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Gillan v Workers' Compensation Regulator[2021] QIRC 315

Gillan v Workers' Compensation Regulator[2021] QIRC 315

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Gillan v Workers' Compensation Regulator [2021] QIRC 315

PARTIES: 

Gillan, Jennifer

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO.:

WC/2019/36

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

10 September 2021

HEARING DATES:

10 June 2020, 24 September 2020 and 25 September 2020

DATES OF WRITTEN SUBMISSIONS:

Respondent's written submissions filed on 5 February 2021 and Appellant's written submissions filed on 5 March 2021

MEMBER:

HEARD AT:

Merrell DP

Brisbane

ORDERS:

  1. Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent, dated 20 February 2019, is confirmed.
  1. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:
  1. the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Monday, 20 September 2021;
  1. unless otherwise ordered, the decision on costs be determined on the papers.

CATCHWORDS:

WORKERS' COMPENSATION – ENTITLEMENT TO AND LIABILITY FOR COMPENSATION – APPEAL AGAINST REVIEW DECISION – appellant employed as Operations Support Supervisor – allegation that appellant was managed unreasonably by her supervisor which resulted in an adjustment disorder – appellant made an application for workers' compensation for a psychiatric or psychological injury – decision by WorkCover Queensland to reject application – WorkCover Queensland decision confirmed by respondent on review – worker appealed against review decision of the respondent to the Queensland Industrial Relations Commission – whether appellant sustained a personal injury – whether personal injury arose out of, or in the course of, her employment or whether employment aggravated a pre-existing psychiatric or psychological injury – whether appellant's employment was the major significant contributing factor to the injury or to the aggravation of a pre-existing psychiatric or psychological injury – whether appellant's injury excluded pursuant to s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 – appellant's personal injury arose out of, or in the course of, reasonable management action taken in a reasonable way in connection with her employment – review decision of respondent confirmed

LEGISLATION:

Industrial Relations Act 2016, s 531

Workers' Compensation and Rehabilitation Act 2003, s 11, s 32 and s 558

Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2019, s 34

CASES:

Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538

Avis v Workcover Queensland [2000] QIC 67; (2000) 165 QGIG 788

Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279

Betfair Pty Ltd v Racing New South Wales [2010] FCAFC 133; (2010) 189 FCR 356

Blackwood v Mana [2014] ICQ 027

Church v (Simon Blackwood) Workers' Compensation Regulator [2015] ICQ 031; (2015) 252 IR 461

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

Holtman v Sampson [1985] 2 Qd R 472

JBS Australia Pty Ltd v Q-COMP [2013] ICQ 13

Kavanagh v Commonwealth [1960] HCA 25; (1960) 103 CLR 547

Kuenstner v Workers' Compensation Regulator [2016] QIRC 083

Nilsson v Q-Comp [2008] QIC 74; (2008) 189 QGIG 523

Omanski v Q-Comp [2013] ICQ 7

Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642

Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262

Simon Blackwood (Workers' Compensation Regulator) v Civeo Pty Ltd and Anor [2016] ICQ 001

State of Queensland (Department of Agriculture and Fisheries) v Workers' Condensation Regulator [2020] QIRC 097

State of Queensland (Queensland Health) v QComp and Beverley Coyne [2003] ICQ 9; (2003) 172 QGIG 1447

Theiss Pty Ltd v Q-Comp [2010] ICQ 27

Yousif v Workers' Compensation Regulator [2017] ICQ 004

APPEARANCES:

Mr M. Pope of Counsel instructed by Ms C. Zagami of Derek Legal for the Appellant.

Mr B. McMillan of Counsel directly instructed by Ms J. Webb of the Respondent.

Reasons for Decision

Background

  1. [1]
    Ms Jennifer Gillan was employed by GE Oil & Gas Pressure Control Australia Pty Ltd ('GE').[1] Ms Gillan commenced employment with GE in July 2007. From in or about 2016, Ms Gillan held the position of Operations Support Supervisor. Ms Gillan originally reported to Mr Paul Holmes who held the position of Operations Manager. Mr Holmes ceased employment in February 2018 and was replaced by Mr Steve Blencowe.
  1. [2]
    Ms Gillan contends that she suffered the personal injury of an adjustment disorder combined with anxiety and depression, arising out of the way she was managed by Mr Blencowe. In essence, Ms Gillan contends that she was unreasonably managed by Mr Blencowe[2] and that it was that conduct that had a causal connection with her personal injury.[3] Ms Gillan nominated 15 stressors in her list of stressors as having a causal connection with her injury. Ms Gillan contends that her work-related decompensation occurred on 19 September 2018.[4]
  1. [3]
    The Workers' Compensation Regulator ('the Regulator') contends that if Ms Gillan did suffer a personal injury, such an injury did not arise out of, or in the course of, her employment with GE and further, that her employment was not the major significant contributing factor to any such personal injury.[5] In the alternative, the Regulator contends that Ms Gillan's injury arose out of, or in the course of:
  • management action that was reasonable management action taken in a reasonable way in connection with her employment; or
  • her expectation or perception of reasonable management action being taken against her by her employer.[6]
  1. [4]
    After having considered the parties' statements of facts and contentions, their evidence and their submissions, six questions arise for determination, namely:
  • did Ms Gillan suffer a personal injury? and, if so
  • did that personal injury arise out of, or in the course of, Ms Gillan's employment with GE? and, if so
  • was Ms Gillan's employment with GE the major significant contributing factor to that personal injury within the meaning of s 32(1)(b) of the Workers' Compensation and Rehabilitation Act 2003 ('the Act')? or, in the alternative
  • did Ms Gillan suffer an aggravation of a personal injury within the meaning of s 32(3)(ba) of the Act? and
  • did Ms Gillan's injury:
  •  arise out of, or in the course of, reasonable management action taken in a reasonable way in connection with her employment within the meaning of s 32(5)(a) of the Act? or in the alternative,
  •  arise out of, or in the course of, her expectation or perception of reasonable management action being taken against her within the meaning of s 32(5)(b) of the Act?
  1. [5]
    For the reasons that follow, I find that Ms Gillan did not suffer an injury within the meaning of s 32 of the Act.

The relevant principles and provisions of the Act

  1. [6]
    An appeal of this type is a hearing de novo[7] of the issue determined by the review decision.[8] The onus is on Ms Gillan to prove, on the balance of probabilities, that she has suffered an injury within the meaning of the Act.[9]
  1. [7]
    The common law test of balance of probabilities is not satisfied by evidence which fails to do more than just establish possibility.[10] In Seltsam Pty Ltd v McGuiness, Spigelman CJ relevantly stated:

79 Evidence of possibility, including expert evidence of possibility expressed in opinion form and evidence of possibility from epidemiological research or other statistical indicators, is admissible and must be weighed in the balance with other factors, when determining whether or not, on the balance of probabilities, an inference of causation in a specific case could or should be drawn. Where, however, the whole of the evidence does not rise above the level of possibility, either alone or cumulatively, such an inference is not open to be drawn.[11]

  1. [8]
    The balance of probabilities test requires a court to reach a level of actual persuasion and that process does not involve a mechanical application of probabilities.[12]
  1. [9]
    There is no dispute that:
  • Ms Gillan was a worker within the meaning of s 11 of the Act; and
  • Ms Gillan's appeal is to be decided by the application of s 32 of the Act as it existed prior to its amendment by s 34 of the Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2019 which commenced operation on 30 October 2019.
  1. [10]
    As of 19 September 2018, s 32 of the Act relevantly provided:

32 Meaning of injury

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

  1. (3)
    Injury includes the following-

(ba)  an aggravation of a psychiatric or psychological disorder, if the aggravation arises out of, or in the course of, employment and the employment is the major significant contributing factor to the aggravation;

  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-
  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 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

Did Ms Gillan suffer a personal injury?

  1. [11]
    Ms Gillan called evidence from Dr Harjit Singh, General Practitioner, and Mr Gerhard Venter, Clinical Psychologist. In addition, Ms Gillan's medical records from the Murrumba Downs Medical & Dental Centre, current to 29 May 2020, was tendered (Exhibit 1). From that record, it is clear that Ms Gillan, on occasions, was examined by Dr Mangala Tshibangu, General Practitioner.
  1. [12]
    The Regulator originally contended that Ms Gillan had not sustained a personal injury.[13] However, the Regulator submitted that the medical evidence establishes that Ms Gillan has sustained a personal injury, namely, depression and anxiety, as diagnosed by Dr Tshibangu in 2017 and Dr Singh in 2018.[14] This concession was properly made.
  1. [13]
    On 19 September 2018, Dr Singh examined Ms Gillan and recorded that Ms Gillan had a history of 'stress anxiety depression stemming from work stress.'[15] Dr Singh's evidence was that on that day she diagnosed Ms Gillan as having mixed anxiety and depression due to stress.[16] On 5 October 2018, Dr Singh issued a workers' compensation work capacity certificate which diagnosed Ms Gillan as suffering from stress and that the treatment included being referred to a psychologist and being prescribed antidepressants.[17] The Regulator called no medical evidence to the contrary.
  1. [14]
    For these reasons, I find that Ms Gillan had a personal injury of mixed anxiety and depression.

