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Council of the City of Gold Coast v Workers' Compensation Regulator[2019] QIRC 164

Council of the City of Gold Coast v Workers' Compensation Regulator[2019] QIRC 164

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Council of the City of Gold Coast v Workers' Compensation Regulator [2019] QIRC 164

PARTIES:

Council of the City of Gold Coast

Appellant

v

Workers' Compensation Regulator

Respondent

CASE NO:

WC/2018/54

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

31 October 2019

HEARING DATE:

9-11 September 2019

MEMBER:

Pidgeon IC

HEARD AT:

Brisbane

ORDERS:

  1. The appeal is dismissed and the decision of the Regulator dated 16 February 2019 is upheld.
  2. The Appellant is to pay the costs of, and incidental to the Respondent.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL BY EMPLOYER AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – where psychological injury is accepted – whether personal injury is caused by management action – whether management action was reasonable.

LEGISLATION:

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

CASES:

Church v Workers' Compensation Regulator [2015] ICQ 031.

Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100.

APPEARANCES:

Mr P Rashleigh of Counsel, instructed by DWF (Australia)

Mr S Sapsford of Counsel, directly instructed by the Workers' Compensation Regulator

Reasons for Decision

Background

  1. [1]
    Mr Hooper made an application for psychological injury (dated 4 July 2017) occurring in the course of his employment by the Council of the City of the Gold Coast (GCCC).
  2. [2]
    The application was investigated by GCCC as a Self-Insurer who rejected Mr Hooper's claim in its reason for decision dated 10 October 2017.
  3. [3]
    Mr Hooper made an application for review to the Regulator and in its reasons for decision dated 16 February 2018 set aside the decision of the Self-Insurer and substituted a decision to accept Mr Hooper's application for compensation.
  4. [4]
    It is this decision that the GCCC appeals.

Appeal

  1. [5]
    An appeal of this nature is conducted by way of a hearing de novo[1] and as such, the decisions of the Self-Insurer and the Regulator are of historical significance only.
  2. [6]
    The Appellant bears the onus to prove on the balance of probabilities that Mr Hooper has not suffered an injury within the meaning of the Workers' Compensation and Rehabilitation Act 2003 (the WCRA).
  3. [7]
    There is no dispute that Mr Hooper is a worker for the purposes of the WCRA.[2]
  4. [8]
    It is not disputed that Dr John Chalk, psychiatrist, diagnosed Mr Hooper as having an adjustment disorder with anxious mood.  Dr Chalk's report of 15 August 2017 states:

I think he developed a brief adjustment disorder with anxious mood, and I think it developed as a consequence of the events that occurred as he describes.  However, it is pretty clear that he also recovered reasonably quickly, and had some brief psychological treatment.[3]

Legislation

  1. [9]
    The relevant part of the legislation is set out below:

32 Meaning of injury

  1. An injury is personal injury arising out of, or in the course of, employment if
  1. for an injury other than a psychiatric or psychological disorder the employment is a significant contributing factor to the injury; or
  2. for a psychiatric or psychological disorder the employment is the major significant contributing factor to the injury.

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

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

  • action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker
  • a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment.
  1. [10]
    To be successful in this Appeal, the GCCC must demonstrate on the balance of probabilities that:
  1. The injury did not arise out of or in the course of Mr Hooper's employment or that employment was not the major significant contributing factor to the psychiatric injury he sustained, failing that;
  2. The injury arose out of or in the course of management action and that management action was both reasonable and taken in a reasonable way.

Did the injury arise out of employment?

GCCC submissions

  1. [11]
    GCCC submits that Mr Hooper's inappropriate and unlawful actions in accessing the iSPOT system are what led to the investigation and the interview and that these actions had nothing to do with his employment at the Council, rather, it was his own inappropriate and unlawful conduct that precipitated his injury.
  2. [12]
    GCCC states that employment was not the real or effective cause of injury, it was merely the setting in which it occurred.  The only real or effective cause or the major significant contributing factor to the injury, was his own conduct.
  3. [13]
    GCCC referred me to the decision in the matter of Croning v Workers' Compensation Board of Queensland,[4] where consideration was given to whether employment being the setting in which events took place necessarily led to a conclusion that employment was the significant contributing factor to the injury.
  4. [14]
    GCCC states Mr Hooper may have suffered a personal injury that arose out of, or in the course of his employment, however disputes any temporal connection and that there was no injury sustained under s 32 of the WCRA as employment was not the significant contributing factor.

