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Gibson v Workers' Compensation Regulator[2019] QIRC 184

Gibson v Workers' Compensation Regulator[2019] QIRC 184

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Gibson v Workers' Compensation Regulator [2019] QIRC 184

PARTIES: 

 

Gibson, Alina

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2018/107

PROCEEDING:

Appeal against decision

DELIVERED ON:

HEARING DATES:

 

2 December 2019

19 February 2019

20 February 2019

12 April 2019 (Respondent Submissions)

8 May 2019 (Appellant Submissions)

23 May 2019 (Submissions in Reply)

HEARD AT:

Brisbane

MEMBER:

Knight IC

ORDERS:

 

  1. The appeal is dismissed
  2. The decision of the Respondent dated 26 April 2018 is affirmed
  3. The Appellant is to pay the Respondent's costs of and incidental to this appeal.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION – Psychiatric or psychological injury – alleged bullying and harassment – unreasonable treatment by Manager – whether events occurred in the manner described – whether employment is a major significant contributing factor – whether injury arose out of reasonable management action taken a reasonable way – determined injury arose out of reasonable management action taken in a reasonable way.

LEGISLATION:

CASES:

Workers' Compensation and Rehabilitation Act 2003 s 32

Adams v Simon Blackwood [2014] QIRC 055

Versace v Braun [2005] ICQ 14

Davis v Blackwood [2014] ICQ 009

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

Ouisi and Q-COMP (C/2013/4)

APPEARANCES:

Mr M Donovan of Counsel, for the Appellant, instructed by Robinson Nielsen Legal.

Mr S P Gray of Counsel, for the Workers' Compensation Regulator, directly instructed.

Decision

 Introduction

  1. [1]
    Alina Gibson (the Appellant) appeals a decision of the Workers' Compensation Regulator made on 28 May 2018 confirming an earlier decision by Workcover that her claim for compensation was not one for acceptance.
  1. [2]
    Ms Gibson sustained a psychiatric injury during the course of her employment with Madad Pty Ltd trading as Sealy of Australia (Sealy). She consulted with her doctor on 12 March 2018 and was subsequently issued with a Workers' Compensation medical certificate. She lodged an application for compensation with WorkCover, which was rejected on 26 April 2018.
  1. [3]
    Ms Gibson was employed as a factory hand (cleaner) with Sealy. She was employed in a permanent full-time position. Her duties included cleaning the factory's machinery, along with other general cleaning responsibilities. The machines were quite large, to the extent that you could physically climb inside. It was necessary to use oil, spray guns and cloths to clean the machines. Once Ms Gibson had completed her cleaning, Mr Gerges (a qualified fitter and turner), and other maintenance staff would undertake maintenance on the machine.

Evidence

  1. [4]
    The following witnesses were called to give evidence for the Appellant: 
  • Ms Alina Gibson (Appellant / Factory Cleaner)
  • Dr Christine Lam (General Practitioner)
  • Mr Matthew Simmond (Clinical Psychologist)
  • Mr James Brennan (Co-worker)
  • Mr Jordan Guest (Co-worker)
  1. [5]
    The following witnesses were called to give evidence for the Respondent: 
  • Mr Ray Kemp (Direct Supervisor, Production Manager)
  • Mr Mitchell Torrielli (Day Shift Supervisor)
  • Mr Raouf Gerges (Co-worker)
  • Mr Tyrone Page (Factory Manager)
  1. [6]
    Mr Mitchell Torrielli is the day shift supervisor. He was not responsible for the Appellant's daily supervision, however he was responsible for ensuring that machinery cleaning was up to a certain standard.[1]

Nature of Appeal and Issues for Determination

  1. [7]
    The Respondent has conceded Ms Gibson is a worker in accordance with the relevant provisions of the Act. It is also conceded the Appellant has sustained a personal injury which was psychiatric in nature.
  1. [8]
    Except for those matters conceded by the Regulator, Ms Gibson carries the burden of proof in this appeal. The Commission must be satisfied:
  • Ms Gibson's personal injury, namely mixed anxiety and depression, is one arising out of, or in the course of employment;
  • That employment is the major significant contributing factor;
  • The injury is not removed from the definition of injury in circumstances where the employer has taken reasonable management action in reasonable way.
  1. [9]
    Section 32 of the Act relevantly provides as follows:

32  Meaning of injury

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

...

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

 ...

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

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

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

 (c)  action by the Regulator or an insurer in connection with the worker's application for compensation.

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

   action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker

   a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment

What are the nominated stressors or events contributing to the onset of the injury?

  1. [10]
    Among other factors, the determination of this appeal requires a consideration of the events or stressors which it is claimed led to the onset of Ms Gibson's psychiatric injury.
  1. [11]
    In this regard, the Appellant's Amended Statement of Facts and Contentions identified the following nine stressors as causing her injury:

One:  An incident in the lunchroom involving a verbal altercation between the Appellant and a co-worker, Mr Gerges, on 19 February 2018 (the lunchroom incident);

Two: A supervisor, Mr Torrielli, approaching the Appellant and blaming her for the incident the previous day;

Three: Mr Gerges bullying 'Rudolph' on 20 February 2018;

Four: Mr Gerges bullying the Appellant in or around March 2018;

Five:  Mr Gerges ignoring and bullying the Appellant in or around March 2018;

Six:  Mr Gerges unreasonably complaining of the Appellant's performance to a colleague, not a manager, on 9 March 2018, stating that he intended to complain about the Appellant (while in earshot);

Seven: Mr Kemp failing to investigate and enquire into the Appellant's complaint and leading her to believe that the meeting on 12 March 2018 would be to her benefit and to resolve her complaint;

Eight:  The conduct of Mr Gerges and Mr Kemp in the meeting of 12 March 2018;

Nine: Mr Page, the factory manager, failing to investigate and enquire into a bullying complaint in or around late 2016.

  1. [12]
    The Respondent submits Ms Gibson's appeal should be dismissed in circumstances where:  
  • Ms Gibson's personal injury has not arisen out of, or in the course of, her employment with Sealy; and/or
  • Ms Gibson's employment is not the major significant contributing factor to her injury because the claimed stressors have not occurred in the manner as alleged by her and/or
  • if it is decided that Ms Gibson suffered a personal injury in accordance with section 32(1)(b) of the Act, then Ms Gibson's personal injury has arisen out of, or in the course of, reasonable management action taken in a reasonable way by Sealy in connection with Ms Gibson's employment and is therefore excluded by the reasonable management action provisions of the Act because:
  1. (a)
    Mr Torrelli spoke with the Appellant on 20 February 2018 about the lunchroom incident; she gave her version of the event and she knew following the discussion that she did not need to worry any further about that event;
  1. (b)
    Mr Kemp arranged for a meeting between the Appellant and Mr Gerges to address those complaints;
  2. (c)
    The meeting on 12 March 2018 was conducted in a reasonable way; and
  1. (d)
    The Appellant was treated fairly during that meeting.

 Medical Evidence

Dr Lam

  1. [13]
    The Appellant attended an appointment with Dr Lam, General Practitioner at 4.30 pm on 12 March 2018.[2]
  1. [14]
    Although she was unable to recall what Ms Gibson specifically told her at the time of the appointment in terms of what had occurred at work,[3] Dr Lam confirmed Ms Gibson had attended her rooms complaining of panic attacks and low moods.[4] Dr Lam's record of the appointment included notes about 'stress at work, conflicts with work colleague and problem with manager'.[5]
  1. [15]
    Dr Lam considered Ms Gibson was exhibiting symptoms of stress or reactive depression and prescribed anti-depressants at the time of the appointment. In circumstances where the Appellant was complaining of conflict at work, she considered that it could have been the cause of her symptoms but was unable to remember exactly what the conflict was about.[6]
  1. [16]
    Dr Lam confirmed she was not aware of any other stressors that may have contributed to Ms Gibson's symptoms.[7] Under cross-examination she confirmed she was aware of the Appellant's history of anxiety involving motor vehicles during 2016 following her involvement in a car crash.[8]

Mr Matthew Simmond – Psychologist

  1. [17]
    Mr Matthew Simmond is Ms Gibson's clinical psychologist. She first presented to Mr Simmond on 3 September 2018, approximately six months after the meeting with Mr Kemp, with symptoms of mixed anxiety and depression.[9]
  1. [18]
    He told the Commission Ms Gibson had referred to a workplace incident that had occurred at a point in time before she attended his practice. His understanding was that she had not returned to work since this time. During her appointments, she'd described financial stress, along with stress about her workplace incident.
  1. [19]
    Mr Simmond understood Ms Gibson was involved in some sort of legal process which he noted was stressful for a lot of people.[10] He also observed that when people aren't working it can impact on mood, sense of purpose, routine and socialisation.[11]
  1. [20]
    As far as he could recall the Appellant had identified no other issues in her personal life prior to the workplace incident that may have contributed to her condition. He considered both the work situation and its consequences to be having an impact, noting:[12]

It was more so situational, and obviously as the situation progressed and I believe this has been almost a 12 month period in her life, I think it's worn on her.