Did Ms Gillan's personal injury arise out of, or in the course of, her employment?

Ms Gillan's contentions and submissions

  1. [15]
    In her notice of appeal filed on 14 March 2019, Ms Gillan contended that the reason she suffered a compensable injury was that she had an excessive workload due to a lack of staff and that her management failed to respond after she had requested help and support.[18]
  1. [16]
    In her amended statement of facts and contentions filed on 8 October 2019, Ms Gillan contended that she had suffered an injury within the meaning of s 32 of the Act and nominated 15 workplace stressors. They were:
  • in February 2018, Ms Gillan was excluded from a Health, Safety and Environment ('HSE') leadership workshop;
  • in a period of time prior to March 2018, Ms Gillan only had four staff which was insufficient to do the work required;
  • for 6 months prior to March 2018, Ms Gillan complained on approximately half a dozen different occasions to Mr Holmes that she did not have sufficient staff to do the work required, however, no action was taken;
  • in March 2018, Ms Gillan was not invited to a Strength, Weakness, Opportunity and Threat ('SWOT') analysis program initiated by her employer;
  • by June 2018, the SWOT project had failed and nothing had happened to improve the system and reduce the workload;
  • in June 2018, Ms Gillan made three recommendations to improve the workload, namely:
  •  change to system generated job paperwork instead of manual Excel forms;
  •  removing first and second receipts to another department; and
  •  removing stock transfers to another department,

none of which were implemented until after Ms Gillan went on stress leave on 19 September 2018;

  • on 29 March 2018, Ms Gillan sent an email to Mr Blencowe requesting extra staff to assist with the increased workload, however, the request was denied;
  • in April 2018, Ms Gillan's performance review was conducted by a person who had been her manager for only one month (Mr Blencowe), who gave her a 1.5% review which was unjustified and which affected her pay increase for the year;
  • in April 2018, Ms Gillan was required to do inventory adjustments which was a finance role, Ms Gillan reported this to Mr Blencowe, however, the task was not removed from her role;
  • in April 2018, Mr Blencowe attempted to stop Ms Gillan from leaving work at 3.00 pm every second week to collect her children from school;
  • in May 2018, Mr Blencowe insisted that Ms Gillan complete his reports and stop doing Head Office reports which resulted in Ms Gillan reporting to Head Office late and with insufficient information;
  • on 30 May 2018, Ms Gillan asked Mr Blencowe to remove his partner, Ms Melissa Price, from Ms Gillan's department because Ms Price was not performing and Ms Price was not removed from her department until the week before Ms Gillan went on stress leave on 19 September 2018;
  • on 25 June 2018, Mr Blencowe requested Ms Gillan monitor the team's hours to see what overtime was being worked, in response to which Ms Gillan advised Mr Blencowe that the team had stopped doing overtime as there was no appreciation from the business and they were not getting paid;
  • in August 2018, Ms Price was not replaced when she was away from work for a period of one month which caused additional workload stressors; and
  • on 18 September 2018, Ms Gillan left the workplace after:
  •  a conversation with Mr Blencowe regarding his decision to tell another employee that she (the employee) could have flexible working hours, without first discussing the matter with Ms Gillan; and
  •  the decision made by Mr Blencowe to move Ms Price out of Ms Gillan's team without discussing the matter with her and Mr Blencowe's decision not to replace Ms Price.
  1. [17]
    In her evidence-in-chief, Ms Gillan gave evidence about eight discrete issues. They were:
  • her increased workload following redundancies and a subsequent merger, in late 2016,[19] of the team she initially supervised, the Planning, Inventory Control ('PIC') team, with the Order to Remittance ('OTR') team, which meant the merged team she subsequently supervised had to do the same work as both teams with four staff, including Ms Gillan, when previously there were 12 staff including her;[20]
  • despite her complaints to Mr Holmes and to Mr Neil McGrath, a more senior manager in GE, the failure of GE to relieve the pressure on her (and her team) in respect of the increased workload;[21]
  • the failure of GE, in about February 2018, to send her to a HSE leadership course;[22]
  • in about March 2018, the statement made by Mr Blencowe to her that her leaving work at 4.00 pm (as part of a formalised flexible working hours arrangement due to her childcare needs) was not acceptable, that she was expected to do overtime and that GE did not care about her family;[23]
  • the pay increase she received in 2018, namely, a 1.2% increase, particularly when Ms Price, who Ms Gillan supervised (and who was in a relationship with Mr Blencowe) received an increase of 11% to 12% in 2018;[24]
  • the further issues concerning Ms Price, namely:
  •  her (Ms Gillan's) suggestion, in May 2018, to Mr Blencowe that Ms Price be moved out of her team because of Ms Price's work performance and the difficulty Ms Gillan was having in managing Ms Price, and the failure of Mr Blencowe to act on the complaint;[25]
  •  the subsequent relocation of Ms Price to the Field Service Department in September 2018 and the failure to replace Ms Price in her (Ms Gillan's) team following the relocation;[26] and
  •  Mr Blencowe's statement on 18 September 2018 to Ms Gillan that someone else will have to do Ms Price's work and the further allegation by Mr Blencowe that Ms Gillan did not do any of Ms Price's work whilst Ms Price had recently been on leave, causing Ms Gillan to resign.[27]
  1. [18]
    At the end of her evidence-in-chief, Ms Gillan answered affirmatively when she was asked if she remembered that some time ago she had set out a list of stressors from work.[28]Ms Gillan was then asked whether the facts recorded in that document, so far as they came from her, were true, to which Ms Gillan agreed.[29] Ms Gillan's evidence in chief, as set out above, was about some of those 15 events. To the extent Ms Gillan stated that the events in the list of stressors were true, but gave no other evidence about those events, then her confirmation that those events were true is not evidence that those events had a causal connection with her decompensation in September 2018.
  1. [19]
    Ms Gillan submitted that her personal injury arose out of, or in the course of, her employment.[30]
  1. [20]
    The Regulator submits that having regard to Ms Gillan's statement of facts and contentions, her appeal is confined to the pleaded allegations that her injury arose in the course of her employment in respect of the events referred to in her list of stressors.[31] The Regulator further points out, accurately, that in relation to the third stressor in the list of stressors, there are no facts alleged by Ms Gillan in her statement of facts and contentions about her complaints about a lack of staff in the six months prior to February 2018.[32]
  1. [21]
    By s 531 of the Industrial Relations Act 2016, the Commission is relieved of many of the strict rules which apply in civil courts, however, the Commission is still in charge of its own procedure and may, consistently with the provisions of s 531, require parties to provide an outline of their respective cases. This is particularly important in appeals under the Act where the nature of injuries, their cause, and the times at which they were suffered are essential to the resolution of an appeal. For those reasons, the Commission is entitled to rely on the statement of facts and contentions as a complete statement of a party's case. Similarly, such a statement of facts and contentions alerts the other party to the case it will have to deal with and identifies the issues which exist, which in turn, allow for a confinement of the matters in dispute.[33]
  1. [22]
    However, even in courts bound by pleadings, if evidence which raises fresh issues is admitted without objection at trial, the case is to be decided upon a basis which embraces the real controversy between the parties.[34] To ensure that the real controversy between the parties is determined, such an approach should apply in a proceeding such as the present.
  1. [23]
    Ms Gillan's evidence-in-chief about her increased workload, following the redundancies and merger of the PIC and OTR teams and her subsequent unsuccessful complaints to Mr Holmes and Mr McGrath about her workload, was admitted without objection and without qualification that it was background evidence. For these reasons, I will not discount that evidence.

