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  4. O'Neil v Workers' Compensation Regulator - [2022] QIRC 310

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O'Neil v Workers' Compensation Regulator[2022] QIRC 310

O'Neil v Workers' Compensation Regulator[2022] QIRC 310

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

O'Neil v Workers' Compensation Regulator [2022] QIRC 310

PARTIES:

O'Neil, Nathan Wade

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2020/32

PROCEEDING:

Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:

9 August 2022

HEARING DATES:

6, 7, 8 and 9 December 2021

MEMBER:

Pidgeon IC

HEARD AT:

Toowoomba

ORDERS:

  1. 1.The appeal is dismissed.
  2. 2.Failing agreement between the parties, a decision on costs will be subject of a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION   REGULATOR   –   Where psychological / psychiatric injury is accepted – whether the psychological / psychiatric injury arose out of or in the course of employment – whether employment was the major significant contributing factor to psychological / psychiatric injury – whether psychological / psychiatric injury arose out of, or in the course of reasonable management action taken in a reasonable way – appeal dismissed.

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003 (Qld) s 11, s 32

CASES:

Allwood v Workers' Compensation Regulator [2017] QIRC 088

Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 10

Davis v Blackwood [2014] ICQ 009

Lawton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 99

Prizeman v Q-COMP (2005) 180 QGIG 481

Weiss v Workers' Compensation Regulator [2020] QIRC 111

Workcover Queensland v Kehl (2002) 170 QGIG 93

APPEARANCES:

Mr P Rashleigh of counsel instructed by Shine Lawyers

Ms L Willson of counsel directly instructed by the Workers' Compensation Regulator

Reasons for Decision

  1. [1]
    Mr Nathan Wade O'Neil is and was employed by RoadTek, a commercial business within the Department of Transport and Main Roads in a full-time capacity as Coordinator (Radio Network).
  1. [2]
    Mr O'Neil's role involves managing the Department's land-based very high frequency ('VHF') and high frequency ('HF') communication networks and associated fixed and variable assets and infrastructure located throughout Queensland.[1]
  1. [3]
    Mr O'Neil has worked for Queensland Transport since 7 February 2005. He was the Customer Development Coordinator for RoadTek from 2010 and assumed the duties of his current position on or about 20 June 2013. [2]
  1. [4]
    Mr O'Neil applied for compensation for an injury sustained in the workplace following the receipt of a medical certificate dated 24 June 2019 diagnosing Mr O'Neil with anxiety and depression.
  1. [5]
    In a decision dated 13 March 2020, the Workers' Compensation Regulator (the Respondent) confirmed a decision by WorkCover Queensland to reject Mr O'Neil's application for compensation.

Mr O'Neil is a worker within the meaning of the WCR Act

  1. [6]
    It is mutually understood that Mr O'Neil was a worker within the meaning of s 11 of the Workers' Compensation and Rehabilitation Act 2003 ('the WCR Act').
  1. [7]
    In this appeal, it is necessary to consider whether Mr O'Neil has sustained an injury within the meaning of s 32 of the WCR Act.

Mr O'Neil sustained a personal injury in and around May 2019

  1. [8]
    It is matter of common ground that Mr O'Neil sustained a personal injury of a psychological or psychiatric nature. The evidence of Mr Bob Thomas, General Practitioner at the Mt Ommaney Family Clinic, is that Mr O'Neil suffered from anxiety or depression in and around May 2019.

Matters to be considered by the Commission

  1. [9]
    Mr O'Neil contends that his personal injury arose out of, or in the course of, his employment and the employment was the major significant contributing factor to the injury. [3]
  1. [10]
    The Respondent is not satisfied that Mr O'Neil's injury arose out of, or in the course of his employment. The Respondent says that Mr O'Neil's employment was merely the setting in, or against which, any injury occurred and as such, under s 32, any alleged injury is not compensable.
  1. [11]
    Further, the Respondent is not satisfied that Mr O'Neil's employment was the major significant contributing factor to his injury and says it believes that to the extent that employment contributed to the injury, it was Mr O'Neil's perception (as opposed to the reality) of his employment and management action that cause his injury.
  1. [12]
    Mr O'Neil says that his injury is not excluded from the definition of injury because it does not arise out of or in the course of reasonable management action taken in a reasonable way in connection with his employment, nor his expectation or perception of reasonable management action being taken against him. [4]
  1. [13]
    The Respondent contends that Mr O'Neil's injury is withdrawn from being a compensable injury by way of operation of s 32(5)(a) of the WCR Act because any psychological injury arose out of or in the course of reasonable management action taken in a reasonable way by Mr O'Neil's employer in connection with Mr O'Neil's employment.
  1. [14]
    The onus is on Mr O'Neil to prove that
  • His injury arose out of or in the course of his employment;
  • The employment is the major significant contributing factor to the injury;
  • The injury did not arise out of or in the course of:
  • reasonable management taken in a reasonable way by the employer in connection with his employment;
  • his expectation or perception of reasonable management action being taken against him.

Legislation

  1. [15]
    The relevant part of the legislation is set out below:

32 Meaning of injury

  1. (1)
    An injury is personal injury arising out of, or in the course of, employment if—
  1. (a)
    for a psychiatric or psychological disorder—the employment is the major significant contributing factor to the injury.

…

  1. (3)
    Injury includes the following–

…

  1. (b)
    an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation–
  1. (i)
    a personal injury other than a psychiatric or psychological disorder;
  2. (ii)
    a disease;
  3. (iii)
    a medical condition other than a psychiatric or psychological disorder, if the condition becomes a personal injury or disease because of the aggravation.

…

  1. (5)
    Despite subsections (1) and (3), injury does not include 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;
  2. (b)
    the worker's expectation or perception of reasonable management action being taken against the worker;
  3. (c)
    action by the Regulator or an insurer in connection with the worker's application for compensation.

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

  • action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker.
  • a decision not to award or provide promotion, reclassification or transfer of or leave of absence or benefit in connection with the worker's employment.

Witnesses

  1. [16]
    For the Appellant:
  • Mr Nathan Wade O'Neil, the Appellant
  • Mr Gregory Brown, former training instructor for RoadTek
  • Mr Michael O'Brien, former private contractor for RoadTek
  • Dr Bob Thomas, General Practitioner
  • Dr Karen Chau, Psychiatrist
  1. [17]
    For the Respondent:
  • Mr Gary Coop, Fleet Manager, RoadTek
  • Mr Kevin Taylor, Communications Technician, RoadTek
  • Mr Gavin Paine, former Executive Director, RoadTek
  • Ms Katerina Allen, Administration Coordinator, RoadTek

Submissions of the parties

  1. [18]
    Mr O'Neil's representative filed his Statement of Facts and Contentions on 14 July 2020.
  1. [19]
    In Annexure D to his Statement of Facts and Contentions, Mr O'Neil's stressors are listed as:
  1. Excessive workload primarily between the beginning of 2018 to May 2019.
  2. Lack of appropriate support to perform the workplace tasks primarily between the beginning of 2018 and May 2019.
  3. Lack of appropriate support for periods of leave primarily between the beginning of 2018 and May 2019.
  1. [20]
    The Respondent filed a Statement of Facts and Contentions on 8 September 2020 and an amended Statement of Facts and Contentions on 6 December 2021.
  1. [21]
    A  hearing  of  the  matter  was  held  over  four  days  in  Toowoomba  from 6 to 9 December 2021.
  1. [22]
    I am approaching consideration of this appeal by way of grouping the Statement of Facts and Contentions of the parties, the relevant evidence and submissions together, rather than rehearsing the case for each party.
  1. [23]
    Following consideration of the material and submissions, I will consider the questions to be answered in deciding the appeal.

The evidence

  1. [24]
    In order to consider the matters required to determine this appeal, it is necessary to consider the extensive evidence before the Commission to understand Mr O'Neil's role, the kind of work he undertook, the patterns of travel and office time involved, and the support provided to him to do his job.

Duties and technical support

  1. [25]
    Mr O'Neil says the following with respect to his role with the employer:
  1. (a)
    it required him to be responsible for the management of a state-wide radio network;
  2. (b)
    the network is a mixture of leased and owned sites spread across approximately 50 locations throughout Queensland;
  3. (c)
    the position is to manage the Department's state-wide communications sites and associated infrastructure, communication systems, fixed and mobile assets, to engage with customers, stakeholders and land owners;
  1. (d)
    he was responsible for monitoring and maintaining a range of assets including radio towers and associated equipment throughout Queensland to sure that these assets remain fully operational and to maintain their security and integrity.[5]
  1. [26]
    Mr O'Neil says that he is the only person (within the Department) specifically trained and with the necessary experience to carry out the unique and skilled demands of his position, including his knowledge regarding the digital HF network (one of the two networks operated by the employer).
  1. [27]
    The Respondent admits that Mr O'Neil is the only person in the Department with technical experience in the digital HF network but says that there are a number of persons within the Department who are able to carry out aspects of Mr O'Neil's position. To the best of the Respondent's knowledge, Mr O'Neil has no formal qualifications in radio operation, inspection or maintenance but is self-trained in the digital HF network and has some technical knowledge of it.
  1. [28]
    The Respondent says that an employee named Mr Kevin Taylor is a qualified radio technician employed by the Department and is very familiar with and qualified in the inspection, repair and servicing of the VHF equipment. The Respondent further says that on the maintenance runs, Mr Taylor would inspect and service the radio and similar equipment and that Mr O'Neil would inspect towers and the like. Mr O'Neil would also undertake whipper snipping, fence repair and similar tasks at the sites.
  1. [29]
    Mr O'Neil said that there was a budgetary allocation for Mr Taylor to attend one of the three monthly maintenance runs. This was because Mr Taylor's role was technical and only one of the maintenance runs each year was focused on technical maintenance. [6]
  1. [30]
    Mr Taylor gave evidence that he works for RoadTek as a communications technician and that over the period between 2018 and 2019, he undertook field trips with Mr O'Neil. [7] Mr Taylor said that on those field trips, he would 'do the…technical stuff to test the equipment' and that Mr O'Neil would accompany him and 'did a lot of the driving, and he would tidy up the compounds and check towers and things like that while I did the technical stuff'. [8]
  1. [31]
    Mr Taylor recalled that field trips would be 'sort of like a six-week stint. We'd do 10 days on, then come back for four days, then leave again for 10 days; four days off, then do that three times'. Mr Taylor recalled that 'we usually had every Sunday off when we were away' and that 'the average day would be eight and a half…we would quite often do 10- hour days, sometimes 12-hour days, I suppose.' [9]
  1. [32]
    Mr Coop, Fleet Manager, described Mr O'Neil's role as involving maintenance of the radio network, ensuring the network was safe and compliant and looking at 'the upcoming capital type works that he felt the network needed'. [10] Mr Coop expected that Mr O'Neil would work autonomously, manage his own workload, supervise staff if required, make informed decisions and provide Mr Coop with information at Mr Coop's level.[11]
  1. [33]
    When asked about what support was provided to Mr O'Neil to perform his role, Mr Coop said that Mr O'Neil was assisted by Mr Taylor where required. Further, if there was a need for another person to travel with the radio technician, this was either arranged locally or out of Brisbane. Mr Coop also said that there was a dedicated administration assistant named Ms Katerina Allen, and a second person who could book travel if Ms Allen was unavailable.
  1. [34]
    Mr Coop was asked about the management structure when Mr O'Neil was working in the field or not in the workplace. Mr Coop said that in between the two major service runs each year, there could be planning for identified capital works and that there was administrative compliance-type work that needed to be done between those maintenance runs. Mr Coop said that depending on the length of planned leave Mr O'Neil was taking, Mr Coop would decide if there was a need for someone else to relieve in the role. Mr Coop said that if Mr O'Neil was not around, it would be rare to plan capital works and that these could easily be put off if Mr O'Neil was planning time off. [12]
  1. [35]
    Mr Coop said that during the Newman era when RoadTek stopped taking apprentices on, the training instructor for the apprentices, Mr Gregory Brown, experienced a dramatic decrease in his workload. At that point, Mr Brown 'came across and started assisting…on radio network maintenance and some upgrade work'. [13] Mr Coop said that Mr Brown's role prior to retiring at the end of 2018 was assisting Mr O'Neil on radio network works. Mr Coop was taken to a document Mr O'Neil had prepared which stated that the use of Mr Brown as a temporary assistant would not be required after 30 June 2017. Mr Coop said that he had asked Mr O'Neil about this and that Mr O'Neil had said that a lot of the work had been done to upgrade sites and that the work had dropped away. [14]

