quite remember.  He said, and at quarter to 3 Brendan had said – left and said that he wasn’t working here no more.

All right?So the exact words were, “Why wasn’t to” – or what he said, I don’t really know, to be honest   

Okay.  All right?    I wasn’t there, so   

  1. [127]
    In his evidence, Mr Fuller said in effect that diary entries would confirm a pattern of absenteeism. Shane Splatt said that the same pattern would be evident from a perusal of attendance records. However, neither attendance records nor Mr Fuller's diary were tendered into the evidence and there is no objective documentary evidence supporting the existence of a pattern of absenteeism. The only particulars provided by Mr Fuller was his statement that that the appellant would work for four weeks before disappearing for two or three days.
  1. [128]
    While the evidence of both Mr Fuller and Shane Splatt was to the effect that the appellant had been put on notice that further attendance problems would lead to the loss of his job, it is doubtful that the appellant had been issued with a final warning to this effect prior to his absences from work on 15 and 16 August 2016. It was not claimed that any written warning was in existence, but Shane Splatt said that Mr Fuller would have communicated such a warning. However, Mr Fuller did not make any explicit claim that he had issued a final warning.
  1. [129]
    The appellant disputed any suggestion that his attendance record demonstrated unreliability or a pattern of unreliability around attendance. He accepted that he did remain off work on 15 and 16 August 2016 and did not inform his employer of his absence. The appellant denied that there was any prior history of non-attendance and denied that he had been counselled in respect of his attendance record. He said that he had never received any prior warning from Mr Fuller in relation to his attendance, either verbally or in writing. He said that if he took a sick day, he always informed his employer of his inability to attend for work.
  1. [130]
    The effect of Scott Splatt's evidence was that if a driver were away without explanation for a couple of days, he would firstly try to make contact with the driver and ascertain the reason for his absence. He agreed that it would not be reasonable to sack a driver who had failed to attend for work for two days without having made contact with the driver (T2-50). 
  1. [131]
    Shane Splatt's evidence was similar to the extent that if his understanding was wrong and that there was not a longer term history of absenteeism, and if the appellant had not been given a prior warning, it would not have been appropriate to terminate the appellant's employment on the basis of his absence from work for two days without notifying his employer.
  1. [132]
    The appellant said that after the termination, he went home in shock. The effect of his evidence was that he was depressed by a turn of events in which, after having elected to do the right thing and report instances of workplace misconduct to his employer, the consequence was that he lost his job. The appellant said that he was "down and out", and decided to make an appointment to see his general practitioner.

Reasoning

  1. [133]
    I accept that the appellant was a "worker" pursuant to s 32(1) of the WCR Act, and that he had sustained a personal injury in the form of a psychological or psychiatric injury. I also accept that the injury arose out of or during the course of the appellant's employment and that his employment was the major significant factor contributing to the development of his injury.
  1. [134]
    The appeal turns primarily on the evaluation of management action associated with the employer's response to the appellant's allegations and to the employer's reasons for terminating the appellant's employment.
  1. [135]
    The evidence is insufficient to substantiate the appellant's claims that pressure to work long hours, bullying and harassment, or the use of unsavoury or filthy language were significant stressors in relation to the development of the appellant's psychiatric condition. I accept that these stressors, if proven, were illustrative of bullying type behaviours and were behaviours which may have caused the appellant some stress. But in a multi-factorial context, I am not persuaded that the appellant's injury was causally associated, to any significant extent, with management action relevant to these claimed stressors. This view is consistent with Dr Curtis' evidence where, in his report, he made the distinction between the various stressors impacting on the appellant (page 3): 

His warnings to the employer proved to be so unwelcome that he was soon dismissed. Realising that he had been labelled as an informer within the trucking industry, Mr Watson knew that he had lost his career. Consequently he developed the disease of Major Depressive Disorder. The depressive disease in milder form had been reactive to Mr Martin Fuller's bullying which Mr Watson's two friends in the workplace had witnessed.