The Regulator's contentions and submissions

  1. [24]
    The Regulator contended that Ms Gillan's injury did not arise out of, or in the course of, her employment. The Regulator submitted that:
  • Dr Singh could not say whether Ms Gillan's depression arose out of her employment or was a pre-existing illness that affected her perception of her employment such that she reacted differently to that when well;[35] and
  • Mr Venter's opinion was that Ms Gillan's illness was caused by alleged bullying by Mr Blencowe and then aggravated by allegations of bullying made against her which, it submits, are not matters for the Commission to consider as they are not pleaded and Ms Gillan declined the opportunity to amend her statement of facts and contentions following the adjournment on the first day of hearing on 10 June 2020.[36]

The medical evidence

  1. [25]
    Whether a worker has suffered an injury within the meaning of the Act is a question of fact which is not necessarily resolved by acceptance or rejection of medical testimony.[37] Thus, the tribunal may consider the medical evidence and by a course of reasoning which, combined with common sense and the application of logic to physiological facts, infer, on the balance of probabilities, a causal connection with an injury.[38]

The Murrumba Downs Medical & Dental Centre medical records

  1. [26]
    The Regulator, in its submissions, referred to the fact that on 13 March 2017, Ms Gillan was examined by Dr Tshibangu. In the relevant record, Dr Tshibangu recorded under the heading of 'History':

The last two weeks :

Tired , demotivated , difficult to get out of the Bed .

Less focused

The same Job , the same Children and household

She got married in November, nothing overwhelming .

Sleeps , most of the time poor .

Some days I wake up Granky [sic] , hates the world , does not want to be there .

No finacial [sic][39]

  1. [27]
    Ms Gillan's evidence was that that was the first time she had been to see a general practitioner about mental health concerns and, after being asked to review Dr Tshibangu's notes as recorded for that day, agreed that what was written accorded with her recollection of what she told the doctor on that day.[40] Ms Gillan also agreed that she did not talk to Dr Tshibangu about work causing the symptoms she described to him,[41] despite acknowledging that what she told the doctor was in private and that he could not disclose what she said to him to GE without her permission.[42]
  1. [28]
    Under the heading 'Examination:', Dr Tshibangu recorded: 'Mood moderately depressed/anxious'.[43] Dr Tshibangu asked Ms Gillan to complete a Depression Anxiety Stress Scale ('DASS') questionnaire.[44] Dr Tshibangu also completed a Mental Health Assessment of Ms Gillan[45] in which, under the heading of 'PRESENTING PROBLEMS:', he recorded:

1)… Stressed , Moderate Depression

2)… ? Anxiety[46]

  1. [29]
    In the Mental Health Assessment, Dr Tshibangu recorded that Ms Gillan had a family history of mental illness which Ms Gillan confirmed was information she provided to Dr Tshibangu.[47]
  1. [30]
    Dr Tshibangu was not called to give evidence. However, in crossexamination, Dr Singh was taken to Ms Gillan's answers to the DASS questionnaire and to the Mental Health Assessment completed by Dr Tshibangu. After reviewing the material, Dr Singh agreed that, back in March 2017, Ms Gillan may have been suffering from '[m]ild to moderate'[48] 'depression and anxiety.'[49]

Dr Singh

  1. [31]
    Dr Singh examined Ms Gillan on 19 September 2018. The record of that consultation recites the history given by Ms Gillan as:

stress anxiety depression

stemming from work stress

poor sleep

fatigue

has 3 children under age of 15 yrs[50]

  1. [32]
    In her oral evidence, Dr Singh stated that, while she could not remember that particular consultation specifically, Ms Gillan told her:
  • that there was a certain incident at the workplace that started it all off and that she did not feel well supported;
  • there were some issues with management and communication leading to stress; and
  • she was having problems sleeping, she was feeling very fatigued, she was a mother of three and her kids were pretty young.[51]
  1. [33]
    In cross-examination, Dr Singh:
  • was asked what her diagnosis was from that consultation, to which Dr Singh replied that Ms Gillan '… was having mixed anxiety, depression';[52]
  • did not recall Ms Gillan providing her with other details about work stress;[53] and
  • agreed that when Ms Gillan consulted her in September 2018, it would have been important for Dr Singh to know if Ms Gillan had previously been diagnosed with anxiety or depression[54] and stated that she (Dr Singh) did not remember whether Ms Gillan informed her of any such previous diagnosis.[55]
  1. [34]
    Ms Gillan consulted Dr Singh again on 21 September 2018. Dr Singh stated Ms Gillan gave a history of: 'Increasing stress in the workplace, issues with management, poor staffing issues, increased workload. That's what was going on at the time and that was the impression the patient was giving me.'[56] Dr Singh further stated that she thought the core problem was that Ms Gillan felt there was not enough staff, there was increased work pressure, she attempted to communicate those matters with management and management was not replying or was not giving her enough feedback with regards to her concerns.[57]
  1. [35]
    On 21 September 2018[58] and 5 October 2018,[59] Dr Singh issued workers' compensation work capacity certificates, both of which gave a work-related diagnosis of 'stress' with Ms Gillan describing the mechanism of the injury as being 'understaffed' and 'work pressure.' Dr Singh stated that her diagnosis was recorded in that way because she considered stress to be the primary cause of Ms Gillan's symptoms, because that was what Ms Gillan was describing to her and that Ms Gillan was getting really stressed with regards to workload.[60]
  1. [36]
    The Regulator, in its submissions,[61] then referred to Dr Singh's evidence in crossexamination about whether Ms Gillan's earlier 2017 symptoms of depression and anxiety could have been exacerbated by the work incidents Ms Gillan described to Dr Singh in September 2018. Dr Singh stated that if Ms Gillan's symptoms had not resolved, she felt no better and her symptoms continued from March 2017 up to September 2018 when she saw Ms Gillan, then she (Dr Singh) felt that her (Ms Gillan's) symptoms could have been exacerbated by work.[62] Dr Singh then stated that someone who is experiencing depression and anxiety and suffers from that will find other things or other sorts of trials and tribulations to be difficult. Dr Singh stated she did not know whether Ms Gillan had felt better and that work had then exacerbated her symptoms or whether there was an '… underlying anxiety and depression anyway that made it difficult for her to deal with the work circumstances.'[63] Dr Singh then stated that from the impressions and consultations that she had with Ms Gillan, and the topics that were bought up each time, it seemed to be that everything else was alright but it was just the fact she was having issues at work.[64]
  1. [37]
    The Regulator made further submissions[65] that Dr Singh's evidence in crossexamination concluded by her agreeing with the proposition that because she did not have a detailed history from Ms Gillan about her symptoms, she (Dr Singh) was not able to say whether Ms Gillan's presentation in September 2018 was an exacerbation of preexisting depression or simply her perception of events as a result of her experiencing depression during those events.[66]

Mr Venter

  1. [38]
    Exhibit 7 is Mr Venter's report to WorkCover Queensland dated 29 October 2018 and was a letter written '… in support of Jennifer's WorkCover claim.'[67] In that report, Mr Venter stated that Ms Gillan reported:
  • a '… stable mental state, positive work record, good performance and consistency in her work over the years';[68]
  • stable domestic circumstances;[69] and
  • after a change in line management in February 2018, her relationship with her new manager systematically deteriorated and her mental state was impacted to the point where she was unable to continue working and was placed on sick leave by her general practitioner.[70]
  1. [39]
    Mr Venter opined that Ms Gillan presented with '… an Adjustment Disorder mixed with anxiety and depression as a direct consequence of work-related matters.'[71] In conclusion, Mr Venter stated:

Given Jennifer's positive work record and reported history of stable mental health, her deterioration in mental state over the past 9 months appears to be directly related to the change in line management. I therefore support her WorkCover claim in the context of a work-related injury.[72]

  1. [40]
    It his further report dated 22 June 2020, Mr Venter relevantly stated:

During my sessions she made a number of allegations regarding her line manager's actions and attitudes towards her that she reported adversely impacted her mental state. You also provided me with a list of stressors in relation to this matter.

