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St Jacques v Workers' Compensation Regulator[2019] QIRC 43

St Jacques v Workers' Compensation Regulator[2019] QIRC 43

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

St Jacques v Workers' Compensation Regulator [2019] QIRC 043

PARTIES:

St Jacques, Ian

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2017/87

PROCEEDING:

Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:

6 March 2019

HEARING DATES:

10 May 2018 (Mention)

14 and 15 May 2018

2, 3, 4, and 8 October 2018

21 and 22 November 2018

17 January 2019 (Appellant submissions)

15 February 2019 (Regulator submissions)

21 February (Appellant reply submissions)

MEMBER:

HEARD AT:

Swan DP

Brisbane

ORDERS:

  1. The Appeal is dismissed.
  1. The Appellant is to pay the Regulator's costs of, and incidental to the Appeal.

CATCHWORDS:

WORKERS' COMPENSATION - APPEAL - Appeal against decision of Workers' Compensation Regulator - Psychological injury -  Claim that workload was excessive that employer behaving unreasonably - Claims of exclusion at workplace s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 enlivened - Held that management action had been reasonable overall - Appeal dismissed.

LEGISLATION:

CASES:

Workers' Compensation and Rehabilitation Act 2003, s 32, s 32(5).

Blackwood v Adams [2015] ICQ 001.

Blackwood v Mana [2014] ICQ 027.

Carlton v Blackwood [2017] ICQ 1 at [13].

Q-COMP v Foote [2007] QIC 83.

Yousif v Workers' Compensation Regulator [2017] ICQ 004.

APPEARANCES:

Ms L. Forran for the Appellant, Mr I. St Jacques.

Mr S. McLeod of Counsel, directly instructed by Ms C. Godfrey of the Workers' Compensation Regulator.

Reasons for Decision

  1. [1]
    Mr Ian St Jacques (the Appellant) has appealed a decision of the Workers' Compensation Regulator (the Regulator) dated 19 May 2017.
  1. [2]
    The Appellant had been employed by Bunnings since 2001.  He commenced his duties at store level for around nine months, and eventually held the position of a Project Manager.
  1. [3]
    The essence of the Appellant's case is that he suffered from severe anxiety due to his claimed excessive large workload.
  1. [4]
    During the period in which the Appellant suffered anxiety, Mr Keen (Store Development Project Delivery Manager with Bunnings) was the person to whom the Appellant reported.  It is clear that the Appellant has, amongst others, alleged that Mr Keen was largely responsible for the state of his ill-health.

Legislation

  1. [5]
    The relevant legislation at the material time of injury was as follows:

32Meaning of injury

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

 … the employment is a significant contributing factor to the injury.

  1. (2)
    However, employment need not be a significant contributing factor to the injury if section 34(2) or 35(2) applies.
  1. (3)
    Injury includes the following-

 

 (b)an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation-

(i) a personal injury;

  1. (4)
    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. (a)
    reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
  1. (b)
    the worker's expectation or perception of reasonable management action being taken against the worker;
  1. (c)
    action by the Authority 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. [6]
    This Appeal constitutes a hearing de novo and the Appellant bears the onus of proof (see Blackwood v Mana).[1]

Witnesses

  1. [7]
    Witnesses for the Appellant were:
  • Mr Ian St Jacques, the Appellant.
  • Mr C. Grant.
  1. [8]
    Witnesses for the Regulator were:
  • Mr L. Darlington, State Transport Manager, Queensland Bunnings.
  • Ms K. Hosken, Human Resources Adviser, Queensland Bunnings.
  • Ms J. Kidd, Organisational Design Manager, Queensland Bunnings.
  • Mr D. Keen, Store Development Project Delivery Manager, Queensland Bunnings.

[Note:   Positions and titles are of those at the relevant material time]

The Appellant's submissions as to the Background to the claim

  • It is not contested that the Appellant is a worker within the meaning of s 11 of the Workers' Compensation and Rehabilitation Act 2003 (the Act).
  • The Appellant sustained an injury within the meaning of s 32 of the Act.
  • The Appellant's case, as reported in his Notice of Claim, was for an over-time psychiatric injury from January 2013 until the date of decompensation on 28 April 2014.[2]
  • On 21 November 2018 (some nine days into the hearing of this matter)[3] the Appellant sought to amend the date of his decompensation from 28 April 2014 to 17 April 2014.  The Regulator did not raise an objection.  The matter never arose again for consideration so the Queensland Industrial Relations Commission (Commission) has accepted the date of decompensation as 17 April 2014.  Therefore the over-time psychiatric injury occurred from January 2013 until 17 April 2014).

[Note:  Amendments were made by consent to the Appellant's original Statement of Facts and Contentions as matters were clarified before the Commission during the pre-trial mentions.]

  • The Appellant contends that the interpersonal interactions with senior leaders of the employer during the period leading up to the start of his injury in January 2013 until 17 April 2014.
  • There are two reports from psychiatrists, Professor Harvey Whiteford and Dr Persley.  Professor Whiteford's diagnosis was that of an adjustment disorder with mixed anxiety and depressed mood.  Dr Persley ultimately concluded that the Appellant was suffering from a major depressive disorder, which was severe and untreated.  The Regulator was satisfied having regard to Professor Whiteford and Dr Persleys' opinions that the Appellant has sustained a psychiatric injury of an adjustment disorder with mixed anxiety and depressed mood and having a differential diagnosis of major depressive disorder.