  1. [136]
    The essence of Dr Curtis' report was that the appellant's injury was caused by his employer's response to the allegations, which included the employer's decision to terminate his employment. In his report, Dr Curtis said that the "employer's response had dismayed and traumatised" the appellant "to the extent that his mental health broke down with a loss of coping skills, stress intolerance and loss of adaptation to work".
  1. [137]
    The effect of s 32(5)(a) of the Act is that, for the appellant to succeed, his injury must not have arisen out of or in the course of reasonable management action taken in a reasonable way. Three main lines of enquiry are necessary. The first is the identification of stressors or the activities of management that were claimed to have contributed to the development of the injury. The second inquiry is whether the factual matrix supports findings to the effect that the management action complained about actually occurred and happened in the manner claimed. The third enquiry involves an evaluation of the management action in question and the consequential determination of whether the management action was reasonable and taken in a reasonable way.
  1. [138]
    No evidence was adduced in the proceedings suggesting that the appellant's motivation in making the allegations was anything other than well intentioned or that he did not believe that his allegations were true. The appellant's perspective is supported circumstantially by the accepted evidence that before his allegations were made there were rumours of drug use in the workplace, and that a number of drivers had reported suspected drug use to Mr Fuller. Further, after the event, Mr Wallace had been found in possession of drugs and an ice pipe after leaving the depot and driving home from work.  
  1. [139]
    The appellant appreciated that Shane and Scott Splatt had given him another opportunity after recording a drug driving conviction and, although overstated in his evidence, I accept that he felt a sense of loyalty and commitment to his employer. It was this sense of duty that motivated him to inform the Splatt's that conduct was occurring at the Rocklea Depot which he believed could have significant adverse impacts on the DRT business. It would have been unfair to the appellant, and not reasonable, had the employer not diligently conducted a competent investigation into the allegations.
  1. [140]
    I accept that it would have been a difficult decision for the appellant to escalate his concerns to head office. The appellant himself perceived that the consequences of raising the allegations were that he had acquired the reputation within the trucking industry as an informant or a "dogger", and that he had lost his job.
  1. [141]
    From the employer's perspective, the response to the appellant's allegations had been fair and reasonable. Management listened to the appellant's allegations, took the allegations seriously, investigated the allegations and informed the appellant of the outcome of the investigation.
  1. [142]
    However, in my view, legitimate doubts exist about the effectiveness and the adequacy of the investigation and about the justification for the termination of the appellant's employment. Further, inconsistencies in the respondent's evidence in both areas do not assist the defence of the appeal.

Flaws in the investigation

  1. [143]
    While I accept that the employer was not a large employer and that both financial and human resource limitations most likely constrained the scope and nature of the investigation, I am nevertheless satisfied that errors were made and that flaws in the investigative process made it unlikely that the appellant's claims would be adequately investigated, and unlikely that his allegations would be substantiated.
  1. [144]
    Firstly, there was confusion about who was responsible for the conduct of the investigation and disagreement among the respondent's witnesses about the correct protocols to be followed.
  1. [145]
    Secondly, Mr Fuller's approach to fact finding was in some respects basic and lacking rigour. It was unlikely that the approach to fact finding would be productive.
  1. [146]
    Thirdly, in terms of the investigation led by Shane Splatt, there was an over-reliance on CCTV as the primary mechanism for determining the fate of the allegations. While Shane Splatt also asked Mr Fuller to be vigilant, he concluded that wrongdoing or otherwise would be conclusively established by a review of CCTV footage. Given the inconsistencies in the evidence about the coverage of CCTV cameras, Shane Splatt's investigation may have been doomed ab initio.
  1. [147]
    Finally, the investigation was commenced on the flawed premise that a criminal standard of proof was required to substantiate the allegations, when this standard was not relevant to a workplace or disciplinary investigation.
  1. [148]
    I accept that the failure of the investigation to substantiate his allegations would have exacerbated the appellant's stress and anxiety. A failed investigation left the appellant with no vindication. The process had delivered no dividend for him. There was no offsetting for the ignominy of being labelled a "dogger", there would have been question marks over his credibility, and he would have been worried about his standing in the eyes of management, particularly Shane and Scott Splatt. When his employment was terminated very shortly after this, the appellant perceived that his loss of job was associated with his decision to raise the allegations.

Conduct of investigation

  1. [149]
    There was conflicting evidence about who was in charge of the investigation. While the evidence of Mr Fuller and Mr Scott Splatt was to the effect that Mr Fuller was responsible for the investigation, Mr Shane Splatt said that the responsibility resided with him.
  1. [150]
    Confusion around who was conducting the investigation, and differences in how the investigation was conducted, raises a doubt about the effectiveness and integrity of the investigative process.
  1. [151]
    Shane Splatt's approach excluded and prohibited interviews of staff and relied on a third party review of CCTV footage, while Mr Fuller's investigation included informal enquiries of staff and other workers and the review of CCTV footage. 
  1. [152]
    There is a significant doubt about whether either the method employed by Mr Fuller or the method employed by Shane Splatt would be likely to produce definitive outcomes. It is a matter for consideration whether the reliance on CCTV footage was justified, and there is a significant doubt about the efficacy of Mr Fuller's attempts to elicit facts from staff and others.