As requested I will comment on what I consider to be the potential relationship between these reported stressors and Ms Gillan's decline in mental state at the time.[73]

  1. [41]
    Mr Venter then, in response to the list of stressors provided to him, reported on Ms Gillan's feelings in relation to each of those stressors as she reported to him. The stressors were:
  • exclusion from the HSE leadership foundation workshop and not being invited to important work meetings;
  • insufficient staffing provided by management to function in her position as Operation Support Supervisor despite numerous complaints regarding staffing problems and requests for staffing increases;
  • recommendations to improve workload were not implemented;
  • poor performance review by manager;
  • the requirement to engage in responsibilities (i.e. inventory adjustments) which were not in Ms Gillan's role description;
  • derogatory comments made by manager in relation to time required in the afternoon to collect her children from school;
  • the manager's wife working in Ms Gillan's team; and
  • the manager making executive decisions regarding Ms Gillan's staff without consulting her.[74]
  1. [42]
    By way of conclusion, Mr Venter opined:

In my opinion, these alleged actions perpetrated against Ms Gillan by her supervisor had a significant impact on the mental state. Whereas she reported her premorbid mental state and general functioning in the work place as well as in the home environment as being positive, she became symptomatic as a direct result of her relationship with her manager, eventuating in a deterioration in mental state and an adjustment disorder.[75]

  1. [43]
    In cross-examination, Mr Venter was taken to a letter dated 19 December 2018 which he wrote to a law firm, which was, on behalf of GE, investigating allegations about Ms Gillan's alleged workplace misconduct. In that letter, Mr Venter opined that:
  • Ms Gillan continued to experience symptoms of depression and anxiety in the context of an adjustment disorder related to alleged bullying by her manager in her workplace and that Ms Gillan's symptoms appear to have been further exacerbated by the stress associated with the current complaint of bullying made against her which had eventuated in the investigation; and
  • any engagement in meetings or assessments in relation to her alleged misconduct would exacerbate her symptoms.[76]
  1. [44]
    Having regard to this letter, Mr Venter stated that:
  • it was his opinion that the change in line management, and therefore the person that came into the management position, acted in such a way that contributed to or caused Ms Gillan's adjustment disorder;[77]
  • he did use the word 'bullying' and would often use the word that the client uses when they refer to a certain action by someone or another party;[78] and
  • he recalled Ms Gillan telling him that she was victimised and '… most likely used the word bullying' but that he could not definitively say that and he would have to go through all his notes, however, that was his understanding.[79]
  1. [45]
    For the purposes of expressing his opinions, as contained in Exhibits 7 and 8, Mr Venter only relied upon the information provided to him by Ms Gillan and the WorkCover reasons for decision.[80] Further, Mr Venter did not have a recollection of Ms Gillan telling him that she had previously been diagnosed with depression and anxiety in 2017.[81]
  1. [46]
    The Regulator submits that Mr Venter's opinion should be approached with caution and given little weight because he was not briefed with any medical history or relevant factual information, had no recollection of seeing Ms Gillan in 2017 and Ms Gillan did not tell him about her prior history of depression. The Regulator further submitted that Mr Venter's authorship of letters to WorkCover, to GE and to the law firm conducting the workplace investigation, demonstrates his effort to advocate for Ms Gillan and that he was not an impartial witness capable of giving independent opinion evidence.[82]

Ms Gillan's evidence

  1. [47]
    Ms Gillan's evidence was that the feelings she described to Dr Tshibangu on 13 March 2017 continued during 2017 and 2018 but '… not as bad as they were' because she was meditating at night time to try to help her sleep and was walking when feeling stressed.[83]
  1. [48]
    On 14 March 2017, Ms Gillan returned to see Dr Tshibangu who issued a Mental Health Plan and prescribed Temazepam to assist her sleep.[84] In accordance with the Mental Health Plan, Dr Tshibangu referred Ms Gillan to Mr Venter to help her with her anxiety and depression which resulted in her seeing Mr Venter for a series of consultations in 2017.[85] Ms Gillan agreed that Mr Venter gave her some tools, like cognitive behavioural therapy to assist her with managing her anxiety and that helped her to a degree.[86] Oddly, Mr Venter stated that he saw Ms Gillan in October 2018,[87] based on a referral from Dr Singh,[88] but did not recall consulting with Ms Gillan in March 2017.[89]
  1. [49]
    When Ms Gillan consulted Dr Singh on 19 September 2018, she stated that she told Dr Singh the reason for seeing her was a:

[L]ead-up to that day with all the stress and stuff from work, with all the understaffing and that - that - when I also rang WorkCover, this was - Irene wanted to know what made me go to the doctors and what this - this was all about but it was - it was a build up to the whole thing. The last day with Steve on that 18th was just the last straw that I couldn't handle any more of - of the pressures from them.[90]

  1. [50]
    When asked whether she discussed any particular features of work stress that brought her in to see Dr Singh on that day, Ms Gillan stated that she discussed being understaffed at work, the extra workload she was doing, the pressures between 'Melissa and Steve' (Ms Price and Mr Blencowe) and the way that management had been speaking to them as a whole and individually.[91]
  1. [51]
    Ms Gillan then confirmed what she said to a WorkCover officer during a telephone conversation on 27 September 2018,[92] as recorded by the WorkCover officer and set out in Exhibit 3. Ms Gillan stated that:
  • what caused her to see her doctor on 19 September 2018 was that over the last eight months they had been really understaffed and everyone was feeling a lot of pressure and stress;[93]
  • on 18 September 2018, Mr Blencowe was leaving to go to China and she wanted to discuss staffing issues with him before he left because he had moved one of her colleagues without her knowing and that she (Ms Gillan) should have been notified about the process, however, Mr Blencowe just brushed off her concerns;[94]
  • Ms Price was Mr Blencowe's wife and she was also Ms Gillan's backup when Ms Gillan was not present;[95] and
  • there was no contingency plan in place about staffing issues and that those concerns not being addressed caused other staff members to have breakdowns and people to burst out into tears.[96]
  1. [52]
    Ms Gillan, in a further email to the WorkCover officer dated 30 September 2018, provided further information about the above matters. Ms Gillan gave detailed information about the conversations that occurred between her and Mr Blencowe on 18 September 2018.[97] Relevantly, Ms Gillan stated:

I am now a member short in my team which is already understaffed and no procedures were followed to discuss this with me and what the impact to my team and the business would be.

As Steven mentioned in our conversation on the 18th September when I asked " who will be my back up and do my work when I'm not here" he stated " someone else." ( I also have a voice recording of this conversation available if required) Since I have been off on stress leave I have been advised that Melissa has been doing my work of shipping and invoicing, which proves that moving Melissa out of my team without a discussion or risk assessment done with me on the affects [sic] to the team and the business is leaving us short with no one else in my team able to do these task [sic].[98]

  1. [53]
    Furthermore, in that same email, Ms Gillan stated that there were other incidents that had contributed to her going to see the doctors over the last eight months and that she wanted to make it clear that the incident on 18 September 2018 (with Mr Blencowe) was not the only incident to make her go and seek medical treatment in that it was more a combination of that and everything else.[99]
  1. [54]
    Ms Gillan sent a further email to a WorkCover officer on 16 October 2018, providing additional information about other events which she seemed to state had a causal connection with her injury. That email referred to events commencing earlier in 2018 and encompassed a number of the matters referred to in Ms Gillan's list of stressors.[100]

Ms Gillan's personal injury did arise out of, or in the course of, her employment