 Relevant case law on scope of Facts and Contentions

  1. [9]
    The Regulator referred to the following cases:
  1. [10]
    In Yousif v Workers' Compensation Regulator[4] Martin J referred to Statements of Facts and Contentions and determined that the Statement should represent a complete statement of the Appellant's case, and, unless appropriate amendments were permitted by the Commission, a party is bound by those facts and contentions and may only lead evidence which relates to the identified matters.
  1. [11]
    In Blackwood v Adams[5] Martin J stated:

It is an error for a Tribunal in cases where the boundaries of the application have been set by a document such as a Statement of Stressors to go beyond that boundary when making findings.

  1. [12]
    In Carlton v Blackwood[6], Martin J observed that an appeal before the Commission is not a vehicle for the resolution of a list of grievances which are not relevant to the event or events which are said to give rise to the compensable injury.

Appellant's Statement of Facts and Contentions

  1. [13]
    The Appellant's Statement included:
  1. [1]
    Workload

The Appellant stated that his extremely intense workload was placed on him by Mr Keen and Mr Marotte, Project Development and Delivery Manager Australia/New Zealand Bunnings, who was not called to give evidence.  This was a major contributing factor to the psychiatric injury he incurred.  He stated that "Many stressors that still affect the claimant (the Appellant)  today".  The detail of that workload was provided in this Stressor and will be addressed during the course of the decision.

  1. [2]
    Meetings

The Appellant contends that the meeting with his Managers and Human Resources (HR staff Qld) took place in order to discuss his complaints against Mr Keen and Mr Marotte and that these "were a direct cause of the Appellant's condition".

The meetings held over the 2013 - 2014 period "were not reasonable, nor were they taken in a reasonable way".

A particular meeting scheduled for 30 July 2013 with Mr Keen had stressed him as he only had 24 hours' notice of the meeting.  The Appellant believed that this was insufficient time to advise him of a performance review given his "emotional instability".

The Appellant says that he is unable to understand that Mr Keen did not have an appreciation of his "real mental health issues" when a meeting of 30 July 2013 was called.  The Appellant says that "he should have been offered a support service or counselling at this particular stage given the above indicators of not coping emotionally".

The Appellant stated that Mr Keen clearly was aware of his fragile mental state when Mr Keen made the comment "I advised that we (SD/the business) and I are concerned about his well-being due to his state of mind and actions during and after the Bethania Project".  The Appellant stated that "this is confirmation of management acknowledgment of the worker's condition well before the worker commenced sick leave on April 2014."

  1. [3]
    Bullying and Harassment

The Appellant believes that his psychiatric injury arose out of or in the course of his employment and that his employment was a major significant contributing factor to his psychiatric injury.

It is claimed that the employer is vicariously liable for the conduct of Mr Keen towards the Appellant.

Both Mr Keen's and Mr Marotte's actions highlighted the double standards adopted by both towards the Appellant.

A fellow employee, Mr Charlie Grant was aware of and had witnessed the harassment and bullying inflicted upon the Appellant during the nominated period from 2013 to 2014. 

It is alleged that Mr Keen engaged in bullying and unfair treatment of the Appellant during which time he was aware of the Appellant's stress and anxiety.

The Appellant claimed that his period of substantial sick leave should be a  significant reminder to the employer to consider assisting the Appellant in terms of issues such as Rehabilitation and the provision of a Return to Work Co-ordinator.

The Appellant raised the matter of some comments made at the Queensland State Office party which had caused him stress, but no further elaboration was provided in the Statement.

The Appellant's unreasonable and unfair workload was a matter known to the employer.

The Appellant alleged a lack of support from the employer during the 2013 - 2014 period which made him feel vulnerable and unsafe.  He said that over the 10 plus years he had worked for the employer, he had been the recipient of many awards and rewards for his good work.

The Appellant felt, during the nominated period, alienated in the workplace.  He says that he was excluded from team meetings, operational planning, formal training and staff social events.

He claimed that his presence was never acknowledged on arrival or departure in the workplace.  The Appellant's belief was that management had conspired to alienate him and overload him with work, insisting on strict guidelines with little to no support mechanisms in place.

The Appellant also felt unfairly and continually scrutinised and that he was no longer trusted by management.  The Appellant said that "double standards" were always at play in the workplace.  He stated that he had felt compelled to agree with management actions for fear of his employment.  This affected him adversely during the period 2013 - 2014.

The Appellant believed that his colleagues were feeling the stress of high-pressured work, while management had instructed him to place more pressure on the team.

  1. [4]
    The Melbourne Event

The employer's Vision and Values conference was held in Melbourne each year.  It was clear from the Appellant's evidence that he enjoyed this event and especially so as he was on the Committee which organised the event in Melbourne during 2013.

Prior to the event, surveys were conducted by the employer with regard to the conference.

Mr Keen had not invited the Appellant to the 2013 event.  The Appellant rejected Mr Keen's claim that he was not invited because he had indicated that he had wished to leave the store development team group.