Length of workdays when in the field and in the office

  1. [36]
    Mr O'Neil says that he was required to work up to 14 hours per day, 10 days per fortnight and that due to the large geographical area covered, he was required to travel significant distances to perform his duties. [15] Mr O'Neil said that the maintenance program involved visiting each site every six months and that the inspections were done by way of two sets of inspections each year. Mr O'Neil said that the inspections would take around 3 months with travel time. [16]
  1. [37]
    Mr O'Neil was asked more about his hours and work days under cross-examination. Mr O'Neil said 'we were allowed to work up to 14 hours a day, because some sites are very remote and it takes a lot of time to get to those sites in travel time and then the – obviously the time on site as well. So, yes, there was preapproval to work up to 14 hours a day…'. [17]
  1. [38]
    Mr O'Neil was asked how often he worked 14 hours a day. Mr O'Neil said that 'it wouldn't be all that often'. It was put to Mr O'Neil that the exhibit listing his work hours did not show any days where he worked for more than 14 hours, [18] Mr O'Neil said that there would not be any days where he worked more than 14 hours and he noted that the document did not include other activities done at the start or finish of the day. [19] Mr O'Neil agreed that on the document capturing his work hours, there were 11 days when he was in the field where he worked 12 hours or more. Mr O'Neil also agreed that there were no days where he worked 14 hours in the relevant period for this appeal, being 1 January 2018 to mid-2019. [20]

The extent of travel Mr O'Neil was required to undertake

  1. [39]
    The Respondent agrees that at times, Mr O'Neil's position and duties required him to travel significant distances in performing his duties but says that Mr O'Neil chose to travel more than was required by the position and chose to continue doing so after being counselled against this.
  1. [40]
    The Respondent says that Mr O'Neil chose to undertake travel after 6 December 2018 despite his line manager suggesting and counselling him that the role required him to coordinate more, as opposed to physically attending sites himself. Mr O'Neil was told that he could arrange for people internally or externally to attend to matters.
  1. [41]
    The Respondent corroborated Mr O'Neil's evidence that his role required the coordination of six-monthly maintenance site visits across Queensland, adding that the trips generally occurred between February-March and August-October.
  1. [42]
    The Respondent says that Mr O'Neil had preapproval to work up to 12 hours per day when working away from home. When working at the Toowoomba office, Mr O'Neil would normally work a 7.25-hour standard day.
  1. [43]
    The Respondent says that during the 10-day away periods, Mr O'Neil did not work for 10 days in the fortnight, but would work for nine days, typically having Sunday off. The Respondent says that Mr O'Neil wanted to work Sunday and told his employer this, but his line manager required him to take Sundays off as a rest day to avoid fatigue. Mr O'Neil expressed his opposition to this managerial decision.
  1. [44]
    Mr Coop recalled that, within months of starting the role of Fleet Manager in 2016, he implemented a policy requiring the team to take Sundays as a rest day while travelling. Further, Mr Coop says that he spoke with Mr O'Neil very early on in Mr Coop's tenure to raise concerns about fatigue. Mr Coop said that he had become aware that the team were 'working 10 days straight, and then coming for four days at a time, and working very long hours while they were away'. Mr Coop said that he 'made a ruling at that time, based on all the information…that I didn't want him working Sundays any longer when they were away travelling'. Mr Coop said that the team were still allowed to do a reasonable amount of overtime but that he wanted them to take Sunday off as a rest day. Mr Coop said that it seemed to be accepted at the time and was communicated to Mr Brown and Mr Taylor by Mr O'Neil. However, Mr Coop recalled that Mr O'Neil had raised the matter again and that Mr Coop advised him that he needed to take Sunday off as a rest day.[21]
  1. [45]
    The Respondent further says that Mr O'Neil's position did not require him to undertake significant travel as it was a coordinator role. Mr O'Neil was able to arrange for both people employed by the Department and external to the Department to do physical inspections, servicing, site maintenance etc. rather than Mr O'Neil travelling extensively.
  1. [46]
    The Respondent says that Mr O'Neil chose to undertake maintenance runs himself and this involved significant travel and spending time away at various locations throughout Queensland. Mr O'Neil accumulated significant days off and time off in lieu (TOIL) or overtime which he utilised.
  1. [47]
    Mr Coop maintained that Mr O'Neil's role was not a predominantly field based role. Mr Coop said that the role required two field trips to be done by a radio technician to manage the radio network maintenance. It was put to Mr Coop that Mr O'Neil was spending more time in the field than in the office during the relevant period of time and Mr Coop answered that Mr O'Neil was in the field more but that he was not at work the rest of time. [22]
  1. [48]
    The Respondent says that coordination of breakdown repairs and capital works was on an 'as needs' basis.
  1. [49]
    In terms of capital works, the Respondent says that Mr O'Neil's workload was driven by his own desires and input. When Mr O'Neil identified ways to make improvements, there was no particular time requirements to undertake the capital improvements and that Mr Coop did not require recommended capital works to be undertaken within a defined timeframe.
  1. [50]
    Mr O'Neil's role also involved responding to, and communicating with, employees of the Department and third parties in connection with the network and undertaking licensing and administrative tasks associated with the radio network. [23]

Management of Mr O'Neil's field work and travel

  1. [51]
    The Respondent says that Mr O'Neil was responsible for the management of the state- wide radio network, and that Mr Coop, as manager, had overall responsibility and accountability for the radio network.
  1. [52]
    It was put to Mr Coop that when he came to the position of Fleet Manager, he did not understand Mr O'Neil's role. Mr Coop said that he knew that Mr O'Neil looked after the radio network but that he did not know the actual specifics of what Mr O'Neil did. Mr Coop said that he understands the maintenance requirement of the radio network and but that he does not know the specifics of the work of a radio technician. [24] Mr Coop said that he understood that Mr O'Neil was 'testing radio equipment and doing maintenance work on sites'. Mr Coop detailed the type of work Mr O'Neil was undertaking to include grounds maintenance, fence repairs, tower inspections, battery testing, ensuring hazard identification for radio frequencies was up to date and was looking after electricity supply to sites.[25]
  1. [53]
    When put to Mr Coop that he had not taken steps to address Mr O'Neil's concerns about travel prior to Mr O'Neil complaining about it, Mr Coop disagreed and pointed to the implementation of a rest day on Sundays discussed at [43] above.

Mr O'Neil's workload

  1. [54]
    Mr O'Neil's evidence was that he suffered stress due to excessive workload. He said that he found the volume of work overwhelming. When asked if he worked too many hours, Mr O'Neil said, 'Yes. There were a number of hours worked. Particularly in the field sense there was a large number of hours worked. The office-based tasks were predominantly kept to standard working hours of around seven and quarter, seven and a half hours a day'. [26]
  1. [55]
    When asked if his concern was that he was working too many hours in the day, Mr O'Neil said, 'I don't think it’s a concern; it's just how it was. The sites are remotely located, so the travel time to travel out to site, do the works on site and travel back – it was a long day'. When asked if the long hours in the field caused his stress condition, Mr O'Neil said that he believed the workload caused his stress condition. [27]
  1. [56]
    Mr O'Neil spoke about having raised workload concerns in 2014 and that a process was put in place to approve some assistance for Mr O'Neil. [28]
  1. [57]
    The Respondent says that the assistance Mr O'Neil refers to was provided by Mr Brown who retired in May 2018. Mr Brown was a mechanic by trade. Mr Brown was tasked with looking after the younger apprentices around the state and making sure that their training and competencies were on track. Mr O'Neil said that Mr Brown was able to assist with fencing and structures and that he also assisted with stakeholder liaison. Mr O'Neil said that Mr Brown was able to undertake quick trips to site which 'freed me up to complete office-related tasks'. [29]
  1. [58]
    Mr Brown said that he assisted Mr O'Neil by travelling to sites and helping to maintain and improve sites. Mr Brown said that the work included 'more concreting. Put new huts in. Replace towers…new fences. Security type of things…'. [30]
  1. [59]
    Mr Brown said that he would give some assistance to Mr O'Neil when they were back in the office, helping to order things that were needed and putting together and decommissioning radios. Mr Brown said that after he announced his retirement, he did not train anybody to do the same work that he was doing with Mr O'Neil. [31]
  1. [60]
    Mr Brown was asked to comment on Mr O'Neil's workload at the time. Mr Brown said that Mr O'Neil had a 'huge workload'. Mr Brown said that there were days where if Mr Taylor was with them in the field, Mr O'Neil would stay back at the motel and do office work or computer work. Mr Brown said that he knew that Mr O'Neil would work late into the night back at the motel when they were in the field because he would go to Mr O'Neil's room to discuss the work for the following day or week and Mr O'Neil's 'table would be full of things – like paperwork and things like that…' [32]

Paperwork, work arising from field trips and work that came in while Mr O'Neil was in the field