Regulator Submissions

  1. [15]
    The Regulator submits that the factual circumstances support the injury arose as a result of the interview of 23 June 2017 and that the injury arose in the course of Mr Hooper's employment.
  2. [16]
    The Regulator says that Dr Chalk identified the change in the direction which occurred in the course of the interview as the major significant contributing factor and that this is also the uncontroverted evidence of Mr Hooper.

Consideration of Submissions re: injury arising out of employment

  1. [17]
    There is no doubt that the actions of Mr Hooper in accessing the iSPOT documents for his own reasons unconnected to work; the conversation with his neighbour regarding the making of a complaint and the threatened reprisals against the City Law Officer, were not authorised or sanctioned by the GCCC.  This is evidenced by the reporting of these actions by GCCC to the Crime and Corruption Commission (CCC).[5]
  2. [18]
    Mr Hooper would not have had access to these documents and his actions would not have led to the referral of the matter from the CCC back to the GCCC for investigation if not for his employment with the GCCC.
  3. [19]
    This does not however lead directly to a conclusion that the main significant contributing factor the injury was his work.  Mr Hooper accessed the documents at work but his behaviour relating to the content of those documents was completely outside of his employment.
  4. [20]
    However, the investigation fact finding interview did take place in the workplace and was undertaken by an employee of GCCC working in the Integrity and Ethical Standards Unit IESU.
  5. [21]
    It is the investigation interview that Mr Hooper identifies as the cause of his injury. This is also the view of Dr Chalk.
  6. [22]
    There are no competing causes put forward by the GCCC save for the idea that Mr Hooper's behaviour was the reason for the interview occurring and for the content of the interview when it 'took a turn'.
  7. [23]
    In circumstances where the interview occurred at work, in relation to a complaint made against Mr Hooper as an employee and under the auspices of the CCC but undertaken by the GCCC, I am satisfied that the injury has arisen out of his employment and that employment was the major significant contributor to the injury.

Did the injury arise out of reasonable management action taken in a reasonable way?

Appellant Submissions

  1. [24]
    GCCC submits that Mr Hooper's injury arises out of reasonable management action taken in a reasonable way in connection with his employment.
  2. [25]
    GCCC says that the investigation was conducted in accordance with the corruption in focus policy and the whistle-blower's public interest disclosure policy.

Where the subject officer is to be interviewed, there is no requirement to provide them with all, or specific, details of the allegations before the interview.  It could be appropriate to delay informing them of the substance of the allegations until the interview, if it appears that evidence would be tampered with or witnesses approached.[6]

  1. [26]
    It is submitted that the evidence given by Mr Quaizon, the investigator, demonstrates that when he emailed Mr Hooper on 21 June 2017 and confirmed Mr Hooper's understanding of what the allegations being investigated were, that Mr Quaizon did not want to tell Hooper of all of the allegations because of his fear of reprisal against a City Law Officer given she was a person covered by the Public Interest Disclosure Policy.
  2. [27]
    The GCCC says that the only issue of management action, if relevant, is the failure to disclose the full ambit of allegations and Mr Hooper's perception that the conduct was overzealous and lacked transparency.
  3. [28]
    GCCC says that the management action was reasonable in the circumstances of the case, being that:
  • Mr Quaizon had a complaint from a member of the public which included a threat of reprisal against a city law officer;
  • Mr Hooper had made inappropriate use of the iSPOT system to access documentation in a way that he admitted was inappropriate and unlawful;
  • The interview was conducted in line with the policies of exhibit 8 and under the auspices of the CCC.