The Appellant was devastated that he had not been invited to the conference.  This was made worse when some members who did attend the event posted pictures on email of their group photos.  He believed that the employer should have deleted his name from being a recipient of these photos.  The Appellant claims that the notice had been sent to him when the employer was aware of his mental state.

The Appellant believed that he had been deliberately left off the list for the conference and that this had contributed to his worry and stress.  He viewed this behaviour as constituting bullying and harassment.

  1. [5]
    HR Department

When the Appellant sought assistance from the HR Department he initially felt comfortable with the process.  "Belinda" and Kura Hoskins heard all of his concerns and complaints, but ultimately denied knowing anything of this.

Ms Hoskins advised the Appellant that she had sought help and understanding for the Appellant by arranging a meeting with Ms Jennie Kidd.  The Appellant said he did not trust Ms Kidd.  He said the meeting he had held with Ms Kidd and Ms Hoskins was not helpful.

"Belinda, Kura, Jennie, Sarah, Mark and the HR team" to whom the Appellant had spoken "were all responsible for the stressors" he had incurred.  He remained anxious and distressed that those persons denied knowing about his concerns and that they "had played games with his health at work and at home".  Overall the interactions the Appellant had with HR added to his stress and anxiety.

The Appellant believed that "senior leader's actions from the Store Development area for the defined period contributed and aggravated issues that led to the escalation of the [claimant's] anxiety and stress related mental health issues.  Many of these stressors that still affected the Appellant.

As well, the "Queensland Senior Leadership team from Mt Gravatt State Office made him feel unimportant and this resulted in severe trust issues for the [claimant]".  These stressors still affect the Appellant.

 CONSIDERATION OF THE STRESSORS

 Stressor 1 Workload

  1. [14]
    The Appellant's evidence was that his workload during the nominated period had escalated to a very high level.  The Appellant said that he had about 17 projects which ranged in difficulty in the first 6 months of 2013 which stretched geographically from the Gold Coast to Townsville. Specifically, he stated that his workload was in excess to that of other employees in comparable positions. He described this workload as follows:

… from very specific; hard, new store/excursions, upgrades to still difficult but rollouts, either it be flooring rollouts, pigeonhole rack floor outs with changes or extensions in certain aspects.  But I had 17 projects in the first six months.[7]

  1. [15]
    The Appellant explained that he had been required to travel during 2013 to the new Bethania store project on very short notice.  He was also engaged in planning the Townsville new store project in the later months of 2013.  At the Bethania store project, the Appellant had been given a specific time of seven weeks in which to plan, organise, order, liaise with managers, organise contractors and the team.  This occurred because the project had been escalated in order to hand the building over to the builder 28 weeks prior to the set date for practical completion.[8]
  1. [16]
    In response to those claims, Mr Keen's evidence was that he had not particularly recalled the Appellant's workload during 2013 but that work generally for employees had been allocated on the basis of experience and availability[9].  This perspective was confirmed by Mr Grant who said that the work generally performed by each team member was divided equally.  There were occasions, however, when the workload of the Appellant was greater than that of he and the other employees in that group.
  1. [17]
    Ultimately, the Appellant in Cross-Examination agreed that he had been able to complete his workload and attain his Key Performance Indicators, even though he had struggled on occasions.[10]
  1. [18]
    In my view, overall the workload undertaken by the Appellant may have stressed him on occasions, but there is insufficient to suggest that he was being targeted as far as his workload was concerned.  In forming this view, I have taken into account the evidence of the Appellant, his witness Mr Grant and Mr Keen.

Stressor 2 Meetings

  1. [19]
    The overarching claim of the Appellant was that his interactions/meetings with Managers and Human Resources personnel were also causative of his condition.  Added to this, the Appellant claimed that these meetings were unreasonable.
  1. [20]
    Indicative of the type of complaint made by the Appellant was that he had been asked to a meeting with Mr Keen on 30 July 2013 with less than 24 hours' notice.  The Appellant's claim that this was unreasonable as the outcome of the meeting was that a performance review be undertaken at a time when he says that the employer was aware of his emotional instability.
  1. [21]
    In considering the issues which fall into this category, while some generalised statements have been made by the Appellant, in my view the better course for dealing with these concerns is to consider the dates upon which particular events occurred which include email exchanges, conversations and/or meetings.