  1. [55]
    An injury which arises out of employment occurs where there is a causal connection between the employment and the injury.[101] Although the phrase 'arising out of' does not require the direct or proximate relationship which would be necessary if the phrase used was 'caused by', there must be some causal or consequential relationship between the worker's employment and the injury.[102]
  1. [56]
    An injury '… in the course of employment' means an injury sustained while the worker is engaged in the work which is part of the worker's employment but is also something which is incidental to his or her service.[103]
  1. [57]
    The primary duty of a tribunal is to find ultimate facts, and so far as is reasonably possible to do so, to look not merely to the expertise of the expert witnesses, but to examine the substance of the opinion expressed; and in doing so, the tribunal may not accept the opinion of an expert witness, and in cases where the experts differ, the tribunal will apply logic and common sense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted.[104]
  1. [58]
    A qualified medical practitioner may, as an expert, express an opinion as to the nature and cause, or probable cause of an injury, but it is for the tribunal to weigh and determine the probabilities, and in doing so, the tribunal may be assisted by the medical evidence; however, that task is for the tribunal not the witnesses and the tribunal must ask itself whether, on the whole of the evidence, it is satisfied on the balance of probabilities of the fact.[105]
  1. [59]
    I accept the Regulator's submissions that Mr Venter's evidence should be approached with caution. Mr Venter was Ms Gillan's treating psychologist. Whilst that is not, on its own, a reason to treat the expert evidence of a psychologist cautiously, it seems to me that Mr Venter was not giving an independent medical opinion about the causal connection between the work events described by Ms Gillan and the injury he diagnosed. There are a number of reasons for this.
  1. [60]
    First, in his second report dated 22 June 2020 (Exhibit 8), when Mr Venter was asked to comment about the potential relationship between the list of stressors, with which he was provided for the purposes of making that report, and Ms Gillan's decline in mental state, he gave his opinion about those stressors without directly examining Ms Gillan about those matters. That is to say, Mr Venter gave his opinion, about the link between those specifically nominated stressors and Ms Gillan's mental state, from the seven earlier consultations he had with Ms Gillan between 19 October 2018 and 5 June 2019.[106]
  1. [61]
    Secondly, Mr Venter was not provided with a brief of evidence or any other objective material to which he may have had regard to verify the accounts Ms Gillan had given him for the purposes of his report dated 22 June 2020. The only evidence he had was what Ms Gillan had told him and the reasons for decision by WorkCover.[107]
  1. [62]
    Thirdly, from the way that Mr Venter expressed himself to WorkCover in his report dated 29 October 2018, namely, writing that letter '… in support of Jennifer's WorkCover claim' and given Mr Venter's representations on behalf of Ms Gillan to GE on 30 November 2018, namely, that due to her fragile mental state at that time he did not believe it was in her best interests to be expected to attend a disciplinary meeting in the workplace[108] and his representations to the law firm conducting the investigation about her alleged conduct dated 19 December 2018, it seems to me, as is appropriate for a treating psychologist, that Mr Venter was advocating on behalf of his patient.
  1. [63]
    For these reasons, in determining that the work events had a causal connection with Ms Gillan's anxiety and depression from September 2018, I will refer to the evidence of Ms Gillan and Dr Singh.
  1. [64]
    In my view, on the whole of the evidence, I am satisfied that on the balance of probabilities, the personal injury from which Ms Gillan suffered on or about 19 September 2018, of mixed anxiety and depression, arose out of her employment with GE.
  1. [65]
    There are five reasons for this.
  1. [66]
    First, while there is evidence that, in March 2017, Ms Gillan was suffering from mild to moderate anxiety and depression, she was prescribed Temazepam by Dr Tshibangu to assist her sleep. Further, on Ms Gillan's own evidence:
  • she did see Mr Venter to assist her; and
  • the symptoms that she experienced in March 2017, although continuing during 2017 and 2018, were not as bad because of meditation which she was undertaking and because she was exercising when she felt stressed.
  1. [67]
    Secondly, Ms Gillan, apart from 13 and 14 March 2017,[109] kept working at GE after the first time she saw Dr Tshibangu in March 2017 about her anxiety and depression.
  1. [68]
    Thirdly, from her evidence-in-chief, the principal reasons given by Ms Gillan for her September 2018 decompensation was her increased workload in September 2018 due to Ms Price's removal from her (Ms Gillan's) team and the failure of Mr Blencowe to deal with her complaints about the resulting workload and staffing issues.
  1. [69]
    Fourthly, Ms Gillan was consistent in the history she gave to Dr Singh about the matters she (Ms Gillan) stated had a causal connection with her decompensation as from 19 September 2018. On 19 September 2018, Ms Gillan informed Dr Singh that there was a certain incident from the workplace that started it all off, that she did not feel well supported at work, and that there were issues with management and communication leading to stress. On 21 September 2018, Ms Gillan reported to Dr Singh that there was increased stress in the workplace, issues with her management, poor staffing issues and increased workload. Dr Singh formed the opinion that the core problem was that Ms Gillan felt there was not enough staff, there was increased work pressure and she (Ms Gillan) was attempting to communicate those matters with management who were not responding.
  1. [70]
    Further, as expressed through the workers' compensation work capacity certificates she issued in respect of Ms Gillan, Dr Singh's diagnosis was that Ms Gillan was suffering from stress, with the mechanism of injury being understaffing and work pressure. Dr Singh's evidence was that her diagnosis was recorded that way because Ms Gillan was describing to her that she (Ms Gillan) was getting really stressed in respect of the workload.
  1. [71]
    Fifthly, there was, in general, consistency between what Ms Gillan told the WorkCover officers was the cause of her decompensation in September 2018 and the history she gave to Dr Singh. While I acknowledge that there were other issues brought up by Ms Gillan in her subsequent communications with the WorkCover officers, in respect of the first communication on 27 September 2018 with the WorkCover officer and the second (email) communication with the WorkCover officer on 30 September 2018 , the principal matter to which Ms Gillan referred was workload and lack of staff brought about by decisions made by Mr Blencowe.
  1. [72]
    For these reasons, looking at the evidence as a whole, my opinion is that Ms Gillan's mixed anxiety and depression arose out of her employment.

What were the work events that had a causal connection with Ms Gillan's injury?

  1. [73]
    Having regard to what Ms Gillan described to Dr Singh, and to Ms Gillan's initial description to the WorkCover officers on 27 September 2018 and 30 September 2018, my opinion is that the work events that had a causal connection with her injury were those expressed by Dr Singh in her evidence, referred to above in paragraph [34]; namely, the removal of Ms Price from Ms Gillan's team, the increased workload and staffing issues arising from that decision and the subsequent response from Mr Blencowe to Ms Gillan's complaint about those matters, all of which occurred in September 2018.
  1. [74]
    My opinion, in this regard, is fortified when regard is had to:
  • the views expressed by Dr Singh as recorded in the two workers' compensation work capacity certificates Dr Singh issued on 21 September 2018 and 5 October 2018, namely, the mechanism of injury being understaffing and work pressure; and
  • the fact that despite Ms Gillan citing stressors from 2017 and others from February 2018, the only time that Ms Gillan sought medical treatment in 2018 for stress was at a time proximate to the workload issues in September 2018 which she described in her evidence-in-chief, namely, the relocation of Ms Price, the failure to replace Ms Price in her team and the statement made by Mr Blencowe on 18 September 2018.
  1. [75]
    Ms Gillan did give evidence about:
  • the increased workload following redundancies and the merger of the PIC and OTR teams (in 2016) and her subsequent unsuccessful representations to be provided with more staff to deal with the increased workloads;
  • Mr Blencowe's failure to send her on the HSE leadership course in February 2018;
  • Mr Blencowe's conversation with her in or about March 2018 about her leaving work at 4.00 pm;
  • her pay review in April 2018; and
  • her unsuccessful request to Mr Blencowe in May 2018 to relocate Ms Price from her team.
  1. [76]
    However, Ms Gillan gave no evidence that any of these issues caused her any significant depressive symptoms at the time they were occurring. It was only the events that occurred in September 2018, namely, the moving of Ms Price from Ms Gillan's team and the subsequent related events, that Ms Gillan stated caused her to break down and leave work.[110] Further, Ms Kim Schulz, a coworker of Ms Gillan's between November 2014 in February 2018,[111] only gave vague evidence that she observed Ms Gillan being 'very stressed at work' because she (Ms Gillan) was looking after more than one area.[112]
  1. [77]
    For these reasons, in my opinion, the workplace events that had a causal connection with Ms Gillan's decompensation from 19 September 2018 were the workload issues caused by the decision to move Ms Price from Ms Gillan's team, Ms Gillan's complaint about that decision and Mr Blencowe's response.

Was Ms Gillan's employment with GE the major significant contributing factor to that personal injury within the meaning of s 32(1)(b) of the Act?

  1. [78]
    In addition to a psychiatric or psychological disorder having to arise out of, or in the course of, employment, for such an injury to be compensable, the employment must be '… the major significant contributing factor to the injury.'[113]
  1. [79]
    That requirement removes the possibility that an application for compensation, for such an injury, could be accepted where the employment was simply one of a number of significant contributing factors to the injury.[114] While a number of factors could contribute to a worker's psychiatric or psychological disorder, the worker's application for compensation will only be accepted if their employment was the major significant contributing factor to their disorder.[115]
  1. [80]
    The Regulator submits,[116] citing Croning v Workers' Compensation Board of Queensland[117] ('Croning') as applied in JBS Australia Pty Ltd v Q-COMP,[118] that the medical evidence and Ms Gillan's evidence suggests that her employment was merely the setting in which the symptoms of a personal injury emerged, rather than the stressors she nominated being the major significant contributing factor to her injury.
  1. [81]
    I cannot accept this submission.
  1. [82]
    As submitted by Ms Gillan,[119] Croning was an unusual case based on unusual facts. In that case, the significant contributing factor to the worker's injury was the worker's own difficulty in accepting the working conditions, such that the worker's employment had not led to his injury, rather it was the worker's almost obsessive desire, as a teacher, to implement his own preferred system of tuition.[120]
  1. [83]
    The facts in the present case are far different. There is no medical evidence that Ms Gillan had some obsession relevant to, or difficulties accepting, the work issues she nominated as contributing to her injury. In addition, for the reasons given earlier, the depression and anxiety from which Ms Gillan suffered in March 2017 did not significantly affect her ability to attend work from that time after being treated by Dr Tshibangu and Mr Venter in 2017.
  1. [84]
    I acknowledge that Dr Singh gave some evidence that when she examined Ms Gillan in September 2018, Ms Gillan was having problems sleeping, was feeling very fatigued, was a mother of three and that her children were fairly young.[121] However, Dr Singh did not opine that those matters were the major cause of Ms Gillan's injury. In my view, that evidence of Dr Singh only gives rise to a possibility that those matters were the major significant contributing factor to Ms Gillan's September 2018 injury.
  1. [85]
    Looking at the evidence as a whole, including the opinion expressed by Dr Singh and Ms Gillan's own evidence about the work events that she says resulted in her decompensation from September 2018, my opinion is that Ms Gillan's employment was the major significant contributing factor to her injury at that time. In the absence of any other clear evidence establishing, on the balance of probabilities, some other issue or issues having a significant causal connection with Ms Gillan's mixed anxiety and depression as from about September 2018, my opinion is it was the workload and related issues that occurred in about September 2018, about which Ms Gillan gave evidence, that was the major significant contributor factor to her injury.

