Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2022
  4. Townsend v Workers' Compensation Regulator - [2022] QIRC 105

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Townsend v Workers' Compensation Regulator[2022] QIRC 105

Townsend v Workers' Compensation Regulator[2022] QIRC 105

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Townsend v Workers' Compensation Regulator [2022] QIRC 105

PARTIES: 

Townsend, Shane

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO.:

WC/2020/14

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

25 March 2022

HEARING DATES:

1, 2, 3, 4 and 5 March 2021

MEMBER:

HEARD AT:

Merrell DP

Brisbane

ORDERS:

  1. Pursuant to s 558(1)(c) of the Workers' Compensation and Rehabilitation Act 2003:
  1. (a)
    the review decision of the Respondent is set aside; and
  1. (b)
    another decision is substituted, namely, that the Appellant suffered an injury within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003.
  1. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:
  1. (a)
    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 Friday, 8 April 2022; and
  1. (b)
    unless otherwise ordered, the decision on costs be determined on the papers.

CATCHWORDS:

WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – appeal against review decision of Respondent – Appellant employed as a Senior Support Worker, then Operational Manager and then Director of a company that provides support services to persons who suffer from disabilities – Appellant suffered a psychiatric injury – where Appellant claims injury caused by verbal abuse and other conduct by his supervisor – whether Appellant's injury arose out of, or in the course of, Appellant's employment – whether Appellant's employment was the major significant contributing factor to Appellant's injury – whether Appellant's injury excluded under s 32(5)(a) of the Workers' Compensation and Rehabilitation Act 2003 – Appellant's injury arose out of, or in the course of, employment and Appellant's employment was the major significant contributing factor to Appellant's injury – Appellant's injury did not arise out of, or in the course of, reasonable management action taken in a reasonable way in connection with the Appellant's employment – review decision of Respondent set aside and another decision substituted, namely, that the Appellant suffered an injury within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003 – parties to be heard as to costs

LEGISLATION:

Acts Interpretation Act 1954, s 14 and s 14D

Industrial Relations (Tribunals) Rules 2011, r 41

Workers' Compensation and Rehabilitation Act 2003, s 11, s 32, s 132A, s 179 and s 558

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

CASES:

Allwood v Workers' Compensation Regulator [2017] QIRC 088

Armagas Lt v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd's Rep 1

Camden v McKenzie [2007] QCA 136; (2008) 1 Qd R 39

Campbell v Campbell [2015] NSWSC 784; (2015) 16 ASTLR 36

Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031

Crime & Misconduct Commission v Assistant Commissioner JP Swindells & Ors [2009] QSC 409

Deanne Maree King v Workers' Compensation Regulator [2019] QIRC 134

Elomar v R [2014] NSWCCA 303; (2014) 300 FLR 323

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Gilmour v Workers' Compensation Regulator [2019] QIRC 022

Haack v Workers' Compensation Regulator [2017] QIRC 115

Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51

Read v Workers' Compensation Regulator [2017] QIRC 072

Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496

Simon Blackwood (Workers’ Compensation Regulator) v Adams [2015] ICQ 001

State of Queensland v Q-COMP [2010] ICQ 6

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

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

Yousif v Workers' Compensation Regulator [2017] ICQ 004

APPEARANCES:

Ms S. Anderson of Counsel instructed by Ms N. Thompson of Slater & Gordon for the Appellant.

Mr S. Sapsford of Counsel directly instructed by Ms O. Steele of the Respondent.

Reasons for Decision

Introduction

  1. [1]
    On 4 October 2016, Mr Shane Townsend commenced employment with Lifestyle Supports Pty Ltd ('LS') in the position of Senior Support Worker.[1] LS is an organisation, located on the Sunshine Coast, which provides various forms of support services for persons who suffer from disabilities.[2] On 1 July 2017, Mr Townsend was appointed to the position of Operational Manager.[3] On 31 July 2017, Mr Townsend was appointed to the position of Director.[4] The Owner and Director of LS was Mr Omar Suleiman[5] and, at all relevant times, Mr Townsend reported to Mr Suleiman. Mr Townsend worked for LS until the end of February 2019.
  1. [2]
    On 12 July 2019, Mr Townsend lodged with WorkCover Queensland a Form 132A application for assessment of permanent impairment in respect of a psychological injury he said occurred over a period of time from 3 October 2016 to 27 March 2019.
  1. [3]
    Section 132A(2) of the Workers' Compensation and Rehabilitation Act 2003 ('the Act') provides that certain workers may apply to the insurer to have the worker's injury assessed under s 179 of the Act to decide if the worker's injury has resulted in a degree of permanent impairment. Relevantly, s 132A(7)(b) of the Act provides that the insurer may reject the application only if satisfied the worker has not sustained an injury.
  1. [4]
    By decision dated 13 September 2019, WorkCover rejected Mr Townsend's application on the basis that he had not sustained an injury within the meaning of s 32 of the Act. Mr Townsend sought a review of the WorkCover decision by the Workers' Compensation Regulator ('the Regulator') and by review decision dated 24 January 2020, the Regulator confirmed the decision of WorkCover ('the review decision').
  1. [5]
    Mr Townsend appeals against the review decision. Mr Townsend broadly contends that Mr Suleiman engaged in a course of conduct toward him from shortly after 3 October 2016 until 21 February 2019 which was:
  • swearing at him on numerous occasions, for example, calling him ('Mr Townsend') a 'fucking liar' and a 'lying cunt';
  • shouting and abusing him on numerous occasions, including yelling at him that he was useless and 'shit at everything'; and
  • in July 2018, Mr Suleiman following him to his car and sitting on the bonnet of his car to prevent Mr Townsend leaving.[6]
  1. [6]
    Mr Townsend's statement of facts and contentions then particularises these broad contentions by reference to specific events.[7]
  1. [7]
    The Regulator does not dispute that Mr Townsend was a worker within the meaning of s 11 of the Act and does not dispute that Mr Townsend suffered an injury of a psychiatric or psychological nature which arose out of, or in the course of, his employment and was one to which his employment was the major significant contributing factor.[8] The unchallenged medical evidence is that in February 2019, Mr Townsend was having 'Severe stress'.[9] By July 2019, Mr Townsend was diagnosed as suffering from 'Severe stress, bullying at work, anxiety. Possible PTSD.'[10]
  1. [8]
    However, the Regulator denies the allegations made by Mr Townsend about the conduct of Mr Suleiman. It further contends that Mr Suleiman demonstrated compassion and assistance and provided a redundancy agreement to Mr Townsend in circumstances where the relationship between them had broken down.[11] The Regulator's statement of facts and contentions also particularises allegations of fact in support of its contentions.[12] The Regulator ultimately contends that Mr Townsend's injury is withdrawn from the operation of s 32(1) of the Act by the application of s 32(5)(a) because the injury sustained by Mr Townsend arose out of reasonable management action taken in a reasonable way by Mr Suleiman in connection with Mr Townsend's employment.[13]
  1. [9]
    In its final submissions, the Regulator submitted that Mr Townsend's personal injury arose out of management action.[14]
  1. [10]
    Having regard to the concessions made by the Regulator and the parties' contentions, the issue for determination is whether or not Mr Townsend's personal injury arose out of, or in the course of, reasonable management action taken in a reasonable way in connection with his employment with LS.
  1. [11]
    For the reasons that follow, my view is that Mr Townsend's personal injury did not arise out of reasonable management action that was taken in a reasonable way in connection with his employment.
  1. [12]
    The result is that the review decision should be set aside and another decision substituted, namely, that Mr Townsend suffered an injury within the meaning of s 32(1) of the Act.

The Act and the relevant legal principles

  1. [13]
    An appeal of this type is a hearing de novo[15] of the issue determined by the review decision.[16] The onus is on Mr Townsend to prove, on the balance of probabilities, that he suffered an injury within the meaning of the Act.[17]
  1. [14]
    Section 32(5)(a) of the Act relevantly provides:
  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. [15]
    Section 32(5)(a) of the Act only operates to remove a psychological disorder from the statutory definition of 'injury' where reasonable management action is taken in a reasonable way.[18]

Management action

  1. [16]
    The verb 'manage' relevantly means '… to handle, direct, govern, or control in action or use'[19] and the noun 'management' relevantly means '… the act or manner of managing; handling, direction, or control.'[20]
  1. [17]
    Section 32 of the Act provides the following examples of actions that may be reasonable management actions taken in a reasonable way, namely:
  • 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. [18]
    An example in an Act of the operation of a provision of the Act is part of the Act.[21] Section 14D of the Acts Interpretation Act 1954 provides that if an Act includes an example of the operation of the provision:
  • the example is not exhaustive; and
  • the example does not limit, but may extend, the meaning of the provision; and
  • the example and the provision are to be read in the context of each other and the other provisions of the Act, but, if the example and the provision so read are inconsistent, the provision prevails.
  1. [19]
    The examples contained in s 32 of the Act are an aid to its interpretation and, having regard to the examples, the phrase 'management action' means action taken by a manager, in relation to a worker, in managing, handling, directing or controlling the worker.
  1. [20]
    Further, the exclusory action in s 32(5) of the Act was intended by Parliament to relate to specific management action directed to the worker's employment itself, as opposed to action forming part of the everyday duties or tasks that the worker performed in employment, such that the management action said to enliven s 32(5) of the Act must be something different to the everyday duties and incidental tasks of the worker's employment.[22]

Section 32(5)(a) of the Act

  1. [21]
    In State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator,[23] the relevant principles in respect of the application of s 32(5)(a) of the Act were summarised, namely:

[22]  In order for s 32(5)(a) of the Act to apply, three things must be shown, namely:

•  that there was reasonable management action; and

•  that it was taken in a reasonable way; and

•  that the 'action' gave rise to the disorder.

[23]  The correct enquiry is not whether or not unreasonable management action was the dominant cause of the injury. The phrase 'arising out of' in section 32(5)(a) of the Act can be readily understood, when combined with 'reasonable management action,' as requiring the demonstration of a causal relationship; and the phrase 'in the course of' in section 32(5)(a) of the Act generally requires a temporal connection.

[24]  The task for the Commission, when applying s 32(5)(a) of the Act, does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances. The proper task is to assess the management action which was taken and determine whether it was reasonable and whether it was taken in a reasonable way; and sometimes that may involve consideration of what else might have been done however that will only be relevant to whether what was done was, in fact, reasonable.

[25]  The determination of whether the management action is reasonable and whether such action was taken in a reasonable way is evaluative as well as judgemental. Whether the management action is reasonable and whether such action was taken in a reasonable way will be an inquiry of fact to be determined objectively.

[26]  Reasonableness does not necessarily equate with 'industrial fairness' although considerations of 'fairness' will always be relevant. An imperfection in management action may not justify the characterisation of the management action as unreasonable. Management action need only be reasonable; it does not need to be perfect. Instances of imperfect but reasonable management action may, in the appropriate circumstances, be considered a blemish and management action does not need to be without blemish to be reasonable.

[27]  Reasonable, in the context of s 32(5) of the Act, means reasonable in all the circumstances of the case. It is the reality of the employer's conduct that must be considered and not the employee's perception of the employer's conduct.

[28]  However, the reasonableness of action by management has to be considered '… in connection with the worker's employment' which requires consideration of all disparate elements which contribute to the injury. In an appropriate case, that consideration may require a global view of the management action to determine if the action was reasonable. However, simply because a large number of stressors are nominated does not mean a consideration of the impact of the stressors on a global basis is justified.

[29]  Such a global view may be justified where there are repetitive blemishes joined by subject matter, time and personality in a discordant workplace housing.[24]

The competing particularised contentions

  1. [22]
    The Commission, as it does in an appeal of this type, directed the parties to file statements of facts and contentions. A party will be bound by its statement of facts and contentions, may not lead evidence which is not relevant to the identified issues[25] and the Regulator is entitled to engage in the proceeding on the basis that they were the matters which constituted the entirety of the claim made by Mr Townsend.[26]
  1. [23]
    Specifically, Mr Townsend contends that between October 2016 and late February 2019, there were six interactions between him and Mr Suleiman which had a causal connection with his personal injury.
  1. [24]
    The particularised interactions are:
  • in October 2016, Mr Townsend raised with Mr Suleiman the fact that some things at LS were not being done according to legislation, in response to which Mr Suleiman became angry and told Mr Townsend in an aggressive way that it was Mr Suleiman's business and that he would run it the way he wanted ('the October 2016 allegation');[27]
  • towards the end of 2017, after Mr Townsend had accepted an offer from Mr Suleiman to be the Director and following Mr Suleiman's acceptance that he (Mr Suleiman) would have to listen to what Mr Townsend wanted to do to ensure legislation was followed, Mr Suleiman became increasingly moody, aggressive and abusive towards Mr Townsend ('the end of 2017 allegation');[28]
  • in early 2018, Mr Suleiman and Mr Townsend had a meeting in which Mr Suleiman was abusive and aggressive towards Mr Townsend, necessitating Mr Townsend to have time off work to recover, and in the meeting following Mr Townsend's return to work, Mr Suleiman accused Mr Townsend of not following policies and procedures ('the early 2018 allegation');[29]
  • in July 2018:

– Mr Suleiman, in a meeting, accused Mr Townsend of calling the Department of Child Safety and telling that Department that Mr Suleiman's mental health was not good, an accusation which Mr Townsend denied;

– following Mr Townsend leaving the meeting, he was followed by Mr Suleiman yelling at him (Mr Townsend); and

– as Mr Townsend entered his car to leave, Mr Suleiman sat on the bonnet of Mr Townsend's car to prevent Mr Townsend from leaving, Mr Townsend asked Mr Suleiman to get off the car but was told by Mr Suleiman just to drive off and when Mr Townsend started the car Mr Suleiman jumped off the car ('the July 2018 allegation');[30]