Respondent Submissions

  1. [29]
    The Appellant must establish whether the management action was both reasonable and taken in a reasonable way.
  2. [30]
    The Appellant submits that a conclusion that the injury arose out of the interview of 23 June 2017 leads to a conclusion that the injury arose out of management action. The interview was held with a view to bring to the attention of Mr Hooper certain conduct which was of concern to GCCC.  It is submitted that this is quintessential conduct amounting to management action.
  3. [31]
    The Respondent concedes that it was reasonable management action for the GCCC to investigate:
  • the interchange between Mr Hooper and his neighbour, Dr Frank McKeown occurring early December 2016 and the subject of a complaint by Mr McKeown in a document dated 22 December 2016;[7]
  • Mr Hooper's use of his position to gain access to 'iSPOT' on multiple occasions between 2013 and December 2016; and
  • Allegations regarding Mr Hooper making threats concerning a Council Officer.
  1. [32]
    The Respondent submits that management action which was not taken in a reasonable way was where the employer through Mr Quaizon engaged in the following conduct:
  • A failure to appraise Mr Hooper of the allegations intended to be put to him in the course of the interview conducted on 23 June 2017;
  • The provision of false and misleading information as to the subject matter of the interview by way of emails from Mr Quaizon dated 21 June 2017 and 22 June 2017;
  • A failure to facilitate the opportunity of a support person for Mr Hooper by a refusal to allow an adjournment to have his support person of choice present;
  • The provision of false and misleading information by Mr Quaizon regarding the necessity of a support person to both Mr Hooper and Mr Toal; and
  • Conduct of the interview itself involving the following:

A failure to terminate and adjourn the interview when it was identified by Mr Hooper as involving allegations of which he was unaware; and

The continuation of the interview including cross examination of Mr Hooper with respect to alleged threats to a Council Officer after he specifically stated that he wished the interview to be terminated.

  1. [33]
    The Respondent says that each of the above issues informs as to a serious miscarriage of management action such that the provisions of s 32(5)(a) and (b) of the WCRA have no application.  Accordingly, the psychiatric injury sustained by Mr Hooper is not excluded from the operation of those provisions and he has an entitlement to compensation.

Allegations and Subject Matter of interview

  1. [34]
    Mr Hooper was of the belief that the purpose of the interview was to discuss the interaction between himself and Dr McKeown which involved a neighbourhood dispute and where Mr Hooper was acting in a private capacity despite wearing his work uniform.
  2. [35]
    In response to Mr Hooper's email of 21 June 2017 at 11.48am, Mr Quaizon confirmed by email on 21 June 2017 at 2.58pm that the interview was to address the interaction described above. In this communication, Mr Quaizon stated that Mr Hooper was "correct in your understanding of the allegations received."
  3. [36]
    Mr Quaizon further compounded the misinformation provided to Mr Hooper by the following passage contained in his email of 22 June 2017 at 12.14pm:

As you have clearly indicated on multiple occasions; the allegations in question involves (sic) a private matter and you were not acting on behalf of the City if you genuinely believe this position to be true, then this interview tomorrow morning should be a relatively straight forward matter.

  1. [37]
    The interview went well beyond the conversation between Mr Hooper and Dr McKeown by way of the following:

Allegations of threats made against a City Law Officer;

Reference to Mr Hooper's access to screenshots of iSPOT in relation to 2016 matters; and

Reference to historical access to iSPOT regarding 2015 matters.

  1. [38]
    The Respondent submits that:

Given the representation by Mr Quiazon to Mr Hooper in the email of Mr Quiazon of 21 June 2017 the inescapable conclusion is that he deliberately misled Mr Hooper as to the interview content and scope.