Email exchange of 21 June 2013

  1. [22]
    The Appellant had advised Mr Keen that he required two days off work as he had personal challenges with which to contend.  Mr Keen approved that request and asked, in the process, if the Appellant was "OK", adding "If you are struggling with the current workload, then we need to discuss your options … as discussed in your appraisal the workload is only going to increase."[11]  Mr Keen did not recall the Appellant responding to his question as to whether he was "OK".  The Appellant said that he needed the time off to "re-energise" to get ready for what was about to occur in the workplace.[12]  The Appellant's evidence was that he told Mr Keen he was "OK".
  1. [23]
    The Regulator did not accept the Appellant's claim that Mr Keen was aware of his anxiety and stress at all times.  This was highlighted in the evidence given by the Appellant that he had mentioned to Mr Keen that "there's a lot of stuff going on with the Bethania store and the Rocklea project, because he was aware with the reports we do weekly."[13]  The Appellant was of the view that Mr Keen would have considered the weekly reports and accepted that the Appellant was under "duress" because of his claimed workload.
  1. [24]
    On an occasion when Mr Keen claimed to have called the Appellant and was unable to contact him, he had sent the Appellant the abovementioned email.[14]
  1. [25]
    From the above commentary, I accept the Regulator's submission that Mr Keen would not have drawn any inferences from the Appellant's comments that he was under any duress simply because when questioned by Mr Keen the Appellant always confirmed that he was "OK".
Email exchange of 24 June 2013
  1. [26]
    The background to this email exchange occurred when the Appellant had not attended a morning tea at the Bethania store.  The Appellant said that he had in effect forgotten the function because he had been working from home. 
  1. [27]
    Mr Keen sent him an email stating "Don't commit to a task if you have no intention of completing", relating this to the morning tea.  Mr Keen added that he was aware that the Appellant was dealing with personal challenges at the time and that he was sympathetic to that, adding…"however, we had a talk on Friday and I thought that you indicated that you were able to handle them and your workload."[15] 
  1. [28]
    I have accepted that from these emails that Mr Keen had believed that the Appellant was able to deal with his personal challenges at that time. 
  1. [29]
    There was also a reference to "stepping up" in Mr Keen's email and his evidence was that the Appellant had not been performing at the requisite level and that he needed to "step up" to achieve the work load required of him.
  1. [30]
    I have failed to see that these exchanges were in any way indicative of Mr Keen harassing or bullying the Appellant.  They are nothing more than reasonably normal interchanges between people in the workplace.  In the face of the Appellant saying that he was "OK", it was not unreasonable for Mr Keen to suggest that the Appellant "step up".
Meeting/discussion between the Appellant and Mr Keen on 16 July 2013
  1. [31]
    The discussion which took place on this date occurred at Bethania and related to the Bethania project.  The discussion was held in aisle at the Bethania store.  The Appellant said at that time he had told Mr Keen that he was struggling with the project.
  1. [32]
    The Appellant could not recall exactly what was said on that occasion but his recollection of the way he felt at that time and/or what he said was that he was struggling with anxiety.  He also said that he had not felt that way on any of the other projects he had been involved in over the last 10-11 years.  In Cross-Examination the Appellant said he had not referred to the past 10-11 years in that discussion.
  1. [33]
    Mr Grant was a witness to that conversation between the Appellant and Mr Keen.  He thought the conversation related to the Appellant signing a document and to a "warning" from Mr Keen and he added that the Appellant appeared to be distressed after the conversation. The essence of Mr Grant's evidence differed from that recalled by the Appellant.  Mr Grant gave no evidence that the Appellant had advised Mr Keen that he was struggling with his workload.  He did however say that he understood that the Appellant thought that his stressed was caused by Mr Keen.
The email sent to employees dated 29 July 2013
  1. [34]
    The email sent to the Appellant and his work team by Mr Keen stated inter alia that:

FYI, need to ensure moving forward all reports are on time.[16]

  1. [35]
    The Appellant responded to this by ensuring that his reports would be completed on time.
  1. [36]
    It is difficult to see how this correspondence from Mr Keen could constitute anything other than a reminder to the team with regard to reports.  The Appellant had conceded that on occasions he had not provided his reports on time.[17] 
  1. [37]
    It is noted that the email was entitled "Re - Generic Document Timeline".  It did not single out the Appellant for attention.
  1. [38]
    In my view, the email was of a type utilised at workplaces to impart information. 
Mr Keen's email to the Appellant on 29 July 2013
  1. [39]
    On this date Mr Keen had sent an email to the Appellant requesting a meeting with him "to discuss Rocklea, Bethania and upcoming workload".[18] 
  1. [40]
    The Appellant complained that there had been insufficient notice given to him to be able to prepare for the meeting.  He noted feeling "bombarded" at the meeting because his lack of preparation.
  1. [41]
    The Regulator fairly contends that Mr Keen would have had no knowledge of how the Appellant felt about receiving the email.  As it transpired, the Appellant sought to cancel the meeting and that was accepted by Mr Keen.
  1. [42]
    At that time, the Appellant was provided with details of concerns regarding his performance.  The document (which was tendered and marked as Exhibit 5) had only been partly completed.  The specificity of the document went to matters such as the Appellant's communication skills, his ability to perform his role and issues concerning his attendance at work.  The subsequent meeting occurred on 6 August 2013.
  1. [43]
    There is nothing unreasonable about the management of this process at this time.
Meeting held on 30 July 2013
  1. [44]
    Mr Keen and the Appellant met on 30 July 2013 at about 9:00 am in the employer's head office.  
  1. [45]
    At the commencement of the meeting the Appellant said that Mr Keen had handed him a document which was entitled "Record of Discussion/Meeting" which had been partly completed.[19]
  1. [46]
    The Appellant said he was unprepared for the meeting and Mr Keen agreed to postpone the meeting.
  1. [47]
    Mr Keen's evidence was that the meeting had been very brief.  He stated that the Appellant had become agitated and upset.  I accept that Mr Keen asked the Appellant if he wanted a support person present.  Mr Keen said that the Appellant was given Exhibit 5 which had some information on it and he was required to complete section (box) three of the Exhibit.  At the next meeting, the document had been completed and this was brought to the second meeting on 6 August 2013.