  1. [21]
    Mr Simmond confirmed there were multiple factors causing her symptoms including being away from the workplace, financial stress and social isolation.[13]

The Stressors

Stressor One – Mr Gerges bullying the Appellant in the lunchroom on 19 February 2018  

  1. [22]
    The Appellant's evidence in relation to the lunchroom incident was that during her designated break she was approached by a co-worker (Mr James Brennan) asking her to replace the hand towel dispenser in the men's bathroom.   The device was known to be problematic, and in response, Ms Gibson said to him, "Oh, yeah, fuck it. No I won't do it".[14] Later on in their discussions, Ms Gibson told Mr Brennan that she would change the hand towel dispenser.[15]
  1. [23]
    According to Ms Gibson they were both laughing and continued their discussions.  The Appellant says that at this point of the conversation, a co-worker, Mr Raouf Gerges interjected:

... and then two tables down from my left, Raoul started yelling at me and saying some things to me which I was ignoring at first.  I just didn't want to interact or take a – like, listen to him.  And then he started saying, "This is your job.  How dare you not want to do your job.  You've got to take it more seriously.  You attitude is so poor.  This is your job.  You have to do it".  I continued to ignore it at the – at first and continued trying to just talk to Jamie while trying to ignore what – what he was saying, and then he continued, saying, "Your attitude is so poor.  This is your job.  Your attitude towards Sealy needs to be better," and I turned around and said, "It is not my job.  If you want to get technical with me and start yelling at me from across the room, technically, no, it's not my job … and he continued to say that my attitude …and I lost my temper because he kept raising his voice and I said, "Don't get fucking involved in my and Jamie's conversation.  We're just joking around.  Of course, I'm going to fix it.  Of course I'm going to help," and then he got up and said, "Don't you dare speak to me that way," and I said, "Well, don't speak to me that way and get involved in my conversation between myself and Jamie Brennan," and then he walked out of the room.[16]

  1. [24]
    The Appellant describes Mr Gerges as aggressive and speaking loudly but confirmed he did not swear. She said that his voice level was loud enough so that she could hear him from her position approximately two metres away. She said that he would not stop addressing her until she gave him a response.[17]
  1. [25]
    During cross-examination, Ms Gibson confirmed she had invited Mr Gerges to be her friend on Facebook and that he had bought back an Egyptian bookmark for her after returning from a holiday.
  1. [26]
    Ms Gibson confirmed she'd said, "That's not my fucking job", when she was asked to change the towel dispenser in the men's bathroom. She acknowledged that in circumstances where Mr Gerges also used the men's bathroom, that her discussions with Mr Brennan were not necessarily a personal discussion in circumstances where Mr Gerges may have wanted to use the dispenser.[18]
  1. [27]
    Ms Gibson confirmed she did not make a complaint to her manager, Mr Kemp following the incident, nor the next day, noting:

That's because Mitchell had told me that if they do not come and speak to me, not to worry about it. So I thought if Ray and Ty don't see it as an issue, I'll just try and move on because I don't like to hold grudges.[19]

  1. [28]
    Mr James Brennan confirmed he asked the Appellant to assist him with the paper towel dispenser, and that she had refused, but in a joking manner. He explained that he and the Appellant often joked in that way. He said that he thought Ms Gibson might have also said to him, "it's not my job" and it was at this point in the conversation that Mr Gerges had intervened in the conversation and said to Ms Gibson, "it's your job".
  1. [29]
    Mr Brennan recalled the Appellant had said to Mr Gerges on a number of occasions that it was not her job to replace or fix the dispenser.[20] Under cross-examination, Mr Brennan was clear that Ms Gibson had not sworn at him, but was of the view she had sworn at Mr Gerges.[21]
  1. [30]
    He was aware that Mr Gerges was of Egyption descent and acknowledged he had a tendency to speak in a stern way. Initially, he recalled Mr Gerges engaging with Ms Gibson in a calm manner, as he would normally speak, but then he started to speak in a more direct, louder manner as their discussions progressed.[22]
  1. [31]
    Mr Brennan confirmed that Mr Gerges had asked the Appellant to "please don't speak to me like that" at the end of the conversation but did not yell.[23] Mr Brennan wasn't able to remember whether Mr Gerges kept speaking to Ms Gibson about the issue after that. He said that at some point in the discussions he had moved to the other end of the lunch room. He thought the conversation was quite brief, probably half a minute.[24]
  2. [32]
    Mr Jordan Guest was present in the lunchroom that day. He confirmed he was sitting in middle of the lunchroom.[25] He recalled that Ms Gibson and Mr Gerges were sitting a fair way apart from one another.
  1. [33]
    He told the Commission that both Mr Gerges and the Appellant were yelling at each other.[26] He said the exchange was over quickly, however could not recall specifically what was said.[27]
  1. [34]
    Mr Gerges told the Commission he was a fitter and turner and had worked at Sealy from April 2010. He explained he was an Egyptian Australian and that Arabic was his first language, with French, Italian, German and English as his second languages.
  1. [35]
    He considered that his relationship with Ms Gibson was quite good, before the incident in the lunchroom.[28]
  1. [36]
    Mr Gerges' evidence was that himself and the Appellant were seated on different tables in the lunchroom and he heard the conversation between the Appellant and Mr Brennan. He recalled asking her that if it was not her job to replace the dispenser, then "whose responsibility was it?" He said that the Appellant responded by swearing at him, and that his colleagues in the lunchroom were laughing at him.[29] He maintains he did not swear at the Appellant, nor raise his voice.[30]
  1. [37]
    Mr Gerges said that following the lunchroom incident, he approached Mr Torrielli to inform him of the situation. He says he did so because the Appellant had a history of refusing to undertake duties that were within her role.[31] He explained that as Mr Torrielli was a supervisor, he thought Mr Torrielli would have the ability to do something about it. However, Mr Torrielli said that as the Appellant was not under his supervision, Mr Gerges would have to speak to Mr Ray Kemp.[32]