Support Person

  1. [39]
    The Respondent submits that the allegations to be put to Mr Hooper were most serious in nature and if established were likely to lead to serious sanctions.
  2. [40]
    It is not in dispute that by email dated 21 June 2017, Mr Hooper was advised of the opportunity to bring a support person to the interview, however the timing of that advice where the initial contact was 20 June 2017 and the interview was planned for 23 June 2017 produced unfairness.
  3. [41]
    Mr Hooper requested that the meeting be rescheduled to another day in the following week as his support person, Mr Michael Toal was unavailable to attend on the nominated date.  This request was denied with the reasons for denial included in Mr Quaizon's email of 22 June 2017 (at 12.14pm) being:
  1. Confirmation by Mr Hooper as to his availability in conversation on 20 June 2017 which somehow equated in the view of Mr Quiazon to confirmation that the support person would also be available on that date
  1. Alleged sufficient notice of interview being three days.
  1. Somehow the expression of a desire by Mr Hooper for a Union Representative to be a support person supporting this decision.
  1. [42]
    The Respondent submits that the unfairness of the refusal of a support person is compounded as in the same email, Mr Quiazon underscores the possibility of disciplinary action if Mr Hooper did not attend the interview.  The Respondent says that this thereby effectively forced Mr Hooper to attend the interview without a support person.
  2. [43]
    The evidence of Mr Toal reveals that the request for adjournment of the meeting was one working day, from Friday 23 June 2017 to the following Monday 26 June 2017 and that this request was refused.
  3. [44]
    The Respondent says that the "reluctant" agreement by Mr Hooper and Mr Toal that Mr Hooper would attend the interview without a support person was made based on their understanding of the alleged subject matter of the interview as per the email exchange between Mr Quiazon and Mr Hooper. 
  4. [45]
    The evidence before the Commission revealed that Mr Quaizon's suggestion that he had discussed the matter of a support person with Mr Toal before he informed Mr Hooper that Mr Toal had agreed that the interview could go ahead without a support person was not reflective of the timing of events.  In his evidence, Mr Quiazon accepted that the only discussion that occurred with Mr Toal was at 4.49pm and the email denying the request to reschedule the interview was sent to Mr Hooper on 22 June 2017 at 12.14pm.
  5. [46]
    The Respondent submits that denying the request to move the meeting was unreasonable management action taken in an unreasonable way where appropriate consultation with Mr Toal did not occur until after the decision was made.

Conduct of interview

  1. [47]
    The Respondent says that in his evidence Mr Quiazon was compelled to admit that the information provided to Mr Hooper by way of the email exchange contained in Exhibit 9 did not encompass the following:
  • The historical iSPOT access by Mr Hooper;
  • Allegations in relation to statements made by Mr Hooper to Mr McKeown about Ms Sullivan;
  • An interview which was wide ranging, contained extensive allegations not made known to Mr Hooper and was not by any stretch of the imagination a 'relatively straight forward matter' (as conveyed by Mr Quiazon to Mr Hooper in his email of 22 June 2017 at 12.14pm).
  1. [48]
    The Respondent says that the interview itself also constituted a miscarriage of management action where the following occurred:
    1. Observations by Mr Hooper at questions 867 and 873 that Mr Quiazon had 'misconceived (sic) him and had changed the subject matter (which undoubtedly occurred);
  1. The inaccurate allegation at Q.860 that Mr Hooper had made a threat 'to a City Law Officer';
  1. Reliance upon the conduct of interview protocol (Exhibit 19) to justify the conduct of interview protocol provided no such justification or excuse;
  1. The dishonest allegation by Mr Quiazon that they were 'talking about the complaint that we've received in relation to the upkeep of your, your property." (at Q.884);
  1. The specific statement by Mr Hooper at Q.1251 that he wished to terminate the interview which did not occur and following which he was cross examined by Mr Quiazon as to his threat towards a Council Officer;
  1. Reference to matters not previously advised by Mr Quiazon and without prior provision of appropriate documents to Mr Hooper commencing at Q.1132 with "we're not finished yet Rob" and continuing further at Q.1162 with "that was 2016 matters, these are 2015 matters";
  1. Conduct of the interview in the absence of a support person when it was full well known to Mr Quiazon the seriousness of the issues he was to present to Mr Hooper.