Did Ms Gillan suffer an aggravation of a personal injury within the meaning of s 32(1)(ba) of the Act?

  1. [86]
    In her statement of facts and contentions, Ms Gillan did not allege any facts or make any contention that she suffered an aggravation of a pre-existing personal injury. Yet, Ms Gillan submitted that, in the alternative, she suffered an aggravation of a psychiatric or psychological injury that existed prior to September 2018.[122]
  1. [87]
    The Regulator, based on the evidence of Mr Venter, made submissions about whether Ms Gillan had suffered an aggravation of a personal injury.[123] Because the Regulator has responded to this claim by Ms Gillan, I will consider whether Ms Gillan suffered an aggravation of a personal injury within the meaning of s 32(3)(ba) of the Act. I will also consider whether Ms Gillan suffered an aggravation of a personal injury in case I am wrong about my conclusion that Ms Gillan's injury arose in the course of her employment and that her employment was the major significant contributing factor to her injury.
  1. [88]
    The Regulator submitted that the weight of evidence suggests Ms Gillan's depression and anxiety pre-existed any of the nominated work stressors and was not exacerbated by any of the nominated work stressors.[124]
  1. [89]
    A worker suffers an injury if he or she suffered an aggravation of a psychiatric or psychological disorder, if the aggravation arises out of, or in the course of, employment and the employment is the major significant contributing factor to the aggravation.[125] It has been held, albeit in relation to a physical injury, that for an aggravation to occur, it is insufficient to establish that the employment was the setting in which the aggravation occurred or the background to its occurrence.[126] There is no requirement for a claimant to show that the aggravation is a significant aggravation.[127]
  1. [90]
    There is no distinction between an 'exacerbation' and 'aggravation' of an injury.[128]
  1. [91]
    There was no clear evidence from Dr Singh that Ms Gillan's previously diagnosed depression and anxiety in March 2017 was exacerbated or aggravated by the 2018 work events Ms Gillan described in her evidence. Dr Singh was not able to say whether Ms Gillan's presentation of September 2018 was an exacerbation of preexisting depression. Indeed, Mr Venter gave no evidence of Ms Gillan having any preexisting anxiety or depression. Further, Dr Singh's evidence was that it was the work events Ms Gillan described as occurring in 2018 that had the causal connection with Ms Gillan's diagnosed anxiety and depression from September 2018.
  1. [92]
    In addition, Ms Gillan, in her evidence-in-chief, was quite specific about the workrelated events that she says caused her to decompensate from September 2018.
  1. [93]
    For these reasons, I find that Ms Gillan did not suffer an aggravation of a personal injury.

Did Ms Gillan's personal injury arise out of, or in the course of, reasonable management action taken in a reasonable way in connection with Ms Gillan's employment within the meaning of s 32(5)(a) of the Act?

  1. [94]
    Because Ms Gillan's work-related personal injury was a psychiatric or psychological disorder, as described in s 32(1)(b) of the Act, s 32(5) must be considered.[129]
  1. [95]
    In State of Queensland (Department of Agriculture and Fisheries) v Workers' Condensation Regulator,[130] I set out the relevant principles in respect of the application of s 32(5)(a) and s 32(5)(b) of the Act.[131]

Was there management action that had a causal or temporal connection with Ms Gillan's injury?

  1. [96]
    For the reasons I have given above in paragraphs [73]-[77], my view is that the work events that had a causal connection with Ms Gillan's anxiety and depression from September 2018 were the issues concerning the removal of Ms Price from her team, Ms Gillan's agitation with Mr Blencowe about the resultant workload issues and the response from Mr Blencowe.
  1. [97]
    There is no dispute that, as of September 2018, Mr Blencowe and Ms Price were married. Mr Blencowe's evidence was that in the week following 7 September 2018, he was advised by a Ms Liz Prewitt, from Human Resources of GE, to '… make sure Melissa was removed from the area'. Mr Blencowe's evidence was that the move of Ms Price was to be a temporary move, however, it was made permanent. Mr Blencowe's evidence was that the move was the result of an incident that occurred between Ms Gillan and Ms Price on 7 September 2018.[132] That incident was subject to a formal investigation by the law firm[133] to whom Mr Venter addressed correspondence dated 19 December 2018.[134] Mr Blencowe's evidence was that Ms Prewitt advised him that Ms Price should be moved because GE had a duty of care to Ms Price.[135]
  1. [98]
    On 10 September 2018, Mr Blencowe had a meeting with Ms Gillan during which he informed Ms Gillan that a situation had happened on 7 September 2018 and that Ms Price was going to be moved out of the office area (where she was located under Ms Gillan's supervision) until the facts could be ascertained and some conclusion of the events had been reached.[136]
  1. [99]
    On 17 September 2018, Ms Gillan approached Mr Blencowe and asked why Ms Price had been moved. Mr Blencowe's evidence was that the discussion did not go very well in that Ms Gillan kept probing him on why Ms Price was moved, what was going on and whether Ms Price had raised a complaint. Mr Blencowe's evidence was that he informed Ms Gillan he could not advise whether or not Ms Price had made a complaint, that it was a Human Resources matter and that it was out of his hands.[137]
  1. [100]
    Mr Blencowe then said there was a discussion between himself and Ms Gillan about workload. Mr Blencowe said that he stated to Ms Gillan that there would be no impact to Ms Gillan's department because Ms Price was a standalone person in the department doing the rentals and repairs and that Ms Price would be taking the workload with her so there would be no additional workload.[138] Mr Blencowe stated that he might have said Ms Gillan probably needed to do more work and chip in.[139] Mr Blencowe's evidence was that Ms Gillan stated in response 'This is bullshit' and then stormed out of the office.[140] There is no dispute that Ms Gillan did not return to work after that day and later resigned. Mr Blencowe also stated that the Management of Change screening tool had been used in relation to Ms Price's move in accordance with GE's Management of Change policy.[141]
  1. [101]
    Ms Gillan's evidence was that when she came into work on 10 September 2018, she saw that Ms Price's desk had been moved completely upstairs and that she (Ms Gillan) was in the middle of the stocktake. When Ms Gillan asked Mr Blencowe who was going to be doing the workload that was going to be left behind, Ms Gillan stated that Mr Blencowe said: 'Well, you'll just have to figure it out with your team.' Ms Gillan further stated that Mr Blencowe stated that Ms Price was moved because she (Ms Gillan) had asked for Ms Price to be moved back in May 2018.[142] In crossexamination, Ms Gillan agreed that at the meeting she had with Mr Blencowe on 10 September 2021, she stated to him 'This is bullshit' at the end the conversation.[143]
  1. [102]
    These events involved management action by Mr Blencowe. This is because they involved acts by Mr Blencowe directing or controlling the staffing composition of Ms Gillan's team and his response to workload issues raised by Ms Gillan she said arose from Ms Price's move. In addition, these actions by Mr Blencowe were outside of the everyday duties and incidental tasks of Ms Gillan's employment.

Was the management action reasonable management action undertaken in a reasonable way in connection with Ms Gillan's employment?