Meeting on 6 August 2013 and Exhibit 5

  1. [48]
    There had been disagreement as to when this meeting was held i.e. either on 6 or 9 August 2013.  There is nothing that emanated from that disagreement.
  1. [49]
    The issues contained in Exhibit 5 were discussed and the Appellant agreed that Mr Keen said that he would remove him from the major project works in order for him to improve his performance.[20]  The Appellant understood that he would not be given major projects [21] but he believed that the work would still constitute project work.  The Appellant understood that he was on notice concerning his work performance.[22]  Mr Darlington attended with the Appellant at the meeting as a Support Person.  Mr Keen said he advised the Appellant that there would be further performance discussions.
  1. [50]
    The Appellant agreed that during the meeting he was afforded appropriate opportunities to present his views and version of events.[23] 
  1. [51]
    Concerning Exhibit 5 the Regulator noted that while the Appellant had complained of stress/anxiety, he had not mentioned this in his responses in Exhibit 5.  The Appellant's comments in evidence to this proposition was that "I should have responded".[24] 
  1. [52]
    Mr Darlington, who had supported the Appellant at the meeting gave the following evidence:
  • At the meeting Mr Keen had referred to a list of concerns that he had with the Appellant.
  • The Appellant was given the opportunity to respond to those concerns.
  • Mr Keen discussed the type of action which would take place going forward.
  • Mr Keen raised with the Appellant his concerns about the Appellant's communication and working too many hours.
  • The Townsville project was to be reassigned to another project co-ordinator.
  • The Appellant was to be given minor works to work on as a way to lessen the workload so that he could have a chance to adapt and improve.
  • The Appellant said he was disappointed at being taken off the Townsville project as he had performed the lead up work/planning for the project.
  1. [53]
    Mr Darlington said that the Appellant had every opportunity to raise any points he wished to in response to Mr Keen's comments.  Mr Darlington's primary assessment was that "… but I definitely think [the Appellant] had the chance to speak up.  It [sic] wasn't cut off or wasn't blocked or anything".[25]  He also added that that Mr Keen had reminded the Appellant to ask for help when needed.[26] 
  1. [54]
    It had earlier been referenced that Exhibit 5 had not been a completed document.  It had taken some time to be completed.
  1. [55]
    Ultimately the Appellant agreed that he had not been constrained during this meeting and in setting out his responses.  The Appellant agreed that had anything been incorrect in the document then he would have sought to change it.
  1. [56]
    I have drawn the conclusion from the evidence that the meetings were held in a fair and reasonable manner.

Email from Mr Keen to the Appellant dated 14 August 2013.

  1. [57]
    The email sent by Mr Keen (viz., "Emotional Intelligence")[27] related to his desire to "… share any learnings that he obtained outside of business and would commonly share personal developmental matters".[28] 
  1. [58]
    While the Appellant may have believed that the email related to him, I have not accepted that assertion.  The email was sent to others in the team.  Even if it appeared "odd" to the Appellant, Mr Grant conceded that when the document was read in totality it actually dealt with leadership and how leaders should act and respond in the workplace.  The only reason Mr Grant had thought it might be odd, was that it was not in Bunnings format. 
  1. [59]
    I believe that nothing further can be taken with that claim.

 Email exchange dated 19 and 20 August 2013

  1. [60]
    These emails related to the Appellant and the taking of Rostered Days Off (RDO's).[29]
  1. [61]
    Mr Keen contacted the Appellant as he believed that the Appellant was not at work when he should have been.  Further, Mr Keen said that the Appellant had not taken the appropriate steps to utilise the leave and he was also wishing to take more leave.
  1. [62]
    When these propositions were put to the Appellant in Cross-Examination, his response was that the actions taken by Mr Keen were not unreasonable but made reference to the duress he was experiencing.   Ultimately, the Appellant agreed to return to work if there was any problem at the workplace.
  1. [63]
    That matter can be taken no further.

Email of 10 October 2013

  1. [64]
    The email to the Appellant from Mr Keen on 10 October 2013 states:

Resources will come from the operation team, when you finally decide to call me back I will inform you of the agenda/process.[30]

  1. [65]
    The issues in discussion at this centred around work matters.  The Appellant said that he sometimes had phone problems, but upon receiving this email (which was copied to other team members) he was stressed when he read the content.
  1. [66]
    Clearly Mr Keen couldn't contact the Appellant and all the email does is highlight the difficulty experienced by him communicating with the Appellant over work matters.
  1. [67]
    There is nothing unreasonable in the comments made by Kr Keen towards the Appellant.