  1. [61]
    It was put to Mr Coop that Mr O'Neil would go out and do work on site and then would have to come back to complete reports. Mr Coop said that Mr O'Neil would do paperwork when he got back to his motel from time to time. [33] Mr Coop said that the 'maintenance sheets' were done on site when the maintenance work was being done. Mr Coop said that these reports would be filed when Mr O'Neil returned to Toowoomba. Mr Coop also said that the report Mr Paine requested regarding each site was a one-off and not something that Mr O'Neil was regularly preparing. [34]
  1. [62]
    With regard to Mr O'Neil's work when he was back in the office, Mr Coop said that Mr O'Neil would do 'day to day activities that come into the radio network, deal with issues about easements and co-ownership of properties, communicate with other customers. Mr Coop said that some of the work that Mr O'Neil needed to do came in when he was out in the field and some work did not. [35]
  1. [63]
    Mr Coop said that he would do any of the work that came in while Mr O'Neil was away that 'had to be handled at the time'. When asked if he only did urgent work, Mr Coop said that he would also do the mundane day to day activity. Mr Coop said that the workload awaiting Mr O'Neil when he returned from the field would be 'very small'. [36] Mr Coop said that he did not know how many emails there may be in Mr O'Neil's personal Department of Transport and Main Roads email inbox but that Mr Coop monitored the radio network inbox and said that there was 'very little left out of that' for Mr O'Neil to deal with after his leave. Mr Coop said that the only significant piece of work left outstanding for Mr O'Neil to deal with on his return was the 'wind farm at Banana Range'. Mr Coop thought that the wind farm work may have been left for Mr O'Neil in 2018 before the meeting of 9 December 2018 when Mr O'Neil raised the issue of travel. [37]
  1. [64]
    When asked about whether there must have been a backlog of work built up while Mr O'Neil was working in the field in the first half of 2018, Mr Coop said that there was no backlog and that if he had been aware of a backlog, he would have put something in place to manage it. [38]
  1. [65]
    Mr Coop agreed that Mr O'Neil had to deal with an easement in central Queensland. He also agreed that Mr O'Neil dealt with shared facilities and contract arrangements with contractors but said that these were not matters that required regular communication. Mr Coop said that reports on what maintenance was done in the field were completed while in the field and were filed when Mr O'Neil returned to the office. [39]
  1. [66]
    Mr O'Neil corroborates that Mr Brown assisted him with his workload until 2018 when Mr Brown retired. Mr O'Neil says that at the time Mr Brown left, his workload was manageable as Mr Brown and he had worked together to 'get through that workload'. [40] From then on, Mr O'Neil was required to complete his workload with ad hoc assistance from Kevin Taylor, a radio technician based in Brisbane. Mr O'Neil says that Mr Taylor's assistance was limited as Mr Taylor had his own work and tasks to complete in Brisbane. [41] Mr O'Neil said that in order to get assistance from Mr Taylor, Mr O'Neil was required to go through Mr Coop who would liaise with Mr Taylor's manager. [42]
  1. [67]
    It was put to Mr O'Neil that it was not true to say that he had no support after Mr Brown left because Mr Taylor was assisting him. Mr O'Neil said that 'the workload that my role undertakes was not assisted by any person'. Mr O'Neil said that Mr Taylor assisted in 'minor work' but that Mr Taylor was not responsible for communications licencing, nor did he deal with stakeholders or customers. It was put to Mr O'Neil that Mr Taylor did a lot of the technical work and Mr O'Neil said that Mr Taylor did the 'servicing and calibration of equipment'. [43]
  1. [68]
    Mr O'Neil maintained that Mr Taylor did not undertake any of Mr O'Neil's work tasks. Mr O'Neil said that he was responsible for coordinating or managing to make sure the that the servicing of equipment occurred and that Mr Taylor undertook that work. It was put to Mr O'Neil that in fact, he did not have to physically complete any of the field jobs and that his job was to manage or coordinate getting those jobs done. Mr O'Neil disagreed. He said 'by going to site, I am looking at – doing audits on equipment and also making sure that we're compliant in areas that need to be compliant, inspection of the equipment as well…' [44] It was put to Mr O'Neil that he could get the job done by having other people conduct the audit. Mr O'Neil said that other people could be trained to do the role but that the Department was not willing to release those people. Mr O'Neil said that was why he was raising succession planning as an issue. [45]
  1. [69]
    Mr O'Neil was asked about his grievance regarding Mr Brown not being replaced when he retired. It was put to Mr O'Neil that Mr Brown was only working in a two day a week capacity in May 2018 and Mr O'Neil said that was not correct and that by May 2018, Mr Brown had been moved to work for 'fleet' permanently. Mr O'Neil was taken to a document prepared by him, RoadTek Radio Network Review, [46] where he had stated that Mr Brown would not be required after 30 June 2017. Mr O'Neil agreed that he had written that. [47]

Administration assistance provided to Mr O'Neil

  1. [70]
    Mr O'Neil was asked about the administrative support provided to him by Ms Allen, who the Respondent says was supporting Mr O'Neil at all material times until she took leave on short notice on 17 May 2019 and at that time, there was cover for her work in place by 21 May 2019.
  1. [71]
    Mr O'Neil said that Ms Allen was the administration and support officer for the entire fleet team. Mr O'Neil was asked if part of Ms Allen's role was to support him while he was away by monitoring the electronic inbox and dealing with inbox items when she could. Mr O'Neil said 'some electronic filing was carried out' and that Ms Allen 'did monitor the inbox and make phone contact with me if she needed to send an email or alert me to things that I may not have seen so that I can actually – well, at least provide preliminary response until we go back to the office.' [48] He was taken to an email which provided an example of the type of work Ms Allen did in monitoring his email inbox. [49]
  1. [72]
    Mr O'Neil agreed that Ms Allen would undertake payment of invoices and that Mr Coop would approve those while Mr O'Neil was out of the office. Mr O'Neil was asked if Ms Allen did a lot of record keeping, such as using a spreadsheet to keep track of the radio sites, electricity counts and other documents. Mr O'Neil said that he was not familiar with that and that the only spreadsheet he was familiar with was the one he had created himself. [50]
  1. [73]
    Mr O'Neil said that Ms Allen supported him by creating purchase orders for equipment and items and that if needed, Ms Allen would follow up and ring people about getting those items. Mr O'Neil also agreed that Ms Allen undertook travel and accommodation bookings for him at times. [51]
  1. [74]
    Mr O'Neil disagreed that Ms Allen would undertake tests of equipment for him from the radio in the office. He said that he would be very surprised if Ms Allen knew how to use the radio. [52]
  1. [75]
    Mr O'Neil said that Ms Allen's tasks were administrative tasks not ordinarily performed by him. Mr O'Neil said that if Ms Allen was not performing those tasks, another administration officer would have. [53]
  1. [76]
    Ms Allen gave evidence about her time working as Administration Coordinator with Mr O'Neil. Ms Allen said that she undertook tax invoicing, a financial system called SAC and learning about equipment for radios. [54] Further, Ms Allen said that she looked after the travel bookings and expense claims for the radio network team. Ms Allen said that she would also look after the radio network inbox and look after some of the simpler emails. Additionally, Ms Allen said that she paid accounts for general expenses and madepayments after Mr O'Neil had approved them. Ms Allen also managed radio stock in the project database and would update the database to indicate what supply was on site.[55]
  1. [77]
    Ms Allen said that if an email came in that looked as though it required urgent attention, she would try and communicate with Mr O'Neil by phone. She said if the matter was not urgent, she would 'let it sit there' and that Mr O'Neil would keep in contact. [56] Ms Allen was shown Exhibit 13. She said that this was an example of where an email had come in that she thought might be urgent and that she would have discussed it with Mr Brown as the support person in the radio team and with Mr Coop because it was something she could not action herself. Ms Allen said that her important role in that regard would be to draw to Mr O'Neil's attention that there was something requiring action. [57] Ms Allen said that there were emails she could action while Mr O'Neil was away but she could not action technical matters. [58]
  1. [78]
    In terms of procurement, Ms Allen said that quotes would come in and that she would get documents together for purchase order creation. [59]
  1. [79]
    Ms Allen was taken to Exhibit 15 which was a document she had created prior to taking some leave. Ms Allen said that she would like to make sure that everyone was 'clear where I am with my workload'. Ms Allen went through the document and indicated the tasks she undertook that were related to the radio network. Those tasks included the ProMaster system for paying bills with the government credit card; travel for the radio network team; monthly revenue and expense reports for the radio network; 'disposal Mount Hopeful gear'; 'logic wireless purchase order'; weekly internet check; and contacting Mr O'Neil or a manager to rectify any issues with the line not being active. [60]
  1. [80]
    Ms Allen said that about fifty percent of her work time was associated with Mr O'Neil and that she 'was basically told to support…the radio network as a priority'. Further, Ms Allen said that she 'did a lot of tidy-up work' with the physical records.[61] Ms Allen confirmed that her role did not involve undertaking technical aspects of the radio network work. [62]
  1. [81]
    Ms Allen said that Mr O'Neil undertook performance review or feedback conversations with her. She said that she would meet with Mr O'Neil first and then meet with her manager. Ms Allen said that the meetings were held at six months and twelve months but 'you don't just wait for the six-month. You have checks in place to make sure that we're on target with what we need to do. Well, what I need to do.' [63]
  1. [82]
    Mr O'Neil said that after being away for a long period of time, there was a lot of inspection and audit reports that had to be collated and filed. Mr O'Neil said that when there was damage to an easement or a track, he would have to follow the government procurement policy and get a number of quotes. Mr O'Neil said that this could be quite time consuming.[64]

Work done by Mr O'Neil when in the field

  1. [83]
    Mr O'Neil said that when he was away in the field, he would 'always have a look at my emails or my smartphone before I depart to go and do site visits on the morning'. Mr O'Neil said that this could take between 10 minutes and an hour. Mr O'Neil said that he would depart for site visits at about 7.30am. [65] Mr O'Neil said that in the afternoon after travelling back to his base after a field visit, he would 'have all the things I haven't done through the day, for example, emails and telephone calls and missed calls or voicemail'. [66] Mr O'Neil says that this generally takes around an hour but 'could be as many as three hours'. [67]
  1. [84]
    Mr O'Neil was asked whether the work he was doing was captured in his timesheets and he said that it was not. Later, under cross-examination, Mr O'Neil conceded that time spent attending to emails out-of-hours was sometimes included in the hours of work entered into his timesheet. Mr O'Neil was asked about an inconsistency in his evidence where he said that he was attending to emails before and after field visits but then also said that he would return from field work to the office to find many emails to action. Mr O'Neil said that he would deal with quick and easy things or send preliminary responses from the field but that anything in detail was left until he got back to the office. [68]
  1. [85]
    Mr O'Neil said that he would peruse emails but that did not mean that they were actioned to completion. Mr O'Neil also said that he would listen to voice messages that had been received throughout the day. When asked why he did not capture the work he was doing after hours on his timesheet Mr O'Neil said that he would capture some of it on timesheets. [69]
  1. [86]
    It was put to Mr O'Neil that he had every reason to capture the time he was working out- of-hours on his timesheets and that the field work period is about accumulating time and TOIL so he could have time off. Mr O'Neil disagreed and said that he did not believe most public servants capture every minute on a time sheet and that that had not been his practice throughout his career. [70] Mr O'Neil said that if the field work was just about accumulating time off, he would be adding in time spent doing emails and phone calls because this would be to his benefit. [71]
  1. [87]
    Mr O'Brien gave evidence of a period of eight to ten weeks in 2013 when he worked with Mr O'Neil. Mr O'Brien said that during that time, Mr O'Neil's workload was 'pretty excessive' and that Mr O'Brien was engaged to help repair radio communication sites. Mr O'Brien said that at that time Mr O'Neil's workload 'seemed to be pretty extensive and was – he was always on the phone, work working extremely long hours at that particular time. Like we were doing between 10- and 12-hour days and sometimes he would still be working, you know, two or three hours after that, answering phone calls, returning emails…but his workload seemed to be very, very, excessive.'[72]
  1. [88]
    Mr O'Neil was asked about his evidence-in-chief where he had said that out-of-hours work was captured 'so we don't lose it. So we're not working for free'. It was put to Mr O'Neil that it was unbelievable for him to say that he was not capturing every minute worked in his timesheets. Mr O'Neil reiterated that his timesheet did not capture emails and messages responded to in the mornings or after dinner.
  1. [89]
    Mr O'Neil was taken to an email he had sent to Ms Allen on 28 February 2019 at 8.39pm.[73] With regard to his evidence that he would not normally have captured checking or replying to emails at this time of night in his timesheet, Mr O'Neil was taken to the timesheet spreadsheet document. On 28 February 2019, Mr O'Neil had banked TOIL time from 6pm to 9.15pm. Mr O'Neil was also taken to an email sent at 6.10pm, and another sent at 6.50am and further emails sent before 7:00am where his timesheet did not have hours logged for the times these emails were sent.[74]
  1. [90]
    Mr O'Neil says that sometimes the matters that came to his attention while on field trips could not be dealt with immediately. In these cases, Mr O'Neil would send an email to say that the information had been received and then he would deal with it when he was back in the office. [75]
  1. [91]
    The Respondent says that Mr O'Neil's workload was not unmanageable at the material time.
  1. [92]
    The Respondent points to the 'RoadTek radio network five-year review 2011-2016' report prepared by Mr O'Neil stated that the temporary assistance being provided by Mr Brown was not required after 30 June 2017. The Respondent says that Mr O'Neil also verbally told this to Mr Coop.
  1. [93]
    Further, the Respondent reiterates that Mr O'Neil could be assisted by both internal staff members and external contractors at all material times.