  • after Mr Townsend returned to work after the Christmas break in January 2019:

– Mr Suleiman accused Mr Townsend of not performing to a satisfactory standard and was aggressive to him (Mr Townsend);

– in a meeting on 17 January 2019, Mr Suleiman called Mr Townsend a 'fucking liar' and a 'lying cunt' in front of other staff members, including Mr Suleiman's brother-in-law, Mr Suleiman's fiancé and two overseas workers on working visas: and

– following the meeting on 17 January 2019, Mr Townsend headed to his car, and Mr Suleiman followed him yelling at him ('the January 2019 allegations'); and[31]

  • in or about the end of February 2019:

– Mr Suleiman called Mr Townsend in for a meeting and told Mr Townsend that his position was being made redundant;

– following the meeting referred to immediately above, Mr Townsend met his wife for lunch and received a phone call from Mr Suleiman demanding to know where he was, swearing at him for not being at work and demanding Mr Townsend meet him at one of LS's properties immediately; and

– when Mr Townsend subsequently met Mr Suleiman, Mr Suleiman continued to yell at Mr Townsend and abuse him ('the end of February 2019 allegations').[32]

  1. [25]
    The Regulator denies Mr Townsend's contentions and, in response, contends that:
  • when Mr Townsend was promoted to the position of Operational Manager in November 2016 and Director in July 2017, Mr Townsend did not raise any issues with respect to compliance with relevant legislation;[33]
  • in early 2018, issues arose where Mr Townsend failed to complete his duties and unduly delegated those duties to other staff in the course of which he misled Mr Suleiman as to the duties he had completed;[34]
  • in July 2018, a meeting occurred between Mr Suleiman and Mr Townsend during which Mr Townsend became extremely heightened and aggressive, which was done in front of other staff, and yelled at Mr Suleiman stating that he (Mr Townsend) was not a liar;[35]
  • at no time did Mr Suleiman follow Mr Townsend to the car park or sit on the bonnet of Mr Townsend's car;[36]
  • in January 2019, a meeting occurred where it was apparent Mr Townsend had provided false and misleading information in front of staff members, and when questioned by Mr Suleiman, Mr Townsend yelled and waved his finger at Mr Suleiman screaming 'you're fucking joking', in respect of which Mr Townsend had to be restrained by other staff;[37] and
  • following an informal offer of redundancy being made in February 2019, which was formalised in March 2019, Mr Townsend took sick leave and then proceeded to take annual leave and did not return to work.[38]

Did Mr Townsend's psychiatric injury arise out of, or in the course of, reasonable management action taken in a reasonable way in connection with his employment?

  1. [26]
    I will assess this issue by:
  • determining whether the six particularised allegations made by Mr Townsend are proven on the evidence and whether the proven allegations amounted to reasonable management action taken in a reasonable way in connection with Mr Townsend's employment; and
  • determining if any such reasonable management action taken in a reasonable way had a causal connection with Mr Townsend's injury.

Background

  1. [27]
    At all times relevant to Mr Townsend's appeal, LS operated five properties. There were two large properties at Diddillibah and Tanawha, two residential houses in Maroochydore and one residential house at Kuluin.[39]
  1. [28]
    On the evidence, there were two State government departments that were stakeholders in respect of the services provided by LS. In his evidence, Mr Suleiman referred to them as the Department of Child Safety and the Department of Disability Services. Mr Suleiman's evidence was that these two Departments:
  • would contact him or LS, through Mr Townsend, if the Departments had a client that needed to be placed;[40] and
  • these two Departments were the only funding providers to LS and that LS had to meet the high standards expected by those Departments because if LS did not, LS's licence could be revoked, clients would not be sent to LS and LS would have no income.[41]
  1. [29]
    To this end, LS was audited by those Departments to ensure that LS was providing proper care for the clients referred to it by those Departments and the audits would involve reviewing LS's documentation, visiting the properties operated by LS and speaking to individuals.[42]
  1. [30]
    Mr Townsend commenced employment with LS on 4 October 2016 in the position of Senior Support Worker. The position description for that position provided that:
  • the primary purpose of the position of Senior Support Worker was to monitor the support requirements for each person while also encouraging, coaching and supporting people who have responsibilities in the particular arrangement to function at an optimal level; and
  • the position reported '… directly to Team Leaders and Director.'[43]
  1. [31]
    From about 1 July 2017, Mr Suleiman appointed Mr Townsend to the position of Operational Manager.[44] Mr Townsend's evidence was that his duties as Operational Manager were to ensure there was a smooth process of operations within the organisation, to communicate with stakeholders such as the Department of Child Safety and with families, to ensure the program was running smoothly on each property and to do a welfare check on each property.[45]
  1. [32]
    On 31 July 2017, Mr Townsend was appointed to the position of Director with LS.[46] Mr Townsend's evidence was that prior to him being appointed as Director of LS, Mr Suleiman had that role.[47]
  1. [33]
    The position description for the position of Director, in terms of the purpose of that position provided:

The primary purpose of this position is to provide high quality management and leadership for the day-to-day operations and future direction of the organisation. Active participation in disability and business networks is required for this position. The Director is also responsible for ensuring that the organisation operates in a smooth and progressive manner, in conjunction with the administration staff, as well as people being supported, family members or significant other people, and external advisors. The Director operates as a self-directed member of the Lifestyle Supports Pty Ltd team and has regular contact with the people being supported, family members, or significant other people who have an interest in supporting people with complex support requirements.

The Director will ensure that Lifestyle Supports follows all laws and legislation pertaining to the Social Care sector.[48]

Are the six particularised allegations proven on the evidence and, if so, do they amount to reasonable management action taken in a reasonable way in connection with Mr Townsend's employment?

The October 2016 allegation

  1. [34]
    Mr Townsend contends that in October 2016 he raised with Mr Suleiman the fact that some things at LS were not being done according to legislation, in response to which Mr Suleiman became angry and told Mr Townsend in an aggressive way that it was his (Mr Suleiman's) business and that he would run it the way he wanted.
  1. [35]
    The Regulator submitted that the exchange between Mr Townsend and Mr Suleiman - in respect of which there were no other persons present and no witnesses able to support either as to the different version of events - involved the manner in which the employer conducted its business.[49] The Regulator also submitted that the purported correction by Mr Townsend as to that matter, because it was not an ordinary everyday activity of Mr Townsend, amounted to management action.[50] The Regulator submitted this was reasonable management action because of Mr Townsend's evidence[51] that, at that point in time, his relationship with Mr Suleiman was one of give and take.[52]
  1. [36]
    Mr Townsend submitted that he raised with Mr Suleiman the fact that some things at LS were not being done according to legislation to which Mr Suleiman became angry and told Mr Townsend, in an aggressive way, that it was his business and that he would run it the way he wanted. Mr Townsend further submitted that Mr Suleiman did not deny that allegation but instead (in his evidence-in-chief) said: 'Well it is my business' and that evidence should be accepted.[53]
  1. [37]
    Mr Townsend's evidence was that when he first met Mr Suleiman at the end of September 2016 or the beginning of October 2016, his relationship with Mr Suleiman was pretty positive because they were discussing the future of LS. However, Mr Townsend described that that relationship changed over time, because, from Mr Townsend's point of view, Mr Suleiman could not get quite an idea of what direction he (Mr Suleiman) wanted to take and that Mr Suleiman started to argue a fair bit with the Department of Child Safety over things Mr Suleiman wanted to do in his own business.[54]
  1. [38]
    Mr Townsend's evidence then was that when the Diddillibah property was being established with farm activities, there was work being done on the property to establish those activities which included disabled clients doing some construction work, such as fencing. Mr Townsend said that he told Mr Suleiman that those types of activities were not suitable for the clients they were looking after and that he expressed his concerns about that to Mr Suleiman. Mr Townsend also said that Mr Suleiman's response was 'Nobody ought to tell me how to run my properties' and that he ended up trying to talk to Mr Suleiman about finding better ways for the clients to be engaged in activities more suitable to their needs. Mr Townsend's evidence was that this was part of his role as Operational Manager.[55] However, according to Exhibit 4, Mr Townsend was not offered the position of Operational Manager until 1 July 2017.
  1. [39]
    In cross-examination, Mr Townsend agreed that there were differences of opinion between himself and Mr Suleiman in relation to what work clients may perform, such as clients working with sheep and cattle at the Diddillibah property.[56]
  1. [40]
    Indeed, Mr Townsend submitted that there was a bit of give and take between him and Mr Suleiman and that it was not until early 2018 where Mr Suleiman really began to become extremely abusive.[57]
  1. [41]
    I agree with the Regulator's submission that this matter involved management action because it did not involve Mr Suleiman's management of Mr Townsend about an ordinary everyday activity of Mr Townsend's employment as a Senior Support Officer.
  1. [42]
    Mr Suleiman's consistent evidence in cross-examination was that he never spoke to Mr Townsend in an aggressive way.[58] However, that evidence, given in cross‑examination by Mr Suleiman, was general and was not specifically about this event in October 2016.
  1. [43]
    Given Mr Townsend's unchallenged evidence about this allegation, I accept that Mr Townsend probably did raise an issue, in late 2016 when he was a Senior Support Worker, about the type of work being done by clients at the Diddillibah property and that Mr Suleiman did say to Mr Townsend words to the effect that no one ought to tell him how to run his properties. However, there is insufficient evidence for me to conclude that when Mr Suleiman did state those words to Mr Townsend, he did that in an aggressive manner.
  1. [44]
    I am not persuaded this management action was other than reasonable management action taken in a reasonable way in connection with Mr Townsend's employment.

The end of 2017 allegation

  1. [45]
    The allegation is that towards the end of 2017, after Mr Townsend had accepted an offer from Mr Suleiman to be the Director of LS, and following Mr Suleiman's acceptance that he (Mr Suleiman) would have to listen to what Mr Townsend wanted to do to ensure legislation was followed, Mr Suleiman became increasingly moody, aggressive and abusive towards Mr Townsend.
  1. [46]
    The Regulator's general submission, which encompassed the allegations made in respect of this contention, was that Mr Suleiman's conduct regarding Mr Townsend's poor performance in the latter part of 2017 was reasonable management action taken in a reasonable way in connection with Mr Townsend's employment because the conduct engaged in by Mr Suleiman, regarding Mr Townsend's employment, did not involve Mr Townsend's everyday duties but involved the management of Mr Townsend so as to perform his duties as Director.[59]
  1. [47]
    Mr Townsend submitted that towards the end of 2017, Mr Suleiman became moody, aggressive and abusive towards him and that assertion was consistent with what Mr Suleiman said in his evidence, namely, that at the beginning of 2018 he (Mr Suleiman) came to the view that Mr Townsend was not completing his tasks.[60] However, as referred to earlier, Mr Townsend submitted that there was a bit of give and take between him and Mr Suleiman and it was not until early 2018 where Mr Suleiman really began to become extremely abusive.
  1. [48]
    Mr Townsend's evidence was that Mr Suleiman approached him in December 2017 and asked him if he (Mr Townsend) was interested in buying his business but that even before he (Mr Townsend) could give Mr Suleiman an answer, Mr Suleiman had changed his mind about selling the business.[61] Mr Townsend stated that his relationship with Mr Suleiman up to December 2017, there was a lot of give and take and that there were '… a few little arguments over legislation but nothing too serious, like, no major outburst. There was a little bit - there was a little bit of swearing towards me.'[62] When asked what he meant by '… a little bit of swearing', Mr Townsend responded by saying that Mr Suleiman seem to be very frustrated with dealing with the Department of Child Safety and the Department of Disabilities and that:

[H]is words were, "I'll run my business the way I want. No one else - no one else will tell me how to run it" and he'd be swearing at me going, "You won't fuckin be telling me either how to run my business."[63]

  1. [49]
    Mr Suleiman's evidence was that towards the end of 2017 and towards the start of 2018, there were more frequent visits from the Department of Child Safety to the properties operated by LS. Indeed, Mr Suleiman gave evidence that he informed a particular Child Safety Officer that if she ever came back to LS's property, he would refer her to the police, and that the Department of Child Safety transferred the relevant client to a different Child Safety Officer for the remaining time that that child was being supported by LS.[64] Mr Suleiman's further evidence was that a particular child was moved from being supported by LS and that the issues LS was having with the Department of Child Safety continued from the end of 2017 through to 2018.[65] It was put to Mr Suleiman that he was feeling a great deal of pressure about the way the Department of Child Safety was visiting LS's properties and communicating with him. Mr Suleiman's response was: 'Disagree somewhat.'[66] It was also put to Mr Suleiman that he believed the Department of Child Safety was acting with intent to take child safety clients away from LS. Mr Suleiman's response was that he could see that the Department of Child Safety was disappointed with some aspects of the service which Mr Townsend was managing.[67]
  1. [50]
    By memorandum dated 14 December 2018, Mr Suleiman informed Mr Townsend of certain aspects of his (Mr Townsend's) work performance of which Mr Suleiman had concerns. At the beginning of that memorandum, Mr Suleiman stated:

As part of your role you have the responsibility of managing service delivery.

January the 1st 2018 [sic] it became apparent that these obligations and duties were being neglected due to a wide range of incidents involving staff and service users which could have been avoided.

Due to my concerns at the end of 2017 I also employed the assistance of a [sic] Rachelle to assist you in your duties and to ensure quality is maintained. It is disappointing that she has underperformed in her duties and not assisted you appropriately to ensure quality is not over looked [sic].

Throughout 2017 and 2018 I was not able [sic] manage business operations as well as I would have liked due to constant requirement [sic] to assist in managerial matters involving Lifestyle Supports.

Regular Audits and assessments of staff, properties and service delivery have uncovered a wide range of procedural under performance [sic].