Email from the Appellant to Mr Keen of 1 November 2013 and the issue of the Melbourne conference

  1. [68]
    The V & V Survey (Vision and Values) is completed by all team members of Bunnings and requires completion on a nominated date so that all views can be collated before the V & V conference which is held in Melbourne on a yearly basis.
  1. [69]
    The Appellant had been on the co-ordinating Committee and there is no doubt that he wished to attend the Conference.  His evidence was that it provided an opportunity to discuss a range of matters common to those in attendance and also it was a congenial event where acquaintances could be continued.
  1. [70]
    The Appellant's concern was that he had been asked to complete the Survey and then he had not been included in the group going to Melbourne.  The Appellant appreciated the fact that all employees had to complete the Survey.  Mr Keen's evidence was that not all employees attended the Melbourne conference.
  1. [71]
    The Appellant recalled the day upon which all other project coordinators received their invitation to the event with the exception of him.  The Appellant believed that the refusal for his attendance in Melbourne was initiated by Mr Morotte.  However, Mr Keen's evidence was that both he and Mr Marotte had made that decision.
  1. [72]
    Mr Keen's evidence was that:

He wasn't on this occasion because at this point Ian was seeking employment elsewhere within the Bunnings team and the purpose of the meeting in Melbourne, obviously, it comes at a great cost, is to talk through the first half of the financial year and the upcoming second half of the financial year.  Therefore there was perceived to be no benefit in Ian attending, if he was not going to be around for the second half of the financial year.

  1. [73]
    The Appellant questioned Mr Keen as to how he had obtained the information that the Appellant wished to leave the Department.  Mr Keen's response was that the Appellant had told him as had other departmental officers.  The Appellant said he had not met or had a conversation with Mr Keen around this time.
  1. [74]
    I have preferred the evidence of Mr Keen to the extent that the Appellant was not asked to attend the Melbourne conference as he wished to leave the area in which he worked to join another department at Bunnings.
  1. [75]
    Mr Grant was aware that the Appellant had not been invited to attend the conference in Melbourne when everyone else in the group had been invited.[31]  He believed that when the Appellant became aware of this he was in a state of disbelief initially and then he had become "quite upset".[32] 
  1. [76]
    In finding this, I accept that his non-attendance at the Melbourne conference may have been hurtful for the Appellant, but the Appellant's own evidence shows that he was clearly distressed and unhappy working in an environment in which Mr Keen worked.  That he wished to leave the Department is unsurprising.

Email dated 4 December 2013

  1. [77]
    The Appellant received an email from a person who had taken photographs at the Melbourne conference.  The Appellant felt "a bit angry" that he had received the pictures.
  1. [78]
    In this instance the email was sent by an employee other than Mr Keen and it had been sent to all the members of the Store Department (National).
  1. [79]
    I have been unable to take this matter any further.  There is no evidence of any questionable behaviour on anyone's part in the sending of these pictures.

Interactions with the Human Resources Department by the Appellant and Mr Keen

  1. [80]
    There were many meetings held between the Appellant and various representatives from Human Resources.  The Appellant believed that all of the meetings achieved no resolution.

Meeting One - The January 2014 Meeting

  1. [81]
    After the Appellant had been on five weeks' leave, he met with Mr Keen in January 2014.  Mr Keen said that the meeting related to:

Well, obviously if you had come back from leave we've got to catch up and debrief around what's going on, if you've had five weeks off.

  1. [82]
    The Appellant had complained about having to comply with a request from Mr Keen for a weekly planner.  Mr Keen's reasons for instituting this process was:

I would say at any time where I'm unclear of the abilities and had some concerns around the time management of a project co-ordinator, that I would ask them to give me a weekly planner, which is just a simple document - everyone knows what a weekly planner is - so that I could accurately determine whether or not they are managing their time.

  1. [83]
    Against a background where the Appellant had been relieved of some of his regular duties because he was struggling to complete his work, it is reasonable that a weekly planner was recommended.
  1. [84]
    Upon the facts around this issue, I am unable to find that the Appellant had been targeted or treated badly in this regard by Mr Keen and/or the employer.
  1. [85]
    The Appellant eventually made contact with Ms Belinda Thomas from Human Resources who suggested that she should also speak to Ms Hosken.
  1. [86]
    In January 2014, the Appellant had met with Mr Keen where two meetings were held.  I have found it difficult to follow the Appellant's evidence, but the Appellant ultimately agreed that he had not raised with Mr Keen any issues concerning harassment or bullying.  What the Appellant had referred to was "hits and knocks" and that actions taken against him were unfair.

Ms Hosken's evidence

  1. [87]
    A meeting was held between the Appellant and Ms Hosken on 8 January 2014.  The matters discussed were:
  • Ms Hosken discussed her role where she would listen, and provide advice and guidance and she also advised that he could bring a support person with him when they next met.
  • That the Appellant was anxious as he had undertaken a performance review with Mr Keen on that day.
  • Ms Hosken said that she was unclear as to the outcome being sought by the Appellant with regard to Mr Keen.
  • Her comment was that the type of matters raised by the Appellant were "generalist" and that the Appellant had been unable to indicate any particular or specific events.
  • The use of Eudoxia (a company employment assistance program) could be utilised by the Appellant for the purpose of counselling etc...
  • The Appellant showed Ms Hosken a performance management document.
  • As Ms Hosken remained unsure of what was required from her, she provided the Appellant with her mobile number to enable him to contact her if he needed to do so.
  1. [88]
    Ms Hosken tried to contact the Appellant later, but he did not return her messages.
  1. [89]
    Ms Hosken next saw the Appellant one week later at Bunnings headquarters at Mount Gravatt.
  1. [90]
    Not much was discussed between the two other than Ms Hosken asking the Appellant how he was going and him responding words to the effect "Still no outcome".
  1. [91]
    When the Appellant was questioned as to whether he had raised the issue of bullying and harassment in his conversations with Ms Hosken he said he had, but in CrossExamination he said "I didn't use words 'bullying' and 'harassment', but … - I put probably to her in words such as 'unfair'."
  1. [92]
    The Appellant also could not recall advising Ms Hosken that Mr Keen had been targeting him.
  1. [93]
    Considering the abovementioned commentary, it is difficult to see how Ms Hosken could do more to assist the Appellant.  She had acted reasonably in meeting with the Appellant, advising the Appellant of the assistance she could offer and also providing him with her mobile number so that he could call her if he needed to.