Backfilling arrangements when Mr O'Neil was on leave

  1. [94]
    Mr O'Neil claims that since commencing the role, his employer has not backfilled his position while he has been on leave.
  1. [95]
    Mr Coop said that the first time he recalled Mr O'Neil raising the issue of backfill with him was in 2017. Mr Coop said that when Mr Brown retired, he and Mr O'Neil, 'were starting to have a very, very different opinion about whether the position needed to be backfilled or not while he was on leave.' [76] Mr Coop recalled that Mr O'Neil was adamant that he wanted someone to backfill his role while he was away but that when Mr Coop would ask what work needed to be done and what the person backfilling would do, Mr O'Neil was unable to give him enough information to substantiate why the position needed backfilling.
  1. [96]
    With regard to the need for backfilling, Mr Coop said that Mr O'Neil always took his leave in between the major servicing runs each year. Mr Coop said that it was a 'generally quiet time of the year' and that it was 'only the day to day running and if there was a breakdown'. Mr Coop said that 'there was not enough work and there was not enough justification to backfill it, and we didn't have any other experience in that area to take on a major project'. Mr Coop said that major projects could easily be put off. [77]
  1. [97]
    Mr Coop was asked if there was any negative consequence of not backfilling Mr O'Neil's position. Mr Coop said that 'after the event, after we called out and the holidays would – would morph into a long period of time…sometimes it would become challenging for me, because we would be running into the next maintenance run'. [78] Mr Coop was asked how he dealt with this and he said 'I actually managed to find a project manager. I found two project managers in Toowoomba that had some experience that was able to help me out, and had a project manager do a maintenance run with Kevin Taylor, we got the maintenance run done'. [79]
  1. [98]
    The Respondent admits that no one staff member has been assigned solely to backfill Mr O'Neil. However, the Respondent denies that there was a significant backup of work and that Mr O'Neil's workload significantly increased when he returned from leave in September 2018. The Respondent says that Mr O'Neil's workload at the time of his leave was light and that Mr Coop and others covered Mr O'Neil's role leaving only non-urgent matters for his return. The Respondent also says that it had no reasonable notice that Mr O'Neil would be taking a total of 35 days of leave.
  1. [99]
    Mr O'Neil was taken to a document listing sick days taken in 2018 and 2019, [80] text messages regarding sick days that he took and associated medical certificates. The messages indicated that when Mr O'Neil initially took leave on 30 July 2018, he said 'will be back in the office next week'. Mr O'Neil agreed that on 9 September 2018 he sent another text message saying 'I feel fine. So that could be as early as Tuesday this week' and 'I'll see what happens tomorrow and advise further'. On 10 September 2018, Mr O'Neil sent another text message saying that he would be having the remainder of the week off and that his definite return to work would be 17 September 2018. [81] Mr O'Neil agreed that the text messages show a pattern of communication which indicates that he did not know when he would be coming back to work but that he was hopeful of returning at various points. [82]
  1. [100]
    Mr O'Neil agreed that Mr Coop had not been advised at the start of the leave how long that leave would be for and said that Mr Coop knew that Mr O'Neil was having a number of tests done and that as soon as Mr O'Neil's medical certificate was renewed, he would let Mr Coop know that the leave would need to continue. [83]
  1. [101]
    It was put to Mr O'Neil that on the list he put together regarding his absences, the reasons provided were insomnia, high blood pressure and insomnia rather than psychological distress from workload. It was also put to Mr O'Neil that he had not complained to his doctor about workload stress until 24 June 2019. Mr O'Neil said that this was not correct and that he had discussed with his doctor that the insomnia was most likely caused by stress. Mr O'Neil said that his specialist noted that Mr O'Neil needed to be taking things easier because insomnia is generally caused by mental health. [84] Mr O'Neil said that he had been discharged from that specialist for a 'fairly long time now' and he would not be calling that doctor as a witness.
  1. [102]
    The Respondent says that on other occasions when Mr O'Neil took leave, the position was always backfilled by way of cover from his line manager (Mr Coop) and others. During the times relevant to this appeal that Mr O'Neil took leave, it was in between 'inspection/service/maintenance' runs and that Mr O'Neil's workload in between such planned maintenance runs was light and it was determined that no full-time backfill of the role was necessary. Further, the Respondent says that any capital works could have been put off until the following year and Mr O'Neil was aware of that.
  1. [103]
    The Respondent says that to the extent that the role was not backfilled on a full-time basis, it was reasonable management action taken in a reasonable way when taking into account the extent of the preapproved leave and when taking into account the work undertaken while Mr O'Neil was on leave as against that which could be reasonably deferred until his return.

Mr O'Neil's office days following periods of leave or field work were limited

  1. [104]
    The Respondent says that following his return to work after 35 days of time in lieu and recreation leave and one day of sick leave on 24 July 2018, Mr O'Neil also worked a standard 7.25-hour day each day for the first four days until going on sick leave on Monday 30 July 2018. During this time, Mr O'Neil did not request overtime and left his work computer and work phone on his desk when he left each night, indicating that his workload was reasonable and manageable.
  1. [105]
    Mr O'Neil was taken to an entry for 12 February 2018 which showed that he was back in the office for a day. Mr O'Neil did not recall specifically what that office day was for but said 'it would be catching up on the paperwork from – in the field work.' Mr O'Neil said that he would have been updating the SAP system to show which radios were fitted into which vehicles so there would be an electronic record of them. He said that he also would have been 'going through emails and other action items'. [85] Mr O'Neil said that he would not have been able to complete all of the work in that day. [86]
  1. [106]
    Mr O'Neil said that when he returned from a fieldtrip it could by up to a fortnight by the time the paperwork was completed.
  1. [107]
    Mr O'Neil said that the reason Exhibit 6 only listed four days in the office where Mr O'Neil worked 10 hours or more was that 'it's not the done thing to be working overtime when you are rostered in the office.'
  1. [108]
    Mr O'Neil was also taken to a period of time from 12 March 2018 to 6 April 2018 where the spreadsheet indicated that he had taken accrued time off. Mr O'Neil explained that accrued time taken is 'time that's banked where you've accrued it when you've got over 7.25 hours in a day, up to and including 9.5 hours in a day'.87 Mr O'Neil said that he had to seek permission from Mr Coop to take accrued leave and that 'it's basically stated that they would like you to take that time off than lose it, to have a break from work'.[88]
  1. [109]
    Mr O'Neil was taken to the time after that accrued time where he worked in the office on 11 April, 15 – 17 April, and 19 April 2018. Mr O'Neil said that he was unable to complete the work arising from the field work and other work that had come in during his accrued leave during this time that he was back in the office.
  1. [110]
    Mr O'Neil was taken to the period commencing after the office-based work from 17 April 2018. Mr O'Neil confirmed that he was working in the field through until 25 May 2018. From 28 May 2018 until 29 June 2018, Mr O'Neil was on another period of accrued leave. Mr O'Neil said that he took that leave to 'basically wipe out the accrued leave balance, to get it back to a more manageable level'. Mr O'Neil said that he would not have done any work-related activities during that period of accrued time off. [89]
  1. [111]
    From 2 July 2018 through until 13 July 2018, Mr O'Neil was on recreation leave. [90] Mr O'Neil said that over this period of time he had the support of an administration officer. [91] Mr O'Neil said that during those weeks that he was taking accrued leave and recreation leave, the administration assistant completed paying invoices, undertook some minor checks of email accounts and forwarded a handful of things to Mr Coop for consideration or action. [92]
  1. [112]
    Mr O'Neil was taken to the time period following his recreation leave. Mr O'Neil worked in the office on 17 July 2018 for one day. The next office-based days after that were 24 and 25 July 2018. On each of 26 and 27 July 2018, Mr O'Neil worked for three hours. [93]

Mr O'Neil's return from sick leave in 2018

  1. [113]
    From 30 July 2018 until 17 September 2018, Mr O'Neil was on sick leave. Mr O'Neil said that during that period of time his role was not backfilled and that nobody helped with the work. [94] Mr O'Neil confirmed that Ms Allen undertook payment of invoices.
  1. [114]
    In further support of its submission that Mr O'Neil's workload was reasonable and manageable following his return to work from sick leave, the Respondent says that when Mr O'Neil returned to work, he worked a standard 7.25-hour day for four days straight and again left his work computer and work phone on his desk each afternoon when he left work and did not seek to work overtime. Mr O'Neil took a single sick leave day on 21 September 2018 and did not take sick leave again until he took one day of sick leave on 19 March 2019.
  1. [115]
    Mr O'Neil said that when he returned from his sick leave, he found that invoices had been paid, Mr Coop had sent 'a handful of emails to customers' giving them a preliminary response telling them that they would have to wait until Mr O'Neil returned and that the workload had continued to increase while he was on leave. [95] Mr O'Neil said that the work from the previous site inspections and audits was outstanding. When asked whether he was able to complete the work from the site inspection and audits during the office- based days, Mr O'Neil said that the workload was too great for him to complete during those office-based days. [96]
  1. [116]
    When asked specifically what work had built up and been left for him to do, Mr O'Neil said that the 'fall arrest inspection device' work was left outstanding. He said that there had been changes to the Communications and Media Authority licensing that had not been completed. Mr O'Neil said that there were also some stakeholder emails left for him to action. Mr O'Neil says that in an email dated 20 September 2018, he mentioned in an email to Mr Stubbs (acting in Mr Coop's role), that he was a long way behind with his workload because there was no backfill for his role. [97]
  1. [117]
    Mr O'Neil referred to an email of 25 October 2018 which he says is an example of work that had been left for him to complete upon his return. Mr O'Neil said that Ms Allen had access to his own work email account and that Ms Allen, Mr Coop and Mr Taylor (among others) had access to the radio network generic email account. [98]
  1. [118]
    Mr O'Neil said that when he returned to work and saw the emails, he felt overwhelmed. Mr O'Neil said that he 'started going through emails to try and determine where I was up to, or what had or hadn't been done'. [99] Mr O'Neil said that his recollection was, that returning from leave, 'I didn't get too many full days done before I just got overwhelmed and fatigued and had time off in lieu'. [100] Mr O'Neil recalled that on his first day back from leave, he did not work the full day. [101] Mr O'Neil said that he had the time owing to him and so he used the time off in lieu to 'go home and just have a break from the work'. [102]
  1. [119]
    Mr O'Neil was taken through his workdays for the week following his return from leave. Mr O'Neil said that on his second day back, he left early and had 0.75 hours off. On the third day back (19 September 2018), Mr O'Neil said that he got to work late because he was 'still fatigued and hadn't slept well that night' so he started at 11.45am or thereabouts and finished at 3.45pm. Mr O'Neil said that on 20 September 2018 he worked longer than a standard 7.25-hour day. And on Friday 21 September 2018, Mr O'Neil said that he had sick leave for the entire day. He said that the sick leave was taken because he was 'just overwhelmed with the workload and just felt really tired'. [103]
  1. [120]
    Mr O'Neil was asked about his remark that he had not slept well. Mr O'Neil said that he was sleeping enough hours. He said that he sleeps with a Continuous Positive Airway Pressure ('CPAP') mask that gives him a report regarding how well he slept. He said that his 'compliance was good' but that he 'just felt lethargic and tired all the time'.[104]
  1. [121]
    It was put to Mr O'Neil that his work pattern upon return to work on 17 September 2018 was suggestive of somebody with not a lot of work to do. Mr O'Neil disagreed and said that it demonstrated that he was overwhelmed and fatigued. Mr O'Neil said that he did not think he would have taken his work mobile phone or computer home with him when he left work on 17 September 2018. [105]
  1. [122]
    It was put to Mr O'Neil that the reality was that any work that came in while he was away, including on sick leave, could be done when he returned without any significant increase in workload. Mr O'Neil disagreed. [106] Mr O'Neil also disagreed that capital works could be put off without any 'major dramas' and said that there were some things that would need to be taken care of and not all things could be put off. [107]
  1. [123]
    With regard to field trips, it was put to Mr O'Neil that he has never been pressured to do field work site visits. Mr O'Neil disagreed and said that he has been required to do site visits since 2010 and that it was a requirement of his role. Mr O'Neil was asked if he had ever been disciplined for 'lags in time periods or delays' and he said that he had never been disciplined in his entire career. When asked if it was not the case that he was going to be held responsible for a leak in a hut or anything like that, Mr O'Neil said, 'No, but it comes under the umbrella of – of tasks that I have to look at.' [108]
  1. [124]
    It was put to Mr O'Neil that Mr Coop and Mr Paine had being trying to tell him to stay back and just manage it with contractors and to stop going out on site. Mr O'Neil said that this occurred 'later in the piece' in around March 2019. Mr O'Neil said that there had been discussions about the risks and the issues around use of contractors. [109]
  1. [125]
    It was put to Mr O'Neil that there was no requirement on him to have matters identified and tasks done in a particular timeframe. Mr O'Neil disagreed and said that it was necessary to avoid the wet season in North Queensland and that the second visit each year was done prior to the storm season. It was put to Mr O'Neil that the timing of the visits were conditions that he was putting on himself. Mr O'Neil disagreed and said that it had been required since 2013. [110]
  1. [126]
    The following week, Mr O'Neil said that he took Monday 24 September 2018 as accrued time in lieu. He said that the accrued time was probably sick leave and that he 'just didn't feel well enough to attend work'. Mr O'Neil said that he 'always had a policy that if he doesn't feel 100 per cent, I didn't attend work because it is sometimes counter-productive to be at work'. [111] Mr O'Neil said that he was feeling as though he needed afternoon naps and was still needing to sleep for 12 hours or longer. [112]
  1. [127]
    Mr O'Neil said that from 25 September 2018 to 27 September 2018, he worked longer hours to catch up for being away for so long. On 28 September 2018, Mr O'Neil worked and took some accrued time off. From 1 October 2018, Mr O'Neil said that he was in the field again. Mr O'Neil said that at the time he started in the field again, the office-based work was overwhelming because it hadn't been done for 'quite a period of time'. [113]
  1. [128]
    With regard to the field work that commenced on 1 October 2018 and concluded on 9 November 2018, [114] Mr O'Neil said that the 'field based stuff just could not wait any longer' and the previous maintenance run had not been completed so there was a need to undertake inspections, audits, calibration or servicing of transmitters, faults that needed to be looked at, compliance related tasks. [115]
  1. [129]
    Mr O'Neil said that on 9 November 2018 he had some accrued leave. On 12 November 2018 he was doing office-based work. With regard to the workload at that time, Mr O'Neil said that he was working on 'emails that hadn't been actioned' and 'basically making headway through the emails and trying to get as much of that that I could completed'. [116]
  1. [130]
    Mr O'Neil said that he went back in the field from 13 November 2018 until 23 November 2018. Mr O'Neil said that he did not recall having any assistance during that field work. On 24 November 2018 there was another day of office work and then he returned to the field until 5 December 2018. [117]