Stressor One - Conclusions

  1. [38]
    It is not in dispute that on the afternoon of 19 February 2018, Ms Gibson and Mr Brennan were having a discussion in the lunchroom where she was overheard by Mr Gerges telling Mr Brennan that she was not going to change or fix the dispenser. I accept that Ms Gibson was probably joking, however Mr Gerges having overheard her comments, took them literally and intervened in the conversation in circumstances where he too, considered he would be impacted by the problems with the dispenser.
  1. [39]
    Having regard to the manner in which Mr Gerges, Ms Gibson and Mr Brennan gave their evidence, I accept that Mr Gerges questioned Ms Gibson about her responsibilities, highlighting that it was her role to change the dispenser. Ms Gibson became annoyed with Mr Gerges' involvement in the conversation, at one point swearing at him within earshot of other staff members and insisting that it wasn't her job.
  2. [40]
    I am satisfied, that although Mr Gerges was not yelling at Ms Gibson, that he became frustrated with her repeated comments that 'it wasn't her job' and raised his voice during their discussions, more likely than not, after she swore at him.
  1. [41]
    Following the altercation, Mr Gerges raised his concerns about what he had perceived as Ms Gibson's unwillingness to fix the dispenser with Mr Torrielli.
  1. [42]
    Ms Gibson maintains that this incident amounted to Mr Gerges bullying her in the lunchroom on 19 February 2019 and in turn, the events contributed to the stress which led to the onset of her depression and anxiety.
  1. [43]
    In her submissions, it is argued that Ms Gibson suffered some form of harassment, in that there was shouting, or at the very least, Mr Gerges used a loud and aggressive voice towards Ms Gibson. Further, that a more senior employee was demanding performance from a younger junior, female employee without the authority to give such direction and/or performance appraisal. According to Ms Gibson's representatives, the badgering was of such an extent that Ms Gibson resorted to complaining to Mr Kemp after the incident.   
  1. [44]
    I have some difficulty accepting this submission in circumstances where: Ms Gibson confirmed she did not raise a complaint about Mr Gerges either on the 19th or the 20th of February 2018; that it was in fact she who swore at Mr Gerges on the day of the incident; and she advised Mr Torrielli the following day, "Oh yes, I put him in his place"[33] in response to his questions about her interaction with Mr Gerges.
  1. [45]
    During cross-examination, Ms Gibson also noted that she was someone who did not like to hold grudges and wanted to move on from the incident.
  1. [46]
    In terms of a causal connection between the lunchroom event and the onset of Ms Gibson's stress symptoms, the other difficulty I have with the Appellant's submissions is that it wasn't under 12 March 2018, after the meeting between Dr Kemp, Ms Gibson and Mr Gerges that there is any indication Ms Gibson was experiencing stress at work. Further neither Dr Lam not Mr Simmond were able to recall Ms Gibson discussing the incident of 19 February 2018, nor is there any record of the incident contained in the GP notes.
  1. [47]
    At its highest, there is a record of Ms Gibson reporting 'conflicts with work colleague (sic)' in her medical summary,[34] however there are no details as to who was involved, the specific events that unfolded or the circumstances and nature of the conflict.

Stressor Two – Mr Torrielli blaming Ms Gibson for the lunchroom incident and approaching her on 20 February 2018

  1. [48]
    Ms Gibson maintains that on 20 February 2019, Mr Torrielli approached her in a walkway. With a smile on his face, she maintains that he said, 'did you make Raouf cry?' while using hand gestures to mimic crying.  She said she asked him if he was referring to the lunchroom incident, to which he replied 'yes'. According to Ms Gibson she then told Mr Torrielli, "Oh yeah, I put him in his place,". Mr Torrielli then walked away.[35]
  1. [49]
    Ms Gibson said she then saw Mr Torrielli later in the day. Although there is some dispute about where they ran into each other, she maintains he asked her what had actually happened in the lunch room. During the conversation Mr Torrielli told her that Mr Gerges had made a complaint that she had refused to change the dispenser in the men's toilets.
  1. [50]
    According to Ms Gibson she explained to Mr Torrielli that she and Mr Brennan were joking, and that she always intended to undertake the task.
  1. [51]
    Ms Gibson recalled that Mr Torrielli had responded by saying that the situation made more sense now that she had explained what had happened and advised her not to worry about the incident unless it was raised with her by Mr Kemp or Mr Page.[36]
  1. [52]
    Mr Torrielli's evidence was that Mr Gerges approached him approximately an hour and a half after the lunchbreak.  Mr Gerges informed him of the lunchroom incident, confirming the Appellant had refused to fill up the towel dispenser.[37] Mr Torreilli said that 'at the time I couldn't really make too much sense of it'[38] because it was the Appellant's job to replace the dispenser. He recalled advising Mr Gerges he would follow up with Ms Gibson and ask her what was going on.[39]
  1. [53]
    He said he approached Ms Gibson about the incident the next time he saw her. He recalled the conversation took place at the base of a stairwell, which is different to Ms Gibson's recollection in that she maintains he approached her in a kitchenette near the training room.
  1. [54]
    Mr Torrielli confirmed that he jokingly asked the Appellant 'what happened in the lunch room? Did you make Raouf cry?'.[40] He denies rubbing his eyes as if to mimic crying. He said that he wanted Ms Gibson to understand that he was not taking a side.[41]
  1. [55]
    Having listened to Ms Gibson's description of the lunchroom incident, Mr Torrielli told the Commission he was able to understand how Mr Gerges had potentially misinterpreted the situation. His evidence was that he understood Ms Gibson's relationship with Mr Brennan and was aware they joked around. In circumstances where Mr Gerges didn't understand how they interacted with one another, he was able to appreciate why he had interpreted their interaction in the way he had.[42]
  1. [56]
    Mr Torrielli said the Appellant was defensive about the lunchroom incident and the fact that Mr Gerges had approached him about it.[43] According to Mr Torrielli, the Appellant asked him whether she needed to discuss the incident with Mr Kemp or Mr Page. Mr Torrielli advised her she would not need to unless Mr Gerges decided to take the issue further.  He denies that he simply laughed and walked away.[44]
  1. [57]
    Mr Torrielli said he saw the Appellant later in the day, during which he says the Appellant had a 'vent' about the matter. He said she filled other co-workers in on the story and he 'thought that she just needed people to sort of talk to her and bounce off and whatnot'.[45]
  1. [58]
    Although not forming part of her original stressors attached to her Statement of Facts and Contentions, in her submissions to the Commission, Ms Gibson's representatives maintain Mr Torrielli failed to investigate the lunchroom incident any further, notwithstanding his awareness of a confrontation between Ms Gibson and Mr Gerges. Separately, there is a complaint that Mr Torrielli did not follow an appropriate investigation process, nor did he take steps to inform Mr Kemp of the conflict or take steps to resolve the strained relationship between the pair.

Conclusions – Stressor Two

  1. [59]
    It was reasonable for Mr Torrielli to follow up Mr Gerges' complaint about Ms Gibson's apparent refusal to fix the dispenser and her subsequent interaction with Mr Gerges in the lunchroom. When speaking to Ms Gibson, I accept Mr Torrielli was attempting to keep his conversation with her relatively light with the objective of demonstrating to Ms Gibson that he was impartial. Once he obtained a better understanding of the situation from Ms Gibson, it is clear he came to understand how Mr Gerges could have mis-interpreted the conversation between Ms Gibson and Mr Torrielli. After that, the matter went no further.
  1. [60]
    During the proceedings, Ms Gibson gave no evidence about being hurt or distressed about her interaction with Mr Torrielli.
  1. [61]
    There is no evidence before the Commission that indicates Ms Gibson complained to Mr Kemp about Mr Torrielli's conduct. The GP notes provided to the Commission contain no record of Ms Gibson raising concerns about her interaction with Mr Torrielli or Mr Gerges at or around this time. Likewise, Mr Simmond's evidence as to what stressors or events had caused Ms Gibson's stress symptoms did not include any reference to Mr Torrielli or his interactions with Ms Gibson during this period.  
  1. [62]
    Having regard to the incident in the lunch room, Mr Gerges' subsequent complaint to Mr Torrielli, the nature of the complaint and his role within the organisation, I consider that his handling of the matter and his interaction with Ms Gibson was more than reasonable. There is no evidence before the Commission to support the assertion that Mr Torrielli 'blamed' Ms Gibson for the lunchroom incident.

 Stressor Three – Mr Gerges Bullying 'Rudolph'

  1. [63]
    Ms Gibson elected not to press this stressor during the proceedings.

Stressors Four and Five - Mr Gerges bullying the Appellant in or around March 2018

  1. [64]
    The Appellant complains of instances of bullying by Mr Gerges during March 2019 maintaining that Mr Gerges would make rude comments about the quality of her work or ask her why she would leave a bin or a rag in a particular place.[46] In submissions, the Appellant contends that Mr Gerges ignored her, thereby bullying her by means of exclusive behaviour.[47]
  1. [65]
    Mr Gerges' evidence is that he did not make rude comments to Ms Gibson and limited his interaction with the Appellant in circumstances where she was raising her voice during her interactions with him and he perceived that other factory staff considered Ms Gibson had abused him:

MR GRAY: She says at other times you ignored her and this is in that period from the 19th of February from the 12th of March?