Meeting Two - 22 January 2014

  1. [94]
    This meeting between the Appellant and Ms Hosken occurred at the Coffee Club at Mount Gravatt Village on 22 January 2014.  In this instance the Appellant appears to have instigated the meeting.  The Appellant stated that he had been very emotional at the time.
  1. [95]
    Ms Hosken's evidence was that the Appellant said:
  • They're out to get me.
  • He thought that Bunnings wanted to move him from one Department to another.
  • He had discussed "stepping up" but Ms Hosken was unaware as to what he was referring.
  • He had spoken about his sister and his dog.
  • Ms Hosken understood that the Appellant was upset at what he viewed as Mr Keen's unfair treatment of him, but he had been unable to provide any specific details.
  • The Appellant rejected the use of the employment assistance program but later agreed that he would take steps to see a counsellor.
  1. [96]
    Ms Hosken left with the view that the Appellant was unable to properly express his concerns to her.
  1. [97]
    Towards the end of the meeting Ms Hosken said the Appellant remained unsure as to what to do, but said if he was going to lodge a complaint then he would rather do that in the Brisbane head office as he trusted Ms Hosken.
  1. [98]
    The Appellant then sought to speak to Ms Kidd notwithstanding that he had concerns about her.  Ms Kidd advised the Appellant that he should speak to someone to ensure that the allegations he wished to make were clear and unambiguous.
  1. [99]
    Suggestions had been made by Ms Hosken to encourage the Appellant to be able to more fully express himself through writing things down.
  1. [100]
    The above is an example of a process which, if adopted, would enable the Appellant to clearly place issues in front of those seeking to assist him in Human Resources.

 Meeting Three - 4 March 2014

  1. [101]
    At this meeting, the Appellant spoke to Ms Kidd and Ms Hosken.  The meeting lasted around two hours.
  1. [102]
    Ms Hosken recalled the meeting as follows:
  • that the Appellant discussed the pressures of the role he was undertaking at the workplace; and
  • there remained uncertainty as to what the Appellant was actually alleging.
  1. [103]
    To this end, Ms Hosken stated:

" I don't feel like we're getting anywhere".  So she was pressing him or, "We're not getting anywhere.  How much time do you need to put together something to come back to us on?"  I do remember Ian kept (sic) saying, "How long do you think?", or wanting - wanting the answer from Jennie, and Jennie getting quite frustrated of, "No, Ian, you tell me what you need.  How long do you need to get the information back to us?  This is for you.  We've got no demands on when we need whatever the supposed information is. You let us know how much time you need".[33]

  1. [104]
    A six-week timeframe was recommended and the Appellant agreed.  There was some further discussion on that point Ms Hosken stated:

"No Ian, this is about you.  What do you want".  I do remember at that particular point in time, Jennie said, "Six - why six weeks?", thinking six weeks might be a long time, and he went to explain that he was going to - I think it was the Northern Territory to some project work there and there were quite a few big things that needed to be delivered and that's why he needed that time.[34]

  1. [105]
    After this two-hour meeting, Ms Hosken did not believe that they were achieving anything with the Appellant.[35] 
  1. [106]
    Ms Hosken did not hear from the Appellant after six weeks nor did she receive any documentation from the Appellant concerning the matters raised in the previous meetings.
  1. [107]
    Ms Kidd was included in the meetings because the Appellant had asked for her.
  1. [108]
    Ms Kidd in a further discussion with Ms Hosken stated:

I understood that Mr St Jacques had been talking to Ms Hosken about possible complaint of bullying or intimidatory behaviour, harassment-type activities, and Ms Hosken thought that it might be beneficial that if both of us sat down with Mr St Jacques, we might be able to get a much clearer idea of what the issues were that related to the complaint.  My understanding was that after several meetings - and I’m not sure how many - that Ms Hosken had, or conversations Ms Hosken had with Mr St Jacques, that we were able to get any - or that she was able to get any specific allegations or state -  or claim with regard to the nature of the complaint that he wanted to put forward.[36]

  1. [109]
    Ms Kidd stressed that she required dates, times, specific events and individuals from the Appellant in order to understand the nature of his grievances.
  1. [110]
    The Appellant at some point indicated that he did not trust Ms Kidd and subsequently added her name to that of Mr Keen and Marotte as constituting people who had taken unreasonable actions against him.[37]
  1. [111]
    In my view, the manner in which the meetings were conducted concerning the Appellant were all conducted in a reasonable manner.  Every assistance seemed to be provided to the Appellant to enable him to properly identify and clarify the actual issues which were distressing him.  Generalisations appeared to be all that given on each occasion.
  1. [112]
    I have accepted the evidence of Ms Hosken and Ms Kidd that they had attempted genuinely to assist the Appellant in a fair and reasonable manner.