  1. [103]
    In relation to the events of 10 September 2018, there is a clear conflict between the evidence of Ms Gillan and Mr Blencowe.
  1. [104]
    In general terms, I found that Mr Blencowe gave his evidence very clearly by directly answering the questions that were put to him both in evidence-in-chief and in crossexamination. Ms Gillan, on the other hand, I found, when giving her evidence, was prone to making broad statements in support of her claim. For example, when Ms Gillan was cross-examined about Mr Venter's letter to WorkCover dated 29 October 2018, where Mr Venter stated that it appeared Ms Gillan's mental health deterioration over the past nine months was directly related to a change in line management, Ms Gillan stated that there were lots of stressors that she had mentioned to Mr Holmes, prior to Mr Blencowe commencing, and that while it may look like it had been targeted at Mr Blencowe, it was '… management as a whole, as a company, not just an individual person.'[144]
  1. [105]
    In relation to the conflict between Mr Blencowe's account of what occurred in their conversation on 10 September 2018 and Ms Gillan's account, I prefer Mr Blencowe's account. This is not only because I generally prefer the evidence of Mr Blencowe, but also because there is clear evidence that GE had engaged an external investigator to investigate allegations made against Ms Gillan, including about her alleged interaction with Ms Price on 7 September 2018.[145] That is to say, it does not seem to me to be logical or plausible that Mr Blencowe would say to Ms Gillan, on 10 September 2018, that Ms Price was moved because Ms Gillan had asked Ms Price to be moved back in May 2018. The evidence, it seems to me, more comfortably fits with Mr Blencowe informing Ms Gillan that Ms Price was moved because of the investigation about Ms Gillan's alleged conduct towards her and because of GE's duty of care towards Ms Price.
  1. [106]
    For the reasons given earlier, the moving of Ms Price from the team, Mr Blencowe's explanation about that move and his later discussion with Ms Gillan regarding any resultant effects on the workload of Ms Gillan's team was management action. Furthermore, in my view, it was reasonable management action taken in a reasonable way in connection with Ms Gillan's employment. There are a number of reasons for this conclusion.
  1. [107]
    First, a complaint had been made about Ms Gillan's conduct. That included a complaint concerning her conduct towards Ms Price.[146] A decision had been made, having regard to GE's duty of care towards Ms Price, to temporarily move her (Ms Price) out of Ms Gillan's team pending an investigation. Mr Blencowe explained the reasons for Ms Price's move and on Mr Blencowe's evidence, gave the explanation that there would be no increase in the workload in Ms Gillan's team arising out of Ms Price's move. In my view, a reasonable person would find all of that management action to be reasonable management action taken in a reasonable way in all the circumstances.
  1. [108]
    Secondly, even if there was some increase in Ms Gillan's team's workload due to Ms Price's move, given the reasons for the temporary move, that decision was still reasonable management action taken in a reasonable way in connection with Ms Gillan's employment. This is because the action was taken to allow the investigation to take place and because of GE's general duty of care to ensure, so far as is reasonably practical, Ms Price's health and safety.
  1. [109]
    Thirdly, any expressed expectation by Mr Blencowe that Ms Gillan may need to do some extra work to assist given Ms Price's move, having regard to the reasons why Mr Blencowe was directed by Ms Prewitt to temporarily move Ms Price, was reasonable in all the circumstances. True it is that Ms Price's move became permanent,[147] but at the time Ms Price's move was communicated to Ms Gillan, the intention was that it was temporary.[148]
  1. [110]
    For these reasons, Ms Gillan's personal injury is withdrawn from being a compensable injury because of the application of s 32(5)(a) of the Act.
  1. [111]
    Finally, even if I am wrong and the other matters Ms Gillan referred to in her evidenceinchief had a causal connection with her personal injury, then those matters were reasonable management actions taken in a reasonable way in connection with Ms Gillan's employment.

The workload issues commencing from about 2016

  1. [112]
    The decision to offer redundancies and the 2016 decision to merge the PIC and OTR teams, according to Mr Holmes, was taken because of the decline in business. While it caused an increase in workload, GE responded by offering more overtime to the remaining staff.[149] Whilst the workload still built up despite the offering of overtime,[150] that does not render the management decisions to be unreasonable. In fact, Ms Gillan's evidence was that some 'contingent workers' were employed to assist, but that they did not relieve the work pressures.[151] However, management action does not have to be perfect or industrially fair for it to be found to be reasonable. To reduce staff in the face of declining business is reasonable management action. Further, to offer existing staff overtime and to employ contingent workers, whilst not perfect, was reasonable in all the circumstances.

Ms Gillan's hours of work

  1. [113]
    In relation to the issue of Ms Gillan leaving at 4.00 pm, Mr Blencowe's evidence was that he informed Ms Gillan, that it was part of the contractual arrangements, that she could be required to do between 10% to 20% overtime to get a job completed.[152] Mr Blencowe denied stating to Ms Gillan that GE did not care about her children or her parenting responsibilities.[153] For the reasons given earlier, I generally prefer Mr Blencowe's evidence. For these reasons, Mr Blencowe's comments about performing overtime was reasonable management action undertaken in a reasonable way.

The HSE leadership program

  1. [114]
    In relation to the HSE leadership program, Ms Gillan conceded, in cross-examination, that when that workshop occurred in February 2018, she was not designated in GE as a leader in the business and that the course was intended for business leaders.[154] As a consequence, the decision not to send Ms Gillan on the course was reasonable management action taken in a reasonable way.

Ms Gillan's 2018 pay increase

  1. [115]
    In relation to the pay increase issue, Mr Blencowe's evidence was that the ranges for pay increases in 2018 were between 1.2% and 2.9% as a standard. Mr Blencowe further stated that Ms Gillan's 1.2% pay increase did take into account performance factors and that he did mention to her that she needed to be more proactive and positive with her team, build her team up and not be so negative, but that Ms Gillan was not so underperforming to the extent that she would not get a pay increase. However, it was his view that she was not performing to a level where she needed to be given the maximum increase.[155] Mr Blencowe further stated that Ms Price's pay increase, which was more than 2.9%, was because Ms Price had not been receiving increases in line with other staff and that her rate of pay had not caught up to the band level of her position.[156]
  1. [116]
    Ms Gillan gave no evidence that she knew of the reason why Ms Price received a pay increase of the size she did.[157] Ms Gillan's evidence was that Ms Price's increase made her feel upset, defeated and deflated because, in her view, it was undermining her as a team leader.[158]
  1. [117]
    Mr Blencowe gave reasons as to why management awarded Ms Price a greater percentage increase than Ms Gillan. This was because Ms Price had not been receiving pay increases in line with other staff. Despite the fact that that decision made Ms Gillan feel the way that she described, feelings about that do not otherwise render the management action of giving Ms Price the increase that was awarded to her, for the reasons given, other than reasonable management action taken in a reasonable way.

Ms Gillan's unsuccessful representations to move Ms Price from her team in May 2018

  1. [118]
    Finally, Ms Gillan gave evidence that she had asked Mr Blencowe to move Ms Price from her team because she (Ms Gillan) could not manage Ms Price because of her relationship with Mr Blencowe and to also free up a spot on her team which could be backfilled. Ms Gillan's evidence was that Mr Blencowe simply stated that management would have to think about that but nothing was done.[159] Mr Blencowe's evidence was that in about May 2018 he had a discussion with Ms Gillan to the effect that Ms Price should be put under the supervision of a Mr Rudi Mook because Mr Mook was the National Fuel Service Manager under which the work performed by Ms Price, of rentals and repairs, best fitted.[160]
  1. [119]
    However, the fact that management did not move Ms Price at that time, despite the potential benefit of such a move, does not render the management action to be unreasonable. In particular, the failure of the management to move Ms Price, having regard to the reasons given by Ms Gillan for such a move, does not render that management inaction to be unreasonable. The fact that one employee suggested to management that another employee should be transferred and where that suggestion was not acted upon by management, on its own, does not render the failure to act on the suggestion to be unreasonable management action.

Did Ms Gillan's personal injury arise out of, or in the course of, Ms Gillan's expectation or perception of reasonable management action being taken against her within the meaning of s 32(5)(b) of the Act?

  1. [120]
    The evidence does not establish that Ms Gillan's injury arose out of, or in the course of, her perception of reasonable management action being taken against her.

Conclusion

  1. [121]
    In this appeal, the onus was on Ms Gillan to prove, on the balance of probabilities, that she suffered an injury within the meaning of s 32 of the Act. Ms Gillan has not discharged that onus. The review decision is confirmed.
  1. [122]
    I will hear the parties as to the costs of the hearing.

Orders

  1. [123]
    I make the following orders:
  1. Pursuant to s 558(1)(a) of the Workers' Compensation and Rehabilitation Act 2003, the review decision of the Respondent, dated 20 February 2019, is confirmed.
  1. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:
  1. the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Monday, 20 September 2021;
  1. unless otherwise ordered, the decision on costs be determined on the papers.

Footnotes

[1] This company traded under the name 'Baker Hughes, a GE Company'.

[2] Ms Gillan's amended Statement of Facts and Contentions filed on 8 October 2019 ('Ms Gillan's contentions'), paras. 7-24 under the heading of 'Facts'.

[3] Ms Gillan's contentions, paras. 25-26 under the heading of 'Facts'.

[4] Ms Gillan's contentions, para. 25 under the heading of 'Facts'.

[5] The Workers' Compensation Regulator's Statement of Facts and Contentions filed on 21 November 2019 ('the Regulator's contentions'), paras. 2 and 3 under the heading of 'Contentions'.

[6] The Regulator's contentions, para. 4 under the heading of 'Contentions'.

[7] Church v (Simon Blackwood) Workers' Compensation Regulator [2015] ICQ 031; (2015) 252 IR 461, [24]-[27] (Martin J, President).

[8] Ibid [37]-[39].