Fact finding

  1. [153]
    Mr Fuller's method of eliciting facts was unlikely to be productive. Mr Fuller would have been aware of a reticence within the workforce to provide information. It would always have been difficult in any circumstances to persuade drivers to volunteer adverse information about co-workers.
  1. [154]
    I accept that Mr Fuller may have concluded that the best prospect of success would be through brief informal exchanges with drivers in which they were invited to provide information about unusual behaviour or suspicious activity. However, an alternative view is also open to the effect that the making of cursory enquiries of a few drivers does not suggest that any serious or genuine investigation was underway.  
  1. [155]
    However, an effective investigation would have proceeded within a framework in which all staff were directed to attend interviews, where confidentiality around the interview process was guaranteed, and where there was an absolute assurance of anonymity.
  1. [156]
    While access to specialist expertise may have been problematic, the allegations were serious and the employer was obliged to implement an effective investigative model and to ensure that there was sufficient integrity in the process.

Reliance on CCTV

  1. [157]
    The starting point is to consider whether the allegations made could be determined by a review of CCTV footage. The principal allegations in this regard were the claim that Mr Wallace was smoking ice in the office and that Mr Wallace was siphoning fuel from DRT trucks.
  1. [158]
    While, on Mr Fuller's evidence, a review of CCTV footage may assist in the discovery of fuel theft, it could not on the evidence of Scott Splatt and Mr Fuller have assisted in the investigation of drug use within the office. In this regard, both Scott Splatt and Mr Fuller said that there was no CCTV coverage of the inside of the office.
  1. [159]
    It is difficult in these circumstances to reconcile Shane Splatt's evidence which was to the effect that CCTV coverage was extensive and was capable of surveiling all areas of DRT activity.
  1. [160]
    The effect of Shane Splatt's evidence was that the allegations could be determined by a review of CCTV footage which he said was provided by cameras which were the property of the Brisbane Market Trust. In this regard, Shane Splatt spoke in his evidence about the extensive coverage of CCTV cameras and the implication that I drew was that, if there was any nefarious activity occurring, such activity would be captured by the cameras, including activity inside the DRT office.
  1. [161]
    As I followed Mr Fuller's evidence, a review of CCTV footage was only likely to be productive in relation to the allegation of diesel theft. There was no evidence that he considered reviewing CCTV footage in relation to the allegation that ice was being smoked in the office.
  1. [162]
    In terms of the allegation of fuel theft, Mr Fuller's evidence was to the effect that, after reviewing CCTV footage, it was apparent to him that the range of the CCTV cameras was not sufficient to capture the entire location where prime movers were parked and that the CCTV footage could not identify whether diesel fuel was being stolen.
  1. [163]
    Shane Splatt did not review any CCTV footage and left it to the Brisbane Market Trust to inform him if any wrongdoing had been identified. Shane Splatt did not say in his evidence whether the failure to identify wrongdoing was attributable in whole or part to limitations on camera coverage. His evidence was simply that wrongdoing had not been identified.
  1. [164]
    In the face of the inconsistencies referred to, it is difficult to rely on Shane Splatt's evidence in circumstances where Shane Splatt did not view any CCTV footage, where evidence was not adduced from the Brisbane Market Trust establishing the range of CCTV cameras, and where no positive evidence was adduced to the effect that the CCTV cameras had captured images of both the diesel fuel tanks of the vehicles and of the inside of the office. 
  1. [165]
    In circumstances where Mr Fuller had worked in the depot for eleven years, had viewed CCTV footage himself, had identified the limitation on coverage in terms of the fuel theft allegation, and knew that CCTV coverage did not extend to the inside of the office, I prefer his evidence to the evidence of Shane Splatt.
  1. [166]
    The effect of this conclusion is that the review of CCTV footage made no material contribution to the determination of the truthfulness of the allegations. Given the inadequacy of the other investigative methods employed, it is reasonably clear that the investigation commenced was never likely to have substantiated the allegations.

Criminal standard of proof

  1. [167]
    The investigation was commenced on the false premise that the criminal standard of proof had to be satisfied, and that Mr Wallace had to be caught "red handed" before any action could be taken. However, in employment law, for a disciplinary finding to be made, it was only necessary for the employer to demonstrate that an adequate investigation had been conducted and that a genuine and reasonable belief had been formed that inappropriate conduct had occurred.
  1. [168]
    An adequate investigation would have involved a review of all the available evidence including the outcome of interviews of employees and other relevant persons and the outcome of an interview with Mr Wallace in which he was given the opportunity to defend himself against the allegations and provide information relevant to the investigation.
  1. [169]
    The preoccupation with the criminal standard of proof ultimately meant that the workplace investigation into allegations of misconduct was unnecessarily narrowed with only photographic evidence of guilt deemed to be a relevant consideration.