Mr O'Neil says he raised the issue of his workload

  1. [131]
    Mr O'Neil says that he raised the issue of his workload and the effect it was having on his health and sought assistance to better manage his workload and effectively carry out his duties. Mr O'Neil says that his requests for assistance were not actioned. Mr O'Neil says that these matters were raised with Mr Coop and Mr Paine in the following ways:
  1. (a)
    at the annual fleet training meeting;
  2. (b)
    in December 2018 at this six month personal development achievement plan;
  3. (c)
    24 January 2019 in a meeting with Paine and Coop;
  4. (d)
    on 28 February 2019 in an email sent to Coop;
  5. (e)
    on 4 March 2019 in an email sent to Coop;
  6. (f)
    on 5 March 2019 in an email sent to Paine;
  7. (g)
    on 18 March 2019 when the Appellant met with Coop;
  8. (h)
    on 1 May 2019 in a meeting with Coop.
  1. [132]
    It was put to Mr O'Neil that he did not complain to Mr Coop about workload stress or psychological injury during this period of time. Mr O'Neil said that he would have verbal conversations with Mr Coop to the effect of having a lot of work to do or saying 'I'm over it. So I'm heading home for the day.' [118]
  1. [133]
    The Respondent says that during the period around July to September 2018, Mr O'Neil indicated to Mr Coop that he had difficulties with sleep, was having tests done and was seeing his cardiologist. Mr O'Neil did not suggest that work was causative of his need for leave.

The fleet team meeting on 6 December 2018

  1. [134]
    Mr O'Neil recalled that he returned from North Queensland to be back in the Toowoomba office on 6 December 2018 to attend the annual fleet team meeting. Mr O'Neil recalled that a topic of discussion at the meeting was the annual employee survey. He said that he provided an extensive response, of about 15 minutes, [119] to the meeting about his response to the survey question about work-life balance. [120] Mr O'Neil said that he was 'very direct with his words' but that he did not become agitated. [121]
  1. [135]
    The Respondent says that Mr O'Neil did not notify management of any psychological injury or psychological symptoms or that his workload was causing any health concerns at any material time. The Respondent submits that the employer only became aware of the allegation that his workload was allegedly causing health concerns, in the nature of a psychological injury when Mr O'Neil lodged his Application for Compensation with WorkCover in July 2019.
  1. [136]
    The Respondent says that at the annual fleet team meeting on 6 December 2018, Mr O'Neil raised a number of matters in the context of a talking point around work-life balance. Mr O'Neil raised matters including that he was spending increasing time away from home and that he was not being allowed to work on Sundays while away. Mr O'Neil did not raise any effect that his employment was having on his health.
  1. [137]
    Mr Coop also recalled the meeting on 6 December 2018. Mr Coop said that during the part of the meeting where there was a review of the employee opinion survey results, Mr O'Neil became 'very agitated and gave his opinion in a very forthright manner'.[122] Mr Coop said that Mr O'Neil said that he was spending far too much time away from home, that he was doing a role he had never applied for, that he was doing work he had never been trained to do and that he was not allowed to work on Sundays while he was away. [123]
  1. [138]
    Mr Coop said that during that meeting he 'got a little bit concerned about Nathan'. Mr Coop said that Mr O'Neil 'had become very, very agitated, and he was very vocal, swearing in front of the girls, which his not like him at all'. [124] Mr Coop said that when the meeting ended, he asked Mr O'Neil if they could catch up before Mr O'Neil went home and that they spent close to an hour talking. [125] Mr Coop said that following that meeting he 'did a handwritten report' which he typed up at a later date. [126]
  1. [139]
    The Respondent says that at that meeting on 6 December 2018, Mr O'Neil did not seek assistance to better manage his workload and be able to carry out his duties. The Respondent further notes that Mr Paine was not present at that meeting.
  1. [140]
    Mr O'Neil recalled this meeting in his evidence and described Mr Coop suggesting that they 'have a chat, just to have a debrief about the things that I had discussed at the team meeting'. [127] The Respondent says that in this meeting, Mr O'Neil spoke of a range of issues that concerned him including management decisions that had occurred over a very long period, in excess of nine years, that Mr O'Neil said he did not agree with. Mr O'Neil recalled that a range of matters were discussed in that meeting including succession planning, training, not being able to work on Sundays and spending decreased time away from home. [128]
  1. [141]
    Mr Coop said that he reported the matter to his immediate supervisor Mr Chris Pearson and that Mr Coop spoke to Mr Paine. Mr Coop said that he ran through the incident report with Mr Paine. Mr Coop recalled that Mr Paine 'found out more about the radio network and how we managed it and Nathan's role with the radio network. And Nathan's qualifications as well. He took a keen interest in the network from that point on'. [129]

Work undertaken by Mr O'Neil after he raised his concerns on 6 December 2018

  1. [142]
    Mr O'Neil recalled that he was office-based until 12 December 2018 and then had accrued time off for various rest days until 6 January 2019. From 7 January 2019, Mr O'Neil was back in the office for five days and then there were some more rest days before he returned to the field on 14 January 2019. [130] Mr O'Neil said that during the five office days, he was unable to catch up on work. He said that he was feeling overwhelmed at that time. Mr O'Neil said that he would go to work, do the work, and become fatigued by the work. [131] Mr O'Neil said that he would go to work with good intentions to complete the work and if he felt he could not continue, he would go home. [132]
  1. [143]
    Mr O'Neil said that at this time, the work he needed to finish included the completion and amendment of site radiation folders, Communications and Media Authority licensing, the decommissioning of certain sites, ordering parts for upcoming service runs, and the completion of a number of radio installations in January. Further, Mr O'Neil said that there were radios that had be decommissioned and installed and that this involved engraving, programming and testing them and then arranging for them to be fitted into vehicles. [133]

Meeting on 24 January 2019 and Mr O'Neil's work during first half of 2019

  1. [144]
    Mr O'Neil said that he was back in the office on 24 January 2019 and that on that day, there was a meeting where Mr Paine discussed completing a review of the radio network. [134] Mr O'Neil recalled that at that meeting, Mr Paine said that there would be benefit in completing a review of the RoadTek structures. [135]  Mr O'Neil said that Mr Paine had suggested at that time that Mr O'Neil would need to provide some input and that he later provided an email regarding what he would require in a site summary for the sites that RoadTek owned.[136] Mr O'Neil agreed that when asked to do the task, he did not say that he could not do that work due to his workload or not having enough time to do the work. However, he said that Mr Paine had said that other work should be suspended in order to complete the review and that Mr O'Neil could see the benefit in doing so.[137]
  1. [145]
    Mr Coop recalled the meeting on 24 January 2019 between himself, Mr O'Neil and Mr Paine. Mr Coop said that Mr Paine had some concerns about the radio network and the maintenance of the radio network. Mr Coop said that Mr Paine 'was concerned that Nathan was actually inspecting structures – the towers – and possibly doing some electrical work'. [138] Mr Coop recalled that as a result of that meeting, Mr O'Neil was asked to put together a report for each site with radio equipment on it that was owned by the Department. Mr Coop said that Mr O'Neil was asked to 'provide information about what was on site, and to give a general condition report on the site'. [139] Mr Coop recalled that Mr O'Neil had said that it would be a very easy task and that he would be able to get it done before he headed back up north again. Mr Coop did not recall Mr O'Neil raising any issue about workload at that meeting. [140]
  1. [146]
    Mr O'Neil was taken to the email he sent immediately after that meeting at 2.47pm. In this email, Mr O'Neil said that he believed that he could provide the bulk of the information Mr Paine was seeking by close of business the following day and that, if possible, he would like to continue with the field work to be undertaken in Cluden. [141] It was put to Mr O'Neil that this email did not reflect that he was overworked and did not want to attend on-site visits. Mr O'Neil said that he did not think the job would take more than four or five days to complete. [142]
  1. [147]
    Mr O'Neil returned to the field from 29 January 2019 to 8 February 2019 after some rest days over the Australia Day weekend. Mr O'Neil recalled returning to the office for four days from 11 February 2019 to 15 February 2019. He said that he had not caught up and that the work had continued to build up. Mr O'Neil then returned to the field until 8 March 2019.
  1. [148]
    Mr O'Neil recalled sending an email to Mr Coop on 28 February 2019 to alert him that Mr O'Neil had leave coming up in May and June 2019 so that cover could be arranged for him and to let him know that there were only about 20 days more that he could travel in that financial year, from 28th February 2019 through until 30 June 2019. [143]
  1. [149]
    Mr O'Neil recalled that after 8 March 2019, save for accrued time and some sick leave, he was office-based until 5 April 2019. Mr O'Neil said that during that time, he continued with office-based duties including emails and other stakeholder and customer liaising. Mr O'Neil said that on 8 April 2019, he took recreation leave and accrued time to 'have a break from work'. Mr O'Neil said that the existing workload was piling up as quickly as he could get tasks done. He said that he was unable to work on new tasks as he was concentrating on the backlog of work.[144] Mr O'Neil said that he was 'just fatigued. I would go to work, do as much as I could and then, yeah, would get to a point where I couldn't continue'.[145]
  1. [150]
    Mr O'Neil returned from recreational leave on 1 May 2019.  During that period, Mr O'Neil says that he was undertaking office-based duties. Mr O'Neil said that the workload during this period was heavy because there had been a period of time where he had been away and there had not been anyone filling his role or carrying out the vast majority of the functions of the role. Mr O'Neil said that he 'started to feel like I was going nowhere. Just the volume of work and what had to be completed was – I just felt like for every task I got completed there was another two that turned up'. [146] Mr O'Neil said that during his leave he felt really good but during this time back at work he was feeling fatigued again. [147]
  1. [151]
    Mr O'Neil said that in May, Ms Allen had departed on leave and there was not a lot of clarity about who was doing certain tasks. Mr O'Neil said that there was an informal meeting held in the office about Ms Allen departing and that she did a handover. Mr O'Neil said that there were a couple of tasks that were given to him in Ms Allen's absence because relief arrangements had not been made. [148] Mr O'Neil said that these tasks included monitoring the email inbox.