...

MR GERGES: I was doing machine ... and I was start to call out – talk to her normal and she turned around and said to me – and because she was talking with John about something

...

She just turn around and said to me, "Excuse me" – she raised her voice to me, "Excuse me, you see me talking?" And it was very angry and it was words – it was to raise her voice.  I said, "Okay then, I don't have to talk again.  Just stay away," and I stayed away.

...

And that's when I stopped – I'm not saying talking, but I stopped to minimise – to say or to talk because I felt like the whole factory now know that I had been abused by Alina or been called names by Alina or something...[48]

  1. [66]
    Mr Guest was asked to comment about his interactions with Ms Gibson and Mr Gerges in the period from February 2018 to March 2018, and more specifically if they got along. His evidence was that they generally ignored each other most of the time unless they needed something from one other.[49]

Conclusions – Stressors Four and Five

  1. [67]
    Having been sworn at and "put in his place" by Ms Gibson in the lunchroom in mid-February 2018, one can appreciate why Mr Gerges might have been more guarded in his interaction with the Appellant. In many respects, Mr Guest's observations about the interaction between Ms Gibson and Mr Torrielli in the February/March 2018 period, aligns with Mr Gerges' evidence that he elected to step back somewhat in his interactions with Ms Gibson. Notwithstanding his decision to be more circumspect in his communication with the Appellant, I have some difficulty accepting that it could be characterised as bullying.
  1. [68]
    Ms Gibson's representatives submit that she had to endure derogatory comments about the quality of her work; and queries from Mr Gerges as to why she was leaving bins around the place.
  1. [69]
    During the proceedings, I asked the Appellant to provide some further details or information about the specific nature of the comments, however the responses from Ms Gibson was not overly helpful or detailed.
  1. [70]
    In the absence of more detailed evidence from Ms Gibson as to the timing, nature and context within which Mr Gerges supposedly made comments about the quality of her work or asked her why as bins or rags were left in certain places in the factory, a finding that these comments or queries amounted to bullying is not reasonably open to the Commission.

Stressor Six – Mr Gerges unreasonably complaining of the Appellant's performance to a colleague, not a manager, on 9 March 2018 advising he intended to complain about her

  1. [71]
    Ms Gibson claims that on 9 March 2018 at around 9.00 am when all the staff were on their smoko break, she could hear Mr Gerges talking at a table down from her. He was speaking to Mr Guest. She waited until Mr Gerges walked out of the lunch room and then sought confirmation from Mr Guest as to what had been discussed:

"Did I hear this correctly, that Raof's going to complain to Ray about me, about my cleaning, and that I'm not good at my job and try to get me to stop doing all my jobs because I'm shit at my job? And Jordan said, "Yes, you heard that correctly". And I'm like, "Well, it's a bit strange that, you know, he was saying that loud enough for me to hear".[50]

  1. [72]
    In contrast, Mr Guest's evidence was that Mr Gerges never complained about the Appellant to him personally,[51] but he had heard Mr Gerges complain to a supervisor during a maintenance meeting about the standard of cleaning on the machines. He recalled a decision was made to create examples of photos or pictures to show the relevant staff what the appropriate cleaning standard looked like, but he wasn't sure if they were shown to Ms Gibson.[52]
  1. [73]
    Mr Guest confirmed that other staff held concerns about the standard of Ms Gibson's cleaning including himself. He considered that it was probably not unreasonable for Mr Gerges to raise concerns about the standard of cleaning in the meetings.[53]
  1. [74]
    Mr Gerges' evidence was that he could recall Mr Guest, at the conclusion of a maintenance meeting, inquiring as to whether he was going to take steps to address the concerns he had raised during the meeting about the standard of machine cleaning. Mr Gerges recalled commenting that it was out of his hands and that it would be something that Mr Kemp would have to deal with.[54]
  1. [75]
    Mr Gerges maintains that he didn't complain directly to Mr Guest. Instead, he said that he was responding to a question from Mr Guest as they were walking down a set of stairs together, regarding the cleaning issues raised during a recent meeting:

And we was walking down the stairs together, and he starts open up what – what we discuss in the meeting – I'm sorry, about the cleaning and stuff, and Alina was walking past, or something.  I can't really remember exact what's happened.  And he asked me, "Are you going to do something about the cleaning, because the cleaning is not really up to standard?"

...

I said to him, "It's not up to me.  I just [indistinct] to Ray before", and that's it...  But I didn't go talk to Jordan or complain to Jordan to – to take any action, because he have no right to take any action, which is – I know that.[55]

Conclusions – Stressor Six

  1. [76]
    The evidence of both Mr Guest and Mr Gerges supports a conclusion that Mr Gerges did not complain directly to Mr Guest in the lunchroom. Mr Guest denies that Mr Gerges ever complained to him directly about Ms Gibson in the manner described by the Appellant.
  1. [77]
    Instead, I accept he, along with other staff including Mr Guest, raised concerns in a maintenance meeting and it was resolved that a new standard with photos would be developed so that everyone understood what was acceptable.
  1. [78]
    Although I accept Ms Gibson became aware that some complaints were raised about the standard of cleaning, I am not persuaded he unreasonably complained about Ms Gibson's performance in the way she described to the Commission.

Stressor Seven – Mr Kemp failing to investigate and enquire unto the Appellant's complaint and leading her to believe that the meeting on 12 March 2018 would be to her benefit and to resolve her complaint.

Stressor Eight – The conduct of Mr Gerges and Mr Kemp in the meeting of 12 March 2018

  1. [79]
    Stressors Seven and Eight can be dealt with together.
  1. [80]
    The Appellant says that after she overheard the conversation between Mr Guest and Mr Gerges, she made a complaint to Mr Kemp on the same day (Friday).[56]  She recalled walking to Mr Kemp's office, where she advised Mr Kemp she wished to make a complaint about Mr Gerges.
  1. [81]
    According to Ms Gibson, she explained to Mr Kemp that she'd endured a number of situations where she'd been bullied by Mr Gerges. She also inquired as to whether Mr Gerges had complained about her. Mr Kemp confirmed Mr Gerges hadn't made a complaint.[57]
  1. [82]
    Ms Gibson's evidence is that she told Mr Kemp that Mr Gerges wouldn't speak to her. She explained how she would go up to Mr Gerges to speak to him and he would walk away from her, put his hand up, ignore her and not acknowledge her.[58] She said that she did not go into much more detail as she was aware he had a meeting. She recalled that Mr Kemp did not take any notes.[59]
  1. [83]
    Ms Gibson said she attempted to provide Mr Kemp with some details about the lunchroom incident but was cut-off when he suggested that they could all get together on Monday morning to sort things out.[60]  According to Ms Gibson, he said:

Okay. On Monday, I will get you and Raouf to talk about the issues and we'll sort it out on Monday". And I said, "yep. That sounds fine". And then I left the office.[61]

  1. [84]
    Mr Kemp told the Commission the Appellant approached him at around 11.00 am, just prior to the 11.15 am production meeting held every Friday, which was around the time that the Appellant's shift would conclude.[62] He said the Appellant was 'a bit agitated' and told him that Mr Gerges was 'talking behind her back',[63] but he could not remember any other complaints.
  1. [85]
    He said he remembered telling the Appellant that he would have a chat with Mr Gerges, and that a meeting would be organised with Mr Kemp, Mr Gerges and the Appellant on Monday morning after the toolbox meeting.[64] He confirmed that Ms Gibson appeared to be comfortable with the proposed arrangement.[65]
  1. [86]
    Mr Kemp said that after the conversation with Ms Gibson, he went into the production meeting. He said he spoke to Mr Gerges about attending the Monday morning meeting at some point before he left the factory on Friday afternoon. Although there is some question as to how their interaction unfolded and exactly what was said, Mr Kemp's evidence was that explained the purpose of the meeting was to address the complaints the Appellant had made against him.[66] He says that Mr Gerges denied talking behind the Appellant's back but did say he had issues with the Appellant refusing to complete tasks that she did not consider to be part of her job.[67]
  1. [87]
    Mr Kemp said that after he had spoken with Mr Gerges, he did not take any further action in relation to the complaint in between speaking to Mr Gerges and the meeting on Monday.[68] He said that having considered the information gathered from Mr Gerges and the Appellant, he determined that they both needed clarity in regards to their roles and responsibilities:

MR KEMP: After I spoke with, um, Alina and Raouf, I – I thought the best way to approach this – is because, you know, he was complaining about work not getting done...