…

It has been disappointing to uncover a wide range of duties associated to your role still not being completed. It is also been upsetting that you have also been dishonest when asked if the works have been completed.[68]

  1. [51]
    In further cross-examination, Mr Suleiman agreed that he had given evidence that Mr Townsend, for a year, was an underperforming employee and that underperformance was causing him (Mr Suleiman) to lose clients in his business.[69]
  1. [52]
    On the evidence, there seems to be little doubt that following Mr Townsend being appointed as Director of LS from 31 July 2017, Mr Suleiman had significant concerns about the performance by Mr Townsend of his duties. However, Mr Townsend, on his own evidence about the allegations relevant to this contention, did not give any evidence that the 'little bit of swearing' undertaken by Mr Suleiman seemed to cause him any material distress.
  1. [53]
    Concerning the period of time around the end of 2017, I find that Mr Suleiman, as the owner of the business, did occasionally swear when he was in work‑related conversations with Mr Townsend as the Director of the business. In my opinion, such conversations amounted to management action because they concerned Mr Suleiman conveying to Mr Townsend his views about specific aspects of Mr Townsend's performance as Director which, from Mr Suleiman's perspective, were affecting the business of LS. Clearly, around this time, Mr Suleiman was dealing with more regular visits from the Department of Child Safety.
  1. [54]
    However, on Mr Townsend's own evidence, Mr Suleiman seemed to be very frustrated with dealing with the Department of Child Safety and that while there was a little bit of swearing by Mr Suleiman towards Mr Townsend, there was nothing serious and no major outburst. In the context of the owner of the business swearing at the appointed Director of a business about perceived aspects of the Director's work performance, but in circumstances where there was nothing serious and no major outburst, that could not, in my view, on any objective analysis, be found to be unreasonable. As referred to earlier, the material management action has to be reasonable not perfect.
  1. [55]
    For these reasons, I am not persuaded that this management action was other than reasonable management action taken in a reasonable way in connection with Mr Townsend's employment.

The early 2018 allegation and the July 2018 allegation

  1. [56]
    Given the evidence before me, which I summarise below, it is convenient, for reasons which will become clear, to deal with these two allegations together.

The early 2018 allegation

  1. [57]
    The allegation is that in early 2018, Mr Suleiman and Mr Townsend had a meeting in which Mr Suleiman was abusive and aggressive towards Mr Townsend, necessitating Mr Townsend to have time off work to recover and in the meeting following Mr Townsend's return to work, Mr Suleiman accused Mr Townsend of not following policies and procedures.
  1. [58]
    The Regulator submitted that, in respect of this allegation, Mr Townsend's evidence was that up until January 2018, the interaction between him and Mr Suleiman was give and take.[70]
  1. [59]
    Mr Townsend submitted that in early 2018 he had a meeting with Mr Suleiman in which Mr Suleiman was abusive and aggressive towards him, such that he (Mr Townsend) suffered from uncontrollable shaking and was required to have time off work to recover. Mr Townsend further submitted that when he returned to work, Mr Suleiman asked him for a meeting to address work issues during which Mr Suleiman accused Mr Townsend of not following policies and procedures in spite of having told Mr Townsend that the business would be run his (Mr Suleiman's) way.[71]
  1. [60]
    Mr Townsend also submitted that Mr Suleiman's evidence that he (Mr Suleiman) was never abusive or aggressive to anyone must be rejected and that his (Mr Townsend's) evidence ought to be accepted.[72]
  1. [61]
    Mr Townsend further submitted that Mr Suleiman's evidence could not be accepted in the face of the evidence of all of the other witnesses, perhaps with the exception of Mr John Fraser, because he (Mr Fraser) did not seem to give evidence of ever having heard anything, except that he was told by Mr Townsend that there were arguments and that he (Mr Townsend) was stressed about his work.[73]
  1. [62]
    Mr Suleiman was cross-examined about the early 2018 allegation:

In January of 2018 you had an altercation with Mr Townsend where you yelled at him; is that right?‑--As I’ve mentioned previously on a number of occasions, I’ve never yelled at him.

You swore at him as well, Mr Suleiman; that’s right, isn’t it?---I don’t believe so.[74]

  1. [63]
    Further, Mr Suleiman, when it was put to him that he was not afraid of swearing when it was appropriate, answered that it depended on the context.[75]
  1. [64]
    However, on the evidence before me, Mr Townsend never gave any direct evidence about the early 2018 allegation. It seems to me, for the reasons discussed below, that Mr Townsend's evidence was about an event that occurred between him and Mr Suleiman during which Mr Suleiman accused Mr Townsend of contacting the Department of Child Safety and making statements to persons in that Department about Mr Suleiman's mental health.

The July 2018 allegation

  1. [65]
    The July 2018 allegation is that:
  • in a meeting, Mr Suleiman accused Mr Townsend of calling the Department of Child Safety and telling that Department that Mr Suleiman's mental health was not good, an accusation that Mr Townsend denied;
  • following Mr Townsend leaving the meeting, he was followed by Mr Suleiman yelling at him (Mr Townsend); and
  • as Mr Townsend entered his car to leave, Mr Suleiman sat on the bonnet of Mr Townsend's car to prevent Mr Townsend leaving, Mr Townsend asked Mr Suleiman to get off the car but was told by Mr Suleiman just to drive off, and when Mr Townsend started the car Mr Suleiman jumped off the car.
  1. [66]
    The Regulator submits that:
  • this meeting only occurred between Mr Townsend and Mr Suleiman, there were no other witnesses present, the allegation by Mr Townsend that Mr Suleiman sat on the bonnet of his car was unsupported Townsend v Workers' Compensation Regulator [2022] QIRC 105by any other witness in these proceedings, including Mr Suleiman, and that there is a Townsend v Workers' Compensation Regulator [2022] QIRC 105distinct anomaly in the evidence of Mr Townsend where he contends this occurred Townsend v Workers' Compensation Regulator [2022] QIRC 105'early in 2018' which was not, by any measure, July 2018;[76]
  • Mr Townsend became confused as to a meeting where he contended Mr Suleiman sat on the bonnet of his car stating that that occurred in early 2018;[77] and
  • in respect of Mr Townsend's evidence of taking leave and consulting with his General Practitioner at that time, there is a complete absence of any record from the General Practitioner as to such a consultation.[78]
  1. [67]
    In written submissions, Mr Townsend submitted that:
  • in July 2018, Mr Suleiman accused him of calling the Department of Child Safety and telling them that his mental health was not good and that he denied the allegation to Mr Suleiman;
  • Mr Suleiman accepts that there was a conversation around this topic, but says that Mr Townsend was abusive and stormed out, this account cannot be accepted;
  • Mr Suleiman is the only witness who alleges that Mr Townsend ever behaved in this way and even Mr Fraser and Ms Catherine (Lucy) Fraser, who gave evidence on behalf of the Regulator, who when relating the events of the meeting on 17 January 2019, did not allege that Mr Townsend was aggressive and that he was simply objecting to being called a liar;
  • he again experienced uncontrollable shaking, left the meeting and was followed by Mr Suleiman yelling at him, and as he (Mr Townsend) entered his car to leave, Mr Suleiman sat on the bonnet to prevent his leaving, he asked Mr Suleiman to get off the car, but was told to just drive off and when he started the car, Mr Suleiman jumped off the car;
  • he took time off after this incident;
  • the Commission must consider all the evidence to weigh up whether it is more likely than not to have happened and it was submitted that when considering Mr Suleiman's credit, the way in which he (Mr Townsend) gave evidence ought to also be considered in that he was straightforward, able to answer every question, did not have any difficulty doing so in cross-examination and was polite and respectful at all times; and that the contrast with Mr Suleiman was striking; and
  • when he returned to work in July 2018, he told Mr Suleiman that his aggressive and rude behaviour had to stop, Mr Suleiman behaved more calmly, but in December 2018, Mr Suleiman offered to sell to Mr Townsend the business again, but withdrew the offer again.[79]
  1. [68]
    In oral submissions, Mr Townsend submitted that:
  • the Commission can be certain the event occurred because Mr Suleiman conceded he spoke to Mr Townsend about someone telling the Department of Child Safety that his mental health was not good;
  • Mr Suleiman's evidence was that that meeting occurred in front of five other people, but no witnesses were offered to support Mr Suleiman as to what he said;
  • his evidence was that they were alone when the event occurred; and
  • at about that time, Mr Suleiman's mental health was not good because his partner had left him, and he was very worried about the Department of Child Safety such that the Commission should accept that Mr Suleiman would react badly to someone contacting that Department to advise the Department that Mr Suleiman's mental health was not good.[80]
  1. [69]
    Counsel for Mr Townsend also made this submission:

And so that, in my submission, is the interesting part about the evidence, because the event occurred; your Honour can be certain of that. The question is simply what happened when it occurred. Mr Suleiman’s evidence was that there were five people in the room and that Mr Townsend was aggressive and stormed out and slammed the door, and Mr Townsend says that Mr Suleiman was aggressive and came and sat on the bonnet of his car, and he had to start the car up before Mr Suleiman got off. Now in my submission, it may be difficult for your Honour to make a finding about whether the bonnet of the car happened. But if your Honour accepts that Mr Suleiman is not a witness who should be accepted when his evidence is in conflict with someone else’s, then, in my submission, it is perfectly logical, in the circumstances of this case, to accept that it occurred. And it is illogical in every other case, I accept that.

For a boss to sit on the bonnet of an employee’s car would be a very strange event and it would certainly be a very strange thing for an employee to make up. But your Honour has heard the evidence, seen the witnesses and seen the documents before you and, particularly, what Lucy Fraser says about Mr Suleiman’s up and down behaviour and the emotional stress must weigh heavily, in my submission, on what you believe about Mr Suleiman’s capacity to behave in an unpredictable way.[81]

  1. [70]
    Mr Townsend's evidence was that in early 2018 he had a meeting with Mr Suleiman during which Mr Suleiman accused him of contacting the Department of Child Safety about Mr Suleiman's mental health. Mr Townsend stated that Mr Suleiman was very angry and very aggressive towards him and his words were: 'You fuckin called the bloody Department of Child Safety and told them that I've got a mental health problem.'[82]
  1. [71]
    Mr Townsend's evidence was also that:
  • he stated to Mr Suleiman that he denied doing anything of that sort;
  • Mr Suleiman's response was to call him (Mr Townsend) a 'Fuckin lying bastard';
  • Mr Suleiman then began to walk towards him, was confronting him in an angry way to the point where Mr Townsend started to really fear for his safety; and
  • he felt as though Mr Suleiman was going to hit him.[83]
  1. [72]
    Mr Townsend's further evidence was that:
  • he (Mr Townsend) turned around and walked back to his car, Mr Suleiman followed him, as he got to his car Mr Suleiman sat on the bonnet of the car, Mr Townsend asked him to move to which Mr Suleiman replied: 'Just fuckin drive off' and that when Mr Townsend started the car, Mr Suleiman jumped off the bonnet and Mr Townsend was able to leave;[84]
  • after that event, he felt very shaken up, had to pull up on the side of the road just to collect himself because he was very shaken up and sat there for about 10 minutes, calmed himself down and then organised an appointment to go and see his doctor;[85] and
  • when he visited his doctor, he advised his doctor about the abuse he had been receiving from Mr Suleiman, the verbal abuse and intimidation and informed his doctor that he was being bullied and harassed by his current employer following which he took two days off work.[86]
  1. [73]
    Mr Suleiman's evidence-in-chief was that:
  • he and Mr Townsend were having a discussion in the office, there were about five people in the office because it was at the Innovation Centre at the University and was an open space;
  • he had a conversation with Mr Townsend about the Department of Child Safety and he asked Mr Townsend if he had been speaking to the Department of Child Safety; and
  • Mr Townsend became quite aggressive, denied that he said something to that effect and stormed out of the office and slammed the door behind him which shook the door and the frame pretty well and that he (Mr Suleiman) remained in the office a little bit embarrassed about the situation.[87]
  1. [74]
    Mr Suleiman denied that he followed Mr Townsend to his car and that he sat on the bonnet of Mr Townsend's car to prevent him from leaving. In addition, Mr Suleiman denied sitting on the bonnet of Mr Townsend's car to prevent him leaving at any other time.[88]
  1. [75]
    In cross-examination, Mr Suleiman stated that he vaguely remembered the conversation the subject of the July 2018 allegation but denied the particulars of this allegation when put to him in cross-examination.[89]

The similar fact evidence

  1. [76]
    The resolution of whether or not this event (and other allegations contained in subsequent contentions) occurred requires a consideration of whether Mr Townsend's evidence or Mr Suleiman's evidence should be accepted.
  1. [77]
    The Regulator submits that the conflict in the accounts (generally) between Mr Suleiman and Mr Townsend is best resolved by reference to independent evidence, namely, Exhibits 9, 10, 12 and 15, which it submits reveal an entirely different Mr Suleiman compared to that painted by Mr Townsend and the independent evidence of Mr Fraser and Ms Fraser. Further, the Regulator submits that the evidence of other persons called by Mr Townsend who gave evidence about how Mr Suleiman treated them should be given no weight and does not provide any assistance in determining how Mr Suleiman treated Mr Townsend.[90]
  1. [78]
    The evidence which was led by Mr Townsend from other employees of LS, which did not go to their direct observations of interactions between Mr Townsend and Mr Suleiman but went to their observations of Mr Suleiman's behaviour towards them or other employees, was admitted without objection by the Regulator.[91]
  1. [79]
    As a matter of general principle, if similar fact evidence is logically probative, that is relevant to proving a matter in issue, then provided that it is not unfair or oppressive and the other side has had notice, it will be admissible. The essential criterion for admissibility of such evidence is relevance.[92] Furthermore, evidence is similar fact evidence if it is relevant to a fact in issue because it establishes that a person has or had a propensity to act in a particular way and that propensity is a link in the process of proving that the person behaved in the particular way on the occasion in question.[93] It is evidence that provides the foundation for an inference, namely, that because a person had the relevant tendency, it is more likely that they acted in a way asserted on an occasion the subject of the proceedings.[94] For these reasons, that evidence was properly admitted. The weight to be given to such admitted evidence is a matter for the relevant tribunal or court.[95]