Suggestion that Mr O'Neil outsource some work rather than undertaking it himself

  1. [152]
    Mr O'Neil said that Mr Coop had suggested outsourcing some of the work but that Mr O'Neil advised him that that was extremely difficult to do. Mr O'Neil said that the sites house sensitive equipment and that if it is outsourced to external people, restricted security keys had to be issued, there is a risk that photographs could be taken and shared on social media and that if an external person is to go on site, there needs to be site induction and assurance that they are complying with workplace health and safety requirements. Mr O'Neil said, 'If we have to escort them, you know, the thought process at the time was that if you're going there anyway to escort them, you may as well do the work while you're there, so it was an inefficient way of …suggesting to carry out the work'. [149]
  1. [153]
    Mr O'Neil agreed that it was achievable to outsource the work and undertake the process of issuing keys and undertaking site inductions. When asked if it was the case that he just did not want that to happen, Mr O'Neil disagreed and said that he believed that if a staff member was going to be sent to the site, they may as well do the work while they were there, rather than have the additional cost of having another person attending as well. Mr O'Neil said it was not correct to say that the reason he did not outsource the field work was because of his own evaluation of inefficiencies. Mr O'Neil said that it was not as simple as inducting trusted contractors.  He said that historically work had been outsourced with 'very limited success'.[150]
  1. [154]
    Mr O'Neil was asked about attempted outsourcing arrangements during the period from the beginning of 2018 to May 2019. Mr O'Neil said that the Townsville sites were outsourced to a company. Mr O'Neil said that the company had to be escorted to site and that there was other work carried out with an electrician who serviced air conditioners and had to be escorted to site by Mr O'Neil. [151] Mr O'Neil said that there were discussions about whether other government departments could undertake the field work but that this did not occur. [152]
  1. [155]
    It was put to Mr O'Neil that he did not like doing office work or that he preferred to be doing field work more than office work. Mr O'Neil said that he would prefer to be doing office work because he could be at home every night and there was no requirement to travel. Mr O'Neil disagreed that he chose to do a lot more field work to build up accrued hours that he could take off. Mr O'Neil was asked if he took holidays in his accrued time and he said that he would usually take accrued time in bulk and did do recreational activities in his time off. Mr O'Neil was asked if he planned, in his life, to have more time off than the ordinary 4 weeks a year. Mr O'Neil said that he didn't really, but that in 2019 he did. He said that he had 'a heap of leave' and that there were 'emails going around the department that he had to use that leave'. Mr O'Neil said that he understood that when accrued leave 'hit 40 hours, you start to lose your accrued time' and 'with time off in lieu it's allowed to go till 12 months'. [153]
  1. [156]
    Mr O'Neil could not recall if he used TOIL or recreation leave for his trip to Nashville but he said that if he had a TOIL balance that it would be used first and then recreation leave would be used. Mr O'Neil said that he did not engage in the field work in order to get longer holidays. [154]
  1. [157]
    It was put to Mr Coop that he knew that Mr O'Neil was doing all of those things listed at [52] but that it was not part of his role. Mr Coop said that he thought the role could be done differently but that he did not micromanage Mr O'Neil and tell him he could not do the role in that way. Mr Coop said that he was aware that the work had to be undertaken and that Mr O'Neil had elected to do it. Mr Coop agreed that he allowed Mr O'Neil to work in this way but disagreed that he criticised Mr O'Neil for doing it this way.[155]
  1. [158]
    It was put to Mr Coop that it was only when Mr Paine became involved in the matter in March 2019 that Mr O'Neil was directed not to go in the field. Mr Coop disagreed and said that from December 2018 he had been trying to discourage Mr O'Neil from travelling. Mr Coop said that he was concerned for Mr O'Neil due to his sleeping issues and out of character behaviour at the meeting in December 2018, and that he counselled Mr O'Neil and gave him options on how he could manage his work differently. [156]
  1. [159]
    Mr O'Neil was taken to the email he sent to Mr Coop proposing that field work be undertaken on Sundays. Mr Coop replied and said that Sunday is a rest day.[157] It was put to Mr O'Neil that that email did not include a complaint about having too much work to do or needing time off. Mr O'Neil said that if he worked on a Sunday he could come home a day earlier, which would be beneficial to him.
  1. [160]
    Mr Coop said after Mr O'Neil made it clear in December 2018 that he was concerned about travel, Mr Coop assisted Mr O'Neil to reduce travel by offering suggestions on how he could engage with contractors, that he could use communication businesses in Townsville, that he engage with local auto electricians and assist the workshop to manage the subcontractors. [158]
  1. [161]
    It was put to Mr Coop that despite being concerned about Mr O'Neil, Mr Coop did not put a stop to his travelling. Mr Coop said that Mr O'Neil had been doing the travel 'for a lot of years before all of a sudden stating in December 2018 that it was a major problem. Mr Coop said that he did not consider Mr O'Neil's behaviour at the meeting in December to be a sign of burnout but that he thought it was related to the sleeping problems that Mr O'Neil had talked about. Mr Coop said that he did not consider Mr O'Neil's problem sleeping as arising from work. Mr Coop said that he did not suggest Mr O'Neil seek the employee assistance program as Mr O'Neil had advised that he was seeing a doctor and a specialist. [159]
  1. [162]
    Mr Coop said that he regularly spoke to Mr O'Neil about his sleeping problems and 'talked to him about it to make sure that it wasn't affecting his work and that he wasn't putting himself or anybody else in a position of danger'. [160]

Mr O'Neil's concerns about his role, role description and the assessment of his role level

  1. [163]
    It was put to Mr O'Neil that the reason he felt stress, if he felt it at all, was because of his role level and description, and that his workload was not significant at all. Mr O'Neil disagreed. [161] It was put to Mr O'Neil that in fact he was not at work for very much of the relevant time period. Mr O'Neil disagreed. Mr O'Neil also disagreed with the proposition that his workload was light and that he was not overworked at all. [162]
  1. [164]
    Mr O'Neil said that his position description was raised as a 'secondary issue'. Mr O'Neil said that he gave Mr Coop role descriptions for other positions that were levelled at AO7 and AO8 and that his role had come back assessed as an AO6. Mr O'Neil said that he gave the other role descriptions to Mr Coop as a 'prompter' and that he understood that the role had to go through a job evaluation management system ('JEMS') process. [163]
  1. [165]
    There appears to have been a second meeting on 11 December 2018 to discuss the JEMS process. [164] Mr O'Neil spoke about his role with Mr Coop and he says that Mr Coop did not know what Mr O'Neil's role was. [165] Mr O'Neil recalled Mr Coop saying that he 'had no real idea' what Mr O'Neil was doing at the time. Mr O'Neil said that he also raised with Mr Coop that his performance review was overdue and spoke about training. With regard to training, Mr O'Neil said there were two issues he raised. The first was that he was looking to relieve others but also that there was a need for someone to be able to backfill his role.[166]
  1. [166]
    Mr Coop recalled that the purpose of the meeting on 11 December 2018 was to discuss Mr O'Neil's Performance Development Agreement ('PDA') and that Mr O'Neil had said to Mr Coop that he could not have his performance assessed as Mr O'Neil did not have a proper role description. Mr Coop said that Mr O'Neil had a role description that was finalised back in late 2016/17. [167]
  1. [167]
    Mr Coop was taken to an email of 13 December 2018 which made reference to Mr O'Neil's role description.[168] Mr Coop said that Mr Derek Broanda from Human Resources spoke with him about whether the position was office-based. Mr Paine had spoken with Mr Broanda saying that Mr Paine thought that the role was office-based and that Mr Paine could not understand why there was conflict around the amount of travel involved in the role. [169]
  1. [168]
    Mr Paine gave evidence that he understood that the matter regarding the role Coordinator Radio Network and the JEMS process had been resolved. Mr Paine said that he asked Mr Broanda to go to Toowoomba to 'close the gap, so to speak, with the employee'. Mr Paine said that he had feedback from management that Mr O'Neil had not seen the result of the JEMS process and that during the time it was being undertaken, Mr Paine was acting in another position. [170] Mr Paine was asked about his comment in the email that he understood the position to be office-based. Mr Paine said that he maintains that the position is office-based. [171] Mr Paine said that the role can be coordinated in the office and does not need to be out of the office. [172]
  1. [169]
    Mr O'Neil had made some notes regarding action items following the meeting on 11 December 2018. The third item on the list was 'Role title to be decided upon: manager'. Mr O'Neil was asked what this meant and he said that during the JEMS process in 2016, it had been determined that the role title should be changed to better reflect the nature of the position and that it had been put forward as Manager (Frontline Communications). He said that throughout the process, 'persons unknown' had decided to change it to Coordinator (Radio Network). Mr O'Neil said that Mr Coop had made the comment that that 'now that he fully understands the role', he would seek to send it back through the JEMS process. [173]
  1. [170]
    Mr O'Neil was asked if he would have felt better about the change to the role description if it had included the word 'manager' in it. Mr O'Neil said that the role was to 'manage infrastructure' and that most of the coordinators in the Department are AO4s. Mr O'Neil said that he did not think that external customers gave the term 'coordinator' the same level of 'support' but that internally the name of the role did not matter. [174] Mr O'Neil said that he thought the word 'manager' would better reflect the work that he did but that he was not upset that the word was not in his job title.[175]
  1. [171]
    Mr O'Neil was taken back to the JEMS process outcome for his role when it was assessed in 2016. Mr O'Neil had sent an email at the time expressing surprise at the outcome and saying that similar roles are an AO8 position. [176] Mr O'Neil said that he disagreed with the AO6 classification and thought the document that had been submitted for the JEMS process did not have all of the duties listed on it and that if it had, he would presume it would have 'come back at a higher level'. Mr O'Neil maintains that if the role 'was JEMS properly, it would come out at a higher level. That's almost guaranteed.' [177]