She was complaining about Raouf talking behind her back about not doing a proper job...

So I thought the best course of action would be to outline their roles and responsibilities in regards to their cleaning...[69]

  1. [88]
    Mr Gerges said that the discussion with Mr Kemp on Friday 9 March 2018 was brief. He understood the subject of the meeting on Monday would be regarding a complaint from the Appellant, but he could not remember the subject of the complaint.[70] Whatever the content of the discussion, Mr Gerges said he was not concerned about attending the meeting.[71]
  1. [89]
    Ms Gibson, Mr Kemp and Mr Gerges all attended the pre-organised meeting on Monday, 12 March 2018.
  1. [90]
    Ms Gibson submits that 'at no point' was the meeting conducted in reference to her complaint.[72]  In her evidence, she maintains the focus of the meeting was about her and Mr Gerges' roles.[73] Mr Kemp was explaining the nature of their roles – that is, Ms Gibson was responsible for cleaning and Mr Kemp was responsible for maintenance.  Ms Gibson said she became confused because she thought they were going to discuss the issues between herself and Mr Gerges.
  1. [91]
    The Appellant said that during this discussion regarding their respective roles, she told Mr Kemp that they were 'meant to be talking about the issues'.[74] Mr Kemp then said, "Well, what do you want to talk about?" and that she was 'cut off within 30 seconds'[75] by Mr Gerges who proceeded to call her a liar.
  1. [92]
    According to Ms Gibson, he indicated he had photographs to highlight her performance as a cleaner. The Appellant said that this upset her because she did not consider the meeting to be about her work performance.[76]
  1. [93]
    Ms Gibson explained that she became upset at the direction of the meeting and struggled to respond. Mr Kemp told her to 'speak now or forever hold her peace'.[77] She said that Mr Gerges admitted during the meeting that he refused to speak to her.[78] At this point, Mr Kemp told Mr Gerges to leave the room.[79]
  1. [94]
    Ms Gibson's evidence is that after Mr Gerges left the room, Mr Kemp stated, "This is just schoolyard gossip. Raouf said he doesn't speak behind your back. This is just school yard gossip".[80] According to Ms Gibson she then told Mr Kemp she couldn't work with someone like Mr Gerges.[81]
  1. [95]
    Ms Gibson explained that she then started crying and said she could not work with Mr Gerges that day. Mr Kemp told her to 'go down and do [her] job' and turned his chair away from her.[82] She said she then left the workplace and visited her doctor later that afternoon.
  1. [96]
    Mr Gerges said that Mr Kemp explained that Ms Gibson had an issue with him not talking to her and complaining about the standard of cleaning in maintenance meetings rather than talking to her personally.
  1. [97]
    It's not entirely clear from Mr Gerges' evidence whether a new cleaning schedule was raised during the Monday 12 March 2018 meeting, however he said that Mr Kemp had drafted a new schedule for the cleaning, which was to be signed by Mr Gerges after the Appellant had completed the work.[83]  Mr Gerges said that the Appellant refused to agree to this new process.[84]
  1. [98]
    Mr Gerges recalled that Mr Kemp described Mr Gerges' and the Appellant's specific roles during the meeting. Mr Gerges raised an issue regarding the speed of the Appellant's work and gave an example of a previous employee who could complete the cleaning faster.[85] According to Mr Gerges, Ms Gibson was told that if she needed more time to complete her cleaning, she could take more time. Mr Gerges said that the Appellant was combative, swearing at him and calling him a liar.[86]
  1. [99]
    Mr Gerges said in order to defend himself from accusations of him being a liar, he produced a photograph of the Appellant's cleaning during the meeting. He explained that he preferred to use a photograph to avoid confusion given the challenges with his language. He said that the Appellant was too angry for him to go through any more than one photo, and after a period of being subjected to what Mr Gerges described as 'abuse' from the Appellant, Mr Kemp sent him out of the meeting.[87]
  1. [100]
    Mr Kemp's evidence was that the Appellant was calm at the beginning of the meeting when the attendees discussed their respective roles.[88] However he said that the conversation derailed when Mr Gerges denied talking about the Appellant behind her back.[89]
  1. [101]
    Mr Kemp recalled the Appellant was angry and screaming, calling Mr Gerges a 'fucking liar'.[90] He said that then Mr Gerges said that 'he didn't want to hear that' and did not want to talk to her. He said he directed Mr Gerges to leave the meeting.[91]
  1. [102]
    After Mr Gerges left, the Appellant was still agitated and yelling. Mr Kemp denied speaking to Ms Gibson in the manner claimed and also denied telling her to go back to work, or turning his back on her, instead saying that he 'would rather she stayed' and attempted to calm her down.[92]
  1. [103]
    Mr Kemp said that he did not take notes during the meeting, as he considered it to be a 'general discussion'. His experience in the past was that the parties would sit down, discuss the issues and 'shake hands'.[93] He did however make a record of the meeting after the Appellant had left the workplace that day, which was tendered as Exhibit 2. That record of the meeting reflected that he was not expecting the meeting to take the form that it did:

My opinion is that Alina had more to the agenda than just having a calm talk to sort out what I thought was a minor issue. Alina was the only one to lose it during the meeting. I asked her to stop yelling and calm down.[94]

  1. [104]
    Mr Kemp said that after the meeting, the Appellant left the workplace and he received a medical certificate from the Appellant's doctor excusing her from work from 12 March 2018 to 26 March 2018.

Conclusions – Stressors Seven

  1. [105]
    Ms Gibson's complaint in respect of Stressors Seven and Eight are that Mr Kemp failed to properly address her complaint about Mr Gerges and then later, was not reasonable in the discussion with herself and Mr Gerges.
  1. [106]
    Having considered the evidence of Mr Kemp, Ms Gibson and Mr Gerges, there appears to be no dispute that Ms Gibson approached Mr Kemp on Friday 9 March 2018, where she raised concerns around Mr Gerges treatment of her, including that she believed he had been speaking about her behind her back in respect of the quality of her work. I accept Ms Gibson more than likely made some comments about Mr Gerges' treatment of her to Mr Kemp, albeit briefly.
  1. [107]
    Mr Kemp was in his office at the time, and although about to attend a meeting, listened to Ms Gibson's complaint. I accept it was a relatively brief conversation, but it was long enough that Ms Gibson was able to communicate her concerns that Mr Gerges was talking behind her back about the quality of her cleaning.
  1. [108]
    In response, Mr Kemp proposed Ms Gibson, Mr Gerges and himself all get together on Monday morning to work through the issues that had been raised. Ms Gibson agreed to the meeting.
  1. [109]
    Later that day, I accept Mr Kemp took steps to speak to Mr Gerges and invite him to the same meeting on Monday morning to discuss Ms Gibson's complaint. Although it would seem that Mr Kemp's conversation with Mr Gerges was also relatively brief, I accept that Mr Gerges was advised Ms Gibson had made a complaint.
  1. [110]
    The Sealy "Fairness Policy" provides employees and managers with guidance as to how to progress and manage a complaint.[95] Clause 3.2 of the policy sets out and indicative process:

3.2.  Investigation

Upon receipt of a complaint (either formal or informal), the relevant manager shall:

  1.  Obtain full details of the complaint from the employee.
  1.  Discuss with the employee and decide how the complaint should be handled, e.g.
  • Discuss issue with the alleged harasser without affected person prescent;
  • Discuss issue with the alleged harasser with affected person present; and
  • Discuss with Company's Fairness Officer or other Managers.

 3. The Manager shall discuss the issue with the employee to determine if the matter has been satisfactorily resolved, and if not, the next steps to be taken.