Evidence of Dr Chalk

  1. [49]
    The Respondent says that it is apparent Dr Chalk did not consider the initial contact by phone and email on 20 June 2017 to be of significance in the aetiology of the psychiatric injury sustained by Mr Hooper.
  2. [50]
    However, the Respondent submits that these events are not irrelevant when considered "part and parcel of management action in relation to the change of direction of the interview which occurred on 23 June 2017" and therefore the conduct leading up to the interview cannot be isolated from the conduct during.
  3. [51]
    Similarly, the Respondent says that the denial of the rescheduled meeting where Mr Toal was unavailable cannot be considered without reference to manner in which that occurred and the consequences for Mr Hooper with respect to the change in direction of the interview which occurred in the absence of a support person.
  4. [52]
    The Respondent says that

simply put, the events identified by Dr Chalk as factors (a) and (b) while not causative in and of themselves of psychiatric injury cannot be put aside where they inform as to the circumstances giving rise to the factor identified of factor (c) being the change in direction in the interview on 23 June 2017 and the reasonableness or otherwise of management action surrounding the event.[8]

  1. [53]
    The Respondent submits that Dr Chalk considered that Mr Hooper's perception of the IESU process as being deceitful and overzealous was part and parcel of those events contributory to his psychiatric illness.
  2. [54]
    The Respondent says:

That deceit was founded in the initial contact and email of 20 June 2017 and perpetuated in the email exchange contained in Exhibit 9. It is artificial to attempt to distinguish that initial event from its causative result being the deception made complete by the interview with Mr Hooper.[9]

Consideration of Submissions re: whether the injury arose out of reasonable management action taken in a reasonable way

  1. [55]
    My task is to consider the management action which was taken and determine whether it was reasonable and whether it was taken in a reasonable way.
  2. [56]
    There is no doubt that given the allegations against Mr Hooper and the referral of the matter to the CCC and then back to the GCCC to be dealt with, that it was reasonable for the GCCC to commence an investigation (including interviews) into the matters subject of the allegations.
  3. [57]
    I accept the evidence of Dr Chalk that the events leading up to the interview were "probably not material to the development of his condition" and that a lack of transparency about the process led to Mr Hooper feeling "ambushed".
  4. [58]
    I accept the Respondent's submission that the email exchange regarding the subject matter to be discussed at the interview and the denial of the request to change the date to allow for the availability of Mr Hooper's preferred support person are 'part and parcel' of the interview process.
  5. [59]
    Mr Hooper's decision to participate in the interview without a support person was taken following the email exchange where Mr Quiazon informed him that his understanding of the matters to be discussed at the interview was correct and in the context of advice that not attending the interview as directed could expose him to disciplinary action.
  6. [60]
    I have given consideration to Mr Quaizon's evidence that he held concerns that Mr Hooper may approach witnesses or seek to tamper with documents. 
  7. [61]
    I have also considered the section of the corruption in focus policy (at paragraph [25] above), which Mr Quiazon says he had in mind when he determined that he would not share with Mr Hooper the full extent of the allegations to put to him in the interview.
  8. [62]
    In response to a phone call and email informing Mr Hooper that the Integrity and Ethical Standards Unit (IESU) was in the process of "investigating allegations involving misconduct in relation to public office".[10] Mr Hooper sent the following email to Mr Quiazon:

Hi Joel

As discussed on the telephone yesterday, could you please confirm in writing that this is about some comments allegedly made by me to the property owner (name unknown) two doors down at number 37 Evergreen Drive Elanora (date unknown)?

We reside at number 33 Evergreen Drive Elanora for which I rent. (sic)

I was not there on behalf off (sic) or in any way related to any Council business whatsoever.  I had just arrived at the resident and was simply still in my Council uniform.

At the time I was talking to my son; he was showing me what he had done with regards to clearing the property.

The property owner (name unknown) two does down at number 37 Evergreen drive approached me.

As a tenant I was acting for the owner of 33 Evergreen Drive Elanora, once again I was not there as a Council Employee.

Your email states that you are investigating allegations involving misconduct, in relation to public office? Base don the circumstances, this is an extraordinary initial response from the Office of the CEO and I can only assume that it was sent to me in error.  If not, I deem the undertones to be both offensive and defamatory.

So again, just to be clear, could you please provide written confirmation that we are in fact talking about the same 'alleged' incident.  Specifically, I was at the property we rent and reside at and was approached by an owner from two doors down and because I was still in uniform, this has become a 'misconduct' investigation because of a conversation whilst on our rented property?

Following receipt of your email, I'm feeling both disappointed and depressed.  If a revised email is not received – with the undertones removed, I feel that I have no option to but to contact my union representative and request their presence at this interview.