Mr John Potter

  1. [80]
    Mr Potter, who was employed by LS as a Farm Manager between late July to early December 2018,[96] gave evidence, on behalf of Mr Townsend, that he observed heated discussions between Mr Townsend and Mr Suleiman and that it was usually Mr Suleiman shouting to which Mr Townsend would be saying to Mr Suleiman to calm down, in response to which Mr Suleiman would not calm down.[97] Mr Potter stated that on one occasion when Mr Suleiman asked him (Mr Potter) to get a shed framed in timber and lined, he responded to Mr Suleiman by saying that 'I'm not your carpenter' in response to which Mr Suleiman said: 'You are a stupid fucking cunt.'[98]
  1. [81]
    Mr Potter recalled another occasion when he had been called to a meeting between Mr Townsend, Mr Suleiman and Mr Suleiman's brother Farid. Mr Potter stated that the meeting happened after a client had smashed a TV and smashed holes in walls and Mr Suleiman attacked them (Mr Townsend and Mr Potter) for not knowing their jobs and stated that they were useless.[99] In cross-examination, Mr Potter agreed that in relation to what he observed between Mr Townsend and Mr Suleiman, he did not hear what was being said other than they were in an agitated discussion.[100]

Ms Rachelle Daly

  1. [82]
    Ms Daly worked for LS between January 2018 and January 2019 in the position of Quality Audit Manager during which time Mr Townsend was her supervisor.[101] Ms Daly gave evidence on behalf of Mr Townsend. Ms Daly's evidence was that Mr Suleiman would yell and scream a lot and direct his anger at her even if it was directed at someone else. Ms Daly stated that Mr Suleiman said to her that Mr Townsend was:

[F]'ing useless. He does not know his job. He's only here for the money. He's not here for the clients at all. He doesn't know what he's f'ing doing. He's just wasting my time, wasting my f'ing money. Just continual ramblings - and it was every day.[102]

  1. [83]
    Ms Daly also gave evidence of her observations of interactions between Mr Suleiman and Mr Townsend in that, while there were pleasant times, there were also some awful yelling times where she would see the veins in Mr Suleiman's head starting to pop, Mr Suleiman getting worked up and his hand starting to clinch in response to which Mr Townsend would ask him to calm down and walk away but that Mr Suleiman would not calm down. Ms Daly stated that she saw that behaviour from about March 2018 and that from the middle of 2018 she saw Mr Townsend crying and shaking and losing weight.[103] Ms Daly further stated that Mr Townsend told her the reason why he was shaking, crying and upset was because he had a run-in with Mr Suleiman.[104]
  1. [84]
    In cross-examination, Ms Daly could not remember a particular occasion when Mr Townsend asked Mr Suleiman to calm down and walk away.[105]

Mr Jamie Davis

  1. [85]
    Mr Davis was employed at LS between late 2017 to the end of 2019 as a support person.[106] Mr Davis gave evidence on behalf of Mr Townsend. Mr Davis stated that he observed interactions between Mr Townsend and Mr Suleiman and that while at first they appeared to be employee/employer conversations, the conversations became more confrontational with Mr Suleiman being confrontational and aggressive in that he would yell and have an elevated way of speaking when he was frustrated. Mr Davis recalled one occasion where he observed a heated discussion between Mr Townsend and Mr Suleiman, when they were on the landing of a high‑set house and that Mr Suleiman was being very assertive and very aggressive in that conversation.[107] Mr Davis stated that he observed Mr Townsend being more stressed and withdrawn and that his happy demeanour had gone and that after a period of time, he stated that the general subject of the things that were bothering him was the way he was being treated by Mr Suleiman.[108]
  1. [86]
    In cross-examination, Mr Davis stated that he never directly witnessed anything that happened between Mr Suleiman and Mr Townsend other than in relation to the heated discussion he observed between Mr Townsend and Mr Suleiman on the landing of a high‑set house. In relation to that incident, Mr Davis stated that eventually Mr Townsend turned around and walked away but that he did not hear what was said.[109]

Mr John Fraser

  1. [87]
    Mr Fraser gave evidence on behalf of the Regulator. Mr Fraser's evidence was that for a period of four years he was employed by LS as a support worker.[110] Mr Fraser gave evidence of being present at a staff meeting in January 2019. Mr Fraser said the other persons present were Mr Suleiman, Mr Fraser's wife (Ms Fraser), Mr Townsend and Mr Farid Suleiman. Mr Fraser's evidence was that the meeting was to discuss work that was missed by Mr Townsend, that Mr Townsend was quite upset and walked over to Mr Suleiman calling Mr Suleiman a liar and was standing over Mr Suleiman when Mr Suleiman was seated. Mr Fraser stated that he got in between the pair and asked them to separate. Mr Fraser also stated that Mr Townsend was shouting to Mr Suleiman that he was not a liar or that he was '… not a fucking liar'.[111]
  1. [88]
    Mr Fraser then stated that he had to leave the room as they were talking, and that as he was walking through the door he could hear the shouting going on and it was at that point that he stepped back into the room when Mr Townsend was standing over Mr Suleiman and that's when he stepped in between them. Mr Fraser said that Mr Suleiman stood up as he walked back into the room and that he (Mr Fraser) put his right arm between the two of them when they were standing close together.[112]
  1. [89]
    Other than that, Mr Fraser's evidence-in-chief was that he never observed Mr Suleiman swearing at Mr Townsend and that he never observed any other disagreements between Mr Suleiman and Mr Townsend.[113]
  1. [90]
    In cross-examination, Mr Fraser:
  • in relation to the January 2019 meeting:

– agreed that because he left the meeting, he did not know what Mr Suleiman was raising with Mr Townsend about Mr Townsend's work;[114]

– stated that he heard Mr Suleiman call Mr Townsend a liar but he never heard Mr Suleiman call other people liars and had never heard, prior to that day, Mr Suleiman call Mr Townsend liar;[115] and

– stated that after he put his arm between the two of them, the meeting ended and he did not hear Mr Suleiman say anything else to Mr Townsend;[116] and

  • stated that Mr Townsend told him that he (Mr Townsend) was stressed out with the job but did not say what it was about his job that was stressing him out, although he recalled that Mr Townsend had mentioned to him that he (Mr Townsend) and Mr Suleiman had argued[117] and that he only saw Mr Suleiman swearing at staff outside of work.[118]

Ms Catherine (Lucy) Fraser

  1. [91]
    Ms Fraser also gave evidence on behalf of the Regulator and stated that she was employed as a support worker at LS for a period of four years and that she reported to Mr Townsend.[119]
  1. [92]
    Ms Fraser stated that she was present at the meeting in January 2019 when there was an interaction between Mr Townsend and Mr Suleiman. Ms Fraser stated that also present were her husband, Ms Alicia Battaglia, Mr Farid Suleiman, as well as possibly Mr Omar Suleiman's ex-partner, Mr Suleiman and Mr Townsend.[120] Ms Fraser's evidence was:

There was a conversation between Omar and Shane about duties that hadn’t been completed. And then Shane challenged Omar whether he was calling him a liar, to which he’d gone up over to Omar and was shouting at him, “Are you calling me an effing liar?”

All right. Did something happen after that?---John, my husband, went – got up from his seat, I believe, and got in between them. I don’t remember what was said, but it just obviously – yeah.

I see. All right. Were you able to observe other interactions, in the time you were employed over the four years with Lifestyle Supports, between Mr Townsend and Mr Suleiman?---I’d seen them a few times together in – in the office where I’d gone in to do work and things, but they weren’t always working together. It was – they were very separate working.

All right. Did you ever observe Mr Suleiman swearing at Mr Townsend?---No.[121]

  1. [93]
    In cross-examination, Ms Fraser:
  • stated it was possibly the case, that at the meeting in January 2019, Mr Suleiman called Mr Townsend a liar at which point Mr Townsend then walked over towards Mr Suleiman;[122]
  • stated in 2017 or 2018, Mr Suleiman had some difficulties with the breakup of his ex-partner and that he was quite emotional about that;[123]
  • agreed, when taken to Exhibit 8 (being an email dated 26 October 2018 from Mr Suleiman to all staff members expressing his concern about the way the business was running and the changes he wanted to make), that it expresses some anxiety on Mr Suleiman's behalf;[124]
  • agreed that Mr Suleiman could become agitated;[125]
  • agreed that Mr Suleiman did not always present himself in a calm way when he was talking to staff;[126]
  • agreed that Ms Battaglia, Mr Townsend and Mr Davis had told her that Mr Suleiman yelled at them;[127] and
  • agreed that Mr Suleiman did not yell at her the way that he did at others.[128]
  1. [94]
    Mr Townsend submitted a range of reasons as to why Mr Suleiman's evidence, where it contrasted with that of Mr Townsend, should be rejected. They were:
  • Mr Suleiman demonstrated, in giving his evidence, an inability to contain his own emotions;
  • Mr Suleiman gave incoherent evidence about what he did and why he did it;
  • the witnesses called in Mr Townsend's case gave clear evidence that Mr Suleiman:

– swore regularly;

– yelled at employees; and

– appeared to be emotionally unstable;

  • the witnesses in the Regulator's case, Mr Fraser and Ms Fraser gave evidence that Mr Townsend told them on a number of occasions that he and Mr Suleiman had argued;
  • Mr Fraser's account of the 17 January 2019 meeting was more consistent with the evidence of Mr Townsend than it was with that of Mr Suleiman;
  • both Mr Fraser and Ms Fraser gave evidence that they did not observe any of the problems with the care of residents that Mr Suleiman gave evidence about;
  • neither Mr Fraser or Ms Fraser had ever been approached by Mr Townsend or Mr Suleiman about the problems alleged by Mr Suleiman;
  • Ms Fraser, who had her own criticisms of Mr Townsend, discounted the emails she received from Mr Suleiman as demonstrating Mr Suleiman was not particularly stable and was a 'bit up and down';
  • Ms Fraser said that Mr Suleiman argued with staff;
  • Ms Fraser was told by Mr Townsend, another manager (Ms Battaglia) and Mr Davis that Mr Suleiman yelled at them; and
  • Ms Fraser told Mr Suleiman that the workload for Mr Townsend and Ms Battaglia was too much and his response was that the work was not getting done.[129]
  1. [95]
    I agree that the emails Mr Suleiman sent to Mr Townsend, referred to by the Regulator, in respect of which it submits such emails set out the true nature of Mr Suleiman's character (Exhibits 9, 10, 12 and 15), are in polite terms and show, on their face, that Mr Suleiman was expressing concern about Mr Townsend's health. However, in my view, those emails are not the only basis upon which I should make an assessment about the July 2018 allegation.

My determination

  1. [96]
    First, as I have referred to earlier, Mr Townsend gave no direct evidence about the early 2018 allegation. Simply put, he has not made out his case about that contention.
  1. [97]
    Secondly, on the evidence he gave, Mr Townsend's evidence about events that he says occurred in early 2018 was his evidence about the July 2018 incident.
  1. [98]
    Mr Townsend submits that one of the reasons as to why Mr Suleiman's inconsistent evidence with that of his own should be rejected is that when giving his evidence, Mr Suleiman demonstrated an inability to contain his own emotions. I think that may be putting what occurred too highly. What occurred was that on two occasions, Mr Suleiman objected to the volume of Mr Townsend's counsel's voice when he was being cross‑examined[130] and on the first of those occasions, Mr Suleiman asked for, and was granted, a short break from giving evidence.[131] However, I am reluctant to make an adverse finding about Mr Suleiman's credit solely on that basis for the reasons established in the authorities about a cautious approach to be taken in resolving conflicts of evidence on the basis of demeanour.[132]
  1. [99]
    Aside from demeanour, there are other factors or considerations which may assist a court or tribunal in determining the credibility of witnesses and the reliability of their evidence. They include:
  • whether the witness has previously given an account of the events in question and, if so, whether that previous account is consistent or inconsistent with the evidence given by the witness;
  • the plausibility and apparent logic of the events described by the witness; and
  • the consistency of the account of the events described as compared with other objectively established events.[133]
  1. [100]
    In the same vein:
  • the credibility of a witness and his or her veracity can be tested by reference to objective facts, particularly those provided in contemporaneous documents, his or her motive and the overall probabilities;[134] and
  • rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, evidence independent of the witness that is apt to cast light on the probability of the situation.[135]
  1. [101]
    Further, in the present case, there is the weight that may be given, if any, to the admitted similar fact evidence.
  1. [102]
    In the present matter, there is a direct conflict between Mr Townsend's account and the evidence of Mr Suleiman about what I have defined as the July 2018 allegation. The conflict is stark.
  1. [103]
    Some of the evidence is against Mr Townsend's account. In his statement of facts and contentions, Mr Townsend contended that the event involving Mr Suleiman allegedly sitting on the bonnet of his car following the meeting occurred in July 2018 and not in early 2018 as was his evidence-in-chief. Further, Mr Townsend's evidence was that after he drove off after the situation where he says Mr Suleiman followed him to his car and sat on the bonnet of his car, he attended his General Practitioner, explained that he was being abused, intimidated, bullied and harassed by Mr Suleiman and had two days off.[136] Mr Townsend was cross-examined about his evidence in that regard and he confirmed that he believed it was Dr Jean‑Marc De Maroussem, General Practitioner of Apollo Medical (Qld) Pty Ltd, that he consulted and from whom he obtained a medical certificate. When it was pointed out to Mr Townsend that Dr De Maroussem's clinical notes contained no such entry of any consultation,[137] Mr Townsend then become equivocal as to whether or not he '… went to the doctor's.'[138]
  1. [104]
    However, there is other evidence, which in my view, outweighs these matters.
  1. [105]
    First, as referred to earlier in these reasons, in his evidence-in-chief, Mr Suleiman admitted he had a discussion with Mr Townsend where he (Mr Suleiman) asked Mr Townsend if he had been speaking to the Department of Child Safety about him to which Mr Townsend reacted in an aggressive manner and stormed out of the office.
  1. [106]
    In cross-examination, when it was put to Mr Suleiman that in July 2018 he had a conversation with Mr Townsend where he accused Mr Townsend of calling the Department of Child Safety and telling them that his (Mr Suleiman's) mental health was not good, Mr Suleiman's response was not to deny that he had a meeting with Mr Townsend in which he made such an accusation to Mr Townsend. While Mr Suleiman denied yelling at Mr Townsend and asking him 'why the fuck' he called the Department of Child Safety and talked about his mental health,[139] Mr Suleiman's response to the suggestion he accused Mr Townsend of calling the Department of Child Safety and telling them that his mental health was not good, was less than emphatic. Mr Suleiman's evidence was:

I vaguely remember the conversation regarding nothing, but – was communication with Child Safety or an external stakeholder - - -

Now - - -?--- - - - and what he had said in it.