  1. [111]
    I am satisfied that, to the extent that the policy is relevant to Stressor Seven, Mr Kemp took the time to stop and listen to Ms Gibson's complaint. He then suggested that himself, Mr Gerges and Ms Gibson meet with a view to resolving the issue. Ms Gibson was agreeable to such an arrangement.
  1. [112]
    On the same day, Mr Kemp took steps to meet with Mr Gerges to raise Ms Gibson's complaint and organise his attendance at a meeting on Monday, 12 March 2018.
  1. [113]
    Mr Kemp possibly could have taken a little more time to speak with Ms Gibson, however it is relevant to remember that when determining whether management action has been reasonable management action reasonably taken for the purposes of s. 32(5) of the Act, managers or supervisors are not always perfect.[96]
  1. [114]
    It seems Mr Kemp did have another meeting to attend around the same time Ms Gibson attended his office, but in any event, he stayed long enough with Ms Gibson to obtain a reasonable understanding of Ms Gibson's concerns and was clearly motivated to resolve the issues between Ms Gibson and Mr Gerges.
  1. [115]
    Having regard to Mr Kemp's rationale for setting down the meeting with both Mr Gerges and Ms Gibson in attendance – that is, "I thought it was just a matter of getting them together and saying, 'Hey, you know, we've outlined your tasks so you know exactly what you've got to do'…",[97] I am not persuaded the steps he followed on Friday 9 March 2018 and the reasons he chose to hold a joint meeting the following Monday either breached the fairness policy or were particularly controversial.
  1. [116]
    Separately, these is no evidence in these proceedings which would support a conclusion that Mr Kemp implied or suggested to Ms Gibson on 9 March 2018, that the meeting to be held on 12 March 2018 would be to her benefit as alleged in Stressor Seven. 

Conclusions – Stressor 8: Meeting of 12 March 2018

  1. [117]
    Ms Gibson's representatives submit that in conducting the meeting on 12 March 2018 with Ms Gibson and Ms Gerges, the point of the meeting was not understood by Mr Kemp.
  1. [118]
    That is, the focus of the discussions was on Ms Gibson's quality of work, her duties, roles and expectations. At no point, according to the Appellant, was the meeting conducted in reference to the original complaint by Ms Gibson. It is argued that in response to the combined scrutiny of Ms Gibson's work and the avoidance by Mr Kemp of the issues of harassment and bullying, Ms Gibson broke down and abandoned the meeting.
  1. [119]
    Although not raised within the original stressors in her Statement of Facts and Contentions, Ms Gibson's submission also included some criticism around her not being offered a support person and the ensuing power imbalance that arose in the 12 March 2018 meeting. That is, the failure of management to consider the implications of conducting a three-way meeting between two older males and a younger, physically slight female. It is maintained the failure to consider the power imbalance also contributed to the Appellant's breakdown. 
  1. [120]
    Having considered the evidence in respect of Stressor Eight, I am satisfied Mr Kemp went into the meeting having genuinely determined that one way to resolve the tension between Ms Gibson and Mr Gerges was to start by discussing each of their roles so that there was a better understanding from both parties as to what was required.
  1. [121]
    That is, Mr Kemp had determined following his discussions with both Ms Gibson and Mr Gerges that some of the tension between the pair existed, at least in part, due to a lack of understanding as to their respective roles.
  1. [122]
    I am satisfied Ms Gibson was given an opportunity to raise her concerns part-way through the discussions, having given some indications that she had concerns about the direction the meeting was taking, but that she was cut off by Mr Gerges who made comments about the quality of her work. It was around this point in time, before all of those present had an opportunity to have any sort of meaningful discussion about Ms Gibson's concerns that the meeting started to unravel.
  1. [123]
    Ms Gibson became angry about Ms Gerges' comments about the quality of her work and also held concerns about direction of the meeting, in circumstances where she held an expectation about how the meeting should unfold. When the meeting didn't appear to be progressing in the manner she had envisaged, Ms Gibon became emotional, lost control and reverted to swearing at Mr Gerges, who naturally became upset himself, eventually advising that he could not speak to Ms Gibson.
  1. [124]
    Mr Kemp asked Mr Gerges to leave his office and attempted to speak to Ms Gibson. I accept that he more than likely did attempt to try to explain to Ms Gibson that Mr Gerges wasn't speaking behind her back with a view to diffusing the situation. I also accept he considered it would have been better for Ms Gibson to remain at work until she settled down, which explains why he told Ms Gibson he wanted her to remain in the workplace.

Stressor Nine – Mr Page failing to investigate and inquire into the Appellant's complaints in or around late 2016

  1. [125]
    Although she was unable to remember which month or date the incident occurred, Ms Gibson recalled that at some point in 2016, Mr Gerges, Mr Warburton, Mr Torrielli and another co-worker, were 'swarming' at her. According to Ms Gerges they were all talking at the same time and telling her they weren't happy with her work and that she needed to do a better job.
  1. [126]
    Ms Gibson's evidence was that she complained to Mr Page, the Factory Manager, noting that she was unable to handle the commentary from the other employees. She maintains that Mr Page paid lip service to the complaint but said he would find a better way for her to clean the machines so that everyone could be happy.[98]
  2. [127]
    Mr Page was able to recall meeting with Ms Gibson in 2016 and although unable to recall the exact discussion, explained that he would have told her he would have a chat with Mr Gerges and Mr Torrielli. He noted that he would have spoken to Mr Gerges about challenging her on the quality of Ms Gibson's work, directing him to speak to a supervisor if he was unhappy.[99]
  1. [128]
    Mr Page confirmed that Ms Gibson did not raise any further issues with him after that discussion.

Stressor Nine - Conclusions

  1. [129]
    I accept Ms Gibson did approach Mr Page at some point in 2016 raising concerns about the feedback she was receiving from certain employees, including Mr Gerges about the quality of work.
  1. [130]
    Ms Gibson said that Mr Page had indicated he would speak to the relevant employees and advise of the correct process to follow if they had a concern about the quality of Ms Gibson's cleaning. That is, the employees were directed to raise concerns with their supervisor.
  1. [131]
    To an extent, the approach described by Mr Page aligns with the evidence of Mr Gerges and Mr Guest who both confirmed that complaints about the quality of Ms Gibson's work were raised within their team meetings in the presence of supervisors.
  1. [132]
    In any event, it does appear as if the matter was resolved in circumstances where there is no evidence of Ms Gibson having any similar interactions in the period from 2016, or raising a complaint, until the interaction with Mr Gerges in the lunchroom incident.
  1. [133]
    Separately, the records of Ms Lam and Mr Simmond contain no reference or description of the 2016 event, as described by Ms Gibson, as contributing to the onset of her stress symptoms.   

Findings and Conclusions

  1. [134]
    To succeed in this Appeal, Ms Gibson bears the onus of proof, on the balance of probabilities, to prove that she did sustain a psychological injury, namely mixed anxiety and depression, within the meaning of the Act.
  1. [135]
    Ms Gibson maintains she sustained an injury within the meaning of section 32 of the Act. Further, that her injury is not precluded by reason of section 32(5) of the Act.  
  2. [136]
    While the Respondent concedes that Ms Gibson is a worker in accordance with the provisions of the Act and has sustained a personal injury that is a psychiatric or psychological disorder, it maintains her appeal should be dismissed because:
  1. (a)
    Ms Gibson's personal injury has not arisen out of, or in the course of, her employment with Sealy; and/or
  2. (b)
    Ms Gibson's employment is not the major significant contributing factor to her injury because the claimed stressors have not occurred in the manner as alleged by her.
  1. [137]
    In the event the Commission determines Ms Gibson has suffered a personal injury in accordance with section 32(1)(b) of the Act, then the Respondent maintains the personal injury has arisen out of, or in the course of, reasonable management action taken in a reasonable way by Sealy in connection with Ms Gibson's employment and is therefore excluded by the reasonable management provisions of the Act.  

Is the injury one arising out of, or in the course of employment and is Ms Gibson's employment the major significant contributing factor to the injury?