Regards…[11]

  1. [63]
    I consider that the evidence of Ms Sullivan and Mr McKeown establishes that it was reasonable for Mr Quiazon to take precautions in line with those suggested by the corruption in focus policy.
  2. [64]
    However, the problem I have with the approach Mr Quiazon took is that while he may have been  seeking to withhold specific details of the allegations in order to present them in full at the interview, the effect of his actions in sending Mr Hooper the email of 21 June 2017 at 2.58pm and the email of 22 June 2017 at 12.14pm was not that of withholding allegations. Rather, the email of 21 June 2017 specifically stated: "You are correct in your understanding of the allegations received".
  3. [65]
    The email of 22 June 2017 at 12.14pm said:

As you have clearly indicated on multiple occasions; the allegations in question involves a private matter and you were not acting on behalf of the City, if you genuinely believe this position to be true, then this interview tomorrow morning should be a relatively straight forward matter.[12]

  1. [66]
    In my view, that statement regarding the allegations in question goes beyond withholding allegations. Rather it confirms to Mr Hooper that his understanding of the matters to be discussed is correct.
  2. [67]
    Mr Hooper made his decision to attend the meeting without a support person based on the representation Mr Quiazon made to him regarding the subject matter of the interview.
  3. [68]
    Further to this, the email sent to Mr Hooper on 21 June at 2.58pm says that the interview:

…represents an important part of the information gathering phase of the investigation process and it is your opportunity to provide a truthful account and provide any information relevant to the claims that have been made against you.

In this regard you mentioned that you were acting in a private capacity during this meeting with your neighbour and you were not acting on behalf of the City as a City employee.  Furthermore, as a tenant, you have also stated that you were acting on behalf of the owner, in this context, please feel free to bring to the interview any written documentation to support this claim…

…you may bring to the interview a support person (this includes your Union representative), however, if you wish to do so, please advise their name and if applicable, their position within Council, as soon as practicable…

  1. [69]
    Mr Hooper may, as is suggested by the Appellant, have had reason to believe that the allegations may reach further than those informed to him by Mr Quiazon, however, given Mr Quaizon's confirmation of Mr Hooper's understanding of the issues, I think it was fair for him to rely on that representation in preparing for the interview and giving consideration to the presence of a support person. 
  2. [70]
     As it happened, in any case, Mr Hooper informed Mr Quiazon that he wished to have his support person present and provided the name of the support person to Mr Quiazon when requesting that the meeting be rescheduled for the following week to allow his selected support person, Mr Toal, to be present.
  3. [71]
    In the circumstances, it was not reasonable for Mr Quiazon to deny Mr Hooper's request to postpone the meeting by one working day to enable him to have a support person present.  This is particularly the case where the support person was unavailable due to his employment arrangements and was an employee of the GCCC.
  4. [72]
    The matter had been ongoing for some time, having been first assessed following a complaint date of 22 December 2016 and returning to the GCCC on 1 March 2017 with arrangements being made for the interview to take place commencing with an email sent to Mr Hooper on 20 June 2017.
  5. [73]
    Given these timelines, it is difficult to see what prejudice could be suffered by the GCCC in postponing an interview to be conducted by an in-house investigator by one working day, particularly when 'precautions' had already been taken by Mr Quiazon to withhold detail regarding the allegations in line with the Corruption in Focus document.
  6. [74]
    Evidence from witnesses Sullivan and McKeown was presented to the Commission to demonstrate that the allegations were capable of being substantiated. Mr Hooper also provided evidence that he had accessed the iSPOT system inappropriately and had admitted to that, however he denied making threats about Ms Sullivan.
  7. [75]
    In his evidence, Mr Hooper said that while he was aware that his access to the information was inappropriate and unlawful, he thought that the interview was about the interaction he'd had with his neighbour.

Rashleigh:  See, Mr Hooper, you'd been accessing the iSPOT system inappropriately for some time, hadn't you?

Hooper:  Yes

Rashleigh:  All right. And when you asked Mr Quiazon about whether the interview was only about your interaction with Mr McKeown, you were thinking about those other issues, weren't you?