Yesterday, you said that you were having a quiet conversation in the office with Mr Townsend about this. Do you remember that?---Yep.[140]

  1. [107]
    Thus, on Mr Townsend's evidence and on Mr Suleiman's evidence, there was a meeting where Mr Suleiman raised the issue with Mr Townsend that he (Mr Townsend) had contacted the Department of Child Safety about Mr Suleiman. For this reason, Mr Townsend's equivocal evidence about whether this meeting occurred in early 2018 or July 2018 is not a sound basis to discount all of Mr Townsend's evidence about the incident.
  1. [108]
    Secondly, on Mr Suleiman's own account, namely, that Mr Townsend became very upset and stormed out, the subject matter of the discussion must have been a volatile one. Further, Mr Suleiman's account that Mr Townsend left the meeting was consistent with Mr Townsend's account that after he felt threatened by Mr Suleiman, he (Mr Townsend) '… just turned around.'[141]
  1. [109]
    Thirdly, on Mr Townsend's account, Mr Suleiman was very aggressive and swore at him. On the evidence, around the middle of 2018, Mr Suleiman was under a lot of stress. When it was put to Mr Suleiman that in or about the middle of 2018 he was having some real difficulties with his mental health, Mr Suleiman did not deny that proposition, stating:

Not particularly. It was a continuation of stress and – you know, and just disappointed and a bit unhappy with how different aspects of your life are going, but I suppose that’s not unusual for people.[142]

  1. [110]
    In addition, on Mr Suleiman's written contemporaneous account, there is the evidence that in 2018 Mr Suleiman was under pressure from the Department of Child Safety who were doing audits of LS.[143] This evidence is not inconsistent with Mr Townsend's account that Mr Suleiman became aggressive when he thought that Mr Townsend had contacted the Department about his (Mr Suleiman's) mental health.
  1. [111]
    Fourthly, Mr Suleiman, in cross-examination, when it was put to him that he was not afraid of swearing when it was appropriate, said that it depended on the context.[144]
  1. [112]
    Fifthly, there is, as summarised above:
  • Mr Potter's and Ms Daly's evidence about Mr Suleiman's propensity to swear when talking to them;
  • Ms Daly's evidence about Mr Suleiman's propensity to yell and scream a lot;
  • Mr Potter's, Ms Daly's and Mr Davis' observations of heated discussions between Mr Suleiman and Mr Townsend; and
  • Ms Fraser's evidence that Mr Suleiman could become quite agitated and that he did not always present himself in a calm way when talking to staff.
  1. [113]
    This evidence, of Mr Potter, Ms Daly, Mr Davis and Ms Fraser, referred to above, although not direct evidence of the July 2018 allegation, is tendency evidence that should be given weight. This is because it is evidence that is closely connected with a relevant fact in issue in respect of the July 2018 allegation, namely, the allegation about Mr Suleiman's aggressive conduct and his swearing. In my view, this evidence establishes that Mr Suleiman did have a propensity to act in a way as alleged by Mr Townsend in respect of the July 2018 allegation.
  1. [114]
    Sixthly, Mr Suleiman's evidence-in-chief about this allegation was vague.[145] Further, Mr Suleiman, when being cross-examined about the particulars of the July 2018 allegation, was not convincing. On my observation of Mr Suleiman, he was an articulate and sophisticated businessperson. However, Mr Suleiman's responses in cross‑examination when the particulars of the July 2018 allegation were put to him, namely, that he swore at Mr Townsend, that Mr Townsend began to shake and that when Mr Townsend left, Mr Suleiman followed him and then jumped on the bonnet of his car, were to merely state: 'Strongly disagree'[146] or 'that's incorrect.'[147] These short responses from Mr Suleiman did not, in my opinion, engender in me a belief that his account was correct. On the other hand, Mr Townsend's account of this incident in his evidence‑in‑chief (leaving aside the time in 2018 when he said it occurred) was detailed and precise.[148]
  1. [115]
    For all these reasons, I prefer Mr Townsend's account of the July 2018 allegation. While there is no record of Mr Townsend's contemporaneous consultation with Dr De Maroussem about this incident, given that the event must have been a clearly stressful event for Mr Townsend, I accept his evidence[149] that he may have been confused about whether or not he did consult with Dr De Maroussem.
  1. [116]
    Mr Suleiman's conduct involved him, as the owner of LS, discussing with his Director, contact with a relevant government department. In my view, this was conduct involving action by Mr Suleiman beyond the everyday duties and tasks to be performed by Mr Townsend. It involved Mr Suleiman's control of Mr Townsend in the performance by Mr Townsend of his duties as Director of LS.
  1. [117]
    On the facts as I have found them, on any objective basis, Mr Suleiman's conduct was reasonable management action taken in an unreasonable way.

The January 2019 allegations

  1. [118]
    The allegations are that after Mr Townsend returned to work after the Christmas break in January 2019:
  • Mr Suleiman accused Mr Townsend of not performing to a satisfactory standard, and was aggressive to him (Mr Townsend);
  • in a meeting on 17 January 2019, Mr Suleiman called Mr Townsend a 'fucking liar' and a 'lying cunt' in front of other staff members, including Mr Suleiman's brother‑in‑law, Mr Suleiman's fiancé and two overseas workers on working visas; and
  • following the meeting on 17 January 2019, Mr Townsend headed to his car, and Mr Suleiman followed him, yelling at him.
  1. [119]
    There is some background to this meeting.
  1. [120]
    By November 2018, it seemed that, from the points of view of Mr Suleiman and Mr Townsend, LS was under pressure. Mr Townsend and Mr Suleiman's brother were also concerned about Mr Suleiman's mental health.
  1. [121]
    In an email dated 13 November 2018 to all employees, Mr Suleiman stated that, amongst other matters, the culture and ethos of LS were below the standard when he was on the frontline and that he was disappointed in not delivering on expectations to shareholders. Specifically, Mr Suleiman stated that those matters were affecting him '… at unacceptable levels' and that with the continuing pressures and audits being imposed by the Department of Child Safety and the Department of Disability Services, the '… administration and care provided needs to be higher so I have no option but to make immediate changes.' Mr Suleiman then stated that he would be available to meet with the staff, if required, to discuss how to move forward should staff wish to '… avoid termination of employment proceedings' and that the failure to make the changes will result in the termination of employment for the staff members and insolvency for LS.[150]
  1. [122]
    By memorandum dated 13 December 2018 to Mr Suleiman from Mr Townsend and Mr Suleiman's brother Farid, they both stated that they were very concerned about Mr Suleiman's health and the future of LS. After pointing out their concerns for Mr Suleiman's health and specific concerns regarding LS's business, they both asked Mr Suleiman to stand down permanently and to allow them to take over the business so that Mr Suleiman's '… future dreams can come to reality with your family and allow you the opportunity to re-find that inner you.' Mr Townsend and Mr (Farid) Suleiman then set out the relevant contractual and other administrative arrangements that needed to take place to allow that to occur.[151]
  1. [123]
    In the context of that memorandum, Mr Suleiman was cross-examined about his mental health:

And your mental health was suffering, wasn’t it, Mr Suleiman?---There were challenges in my life.

From the middle of 2018 you started having some real difficulties with your mental health, didn’t you?---Not particularly. It was a continuation of stress and – you know, and just disappointed and a bit unhappy with how different aspects of your life are going, but I suppose that’s not unusual for people.[152]

  1. [124]
    By memorandum dated 14 December 2018, Mr Suleiman informed Mr Townsend that regular audits and assessment of staff, properties and service delivery had uncovered a wide range of procedural underperformance and that despite him informing Mr Townsend of his concerns about Mr Townsend's work performance, it was disappointing to uncover:

[A] wide range of duties associated to your role still not been completed. It has also been upsetting that you have also been dishonest when asked if the works have been completed.[153]

  1. [125]
    Mr Suleiman concluded the memorandum by informing Mr Townsend that there had been a number of areas in which he (Mr Townsend) had excelled throughout the year and that he also believed that within a two-week period the continuous improvements that were required could be finalised. Mr Suleiman also stated that he hoped that Mr Townsend could see what was required for 2019 and could work with him so that the transition could be completed in a positive manner.[154]
  1. [126]
    However, having regard to the evidence as a whole, Mr Suleiman's positive view of Mr Townsend changed in the New Year.
  1. [127]
    Mr Townsend's evidence about the 17 January 2019 meeting was that:
  • Mr Suleiman called a staff meeting, and in attendance were himself, Mr Suleiman, Mr Suleiman's partner (Carly), Mr (Farid) Suleiman, Mr Fraser and Ms Fraser;[155]
  • he (Mr Townsend) arrived about 10 minutes late and when he (Mr Townsend) arrived Mr Suleiman got very aggressive and said to him 'My business is going downhill because of you. You're fucking useless. You don't know what you're doing. You're doing your job shit. You’re a useless cunt and you're a liar';[156]
  • in response, Mr Townsend grabbed his phone and diary, walked up to Mr Suleiman and told him that what he had said was inappropriate and stated he was not dealing with that in the workplace at which time Mr Fraser walked in, Mr Fraser saw Mr Townsend in front of Mr Suleiman, put his arm between them and said 'Mate, go and sit down', in response to which Mr Townsend sat down and listened to the rest of the meeting;[157]
  • as soon as the meeting ended, Mr Townsend went to his car, Mr Suleiman followed him and kept on calling him a 'fucking lying cunt' and 'You're useless at your job. You're shit';[158] and
  • Mr Suleiman tried to stop him from going forward so he reversed all the way up to the end of the driveway and pulled up on the side of the road, collected his thoughts, tried to keep himself calm, became upset to the point he was crying and had a couple of days off work.[159]
  1. [128]
    Mr Townsend's evidence was that about a couple of weeks after that meeting, Mr Suleiman apologised to him stating that he was sorry for his behaviour and that he was going through '… a lot of stuff at the moment.'[160]
  1. [129]
    In cross-examination, Mr Townsend:
  • denied he stated to Mr Suleiman 'Are you calling me a fucking liar?';
  • denied that he stood over Mr Suleiman; and
  • agreed that he approached Mr Suleiman at which point Mr Fraser walked back into the room, put his arm between them and asked him (Mr Townsend) to sit down at which point Mr Townsend did sit down.[161]
  1. [130]
    Mr Suleiman's evidence-in-chief about the meeting was:

We had a meeting to discuss sort of some of the improvements and - and what’s going well, what’s not going well, and areas for improvement, but, as part of that, I had to ask staff some questions about what they - what they’ve been up to and what they’ve been doing. And we’d been going through an audit at the time. And I had spoken to the - the auditor before he turned up, and I asked Shane a question. I’m not 100 per cent sure of what the question was, but it was more or less the lines of had he - had he done something and I think he said, “No, no, I didn’t. No, no, I - I haven’t done that.” And I said - “I didn’t do it like that.” I said, “Are you sure, Shane. You - you - you haven’t - you haven’t done it.” He goes, “You didn’t send all that through,” or - or something to those words. And he said, “No, I haven’t done it. I haven’t done it. That’s okay.” And I said, “Are you sure?” And he said, “Yep.” And I said, “Shane, look, mate, you - you’re not telling the truth because I just got off the phone to,” whoever it was, “and they said you had sent all this information through.” He had - he had done something. He said, “I did not.” And I said, “Shane, come on, you know, you’re lying to us. You’ve gotta be, you know, you can’t mislead us like that, you need to tell the truth when I’m speaking to you. It’s important stuff”. And he said, “I’m not”, blah, blah, blah, blah. I said, “You are”, and then he came over to me and he goes, “I’m not fucking lying. You fucking” - and he came over to me and he was pointing his finger and he had a closed fist, but he sort of rushed up to me and I was - I was sitting in the seat and then sort of everyone was sitting in seats in front of me, and he came over to me and started pointing with a closed fist. “I fucking wasn’t fucking lying. Don’t fucking talk to me like that, I fucking do so much for this company”, and I sort of came back a little bit and had my hands up like that. But Shane is just, like, “Back off”, like, “What are you doing”, and I think at this stage John Fraser and I think my brother sorted of tried to - tried to usher Shane back. And I actually hadn’t told him at that stage that I had spoken to the auditor beforehand, and I said, “Shane, I’ve spoken to the auditor and he’s told me that you’ve done this”, you know, and he’s like - and then that’s when he sort of went, “Oh, fucking, oh, I didn’t know what I did”, and I think he just stormed out and got in his car and drove away. It was quite full on.[162]