[9] State of Queensland (Queensland Health) v Q-Comp and Beverley Coyne [2003] ICQ 9; (2003) 172 QGIG 1447, 1448 (President Hall).

[10] Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 ('Seltsam'), [80] (Spigelman CJ).

[11] Ibid [80].

[12] Seltsam (n 10) [136].

[13] The Regulator's contentions, para. 2 under the heading of 'Contentions'.

[14] The Workers' Compensation Regulator's written submissions filed on 5 February 2021 ('the Regulator's submissions'), para. 99.

[15] Exhibit 1, page 11.

[16] T 2-82, ll 10-11.

[17] Exhibit 1, page 139.

[18] Ms Gillan's WCR notice of appeal filed on 14 March 2019, section 6 under the heading 'Facts relied on'.

[19] See the evidence of Mr Paul Holmes in cross-examination, T 2-108, ll 11-13.

[20] T 2-6, l 4 to T 2-7, l 4.

[21] T 2-7, ll 6-24.

[22] T 2-7, l 40 to T 2-8, l 23.

[23] T 2-7, ll 26-38.

[24] T 2-8, l 25 to T 2-10, l 22.

[25] T 2-10, ll 24-46.

[26] T 2-11, ll 1-17.

[27] T 2-11, ll 22-38.

[28] T 2-11, ll 40-41.

[29] T 2-11, ll 43-44.

[30] Ms Gillan's written submissions filed on 5 March 2021 ('Ms Gillan's submissions'), para. 2.

[31] The Regulator's submissions, paras. 103-104.

[32] The Regulator's submissions, para. 102.

[33] Yousif v Workers' Compensation Regulator [2017] ICQ 004, [13]-[15] (Martin J, President).

[34] Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279, 296‑297 (Dawson J) and Betfair Pty Ltd v Racing New South Wales [2010] FCAFC 133; (2010) 189 FCR 356, [51] (Keane CJ and Lander and Buchanan JJ).

[35] The Regulator's submissions, para. 107.

[36] The Regulator's submissions, para. 108.

[37] Nilsson v Q-Comp [2008] QIC 74; (2008) 189 QGIG 523, 526 (Hall P).

[38] Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538, 563 (Rich ACJ).

[39] Exhibit 1, page 14.

[40] T 2-16, ll 33-40.

[41] T 2-17, ll 24-31.

[42] T 2-17, ll 33-36.

[43] Exhibit 1, page 14.

[44] Exhibit 1, pages 129-130.

[45] Exhibit 1, pages 131-132.

[46] Exhibit 1, page 131.

[47] T 2-18, ll 20-26.

[48] T 2-86, ll 36-40.

[49] T 2-87, ll 22-25.

[50] Exhibit 1, page 11.

[51] T 2-80, ll 30-34.

[52] T 2-82, ll 10-11.

[53] T 2-82, ll 16-17.

[54] T 2-80, ll 44-47.

[55] T 2-81, ll 5-6.

[56] T 2-84, ll 14-16.

[57] T 2-84, ll 20-27.

[58] Exhibit 9.

[59] Exhibit 1, page 139.

[60] T 2-89, ll 26-32.

[61] The Regulator's submissions, para. 27.

[62] T 2-88, ll 12-14.

[63] T 2-88, ll 24-31.

[64] T 2-88, ll 31-34.

[65] The Regulator's submissions, para. 28.

[66] T 2-89, ll 2-6.

[67] Exhibit 7, first paragraph.

[68] Exhibit 7, second paragraph.

[69] Exhibit 7, second paragraph.

[70] Exhibit 7, second paragraph.

[71] Exhibit 7, second paragraph.

[72] Exhibit 7, third paragraph.

[73] Exhibit 8, first page.

[74] Exhibit 8, first and second pages.

[75] Exhibit 8, second page.

[76] Exhibit 1, page 154.

[77] T 2-98, ll 22-28.

[78] T 2-98, ll 32-33.

[79] T 2-98, ll 36-38.

[80] T 2-94, l 43 to T 2-95, l 3.

[81] T 2-99, ll 39-42.

[82] The Regulator's submissions, para. 90.

[83] T 2-21, ll 22-27.

[84] Exhibit 1, pages 13-14 and T 2-20, ll 19-26.

[85] T 2-19, ll 28-35.

[86] T 2-21, ll 29-33. Ms Gillan was unsure if Mr Venter discussed those matters with her in 2017 or when he saw her later in 2018 - T 2-21, ll 35-47.

[87] T 2-93, ll 38-44.

[88] T 2-98, ll 45-46.

[89] T 2-99, ll 6-7.

[90] T 2-50, ll 37-42.

[91] T 2-51, ll 12-19.

[92] T 2-55, ll 24-26.

[93] T 2-56, ll 1-4.

[94] T 2-56, ll 8-17.

[95] T 2-56, ll 19-20.

[96] T 2-56, ll 22-24.

[97] Exhibit 3, page 2.

[98] Exhibit 3, page 2.

[99] Exhibit 3, page 4.

[100] Exhibit 4.

[101] Kavanagh v Commonwealth [1960] HCA 25; (1960) 103CLR 547, 558-559 (Fullagar J).

[102] Avis v WorkCover Queensland [2000] QIC 67; (2000) 165 QGIG 788, 788 (President Hall).

[103] Theiss Pty Ltd v Q-Comp [2010] ICQ 27, [3] (President Hall).

[104] Holtman v Sampson [1985] 2 Qd R 472, 474 (D.M Campbell, Macrossan and Thomas JJ).

[105] Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642, 645 (Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ).

[106] T 2-93, l 29 to T 2-94, l 41.

[107] T 2-94, l 43 to T 2-95, l 3.

[108] Exhibit 1, page 156.

[109] Exhibit 1, page 102 and T 2-17, ll 46-47.

[110] T 2-11, ll 1-38.

[111] T 2-110, ll 15-16.

[112] T 2-110, ll 33-36.

[113] Workers' Compensation and Rehabilitation Act 2003 s 32(1)(b).

[114] Kuenstner v Workers' Compensation Regulator [2016] QIRC 083 [24] (Industrial Commissioner Neate).

[115] Ibid [25].

[116] The Regulator's submissions, para. 111.

[117] (1997) 156 QGIG 100 ('Croning').

[118] [2013] ICQ 13 ('JBS'), [3] President Hall).

[119] Ms Gillan's submissions, para. 5.

[120] See the discussion of Croning (n 117) in Simon Blackwood (Workers' Compensation Regulator) v Civeo Pty Ltd and Anor [2016] ICQ 001, [13]-[15] (Martin J, President).

[121] T 2-80, ll 26-34.

[122] Ms Gillan's submissions, para. 1

[123] The Regulator's submissions, paras. 100 and 109.

[124] The Regulator's submissions, para. 109.

[125] Workers' Compensation and Rehabilitation Act 2003 s 32(3)(ba).

[126] JBS (n 118), [3] (Hall P).

[127] Ibid [5].

[128] Omanski v Q-Comp [2013] ICQ 7, [11] (Hall P).

[129] Blackwood v Mana [2014] ICQ 027, [23] (Martin J, President).

[130] [2020] QIRC 097.

[131] Ibid [21]-[42].

[132] T 3-14, l 11 to T 3-15, l 4.

[133] T 3-17, ll 33-43.

[134] Exhibit 1, page 154.

[135] T 3-15, ll 6-7.

[136] T 3-15, ll 17-21.

[137] T 3-15, ll 29-45.

[138] T 3-16, ll 1-5.

[139] T 3-16, ll 8-9.

[140] T 3-16, ll 11-12.

[141] T 3-16, ll 29-46.

[142] T 2-11, ll 1-17.

[143] T 2-50, ll 18-19.

[144] T 2-62, ll 1-30.

[145] Exhibits 5 and 6.

[146] Exhibit 6.

[147] T 3-14, ll 46-47.

[148] T 3-14, ll 46-47 and T 3-15, ll 17-21.

[149] T 2-107, l 20 to T 2-108, l 25.

[150] T 2-104, ll 38-39.

[151] T 2-7, ll 13-24.

[152] T 3-13, ll 1-4.

[153] T 3-13, ll 14-21.

[154] T 2-24, ll 4-24.

[155] T 3-8, l 41 to T 3-9, l 25.

[156] T 3-9, ll 41-47.

[157] T 2-10, ll 11-14.

[158] T 2-10, ll 16-22.

[159] T 2-10, ll 24-46.

[160] T 3-10, ll 6-44.

Close

Editorial Notes

  • Published Case Name:

    Gillan v Workers' Compensation Regulator

  • Shortened Case Name:

    Gillan v Workers' Compensation Regulator

  • MNC:

    [2021] QIRC 315

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    10 Sep 2021

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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