Mr O'Neil was concerned about succession planning

  1. [172]
    The Respondent says that in the meeting with Mr Coop, Mr O'Neil's main grievance was that senior managers had moved him into a role that he never applied for or wanted. When Mr Coop asked Mr O'Neil what job he would prefer to be doing, Mr O'Neil stated that he thought the fleet needed a safety advisor and that he felt qualified in this regard. Mr O'Neil's other grievance was with regard to succession planning. Mr O'Neil claimed to have been overlooked for 8 Steps training.
  1. [173]
    With regard to the conversation in the meeting about succession planning, Mr O'Neil says that he was talking about the matter generally and had only ever applied for a handful of roles. When asked if he had missed the cut off to apply for an AO8 position, Mr O'Neil said that he had been on leave and when he came back to work, he saw an email about succession planning. Mr O'Neil said that in RoadTek, one needs to be registered in that program so that the manager is aware there is an interest. Mr O'Neil said that he spoke with Mr Coop about this and that Mr Coop had referred him to speak with human resources about it. Mr O'Neil said that he was told that he had missed the cut off and could not be considered for any relieving opportunities for the coming 12 months. Mr O'Neil said that he spoke with Mr Coop to let him know he was unhappy with that outcome and later instigated an internal complaint process followed by an internal review. The outcome was that while the cut-off date remained, Mr Paine would seek to discuss opportunities with Mr O'Neil. [178]
  1. [174]
    The evidence demonstrated that Mr O'Neil raised the succession planning and 'expression of interest' issue when he met one-on-one with Mr Coop on 6 December 2018 and that he made the formal complaint in January 2019. Mr O'Neil pointed out that the issue of succession planning was twofold and also related to the training of someone to undertake his role. [179]

Mr O'Neil was advised to spend more time in the office and continued to seek approval to travel

  1. [175]
    At that same meeting with Mr Coop, Mr O'Neil was advised to spend more time at the Toowoomba office and to engage contractors to undertake work as opposed to travelling himself. When Mr O'Neil was asked whether he took up the advice to reduce his 'in field' work, Mr O'Neil said that there 'was already quite a number of things already planned and underway, including flights and accommodation and all sorts of things and it was determined at the time that it was best to try and get on top of those things because to sit in the office and to plan that and go through a procurement process was going to be far more involved than it was to go and do the work myself'. [180]
  1. [176]
    Mr Coop recalled that following the meeting on 6 December 2018, 'Nathan was still very keen to travel at every opportunity. Continued to come to me early in the new year with his travel plans. That he wanted to still get back into North Queensland to do the radio work he was doing up there'. [181]
  1. [177]
    Mr Coop said that he would put to Mr O'Neil quite often that it was possible to get contractors in to do the work. Mr Coop said that the work Mr O'Neil was doing fitting radios to trucks in North Queensland could 'easily have been farmed out and I kept pointing that out to him'. Mr Coop said that Mr O'Neil's response was that the contractors would not do it correctly and that Mr O'Neil could do it much better. Mr Coop said that he had told Mr O'Neil that there are companies in Townsville whose business is fitting and maintaining radios and that it would be possible to find auto-electricians in Townsville. Mr Coop said that Mr O'Neil had said that he could do it better and was happy to do it.
  1. [178]
    It was put to Mr O'Neil that if he had reduced the infield work, he would have been able get the backlog of work done. Mr O'Neil said that the work in the field was the more important priority.[182] Mr Coop recalled that he and Mr O'Neil 'had several conversations again about trying to organise contractors' to do the radio installation work in North Queensland.[183] Mr O'Neil said that while Mr Coop had suggested that external parties could undertake the field work, this would require lead in time and that work such as the vehicle fit outs in North Queensland was planned. Mr O'Neil said that the lead-in time to procure contractors was unachievable.[184] Mr O'Neil said that while he had sought approval for travel even after the date of the meeting with Mr Coop about spending more time in the office, that travel had been approved and that the highest levels of the organisation were aware of what he was doing, including Mr Coop who endorsed the travel. [185]
  1. [179]
    Mr O'Neil was taken to an email requesting approval for travel bookings he had made for 1 March 2019 and it was noted that in that email Mr O'Neil did not complain about his workload. [186] Mr O'Neil said that in that case, Townsville had received new vehicles and that if he did not travel to Townsville to install the new radios, the old radios would be fitted to the new vehicles causing a lot of cost later. Mr O'Neil said that he discussed this with Mr Coop who agreed that he should travel and undertake that work. Mr O'Neil said that in the email he had indicated that he did not mind whether he travelled to Townsville or not, but that he thought it made sense for him to go and get the work done.[187]
  1. [180]
    The Respondent submits that at the December 2018 6-month personal achievement plan meeting, Mr O'Neil raised the matter of excessive workload and wanting someone relieving in his position when he was away on leave. Mr O'Neil also said that he wanted a specific person he could train to take away with him when he travelled outside of radio site maintenance runs, in order to do site works.

Discussion of Mr O'Neil's role at the meeting on 24 January 2019

  1. [181]
    Mr Paine spoke about a meeting that he called on 24 January 2019 to discuss the concerns that Mr O'Neil had raised during the 9 December 2018 meeting. Mr Paine said that when he returned to Brisbane after that meeting, he wrote an email to Mr O'Neil summarising Mr Paine's expectations following that meeting. Mr Paine was asked what he recalled of the meeting and he said that Mr O'Neil had a concern about his level being an AO6 and that he felt that he should be an 'AO8 - at least a manager'. Mr Paine said that Mr O'Neil articulated his concerns about 'the role, his concerns about not being considered to relevant as an AO8 and his frustration of that not being heard about his claim'. [188]
  1. [182]
    The Respondent submits that in the meeting of 24 January 2019, Mr O'Neil did not raise any health or workload issues other than raising the question of someone relieving in his position while he was on leave. Mr O'Neil also said that the role review of his position determining that it would remain at AO6 level was not satisfactory and that in his opinion it should be an AO8 level position.
  1. [183]
    Mr Paine said that at the meeting on 24 January 2019, it was evident that a lot of the information Mr Paine was asking Mr O'Neil for was coming 'from his recollection'. Mr Paine said:

'He was telling me what he – what he remembered about the role, what the role did, where it was and, when I explored further about documentation – what the systems would be – what – where could I find that information in the system? The response wasn't co – didn't give me any confidence…'[189]

Mr Paine said that he also became concerned from a safety perspective when Mr O'Neil explained the activities he undertakes on site.[190]

  1. [184]
    Mr Paine said that he asked Mr O'Neil to 'cease all activity, remain in the office, document his whole history of that role into a system and I'd email – summarise my expectations of how I expect to see that content provided back to me.' Mr Paine was taken to a part of the email where he said, 'suspend further onsite visits'. Mr Paine said that his first priority was that Mr O'Neil suspend all visits and that secondly, he wanted Mr O'Neil to 'do the summary of the site activity for me, collaborate with the structures engineers…and the electrical fellow'.[191]
  1. [185]
    Mr Paine did not recall if Mr O'Neil had raised the issue of workload at that meeting and said that he recalled that 'it was a rather robust discussion from his perspective about his position on wanting to be a more senior role'. [192]
  1. [186]
    With regard to the email from Mr O'Neil to Mr Coop on 28 February 2019, the Respondent says that the email requests Greg Brown be considered for relieving in Mr O'Neil's position. The email does not mention workload or Mr O'Neil's health. The Respondent says that Mr Brown was not willing to relieve the role and that Mr Coop decided that relief was not required.
  1. [187]
    With regard to Mr O'Neil's PDA, Mr Coop said that he asked Mr O'Neil to prepare a draft before they met to discuss it. Mr Coop was taken to the 'deliverables and objectives' section of the PDA (Exhibit 24) where it was noted that a measurement of success for Mr O'Neil would be 'travel reduced to emergent works. Use of internal and contract resources maximised.' [193]
  1. [188]
    Mr Coop relayed a conversation he had with Mr Paine around the time that Mr Paine had sent an email [194]to Chris Pearson on 6 March 2019. Mr Coop said that Mr Paine had reached the point of frustration and wanted to know why Mr O'Neil was still travelling and stating the Employee Performance and Development Agreement ('EPDA') must be completed by the end of March. [195]

Mr O'Neil continues to raise issues about his role and sends an email to Mr Paine

  1. [189]
    With regard to the 4 March 2019 email sent by Mr O'Neil to Mr Coop, the Respondent says that Mr O'Neil discusses succession planning. The email does not mention health issues. The email makes reference to 'workload' but the Respondent says that this was in the context of updating Mr Coop on the work that was being undertaken and what was coming up. The Respondent says that the email also referred to the recruitment of someone to assist Mr O'Neil when doing work onsite. The Respondent says that Mr Coop had previously told Mr O'Neil that existing labour was available within RoadTek. The email also raised JEMS and Mr O'Neil not being happy with the Human Resources assessment of his position at AO6.
  1. [190]
    The Respondent says that Mr O'Neil was aggrieved by his title of 'coordinator' rather than 'manager' and the JEMS assessment of his level at AO6 versus a higher level.
  1. [191]
    On 5 March 2019, Mr O'Neil sent an email to Mr Paine at 11.43pm. This email requested a confidential meeting with Mr Paine about the JEMS process for his role. [196] Mr O'Neil said that he had sent the email to Mr Paine because he felt that the Toowoomba office 'seems to have a bad habit of not telling Brisbane what's actually going on and trying to keep things under – under lids, undercover.'[197]
  1. [192]
    On 6 March 2019, Mr Coop emailed Mr O'Neil and noted that he had been provided with a copy of his role description following the JEMS evaluation of the position and that Mr Coop considered that the valuation was consistent with Mr O'Neil's current role requirements subject to the radio network review being undertaken by Mr Paine.
  1. [193]
    In that email, Mr Coop directed Mr O'Neil to conduct all of his work from the Toowoomba office and only to attend sites if explicitly required to.
  1. [194]
    Mr Paine spoke about an email he had sent to Mr Pearson and Mr Coop on 6 March 2019 giving an explicit direction that Mr O'Neil conduct all of his work from the Toowoomba office and only attend a site if explicitly directed to by Mr Pearson. Mr Paine said that he had feedback from management that Mr O'Neil 'was always out and about' and that Mr Paine had reinforced the message again. Mr Paine said that he was seeking to hold the Director accountable and that he 'was going to start action against the director is he did not start smartening up the management of Nathan'. [198]
  1. [195]
    Mr Paine was asked whether he was aware that Mr O'Neil was doing field work and going out to site visits. Mr Paine said that he was aware of the inspection program and that Mr O'Neil was a part of that but that he was not aware of the detail. [199] Mr Paine said that Mr Coop, and prior to him, Mr Revell, were accountable for the day-to-day supervision of employees. [200] Mr Paine said that he would expect that Mr O'Neil's managers to have an awareness of what Mr O'Neil was doing. Mr Paine said that he would have expected Mr O'Neil's managers to stop him from undertaking so much of his work in the field. [201]
  1. [196]
    With regard to the meeting on 18 March 2019, the Respondent says that the meeting was to deal with Mr O'Neil's Employee Performance and Development Agreement for 2019/2020 (Performance plan). [202] The Respondent says that at this meeting, Mr Coop counselled Mr O'Neil to do less work out of the office and to coordinate the labour of others, which was his role and that this is reflected in the performance plan. [203]
  1. [197]
    It was put to Mr O'Neil that he did not write in any of the emails he sent to management that he was not completing his work because his workload was too high. Mr O'Neil said that while he did not use those words, he did discuss workload. [204]
  1. [198]
    Mr O'Neil agreed that there were emails where he expressed dissatisfaction and disappointment in relation to his role level. [205] Mr O'Neil said that the JEMS issue did not upset him but that it was upsetting that he had to keep following up 'for a seemingly now four-year period, with little or no movement or further discussion about it'.[206] Mr O'Neil was asked if this caused him stress and he said that it did not, but noted that the matter had been outstanding for a long period. Mr O'Neil said that for this reason, he diarised to follow up on the matter.
  1. [199]
    It was put to Mr O'Neil that the meeting he refers to in his Statement of Facts and Contentions that he had with Mr Coop on 1 May 2019 did not occur. Mr O'Neil said that he could not recall the meeting but that if he said it happened, it would have happened.