  1. [131]
    In cross-examination, Mr Suleiman stated that:
  • Mr Townsend intentionally misled him and upset stakeholders on a frequent basis yet, in spite of that, Mr Townsend continued to be employed as Director of LS;[163]
  • he thought that Mr Townsend was a liar[164] and by 17 January 2019, he believed that Mr Townsend had been lying to him and he was upset about Mr Townsend's lying;[165]
  • he accused Mr Townsend of not telling the truth to which Mr Townsend responded aggressively, namely, '… fully aggressive, clenched fists, pointing his finger. "I'm not fucking" - you know, abusing me. And then when I - he was - I think I put my hands up, sort of, just going, "Mate, just back up. Like what are you doing?" And then he got pulled back';[166]
  • he denied he was the person who was aggressive;[167]
  • he said to Mr Townsend that he was being untruthful and then called him a liar;[168]
  • he strongly disagreed that he was the person who was in fact aggressive and rude to Mr Townsend in the meeting;[169]
  • he did not '… believe it to be true' that he called Mr Townsend a 'fucking liar' and when it was put to him that after the meeting, Mr Townsend headed off to his car and that he (Mr Suleiman) followed him yelling at him, Mr Suleiman's response was: 'I don't believe so. No.';[170] and
  • following the 17 January 2019 meeting, he verbally disciplined Mr Townsend,[171] despite his evidence that Mr Townsend was being aggressive and threatening assault against him.[172]
  1. [132]
    Mr Suleiman was cross-examined about his evidence that Mr Fraser pulled Mr Townsend back after Mr Townsend became aggressive and abusive towards him in the meeting. When it was suggested to Mr Suleiman that Mr Fraser put his arm between him and Mr Townsend, Mr Suleiman's evidence was that he was not 100% sure but that Mr Fraser separated them and he believed that he (Mr Fraser) had his arm against Mr Townsend's chest, not pulling him around the neck but leading him or guiding him using physical intervention.[173]
  1. [133]
    I have summarised the evidence of Mr Fraser and Ms Fraser, about their observations and involvement in this meeting, earlier in these reasons.
  1. [134]
    The Regulator submitted that, unlike the allegations in the foregoing contentions, the meeting on 19 January involved the presence of a number of persons, two of whom were Mr Fraser and Ms Fraser. The Regulator submitted that their evidence was that the meeting occurred in the manner related by Mr Suleiman and that they were witnesses of honesty and independence whose accounts should be accepted.[174]
  1. [135]
    Mr Townsend submitted that:
  • Mr Suleiman admitted to calling him a liar in the meeting;[175]
  • all the witnesses agreed that Mr Townsend reacted badly;[176]
  • Mr Fraser says he was not in the room, but he came in at the end when Mr Townsend was saying, 'Are you calling me a fucking liar?';[177]
  • Mr Fraser and Ms Fraser did not give evidence about Mr Townsend shaking his fist and pointing a finger;[178]
  • Ms Fraser says that Mr Townsend was standing over Mr Suleiman, which seems consistent, because Mr Suleiman was seated and Mr Townsend was standing up, but by the time Mr Fraser got there to put his arm in between them, Mr Suleiman had stood up, and that is why he (Mr Fraser) felt he needed to put his arm in between them;[179]
  • whether or not specific words were used is not the question, but rather the question was what was the interaction and was Mr Suleiman acting in an inappropriate way towards Mr Townsend which could not be reasonable management action;[180] and
  • the most telling part about the 17 January 2019 meeting was that nothing happened with respect to Mr Townsend’s employment after that in that there was no counselling of Mr Townsend or disciplinary proceeding.[181]
  1. [136]
    I prefer, in general, Mr Townsend's account of the meeting. There are a number of reasons for this.
  1. [137]
    First, on the account of Mr Townsend, Mr Suleiman, Mr Fraser and Ms Fraser, there is no doubt that in the meeting Mr Suleiman called Mr Townsend a liar. Looking objectively at the evidence, including that of Mr Fraser and Ms Fraser, it seems to me that it was Mr Suleiman calling Mr Townsend a liar that resulted in Mr Townsend's response to Mr Suleiman. The weight of the evidence is that Mr Townsend became upset at being called a liar by Mr Suleiman, walked over to Mr Suleiman and at that point Mr Fraser walked back into the room and stepped between Mr Townsend and Mr Suleiman.
  1. [138]
    Secondly, on Mr Fraser's own evidence, when the initial discussion was taking place between Mr Suleiman and Mr Townsend, he was not in the room, and then when he was walking back in he heard shouting going on which was the point at which he stepped in between Mr Townsend and Mr Suleiman.
  1. [139]
    Thirdly, while in her evidence-in-chief, Ms Fraser gave evidence of Mr Townsend shouting to Mr Suleiman that Mr Suleiman was calling him 'an effing liar' and that her husband had to get in between Mr Townsend and Mr Suleiman, it was in cross‑examination that she agreed that it was possibly the case that Mr Suleiman called Mr Townsend a liar at which point Mr Townsend walked over towards Mr Suleiman.
  1. [140]
    In addition, Mr Fraser and Ms Fraser did not give any evidence about seeing Mr Townsend clenching his fist and pointing his finger at Mr Suleiman.
  1. [141]
    Fourthly, in my assessment, I do not accept Mr Suleiman's account of the meeting and what occurred afterwards. It seems to me that Mr Suleiman was exaggerating his evidence particularly when he stated that Mr Fraser had to pull Mr Townsend back after Mr Townsend approached him (Mr Suleiman). Furthermore, on Mr Suleiman's own account, in the meeting, Mr Townsend was aggressive and threatening towards Mr Suleiman. If that was the case, one would have reasonably expected some formal disciplinary action to be taken. Mr Suleiman says Mr Townsend was verbally disciplined. I find that account of his evidence to be implausible.
  1. [142]
    In addition, Mr Suleiman's denials of specific and important allegations put to him in cross‑examination were not direct and were vague. Mr Suleiman's evidence was that he '… did not believe it to be true' that he called Mr Townsend a 'fucking liar' and that he did not believe it was so that he followed Mr Townsend to Mr Townsend's car after the meeting.
  1. [143]
    Finally, on Mr Suleiman's own account, at that particular point in time, for a range of reasons, he was under a lot of stress, including the pressure being brought to bear on LS by relevant government departments in respect of its operation.
  1. [144]
    My view is that the management action taken by Mr Suleiman, in speaking to Mr Townsend about his performance as Director at this meeting, was reasonable management action but was not taken in a reasonable way in connection with Mr Townsend's employment.
  1. [145]
    If there were issues that Mr Suleiman wanted to raise with Mr Townsend, given Mr Townsend's position as Director of LS, then raising such matters by referring to Mr Townsend as a 'fucking liar', following Mr Townsend to his car at the conclusion of that meeting and continuing to yell at him, could not be seen to be reasonable management action taken in a reasonable way.
  1. [146]
    On any objective view, the conduct of Mr Suleiman was reasonable management action but was not conducted in a reasonable manner.

The end of February 2019 allegations

  1. [147]
    The allegations are that at the end of February 2019:
  • Mr Suleiman called Mr Townsend in for a meeting and told Mr Townsend that his position was being made redundant;
  • following the meeting, when Mr Townsend was meeting his wife for lunch, he (Mr Townsend) received a phone call from Mr Suleiman demanding to know where he was and swearing at him for not being at work and demanded that Mr Townsend meet him at one of LS's properties immediately; and
  • when Mr Townsend met Mr Suleiman, Mr Suleiman continued to yell at Mr Townsend and abuse him.
  1. [148]
    Mr Townsend's evidence was that in February 2019, Mr Suleiman called him and asked him to attend a meeting and that when he met with Mr Suleiman, Mr Suleiman advised him that his (Mr Suleiman's) business was not going too well, that there needed to be some changes and that his (Mr Townsend's) position as Director would be made redundant. Mr Townsend's evidence was that Mr Suleiman also advised him that his position as a carer would be made redundant.[182]
  1. [149]
    Mr Townsend said that the reason given by Mr Suleiman for his position being made redundant was that the business had to go under some restructure. Mr Townsend further stated that Mr Suleiman did not tell him he was going to be doing his job or what was going to happen and that during the conversation, Mr Suleiman was not very calm in that he did not communicate civilly, he was loud in his voice and showed anger. Mr Townsend further stated that the meeting took about five minutes, no redundancy offer was made to him and that Mr Suleiman stated he would have to talk to his legal representatives and work out the redundancy offer.[183]
  1. [150]
    Mr Townsend went back to the Diddillibah property for a couple of hours and had lunch with his wife and that on his way back from lunch, he received a phone call from Mr Suleiman. Mr Townsend's evidence was that Mr Suleiman was angry on the phone and he (Mr Suleiman) just said: 'Where the fuck are you?' in response to which Mr Townsend stated that he was on his way back from lunch. According to Mr Townsend, Mr Suleiman then said: 'Get your fucking arse back to the Diddillibah property now.'[184]
  1. [151]
    Mr Townsend's further evidence was that he went back to the Diddillibah property, saw Mr Suleiman and that:

I walked over to him, and he was just yelling at me, where I couldn’t make any sense out of him. And I just said, “Mate, what is the problem?” And we talked upstairs at the Diddillibah property, in the old two-storey house, and he just said, “My business is fucking going downhill because of you. You’re a fucking useless cunt.” And I just said, “Mate, stop. I’m not engaging in this.” And I walked away. And he was just yelling at the top of his voice, “You’re a fucking useless piece of shit.” So I walked back down the stairs, went back to my office over the front of the property. I didn’t realise Omar was behind me. He walked into my office. I was on my laptop. He just slammed the laptop down, hitting my fingers, and just went, “That’s mine. I’ll fucking take that.” And he just went, “You’re a fucking useless piece of shit,” and walked out. And as he walked out, I just locked everything up – fear of him coming back in. He did knock on the doors a couple of times, but I just ignored him. I waited until he drove off. He was actually in his black four-wheel drive – wait until he left the property. I settled myself down to enough where I thought I could drive. I left the property, pulled up the road – about two minutes up the road, and I was still shaking. So I pulled up, got out of me car, had a bit of a walk around, had a drink of water and rung my doctor and made an emergency appointment with him.[185]

  1. [152]
    Mr Townsend saw his doctor on that day, told his doctor that the bullying and harassment was still continuing, that Mr Suleiman just had another go at him and that Mr Suleiman slammed the laptop on his fingers. Mr Townsend stated that when he went to see his doctor, he was very nervous, shaking to the point where it felt like he was going to vomit, did not even recall how he got to his doctor's surgery, his doctor tried to calm him down, he took the rest of the time off work, did not go back to work that day and has not been able to go back to work at all.[186]
  1. [153]
    In cross-examination, Mr Townsend was taken to his outline of evidence served on the Regulator for the appeal. Mr Townsend agreed that in his outline of evidence, he made no mention of his fingers being slammed on the laptop and that he made no mention of having to lock himself in his office.[187] Furthermore, in cross-examination, Mr Townsend stated that having his fingers slammed on the laptop by Mr Suleiman caused bruising on his fingers and that he brought that to the attention of Dr De Maroussem.[188]
  1. [154]
    The evidence is that on 21 February 2019, Mr Townsend did consult Dr De Maroussem who recorded in the Patient Health Summary: 'Meltdown at work. Seriously verbally aggressed by boss. Had to lock himself in his office out of fear. Boss was raging.'[189] The assessment recorded by Dr De Maroussem was 'Severe stress'.[190]
  1. [155]
    Mr Suleiman gave evidence about a discussion he had with Mr Townsend in February 2019 in relation to the redundancy of Mr Townsend's position.
  1. [156]
    In his evidence‑in‑chief, Mr Suleiman was asked if he remembered discussions with Mr Townsend in February in relation to the position he (Mr Townsend) held and whether it would be redundant or otherwise.[191] Mr Suleiman's evidence‑in‑chief was vague and not convincing. Mr Suleiman stated that he received guidance from a company called 'Employsure' about the possibility of the redundancy of Mr Townsend's position, the guidance provided included having a discussion with Mr Townsend and Mr Suleiman's evidence was that '… so I sort of sat down and had a chat to him and told him that I was going to have to come back into the company and we might be having to look to - to make him redundant, and if he was interested in taking a voluntary redundancy.'[192]
  1. [157]
    When asked what happened after that, Mr Suleiman's evidence was that Mr Townsend appreciated the conversation, stated he was appreciative of Mr Suleiman being forthcoming and that he would have a think about the matter and get back to him.[193] Mr Suleiman stated he did not know where Mr Townsend went after that discussion.[194] When asked if he recalled a discussion later that day with Mr Townsend, Mr Suleiman's response was:

You'd probably have to clarify let me know. I've had lots of discussions with Shane in and around that time, so it was just a wee while ago.[195]

  1. [158]
    Given the precise nature of the question asked of Mr Suleiman, his answer was vague and not convincing.
  1. [159]
    Mr Suleiman was then asked if he slammed the laptop down on Mr Townsend's fingers. Mr Suleiman denied he did and stated he would never do something like that.[196]
  1. [160]
    In cross-examination, Mr Suleiman:
  • agreed that on or around 21 February 2019, he called Mr Townsend in for a meeting and told him that his position was being made redundant;[197]
  • denied subsequently telephoning Mr Townsend because he did not know where he was, but when it was suggested to him that he wanted Mr Townsend to meet him back at the Diddillibah property, Mr Suleiman's evidence was equivocal in that he stated he was not too sure;[198]
  • agreed that Mr Townsend had a little office at the front of the Diddillibah property[199] and when it was put to him that while Mr Townsend was in his office, he (Mr Suleiman) told Mr Townsend he (Mr Townsend) was useless, Mr Suleiman's evidence was that he did not remember actually ever having conversations with Mr Townsend in that room and that the conversations were generally at a house;[200] and
  • denied slamming the laptop lid on Mr Townsend's fingers and when it was put to Mr Suleiman that Mr Townsend then locked the door after Mr Suleiman left, stated that he did not know if Mr Townsend ever tried to lock a door '… or anything like that.'[201]
  1. [161]
    Mr Suleiman's answers in cross-examination, summarised above, in addition to being vague, involved him answering a question different to that to which he was asked. A stark example was the next question he was asked in cross-examination:

You knocked on the door a few times to try and get him to open it up; do you remember that?---I vaguely remember asking him for his laptop, which he gave to me and that was about as far as that went. I don’t – there was no, “I’m scared,” or, “I’m worried,” or, “I’m locking myself in a room,” and if I did ask him for his laptop from the office, I would have walked in the – which is quite a large shed, opened the door and said, “Hey, Shane. Can I have my laptop?”