 Further commentary from the Appellant's submissions

  1. [113]
    The Appellant, in his submissions, referred to persons he claimed that he had spoken to about his condition around July 2013.  These included:
  • "Charlie and Ben" [fellow employees, but only Charlie (viz., Mr Grant), gave evidence].
  • Mr Keen [who gave evidence].
  • "Senior leaders" within the business [unable to be identified].
  • "Senior leaders" who spoke to Mr Keen ["senior leaders" unable to be identified].
  • "Human Resource leaders" [unidentified, but the Appellant did speak to Queensland Human Resources personnel].
  • Charlie spoke to "senior leaders" [unidentified].
  • "Senior Human Resource leaders in Melbourne" [not clearly identified].
  1. [114]
    I am unable to determine with any degree of certainty who the "senior leaders' were. 

 CONCLUSION

  1. [115]
    In final submissions, the Appellant has made reference to a number of matters which he has asked the Commission to consider in making its decision. These include:
  • that he had not addressed all of the evidence in his Facts and Contentions Statement as he and Ms Foran were "tired, scared, confused, felt controlled at times, and that they had misunderstood what was expected of them; and
  • that his presentation in the hearing had been affected by his mental condition and that "allowances" should be made by the Commission in this regard.
  1. [116]
    In considering these matters, I am confident that both the Appellant and Ms Foran were extended considerable consideration and time by the Commission as it related to what was expected of them in the hearing.
  1. [117]
    Appropriate assistance was afforded to the Appellant in ensuring that the issues he wished to raise were achieved and done so in a fair manner.
  1. [118]
    Overall, I have found that the employer responded to the Appellant's concerns in a reasonable manner.  It is clear that in the assessments made by those in management to whom the Appellant spoke, a theme permeated through those meetings which was either that the Appellant was "OK" or that the specificity of his complaints were not made out enough for the employer to consider any appropriate response.
  1. [119]
    To exemplify this point, the Appellant had a Support Person with him at a particular meeting (Mr Darlington) but each gave different evidence of that meeting on significant points when the matter was revisited in this hearing.  The Appellant appeared to take a negative view of a range of matters which were occurring at the workplace (for example, the "emotional intelligence" material and the email from Mr Keen concerning moving reports forward in a timely manner).  These are but two examples of where Mr Keen had not singled out the Appellant for commentary, but were emails which applied to those in the team inclusive of the Appellant.
  1. [120]
    The Regulator submits that in assessing management action, it is the reality of the employer's conduct, not the appellant's perception of it, that must be taken into account (see s 32 (5)(b) of the Act).  The Commission's task is to assess the reasonableness of the management action which must be undertaken objectively.[38]
  1. [121]
    I have formed the view that in all of the processes undertaken by management towards the Appellant, reasonableness has prevailed.  Management actions need not always be optimal overall, but the actions of management in this matter were not unreasonable nor taken in an unreasonable way (see s 32(5)(a) of the Act).
  1. [122]
    For the abovementioned reasons, the Appeal is dismissed.  The Appellant is to pay the costs of, and incidental to the Regulator.

ORDERS:

1. The Appeal is dismissed.

2.  The Appellant is to pay the Regulator's costs of, and incidental to the Appeal.

Footnotes

[1] [2014] ICQ 027 at [23].

[2] T2-2.

[3] T9-46 to 47.

[4] [2017] ICQ 004, [15]-[17].

[5] [2015] ICQ 001, [19].

[6] [2017] ICQ 1 at [13].

[7] T4-27.

[8] T6-71.

[9] T9-36.

[10] T5-85.

[11] Exhibit 1A and B.

[12] T4-30.

[13] T5-91.

[14] Exhibit 1B.

[15] Exhibit 2B.

[16] Exhibit 3.

[17] T6-21.

[18] Exhibit 4.

[19] Exhibit 5, "Record of Discussion/Meeting".

[20] T6-24.

[21] T6-25.

[22] T6-26.

[23] T6-29.

[24] T6-41.

[25] T8-7.

[26] T8-21.

[27] Exhibit 6.

[28] T9-11.

[29] Exhibit 7.

[30] Exhibit 8.

[31] T5-34.

[32] T5-35.

[33] T8-46.

[34] T8-46.

[35] T8-72.

[36] T8-85.

[37] Appellant's submissions, p 13 [41].

[38] Q-COMP v Foote [2007] QIC 83.

 

Close

Editorial Notes

  • Published Case Name:

    St Jacques v Workers' Compensation Regulator

  • Shortened Case Name:

    St Jacques v Workers' Compensation Regulator

  • MNC:

    [2019] QIRC 43

  • Court:

    QIRC

  • Judge(s):

    Swan DP

  • Date:

    06 Mar 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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