Reason for termination

  1. [170]
    If the evidence establishes that the termination of the appellant's employment was not warranted or was a mistake or was a product of misunderstandings, then the act of termination is, in itself, an exercise of unreasonable management action. It is also management action which I accept was casually connected with the development or exacerbation of the appellant's injury.
  1. [171]
    The difficulty for the respondent, on the evidence, is that the respondent's witnesses, in giving their evidence about the ending of the appellant's employment, provided three different versions of events and versions which in part were not reconcilable.
  1. [172]
    The essence of Mr Fuller's evidence was that he had to address a history of absenteeism, but that termination was not necessarily predetermined. He did not say that he was under an explicit direction to terminate the appellant's employment. To the contrary he said in effect that it was possible, after some discussion, the appellant would give undertakings and would retain his job. In the end result, he considered that the appellant had abandoned his employment, not that he had sacked him. Finally, and significantly, Mr Fuller did not give clear evidence that he had provided the appellant with a final warning.
  1. [173]
    Shane Splatt's evidence was that the appellant had a history of absenteeism, that he had been given a final warning, and that he had made the call that the appellant's services should be terminated. In terms of the final warning, Shane Splatt relied on information passed on to him by Mr Fuller.
  1. [174]
    On Scott Splatt's evidence, the appellant's services were not terminated but that the appellant had abandoned his employment. This understanding was broadly consistent with Mr Fuller's position. However, Scott Splatt's understanding diverged from Mr Fuller's evidence in that he thought that the appellant had been off work for four or five days without explanation.
  1. [175]
    It is open to conclude, on the differing versions of events, that there may not have been a compelling or valid reason justifying the decision to terminate the appellant's employment. Such a conclusion is reinforced by the failure of the respondent to produce attendance records supporting the defence that the appellant's employment was terminated because of a pattern of absenteeism.
  1. [176]
    In the appellant's Statement of Facts and Contentions, the stressors identified by the appellant included a claim that the appellant's employment had been terminated mainly because the appellant had raised allegations. The anticipated defence to this claim would have been the identification of the employer's reason for terminating the employment, and given that the reason related to a pattern of absenteeism, the production of records establishing a pattern of absenteeism. This evidence however was not produced.
  1. [177]
    It is also open to conclude that the appellant had never been given a final warning. It was only Shane Splatt who said in clear terms that he believed a final warning had been given by Mr Fuller. However, in this regard he was relying on information provided by Mr Fuller, and in circumstances where Mr Fuller did not unambiguously claim that he had given a final warning, I prefer a conclusion that no such warning was given. In the event of such a finding of fact, both Shane and Scott Splatt said in effect that the appellant's services should not have been terminated.
  1. [178]
    The evidence is insufficient to support a finding that the appellant's employment was ended because of a pattern of absenteeism. If there were a pattern of absenteeism, documentary evidence should have been provided and the appellant cross-examined about the individual absences said to make up the pattern. The effect of this finding is that no valid reason for the termination has been provided, and that the termination has not been the product of reasonable management action.

Conclusion

  1. [179]
    It is not necessary that I enter a finding about whether the appellant's employment was terminated because of the fact that he had made the allegations. It is sufficient that I conclude that whether through misunderstanding or otherwise, there was not a valid reason for the termination. Once the termination occurred, I accept that it would have contributed to, or exacerbated, the development of the appellant's disorder.
  1. [180]
    I accept that a flawed or inadequate investigative process and an unjustified decision to terminate the appellant's employment were factors which were causally connected with the appellant's injury, and were factors which constituted unreasonable management action.
  1. [181]
    The appeal should be allowed. The appellant's injury is not removed from the operation of s 32(1) of the Act by s 32(5) of the Act.

Orders

  1. [182]
    The decision of the Workers' Compensation Regulator's Review Unit dated 19 January 2017 is set aside and replaced with a decision that the appellant's application for compensation dated 31 August 2016 is one for acceptance.
  1. [183]
    The respondent is to pay the appellant's costs of, and incidental to, the appeal.
Close

Editorial Notes

  • Published Case Name:

    Brendan James Watson v Workers' Compensation Regulator

  • Shortened Case Name:

    Watson v Workers' Compensation Regulator

  • MNC:

    [2019] QIRC 163

  • Court:

    QIRC

  • Judge(s):

    Black IC

  • Date:

    29 Oct 2019

Appeal Status

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

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