Mr Suleiman, please don’t give evidence about what you might have done that you can’t remember it?---I can’t remember the fine detail. No. But I never would have conversations with Shane in his office.[202]

  1. [162]
    Mr Suleiman's evidence, when it was put to him that that was the last time he had a conversation with Mr Townsend, was that he didn't believe so.[203]
  1. [163]
    Mr Townsend submitted that his version of events about the meeting that occurred on 21 February 2019 should be accepted. Mr Townsend pointed to Mr Suleiman's evidence that there was a meeting where he stated he wanted the laptop, that Mr Suleiman thought that was the last day Mr Townsend was at work, that he offered Mr Townsend a voluntary redundancy at some point and that when it was suggested to Mr Suleiman that occurred on 21 February 2019, Mr Suleiman stated he could not say one way or the other.[204]
  1. [164]
    The Regulator referred to the fact that in Dr De Maroussem's record of his consultation with Mr Townsend on 21 February 2019, while there was mention by Mr Townsend of him having to lock himself in his office out of fear, there was no record of Mr Townsend telling Dr De Maroussem that Mr Suleiman slammed his fingers on a laptop and that when Dr De Maroussem was asked about that consultation, his evidence was that as he understood it, Mr Townsend's boss never laid his hands on Mr Townsend and that he did not think there were any physical injuries sustained.[205]
  1. [165]
    The Regulator further submitted that despite Dr De Maroussem reporting to WorkCover on 28 August 2019 that Mr Townsend had suffered two years of extensive physical and mental abuse at the hands of his boss,[206] that evidence did not displace:
  • Dr De Maroussem's oral evidence that, as he understood it from Mr Townsend, Mr Suleiman never laid his hands on Mr Townsend; and
  • the absence of any record, in Dr De Maroussem's consultation note of 21 February 2019, of Mr Townsend complaining that his fingers had been slammed in a laptop and that there was bruising to his fingers.[207]
  1. [166]
    On balance, I accept the evidence of Mr Townsend about the event that he says took place on 21 February 2019. There are two reasons for this.
  1. [167]
    First, there can be no dispute that on that day Mr Townsend consulted Dr De Maroussem and complained that he had been the subject of serious verbal aggression by Mr Suleiman and that he (Mr Townsend) had to lock himself in his office out of fear and that Mr Suleiman was raging.
  1. [168]
    I accept that Dr De Maroussem did not record that Mr Suleiman slammed Mr Townsend's fingers on the laptop and that there was bruising to Mr Townsend's fingers and that Dr De Maroussem's evidence was that he did not recall Mr Townsend complaining of any physical contact by Mr Suleiman of Mr Townsend. However, Dr De Maroussem's evidence was that Mr Townsend complained of verbal aggression and physical threats by Mr Suleiman.[208] In that regard, Dr De Maroussem's evidence, about what Mr Townsend reported to him, is generally consistent with that of Mr Townsend.
  1. [169]
    Secondly, for the reasons I have referred to above, Mr Suleiman's evidence about this event was vague. Mr Suleiman certainly recalls a conversation he had, upon being given guidance by Employsure, about discussing a redundancy with Mr Townsend. That is consistent with Mr Townsend's evidence. Similarly, consistent with Mr Townsend's evidence, Mr Suleiman recalls mention of a laptop on about that day.
  1. [170]
    However, when direct aspects of Mr Townsend's evidence about that day was put to Mr Suleiman in cross-examination, his responses were vague and, or in the alternative, were not responsive to the questions put to him.
  1. [171]
    For these reasons, I do not accept Mr Suleiman's denials about Mr Townsend's allegations of the events that occurred that day. For the same reasons, I accept Mr Townsend's evidence.

The management action before the phone call

  1. [172]
    In my assessment, an owner of a business communicating with the employed Director of the business, that the Director's position is redundant and that the business' legal representatives would need to be consulted to work out a redundancy offer, was reasonable management action.
  1. [173]
    However, despite Mr Townsend's evidence that when Mr Suleiman was communicating this information to him, he had a loud voice and was showing anger, that evidence on its own is not enough for me to conclude that that reasonable management action was taken in an unreasonable way.

The management action after the phone call

  1. [174]
    Having regard to the analysis of the phrase 'management action' undertaken in paragraphs [16]-[20] of these reasons, in my opinion, the conduct engaged in by Mr Suleiman towards Mr Townsend, from the point after his phone call to Mr Townsend, was management action.
  1. [175]
    The discussion that occurred between Mr Suleiman and Mr Townsend following Mr Townsend's return to the Diddillibah property, which involved Mr Suleiman's negative assessment of Mr Townsend's success as the Director, involved management action in that it was outside the ordinary, everyday tasks in respect of which Mr Suleiman managed Mr Townsend.
  1. [176]
    On the facts as I have found them, Mr Suleiman's conduct towards Mr Townsend after the telephone call from Mr Suleiman to Mr Townsend, simply involved aggressive and abusive words, and aggressive physical conduct, by Mr Suleiman towards Mr Townsend.
  1. [177]
    It was not management action that, on any objective basis, could be seen to be taken in a reasonable way in connection with Mr Townsend's employment.

Did any reasonable management action taken in a reasonable way have a causal connection with Mr Townsend's injury?

  1. [178]
    Having regard to the facts as I have found them, in respect of the six particularised allegations made by Mr Townsend against Mr Suleiman:
  • Mr Suleiman's proven conduct the subject of the October 2016 allegation amounted to reasonable management action taken in a reasonable way in connection with Mr Townsend's employment;
  • Mr Suleiman's proven conduct the subject of the end of 2017 allegation amounted to reasonable management action taken in a reasonable way in connection with Mr Townsend's employment;
  • the early 2018 allegation was not proven on the evidence;
  • Mr Suleiman's proven conduct the subject of the July 2018 allegation was reasonable management action taken in an unreasonable way in connection with Mr Townsend's employment;
  • Mr Suleiman's proven conduct the subject of the January 2019 allegations was reasonable management action taken in an unreasonable way in connection with Mr Townsend's employment; and
  • Mr Suleiman's conduct the subject of the end of February 2019 allegations, after his phone call to Mr Townsend, was reasonable management action taken in an unreasonable way in connection with Mr Townsend's employment.
  1. [179]
    As referred to at the beginning of these reasons, the Regulator submitted that Mr Townsend's personal injury arose out of management action. On the medical evidence before me, namely, Dr De Maroussem's workers' compensation medical certificates dated 18 July 2019 and 28 August 2019,[209] his opinion to WorkCover dated 28 August 2019[210] and Dr De Maroussem's oral evidence, that concession made by the Regulator was properly made.
  1. [180]
    However, there is no medical evidence that the reasonable management action the subject of the October 2016 allegation and the subject of the end of 2017 allegation had a causal connection with Mr Townsend's injury. Given that there is no such medical evidence, and given the length of time between those matters and the date of Mr Townsend's decompensation, I find that there is no causal connection between those events and Mr Townsend's injury.
  1. [181]
    Similarly, there is no medical evidence that the unreasonable way the management action the subject of the July 2018 allegation was undertaken had a causal connection with Mr Townsend's injury. Again, given the period of time between the matters the subject of the July 2018 allegation and the date Mr Townsend decompensated, my assessment is that Mr Suleiman's unreasonable conduct the subject of the July 2018 allegation did not have a causal connection with Mr Townsend's injury.
  1. [182]
    In my assessment of Dr De Maroussem's oral evidence, [211] Mr Suleiman's conduct the subject of the end of February 2019 allegations, namely, Mr Suleiman's conduct after his phone call to Mr Townsend, did have a causal connection with Mr Townsend's injury.
  1. [183]
    In addition, on my assessment of Mr Townsend's evidence about how Mr Suleiman's conduct the subject of the January 2019 allegations affected his mental state,[212] and given the proximity of those events to Mr Townsend's decompensation in February 2019, I find that the management action that was taken in an unreasonable way, the subject of the January 2019 allegations, also had a causal connection with Mr Townsend's injury. In my view, Mr Suleiman's unreasonable conduct at the Diddillibah property on 21 February 2019 was a continuation of the same type of unreasonable conduct that was the subject of the January 2019 allegations.
  1. [184]
    For all these reasons, on my assessment of all of the evidence, Mr Townsend's personal injury did not arise out of, or in the course of, reasonable management action taken in a reasonable way in connection with Mr Townsend's employment.
  1. [185]
    The evidence upon which I form this view is:
  • the unreasonable way Mr Suleiman undertook the management action:

– the subject of the January 2019 allegations; and

– the subject of the end of February 2019 allegations;

  • Mr Townsend's evidence about the effect of that conduct of Mr Suleiman on him; and
  • Dr De Maroussem's evidence.
  1. [186]
    For these reasons, in my view, Mr Townsend has discharged the onus on him in this appeal. I find that Mr Townsend's personal injury arose out of, or in the course of, his employment as Director of LS, that employment was the major significant contributing factor to his personal injury and it is not the case that Mr Townsend's personal injury is withdrawn from being a compensable injury by the application of s 32(5)(a) of the Act.

Conclusion

  1. [187]
    In this appeal, the onus was on Mr Townsend to prove, on the balance of probabilities, that he suffered an injury within the meaning of s 32 of the Act.
  1. [188]
    For the reasons given above:
  • Mr Townsend's personal injury arose out of, or in the course of, his employment at LS and his employment was the major significant contributing factor to his personal injury; and
  • Mr Townsend's personal injury did not arise out of, or in the course of, reasonable management action taken in a reasonable way in connection with his employment.
  1. [189]
    The review decision of the Regulator is set aside and another decision is substituted, namely, that Mr Townsend suffered an injury within the meaning of s 32 of the Act.
  1. [190]
    I will hear the parties as to costs.

Orders

  1. [191]
    I make the following orders:
  1. Pursuant to s 558(1)(c) of the Workers' Compensation and Rehabilitation Act 2003:
  1. (a)
    the review decision of the Respondent is set aside; and
  1. (b)
    another decision is substituted, namely, that the Appellant suffered an injury within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003.
  1. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:
  1. (a)
    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 Friday, 8 April 2022; and
  1. (b)
    unless otherwise ordered, the decision on costs be determined on the papers.

Footnotes

[1] T 1-11, ll 39-40.

[2] T 3-16, ll 34-35.

[3] Exhibit 4.

[4] Exhibit 5.

[5] T 3-16, ll 31-32.

[6] Mr Townsend's statement of facts and contentions filed on 5 May 2020 ('Mr Townsend's contentions'), para. 3.

[7] Mr Townsend's contentions, Schedule A.

[8] The Workers' Compensation Regulator's submissions filed on dated 5 March 2021 ('the Regulator's submissions'), para. 5(i)-(iii). There is no dispute that the version of s 32 of the Act that is applicable in the present appeal is the version prior to the operation of s 34 of the Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2019.

[9] Exhibit 19, the entry by Dr Jean-Marc De Maroussem in the Patient Health Summary for Mr Townsend dated 21 February 2019.

[10] Exhibit 16.

[11] The Workers' Compensation Regulator's statement of facts and contentions filed on 16 June 2020 ('the Regulator's contentions'), paras. 27-28.

[12] The Regulator's contentions, paras. 12-25.

[13] The Regulator's contentions, paras. 29-30.

[14] The Regulator's submissions, para. 16. Even if relevant action meets the description of 'management action', there must be a causal or temporal connection between the management action and the worker's injury: State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2020] QIRC 097 ('DAF'), [42].

[15] Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031, [24]-[27] (Martin J, President).

[16] Ibid [37]-[39] (Martin J, President).

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

[18] State of Queensland v Q-COMP [2010] ICQ 6, [21] (Hall P).

[19] Macquarie Dictionary (7th ed, 2017) 'manage' (def 4).

[20] Macquarie Dictionary (7th ed, 2017) 'management' (def 1).

[21] Acts Interpretation Act 1954 s 14(3).

[22] Read v Workers' Compensation Regulator [2017] QIRC 072, [8]-[10], Allwood v Workers' Compensation Regulator [2017] QIRC 088, [58]-[68], Haack v Workers' Compensation Regulator [2017] QIRC 115, [44]‑[46] and Gilmour v Workers' Compensation Regulator [2019] QIRC 022, [78]-[79].

[23] DAF (n 14).

[24] Citations omitted.

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

[26] Simon Blackwood (Workers’ Compensation Regulator) v Adams [2015] ICQ 001 [17] (Martin J, President).

[27] Mr Townsend's contentions, Schedule A, fourth paragraph.

[28] Mr Townsend's contentions, Schedule A, sixth paragraph.

[29] Mr Townsend's contentions, Schedule A, eighth paragraph.

[30] Mr Townsend's contentions, Schedule A, ninth paragraph.

[31] Mr Townsend's contentions, Schedule A, eleventh and twelfth paragraphs.

[32] Mr Townsend's contentions, Schedule A, thirteenth paragraph.

[33] The Regulator's contentions, para. 14.

[34] The Regulator's contentions, para. 15.

[35] The Regulator's contentions, para. 16.

[36] The Regulator's contentions, para. 17.