  1. [138]
    In the absence of any other materials suggesting otherwise, and given the evidence of Dr Lam, I am satisfied Ms Gibson sustained a personal psychological injury in the form of stress and anxiety on 12 March 2018.
  1. [139]
    Mr Simmond treated Ms Gibson approximately six months after the 12 March 2018 meeting with Mr Kemp and Mr Gerges. He characterised Ms Gibson's condition as mixed anxiety and depression but explained there were other non-work-related stressors including finances, legal processes, and a lack of routine and purpose due to her not working, that were also contributing to her injury in its developed form.[100]
  1. [140]
    Other than being able to confirm Ms Gibson was experiencing stress symptoms on 12 March 2018, the medical evidence of Dr Lam was not overly helpful in this appeal in terms of aligning the events in the workplace with the onset of symptoms.
  1. [141]
    Likewise, Mr Simmond was not able to provide the Commission with a lot of detail around the circumstances or events that had contributed to the onset of Ms Gibson's stress symptoms. If anything, he also pointed to other non-work factors such as legal processes and the isolation what comes with not having meaningful employment as other factors which had led to Ms Gibson's condition of mixed anxiety with depression, some six months after the work events.
  1. [142]
    In this appeal, the Commission is required to consider whether the stress symptoms associated with the claimed injury are causally related to the workplace incidents listed in the Statement of Facts and Contentions, as the events contributing to the onset of the injury. And, if so, were these incidents the major significant contributing factors to the injury. 
  1. [143]
    Having already reached a number of conclusions throughout this decision in relation to the identified stressors, I make the following comments:
  • Stressor One: Lunchroom Incident

I am unable to find that Mr Gerges was shouting, badgering or yelling at Ms Gibson on 19 February. At most, the pair had a brief, tense discussion about who was responsible for fixing or replacing the dispenser. Ms Gibson did not complain about the incident and on her evidence, was happy to move on;

  • Stressor Two: Mr Torrielli blaming Ms Gibson for lunchroom incident

I am unable to find Mr Torrielli 'blamed' Ms Gibson for the incident. If anything, once he understood the circumstances he let the matter go;

  • Stressor Three: Mr Gerges bullying 'Rudolph' on 20 February 2018

The Appellant chose not to pursue this stressor during the proceedings;

  • Stressors Four & Five:  Mr Gerges bulling the Appellant in or around March 2018

A finding that Mr Gerges bullied and/or ignored the Appellant in March 2018 is not reasonably open on the evidence before the Commission;

  • Stressor Six: Mr Gerges unreasonably complaining about Ms Gibson's performance in the lunchroom in front of others, including Ms Gibson

Although it is clear Ms Gibson discovered Mr Gerges had made a complaint about the quality of her work, I am not persuaded the complaint was made by Mr Gerges in the manner described to the Commission by the Appellant. Mr Guest had no recollection of Mr Gerges speaking to him in the lunchroom and could not recall Mr Gerges complaining to him directly.

Mr Guest's and Mr Gerges' evidence about the complaints being raised with a supervisor were straightforward and believable;

  • Stressor Seven: Mr Kemp failing to investigate and enquire into the Appellant's complaint and leading her to believe the 12 March 2018 meeting would be to her benefit

The evidence is that Mr Kemp took the time to listen to Ms Gibson and then proceeded to suggest he, Ms Gibson and Mr Gerges meet to resolve the situation. Ms Gibson was agreeable to the arrangement. On the same day, Mr Kemp invited Mr Gerges to the meeting.

I accept Mr Kemp advised Mr Gerges that a complaint had been raised by Ms Gibson.  The Sealy Fairness policy sets out a number of different processes for managers and supervisors to follow where a complaint is made. Mr Kemp's suggestions falls within the list of options. There was no evidence during the proceedings that suggested Mr Kemp led Ms Gibson to believe 'the meeting would be to her benefit'.

  • Stressor Eight: The conduct of Mr Gerges and Mr Kemp in the meeting of 12 March 2018.

The evidence is that Mr Kemp commenced the meeting by outlining the respective roles of Ms Gibson and Mr Gerges. He took this approach because he considered some of the tension between the pair had arisen due to a lack of understanding about their respective roles.

Ms Gibson became unhappy at the direction of the meeting. At some point Mr Gerges revisited his concerns about the quality of her work. Before Mr Kemp had an opportunity to properly ventilate all the issues, including Ms Gibson's concerns, the meeting was de-railed when Ms Gibson got upset and swore at Mr Gerges calling him a liar.

It was appropriate for Mr Kemp to ask Mr Gerges to leave the meeting, after which he attempted to calm Ms Gibson. Mr Kemp denies speaking to Ms Gibson in the manner she described to the Commission.

Having considered the evidence of both Ms Gibson and Mr Kemp, I am satisfied the purpose of Mr Kemp requesting Ms Gibson remain in the workplace was so she remained safe given her emotional state. I accept it was not his intention that she return to work immediately.

  • Stressor Nine – Mr Page failing to investigate and enquire into a bullying complaint in or around 2016

A finding that Mr Page failed to investigate or enquire into Ms Gibson's complaint in or around 2016 is not reasonably open on the evidence.

  1. [144]
    Given the above findings, it is clear there are a number of stressors which have been found on the evidence, not to have been substantiated or to have been shown to be quite different in nature to the events nominated by Ms Gibson. Where allegations are found to exist without substance, the transactions cannot have contributed to the development of Ms Gibson's psychological condition.[101]
  1. [145]
    As for Stressor Eight whereby Ms Gibson complains about the conduct of Mr Kemp and Mr Gerges in the meeting of 12 March 2018, I find that the stressor has arisen as a result of Ms Gibson's perception of the meeting and her own unrealistic expectations as to how the meeting should have unfolded, rather than the actual events. That is, her perception does not marry with the objective facts. Mr Kemp was precluded from ventilating any of the issues Ms Gibson wanted addressed in circumstances where she lost control and started swearing. I am satisfied it was Ms Gibson's perception about the meeting and the conduct of Mr Gerges and Mr Kemp that led to the onset of her stress symptoms.
  1. [146]
    In those circumstances, I am unable to be satisfied that Ms Gibson's employment was the major significant contributing factor to the onset of her mixed anxiety and depression. 

Is the injury removed from the definition of injury by virtue of section 32(5) of the Act?

  1. [147]
    Even if my finding that Ms Gibson's employment was not a significant contributing factor her psychological injury is incorrect, I am satisfied the injury is removed from the definition of injury by virtue of the operation of s 32(5)(a) of the Act.  
  2. [148]
    I agree with the Regulator's submission that Ms Gibson's complaint about the manner in which Mr Page dealt with her alleged complaint in 2016 has no bearing on this appeal particularly in circumstances where there is no evidence of any causal connection between the conduct and the development of Ms Gibson's claimed injury.
  1. [149]
    I am satisfied, however, that Ms Gibson's interaction with Mr Torrielli when he inquired about the lunchroom incident, along with the 12 March 2018 meeting between Ms Gibson, Mr Gerges and Mr Kemp and attempts to arrange the meeting, fall into the category of management action, in circumstances where those events would not otherwise form part of the everyday duties or tasks the Appellant performed.
  1. [150]
    Representatives for the Appellant have made a raft of other submissions or suggestions as to how Mr Torrielli and Mr Kemp might have better managed their interactions with Ms Gibson.
  1. [151]
    The Commission's task in these matters is to assess the management action which was taken and determine whether it was reasonable in the circumstances. As Martin P noted in Davis v Blackwood:[102]

The task of the Commission when applying s 32(5) does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances. There may be any number of actions or combinations of actions which would satisfy s 32(5). The proper task is to assess the management action which was taken and determine whether it was reasonable and whether it was taken in a reasonable way. Sometimes that may involve consideration of what else may have been done, but that will only be relevant to whether what was done was, in fact, reasonable".[103]