Rashleigh:  When you asked Mr Quiazon in that letter, in that email whether it was about the interaction between yourself and Dr McKeown, you had in mind those issues, didn't you, of your inappropriate access to the system?

Hooper:  No, no, I didn't.

Rashleigh:  Well, see you were told that the interview as about misconduct in public office?

Hooper:  Yes.

Rashleigh:  Correct? All right. So the only thing that – from your point of view, leaving aside the issue of Dr McKeown and Ms Sullivan, would have been this inappropriate access, wouldn't it?

Hooper:  No, I thought it was about the way I was talking to him onsite.

Rashleigh:  But there was – how were you talking to him onsite? It seemed as though it ended up amicably when you shook hands?

Hooper:  Well, it may have, but I was very arrogant and rude to him.

Rashleigh:  The same as you were to Terri Sullivan in December 2015 when she met you onsite. Correct?

Hooper:  No. No, I certainly wasn't.

Rashleigh:  See, because, Mr Hooper, you knew exactly what you had done, didn't you. You knew you had been accessing that information inappropriately and unlawfully for some time. Correct?

Hooper:  I knew that.

Rashleigh:  Yes, you knew that. That's exactly right, so-

Hooper:  But I didn't know that that was what the interview as about.[13]

  1. [76]
    An eventual finding of Mr Hooper's guilt is not relevant to whether representations made to him regarding the subject matter of the meeting or the denial of a shift in the meeting time and date to allow his union representative to be available were reasonable.
  2. [77]
    The recording of the full interview was played to the Commission and I have considered the contents of and conduct of the interview in the context of the email exchange regarding the subject matter for the meeting and the matter of the support person.
  3. [78]
    The interview canvassed matters beyond those which Mr Hooper was informed of and may reasonably have expected to be questioned on given Mr Quaizon's email.
  4. [79]
    The seriousness of the allegations to be presented to Mr Hooper warranted the employer accommodating a change of meeting time to facilitate the presence of a support person.
  5. [80]
    It is my view that the conduct of the meeting was not reasonable, this includes:

Continuation of questioning after Mr Hooper indicated that he wished to cease the interview;

the continuation of questioning after Mr Hooper raised his concerns that he had been 'misconceived' (sic) about the nature of the allegations to be considered; and

the phrasing of questions regarding threats to the City Law Officer which were apparently misunderstood by Mr Hooper and not clarified by Mr Quiazon.

  1. [81]
    Dr Chalk has determined that the change in direction of the interview on 23 June 2017 from the conversation Mr Hooper had with the neighbour to fresh allegations is of significant relevance to his identification of a brief adjustment disorder with anxious mood arising out of the events that Mr Hooper described that occurred.

Conclusion

  1. [82]
    For the forgoing reasons, I say that employment is the major significant contributor to the injury and that the injury did not arise of our reasonable management action taken in a reasonable way in connection with the worker's employment or the worker's expectation
  2. [83]
    Mr Hooper has an entitlement to compensation.
  3. [84]
    The appeal is dismissed and the decision of the Regulator is upheld.
  4. [85]
    The Appellant is to pay the costs of, and incidental to the Respondent.

Footnotes

[1] Church v Workers' Compensation Regulator [2015] ICQ 031.

[2] s 11.

[3] Exhibit 5, page 8.

[4] (1997) 156 QGIG 100.

[5] Exhibit 6.

[6] Exhibits 8, page 5.

[7] Exhibit 10.

[8] Respondent submissions of 11 September 2019 at [38].

[9] Respondent submissions of 11 September 2019 at [41].

[10] (Exhibit 9, email of Tuesday 20 June 2017 2.11pm),

[11] (Exhibit 9 email of Wednesday 21 June 11.48am):

[12] (Exhibit 9)

[13] (T2-33ll15-45)

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Editorial Notes

  • Published Case Name:

    Council of the City of Gold Coast v Workers' Compensation Regulator

  • Shortened Case Name:

    Council of the City of Gold Coast v Workers' Compensation Regulator

  • MNC:

    [2019] QIRC 164

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    31 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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