[37] The Regulator's contentions, para. 20.

[38] The Regulator's contentions, para. 22.

[39] T 1-15, ll 23-25.

[40] T 3-29, ll 12-17.

[41] T 3-20, ll 28-45. An example of a funding agreement between LS and the State of Queensland through what was known as the Department of Communities, Child Safety and Disability Services is contained in Exhibit 23. Mr Townsend's evidence-in-chief was that as far as he was aware, all the income for LS came from the State government departments - T 1-24, ll 18-19.

[42] T 3-35, ll 37-46.

[43] Exhibit 2.

[44] Exhibit 4.

[45] T 1-15, ll 15-19.

[46] Exhibit 5.

[47] T 1-17, ll 45-47.

[48] Exhibit 6.

[49] The Regulator's submissions, paras. 16(i) and 18(i).

[50] T 5-10, l 40 to T 5-11, l 1.

[51] T 1-24, ll 3-6.

[52] The Regulator's submissions, para. 18(i).

[53] Mr Townsend's written submissions filed on 5 March 2021 ('Mr Townsend's submissions'). para. 17.

[54] T 1-12, ll 31-42.

[55] T 1-16, l 1 to T 1-17, l 23.

[56] T 1-74, ll 9-18.

[57] T 5-40, ll 39-40.

[58] T 4-32, ll 1-4, T 4-35, ll 9-10 and T 4-37, ll 27-28.

[59] T 5-10, l 40 to T 5-11, l 28.

[60] Mr Townsend's submissions, para. 19

[61] T 1-23, ll 40-47.

[62] T 1-24, ll 3-6.

[63] T 1-24, ll 8-12.

[64] T 4-5, l 37 to T 4-6, l 3.

[65] T 4-6, ll 5-16.

[66] T 4-6, ll 18-19.

[67] T 4-6, ll 21-30.

[68] Exhibit 14.

[69] T 3-90, ll 6-13.

[70] The Regulator's submissions, para. 23.

[71] Mr Townsend's submissions, para. 21.

[72] Mr Townsend's submissions, para. 22.

[73] T 5-38, ll 21-26.

[74] T 4-21, ll 9-13.

[75] T 4-21, ll 15-16.

[76] The Regulator's submissions, para. 18(iii).

[77] The Regulator's submissions, para. 23 and T 5-11, l 32 to T 5-12, l 7.

[78] The Regulator's submissions, para. 24.

[79] Mr Townsend's submissions, paras. 23-26.

[80] T 5-38, ll 28-45.

[81] T 5-39, ll 5-23.

[82] T 1-24, l 45 to T 1-25, l 2.

[83] T 1-25, ll 4-12.

[84] T 1-25, ll 13-15.

[85] T 1-25, ll 17-20.

[86] T 1-25, ll 22-31.

[87] T 3-18, l 41 to T 3-19, l 10.

[88] T 3-19, ll 12-17.

[89] T 4-32, l 6 to T 4-33, l 20.

[90] The Regulator's submissions, paras. 56-57.

[91] T 5-18, ll 1-33.

[92] Deanne Maree King v Workers' Compensation Regulator [2019] QIRC 134, [11]-[12] (Vice President O'Connor).

[93] Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51, [61] (Sackville J, Whitlam J at [1] and Mansfield J at [108] agreeing).

[94] Elomar v R [2014] NSWCCA 303; (2014) 300 FLR 323, [359] (Bathurst CJ, Hoeben CJ at CL and Simpson J).

[95] Crime & Misconduct Commission v Assistant Commissioner JP Swindells & Ors [2009] QSC 409, [22] (Applegarth J).

[96] T 2-2, ll 26-32.

[97] T 2-14, ll 18-34.

[98] T 2-15, ll 1-12.

[99] T 2-15, ll 27-38.

[100] T 2-16, ll 36-42.

[101] T 2-19, ll 9-38.

[102] T 2-21, ll 21-30.

[103] T 2-22, l 26 to T 2-23, l 17.

[104] T 2-23, ll 21-26.

[105] T 2-25, ll 16-19.

[106] T 2-27, ll 1-5.

[107] T 2-31, ll 6 to 44.

[108] T 2-33, ll 12-24.

[109] T 2-35, ll 10-33.

[110] T 4-51, ll 12-13.

[111] T 4-51, l 46 to T 4-52, l 16.

[112] T 4-52, ll 21-41.

[113] T 4-53, ll 1-4.

[114] T 4-55, ll 30-34.

[115] T 4-55, ll 40-47.

[116] T 4-57, ll 1-7.

[117] T 4-57, ll 24-44.

[118] T 4-58, ll 1-15.

[119] T 4-59, l 35 to T 4-60, l 1.

[120] T 4-61, ll 1-11.

[121] T 4-61, ll 15-30.

[122] T 4-62, ll 10-11.

[123] T 4-68, ll 7-10.

[124] T 4-68, ll 25-41.

[125] T 4-68, l 43.

[126] T 4-75, ll 20-23.

[127] T 4-70, l 31 to T 4-71, l 10.

[128] T 4-76, l 18.

[129] Mr Townsend's submissions, para. 15.

[130] T 4-15, l 41 to T 4-16, l 3 and T 4-35, ll 17-45.

[131] T 4-16, ll 2-17.

[132] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, [30]-[31] (Gleeson CJ, Gummow and Kirby JJ).

[133] Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496, [309] (Wigney J).

[134] Armagas Lt v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd's Rep 1, 57 (Lord Goff) cited with approval by Sackar J in Campbell v Campbell [2015] NSWSC 784; (2015) 16 ASTLR 36, [76].

[135] Camden v McKenzie [2007] QCA 136; (2008) 1 Qd R 39, [34] (Keane JA, McMurdo J at [64] and Douglas J at [65] agreeing).

[136] T 1-25, ll 17-28.

[137] I note that the entry for 14 March 2018 records: 'Depression. Under huge pressure at work. Insomnia. Past history of depression for same cause.' Exhibit 19, fourth page.

[138] T 1-79, ll 9-46.

[139] T 4-32, ll 17-19.

[140] T 4-32, ll 8-15.

[141] T 1-25, ll 10-13.

[142] T 4-21, ll 5-7.

[143] Exhibit 11, fourth paragraph.

[144] T 4-21, ll 15-16.

[145] T 3-18, l 41 to T 3-19, l 10.

[146] T 4-32, ll 19-44.

[147] T 4-33, ll 11-23.

[148] T 1-24, l 41 to T 1-25, l 31.

[149] T 1-79, ll 41-46.

[150] Exhibit 11.

[151] Exhibit 13.

[152] T 4-21, ll 1-7.

[153] Exhibit 14.

[154] Exhibit 14.

[155] T 1-63, ll 17-18.

[156] T 1-63, ll 25-30.

[157] T 1-63, ll 33-38.

[158] T 1-63, ll 38-41.

[159] T 1-63, l 44 to T 1-64, l 11.

[160] T 1-64, ll 17-32.

[161] T 1-88, l 12 to T 1-89, l 8.

[162] T 3-27, l 43 to T 3-28, l 26.

[163] T 4-29, ll 39-46.

[164] T 4-29, ll 27-28.

[165] T 4-34, ll 23-28.

[166] T 4-34, ll 34-44.

[167] T 4-35, ll 9-10.

[168] T 4-37, ll 32-34.

[169] T 4-37, ll 27-28.

[170] T 4-37, ll 36-47.

[171] T 4-28, ll 37-47 and T 4-36, ll 36-37.

[172] T 4-36, ll 36-37.

[173] T 4-35, ll 1-7.

[174] The Regulator's submissions, para. 18(iv) and T 5-20, l 11 to T 5-21, l 6.

[175] T 5-26, ll 27-29.

[176] T 5-26, ll 29-30.

[177] T 5-29, ll 33-34.

[178] T 5-29, ll 34-35.

[179] T 5-29, ll 35-39.

[180] T 5-29, ll 41-45.

[181] T 5-30, ll 35-42.

[182] T 1-65, ll 26-41.

[183] T 1-69, ll 1-26.

[184] T 1-69, ll 31-38.

[185] T 1-69, l 45 to T 1-70, l 15.

[186] T 1-70, ll 17-37.

[187] T 1-72, ll 36-42.

[188] T 1-71, ll 4-9.

[189] Exhibit 19, twelfth page.

[190] Ibid.

[191] T 3-28, ll 28-30.

[192] T 3-28, ll 30-41.

[193] T 3-28, ll 43-45.

[194] T 3-29, ll 1-2.

[195] T 3-29, ll 4-6.

[196] T 3-29, ll 8-10.

[197] T 4-38, ll 4-9.

[198] T 4-38, ll 11-16.

[199] T 4-38, ll 18-20.

[200] T 4-38, ll 22-24.

[201] T 4-38, ll 26-35.

[202] T 4-38, ll 37-46.

[203] T 4-39, ll 1-2.

[204] T 5-39, ll 28-35.

[205] T 5-18, l 43 to T 5-19, l 21 (referring to Dr De Maroussem's evidence at T 3-8, ll 1-31).

[206] Exhibit 18.

[207] T 5-19, ll 11-16.

[208] T 3-8, ll 18-24.

[209] Exhibits 16 and 17.

[210] Exhibit 18.

[211] T 3-4, l 27 to T 3-9, l 15 and T 3-11, ll 27-44.

[212] T 1-63, l 44 to T 1-64, l 11.

Close

Editorial Notes

  • Published Case Name:

    Townsend v Workers' Compensation Regulator

  • Shortened Case Name:

    Townsend v Workers' Compensation Regulator

  • MNC:

    [2022] QIRC 105

  • Court:

    QIRC

  • Judge(s):

    Member Merrell DP

  • Date:

    25 Mar 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Allwood v Workers' Compensation Regulator [2017] QIRC 88
2 citations
Jump To
Cite 1 - [2017] QIRC 88
Cite 2 - [2017] QIRC 88
Armagas Ltd v Mundogas SA [1985] 1 Lloyd's Rep 1
2 citations
Jump To
Cite 1 - [1985] 1 Lloyd's Rep 1
Cite 2 - [1985] 1 Lloyd's Rep 1
Belal Yousif v Workers' Compensation Regulator [2017] ICQ 4
2 citations
Jump To
Cite 1 - [2017] ICQ 4
Cite 2 - [2017] ICQ 4
Camden v McKenzie[2008] 1 Qd R 39; [2007] QCA 136
4 citations
Jump To
Cite 1 - [2007] QCA 136
Cite 2 - [2007] QCA 136
Cite 3 - [2008] 1 Qd R 39
Cite 4 - [2008] 1 Qd R 39
Campbell v Campbell [2015] NSWSC 784
2 citations
Jump To
Cite 1 - [2015] NSWSC 784
Cite 2 - [2015] NSWSC 784
Campbell v Campbell (2015) 16 ASTLR 36
2 citations
Jump To
Cite 1 - (2015) 16 ASTLR 36
Cite 2 - (2015) 16 ASTLR 36
Church v Workers' Compensation Regulator [2015] ICQ 31
3 citations
Jump To
Cite 1 - [2015] ICQ 31
Cite 2 - [2015] ICQ 31
Cite 3 - [2015] ICQ 31
Crime & Misconduct Commission v Assistant Commissioner J P Swindells [2009] QSC 409
2 citations
Jump To
Cite 1 - [2009] QSC 409
Cite 2 - [2009] QSC 409
Elomar v R [2014] NSWCCA 303
2 citations
Jump To
Cite 1 - [2014] NSWCCA 303
Cite 2 - [2014] NSWCCA 303
Elomar v R (2014) 300 FLR 323
2 citations
Jump To
Cite 1 - (2014) 300 FLR 323
Cite 2 - (2014) 300 FLR 323
Fox v Percy (2003) 214 CLR 118
2 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Fox v Percy (2003) HCA 22
2 citations
Jump To
Cite 1 - (2003) HCA 22
Cite 2 - (2003) HCA 22
Gilmour v Workers' Compensation Regulator [2019] QIRC 22
2 citations
Jump To
Cite 1 - [2019] QIRC 22
Cite 2 - [2019] QIRC 22
Haack v Workers' Compensation Regulator [2017] QIRC 115
2 citations
Jump To
Cite 1 - [2017] QIRC 115
Cite 2 - [2017] QIRC 115
Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886
2 citations
Jump To
Cite 1 - [2000] FCA 1886
Cite 2 - [2000] FCA 1886
Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51
2 citations
Jump To
Cite 1 - (2000) 106 FCR 51
Cite 2 - (2000) 106 FCR 51
King v Workers' Compensation Regulator [2019] QIRC 134
2 citations
Jump To
Cite 1 - [2019] QIRC 134
Cite 2 - [2019] QIRC 134
Read v Workers' Compensation Regulator [2017] QIRC 72
2 citations
Jump To
Cite 1 - [2017] QIRC 72
Cite 2 - [2017] QIRC 72
Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496
2 citations
Jump To
Cite 1 - [2019] FCA 496
Cite 2 - [2019] FCA 496
State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2020] QIRC 97
2 citations
Jump To
Cite 1 - [2020] QIRC 97
Cite 2 - [2020] QIRC 97
State of Queensland (Queensland Health) v Q-Comp & Coyne [2003] ICQ 9
2 citations
Jump To
Cite 1 - [2003] ICQ 9
Cite 2 - [2003] ICQ 9
State of Queensland v Q-COMP [2010] ICQ 6
2 citations
Jump To
Cite 1 - [2010] ICQ 6
Cite 2 - [2010] ICQ 6
State of Queensland v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447
2 citations
Jump To
Cite 1 - (2003) 172 QGIG 1447
Cite 2 - (2003) 172 QGIG 1447
Workers' Compensation Regulator v Adams [2015] ICQ 1
2 citations
Jump To
Cite 1 - [2015] ICQ 1
Cite 2 - [2015] ICQ 1

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.