  1. [152]
    In Versace v Braun,[104] Hall P acknowledge that the determination of whether management action is deemed to be reasonable is very much from a subjective opinion and that reasonable people will from time to time differ about whether a particular management decision has been reasonably implemented.
  1. [153]
    For the reasons outlined under the heading of Stressor Two, I am not persuaded that Mr Torrielli conducted himself in an unreasonable manner in his interactions with Ms Gibson following the lunchroom incident.
  1. [154]
    Mr Torrielli was obligated to follow-up on Mr Gerges' complaint. I accept he was attempting to keep the conversation light with a view to demonstrating he was impartial. Having listened to her side of the story, Mr Torrielli reassured Ms Gibson and the issue went no further. I note Ms Gibson also did not press her own complaint in the immediate aftermath of the lunchroom incident. As such, I consider the management action was reasonable and taken in a reasonable way. 
  1. [155]
    In respect of the meeting held on 12 March 2018, representatives for Ms Gibson submit:
  • Mr Kemp failed to properly investigate her complaint or address Ms Gibson's complaints of Mr Gerges' treatment of her;
  • did not provide Ms Gibson with the option of a support person during the meeting; and
  • failed to consider the existence of a power imbalance within the meeting, given Ms Gibson's gender, age and slight appearance. 
  1. [156]
    I am satisfied the Sealy Fairness policy allowed for a situation where a complaint could be discussed with the affected person(s) present. Mr Kemp listened to Ms Gibson's complaint and then arranged for himself, Ms Gibson and Mr Gerges to meet on the following Monday.
  1. [157]
    Both Ms Gibson and Mr Gerges agreed to a joint discussion. At the commencement of the meeting, Mr Kemp attempted to outline the roles of each person to ensure there was a better understanding of their respective roles. I accept Mr Kemp was genuinely motivated to sort out the tension between the pair.
  1. [158]
    While it may not be ideal for the complaining party, it is not uncommon for an employee (in this case Mr Gerges) to respond to a complaint with their own concerns or explanation as to why they may have conducted themselves in a particular manner.
  1. [159]
    In the end Mr Kemp was largely prevented from progressing a resolution, after Ms Gibson became emotional, started swearing and abandoned the meeting. As best I understand it, Ms Gibson has not return to the workplace. 
  1. [160]
    Prior to Ms Gibson departing the meeting, I accept Mr Kemp took steps to try and calm her down. I accept that Mr Kemp did not want Ms Gibson to immediately return to work but was keen to see her remain at work while she composed herself.
  1. [161]
    On reflection, there may have been other ways in which Mr Kemp could have dealt with the issue, however I am satisfied the process he followed largely complied with the Sealy Fairness Policy[105] and, given the circumstances, his actions in respect of Ms Gibson's complaint, including his attempts to resolve the issues between Ms Gibson and Mr Gerges were reasonable.

Support Person and Power Imbalance

  1. [162]
    Aside from the fact that the arguments in respect of the power imbalance and the absence of a support person did not form part of the original set of stressors submitted by the Appellant as having contributed to her psychological injury,[106]  which largely prevents the Commission from making findings that other matters contributed or gave rise to the injury, there is an overwhelming lack of evidence before the Commission, either medical or otherwise, that these factors contributed to the onset of the Appellant's psychological injury.
  1. [163]
    Ms Gibson gave no evidence that she felt intimidated or overwhelmed having Mr Gerges in the meeting. If anything, throughout the proceedings, her evidence indicated she was someone who liked to sort things out and had no problem using strong or aggressive language in her interactions with Mr Gerges.[107]
  2. [164]
    In those circumstances, I am satisfied that Stressors Two, Seven and Eight, to the extent that it is argued there is causal connection between those events and Ms Gibson's psychological condition, arose out of or in course of reasonable management action taken in a reasonable way. As such I am satisfied Ms Gibson's injury is withdrawn from being a compensable injury within the Act.
  1. [165]
    For all the foregoing reasons the appeal is dismissed and the decision of the Regulator dated 26 April 2018 is confirmed.

Orders

I make the following Orders:

  1.  The appeal is dismissed
  2. The decision of the Respondent dated 26 April 2018 is affirmed
  3. The Appellant is to pay the Respondent's costs of and incidental to this appeal.

Footnotes

[1] T2-44-45.

[2] Exhibit 1.

[3] T1-43, 40-45; T1-44 01-15.

[4] T1-43, 19-23.

[5] Exhibit 1.

[6] T1-44, 20-23.

[7] T1-43-44.

[8] T1-44, 28-32.

[9] T1-46, 35-44.

[10] T1-47, 5-15. 

[11] Ibid, 6-14.

[12] T1-47, 19-21 & T1.

[13] T1-48, 5-35.

[14] T1-8, 13.

[15] Ibid, 15.

[16] Ibid, 13-35.

[17] Ibid, 42-45.

[18] T1-28, 18-28.

[19] T1-29, 25-26.

[20] T2-6, 30-35.

[21] Ibid, 5-10.

[22] T2-7, 15-20.

[23] Ibid, 15-20.

[24] T2-6, 40-45.

[25] T2-15, 5-10.

[26] T2-12, 19-25.

[27] Ibid, 19-26.

[28] T2-58, 10-14.

[29] Ibid, 15-28.

[30] T2-59, 5-7.

[31] T2-58, 29-34.

[32] T2-59, 30-35.

[33] T1-13, 2.

[34] Exhibit 1.

[35] T1-12-13.

[36] T1-13, 20-37.

[37] T2-45-46.

[38] T2-46, 10.

[39] Ibid, 38-41.

[40] T2-47.

[41] Ibid, 38-40.

[42] T2-48, 0-25.

[43] Ibid, 42-45.

[44] T2-50, 8-20.

[45] T2-50, 1-2.

[46] T1-20 1-5.

[47] Submissions of the Appellant, filed 8 May 2019, page 11.

[48] T2-64, 18-42.

[49] T2-11, 40-45.

[50] T1-14, 1-5.

[51] T2-12, 29.

[52] T2-12-13.

[53] T2-14, 25-45.

[54] T2-72, 12-35.

[55] Ibid, 27-35.

[56] T1-14, 25-45.

[57] Ibid, 25-38.

[58] Ibid, 40-45.

[59] Ibid, 35-36.

[60] Ibid, 43-45.

[61] Ibid, 44-46.

[62] T2-20, 5-6.

[63] Ibid, 35.

[64] T2-21, 1-11.

[65] T2–22, 20.

[66] Ibid, 1-5.

[67] Ibid, 10-11.

[68] Ibid, 30.

[69] Ibid, 34-42.

[70] T2-61, 1-5.

[71] Ibid, 20.

[72] Submissions of the Appellant, filed 8 May 2019, page 14.

[73] T1-15.

[74] T1-17, 12.

[75] Ibid, 13-15.

[76] Ibid, 15-20.

[77] Ibid, 19-20.

[78] T1-15, 43-45.

[79] T1-17, 23-25.

[80] Ibid, 25.

[81] T1-17, 28-29.

[82] Ibid, 25-30.

[83] T2-61, 21-28.

[84] Ibid, 40-48.

[85] T2-62, 38-48.

[86] Ibid, 5-12.

[87] T2-63.

[88] T2-23, 11-17.

[89] Ibid, 30-30.

[90] T2-23-24.

[91] T2-24, 1-15.

[92] T2-24.

[93] T2-25, 45-46.

[94] Exhibit 2.

[95] Exhibit 3.

[96] Misevski v Q-COMP (C/2009/29), 27.

[97] T2-41, 45-46.

[98] T1-23, 1-5.

[99] T2-53, 46.

[100] T1-47, 6-14.

[101] Vesna Misevski v Q-COMP (C/2009/29); Ouisi and Q-COMP (C/2013/4).

[102] Davis v Blackwood [2014] ICQ 009.

[103] Ibid, 47.

[104] Versace v Braun [2005] ICQ 14.

[105] see Exhibit 3, paragraph 3.2.

[106] see Adams v Simon Blackwood [2014] QIRC 055, 19.

[107] see T1-27, 30-45; T1-31, 15-20.

Close

Editorial Notes

  • Published Case Name:

    Alina Gibson v Workers' Compensation Regulator

  • Shortened Case Name:

    Gibson v Workers' Compensation Regulator

  • MNC:

    [2019] QIRC 184

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    02 Dec 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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