Medical appointments, injury and application for compensation

  1. [200]
    Mr O'Neil said that between the middle of 2018 up until April 2019, he had conversations and appointments with his GP, Dr Bob Thomas, about his blood pressure. He said that he 'felt off in that respect' and thought perhaps his blood pressure was too high or too low. Mr O'Neil said that at the first consultation, perhaps in April or May 2018, the doctor had noted that his blood pressure was too high.[207]
  1. [201]
    Mr O'Neil recalled consulting with his doctor about his blood pressure over the period of time until September 2018. Mr O'Neil was asked if he had done anything to try and relieve the stress that he was feeling. He said that 'not being at work was…helpful' and that at the end of his leave, the blood pressure had come back to a more manageable level.[208]
  1. [202]
    Mr O'Neil said that during his time off, he went on a holiday sailing around the Whitsundays, 'just to sort of get away from work and just, yeah, relax'. Mr O'Neil said that this helped because he did not have access to mobile phone, the work mobile phone and laptop were at work and he did not have any way for work to contact him and there was subsequently no work that he could do during that time.[209]
  1. [203]
    Mr O'Neil said that his blood pressure was starting to go up again but that he managed it by taking accrued time and TOIL. Mr O'Neill said that he also tried to stick to the 7.25- hour days as opposed to doing longer hours.[210]
  1. [204]
    Mr O'Neil said that he went to the Doctor in May 2019. Mr O'Neil said that his last day of work was 23 May 2019 and that he could not get in to see his GP. He said that he saw his GP on 27 May 2019 where they discussed health, blood pressure, sleep, and work- related stress.[211]
  1. [205]
    With regard to work-related stress, Mr O'Neil said that he told his doctor about what he felt was an overwhelming workload and lack of support.
  1. [206]
    In Mr O'Neil's filed Statement of Facts and Contentions, he says that as a result of his workload, his health deteriorated so such that he required an extended period away from work from July 2018 to September 2018.[212] When asked if the reason for this period of leave was that Mr O'Neil's doctor had concerns about his blood pressure, Mr O'Neil said, 'Possibly, yes.'[213] Mr O'Neil was asked about numerous medical certificates throughout the year of 2018 which related to other health conditions of high blood pressure and sleep apnoea. Mr O'Neil said that he did have high blood pressure and said that his sleep apnoea was 'well maintained' but that he had initially thought his sleep related issues and fatigue during the day were related to sleep apnoea 'but that it was more likely that it was stress-related'. It was put to Mr O'Neil that there was no reference in a medical certificate of sick leave related to stress until 27 May 2019. Mr O'Neil said that the medical certificates 'just had 'medical condition' written on them'.[214]
  1. [207]
    As discussed elsewhere, Mr O'Neil says that his role was not backfilled during that time and that when he returned to work, there had been a significant back up for work such that the workload significantly increased.
  1. [208]
    With regard to Mr O'Neil's health, the Respondent says that Mr O'Neil took a combination of time in lieu of overtime leave, recreational leave and sick leave as follows:

LEAVE TYPE

DATES

NUMBER OF DAYS

Time in Lieu – PS Officers

28/05/2018 15/06/2018

15.00

Time in Lieu – PS Officers

18/06/2018 29/06/2018

10.00

Recreational leave

02/07/2018 13/07/2018

10.00

Time in Lieu – PS Officers

16/07/2018 16/07/2018

1.00

Time in Lieu – PS Officers

19/07/2018 20/07/2018

2.00

Sick Leave

23/07/2018 23/07/2018

1.00

Sick Leave

30/07/2018 14/09/2018

35.00

Sick Leave

21/09/2018 21/09/2018

1.00

  1. [209]
    With reference to Exhibit 16, the Respondent says that any deterioration in Mr O'Neil's health at this time was for, or related to, sleep apnoea or similar and high blood pressure. The Respondent says that this takes away from Mr O'Neil's assertion that it was as a result of workload that Mr O'Neil required an extended period away from work from July 2018 to September 2018. The Respondent also refers to the context of Mr O'Neil's history of insomnia and depression dating back to 2016 and obstructive sleep apnoea since about 2011.
  1. [210]
    Mr Coop was asked about the period of sick leave taken by Mr O'Neil between July and September 2018. Mr Coop said that he recalled receiving notifications such as '…I'm not well, I haven't slept well'. Mr Coop said that he could not recall if that period was a time when Mr O'Neil had said he would be unfit for a period of two to three months or whether this was 'another period where I…constantly received updates, 'I'm not available next week,' or – and then another update, 'I'm not available for the week after.'[215] After being shown Exhibit 16, Mr Coop recalled, '…that appears to be another period where I would received lots of text messages indicating that 'Won't be in today, should be in tomorrow. I have a certificate,' and then a week later, 'Have a certificate for the whole of this week,' and then 'Having tests to be done, will be back in the office next week,' but it continued on right through till September.[216]
  1. [211]
    The Respondent says that Mr O'Neil's workload around July to September 2018 was not such as might be expected to produce a deterioration in health and that the medical evidence does not demonstrate that Mr O'Neil had a deterioration in health due to workload at that time.
  1. [212]
    Mr O'Neil says that he was diagnosed with work-related stress in the form of anxiety and depression on 28 May 2019 and that he commenced leave.
  1. [213]
    The Respondent says that the leave Mr O'Neil commenced consisted of a banked day off work on 28 May 2019 and leave from 29 May 2019 for a period to travel to Nashville in the United States on planned recreational leave.
  1. [214]
    The Respondent notes that when Mr O'Neil attended his General Practitioner in the context of work-related stress, the GP prescribed the anti-depressant Cipramil, noted that Mr O'Neil was going on a trip to Nashville and discussed stress leave on his return to work.

Dr Chau's Evidence

  1. [215]
    Dr Chau, a Psychiatrist, examined Mr O'Neil on 9 March 2021 and provided a report dated 9 March 2021 and a further report on 26 April 2021.[217] Dr Chau's diagnosis was that Mr O'Neil's psychological injury was 'as a result of feeling over-worked with minimal support. He appeared to have become increasingly helpless, as he believed that his requests for assistance were repeatedly dismissed/ignored by Management.'[218]
  1. [216]
    Dr Chau confirmed that she based her report on information provided to her by Mr O'Neil. Dr Chau said that she did not undertake any evaluation of the actual workload of Mr O'Neil and that she relied on the information provided to her by Mr O'Neil.[219]
  1. [217]
    Dr Chau said that she had no reason to doubt Mr O'Neil's reporting of his symptoms because his General Practitioner's records supported his claim of stress regarding work.[220]
  1. [218]
    The Respondent says that it accepts that Mr O'Neil has suffered a psychological condition but that Dr Chau agreed that the symptoms stated in her report were based on what Mr O'Neil had told her. The Respondent says that the examination Dr Chau undertook was on 2 March 2021 and was not contemporaneous. The Respondent points to Exhibit 16 as a contemporaneous description of the reason for the absences.
  1. [219]
    The Respondent says that Dr Chau's report cannot be relied upon because it is based on Mr O'Neil's description of an excessive workload and that he had made repeated complaints regarding workload and being given no assistance.[221]

Dr Thomas's Evidence

  1. [220]
    Dr Thomas, a GP at the Mt Ommaney Family Clinic, was asked about a series of medical certificates he issued to Mr O'Neil between May 2018 and September 2018. Dr Thomas said that when he saw Mr O'Neil on 30 July and 6 August 2018, he considered that Mr O'Neil's 'condition was continuing' and said that condition was 'prior anxiety, and that was basically overwork, and the fact that the was not being given much leeway as far as help in his work.'[222]
  1. [221]
    With specific reference to the certificates from 10 to 14 September 2018, Dr Thomas said that Mr O'Neil felt he was unable to work. Dr Thomas said that Mr O'Neil was considerably anxious and somewhat depressed because of his workload.[223]
  1. [222]
    Dr Thomas was taken to a consultation he had with Mr O'Neil on 28 May 2019. Dr Thomas said that on that occasion, Mr O'Neil's blood pressure was still high and that he was still suffering from depression and anxiety which was work-related. Dr Thomas said that Mr O'Neil spoke to him about stress leave he was requesting on his return from Nashville.[224]
  1. [223]
    Dr Thomas issued a WorkCover certificate for Mr Thomas dated 24 June 2019.[225] That certificate said that Mr O'Neil was first seen with regard to the matter on 28 May 2019.
  1. [224]
    Dr Thomas also provided some answers to questions asked by WorkCover on 15 August 2019.[226]
  1. [225]
    Dr Thomas was taken back to his earlier medical records of Mr O'Neil. Dr Thomas said that on 26 October 2012, he had a long talk with Mr O'Neil about work stressors and that he referred Mr O'Neil to a psychologist and was talking to Mr O'Neil about losing weight and possibly using a mild anti-anxiety medication.[227]
  1. [226]
    On 1 March 2013, Dr Thomas again spoke to Mr O'Neil about stressors caused by work overload and that Dr Thomas gave Mr O'Neil two weeks off work for him to consider his situation.[228]
  1. [227]
    On 16 April 2013, Dr Thomas said that the entry said that Mr O'Neil was 'back at work, catching up'. Dr Thomas said that Mr O'Neil's blood pressure was a little bit high and Mr O'Neil was still stressed. Dr Thomas said that this was the first time that he placed Mr O'Neil on Cipramil, an anti-anxiety/anti-depressant medication.[229]
  1. [228]
    On 28 November 2014, Dr Thomas noted that Mr O'Neil was getting frontal headaches, still had elevated blood pressure, and was still finding work stressful. Dr Thomas said that he started Mr O'Neil on medication for his blood pressure and that Mr O'Neil had an injury to his right knee and Dr Thomas was stressing to him that he needed to lose weight.[230]
  1. [229]
    Dr Thomas was asked if he would ordinarily record in the file if a patient raised an issue such as stress. Dr Thomas said that on most occasions he would write that down but that he might not write very much if Mr O'Neil intimated that stress was just continuing and that he did not go into more detail about it at that occasion.[201]
  1. [230]
    Dr Thomas was asked to check his records and see if there had been any mention of work-related stress complaints between the 2014 entry and May 2019. Dr Thomas said that there was not.
  1. [231]
    The Respondent says that a finding should be made that the first reporting of the workplace stress issues was 28 May 2019 and that Mr O'Neil did not complain to his GP about any work-related issue until that date.[232]

Consideration

Did Mr O'Neil's injury arise out of or in the course of his employment?

  1. [232]
    Having considered all of the evidence, I accept that over a period of time, Mr O'Neil experienced, and on occasions expressed, dissatisfaction with the lack of support or backfill provided to him to undertake his office-based or administrative tasks while in the field and on leave.
  1. [233]
    Mr O'Neil told his General Practitioner that he was experiencing workload issues and stress and Dr Thomas recorded this in his notes in May 2019. Dr Thomas recalled that there had been discussion about work prior to this consultation but he was unable to find any reference to Mr O'Neil's workload in his notes.
  1. [234]
    Dr Chau concluded that Mr O'Neil's injury arose out of his employment, though I note that in coming to that conclusion, Dr Chau relied on the report of Dr Thomas and Mr O'Neil's own reporting of workload issues to Dr Chau. Dr Chau confirmed that she did not undertake her own investigations into Mr O'Neil's workload.
  1. [235]
    I accept that the evidence before the Commission, particularly that of Dr Thomas, demonstrates that it is likely that Mr O'Neil's injury arose out of, or in the course of, his employment.
  1. [236]
    However, I do not find the medical evidence persuades me that employment was the significant contributing factor to the injury when it is balanced against the evidence before the Commission regarding Mr O'Neil's stressors.

Was Mr O'Neil's work the significant contributing factor to his injury?

  1. [237]
    To determine if Mr O'Neil's employment was the significant contributing factor to his injury, I am required to consider the stressors Mr O'Neil lists, the evidence of Mr O'Neil and other witnesses, and the medical evidence.
  1. [238]
    Mr O'Neil is bound to the stressors that he listed in his Statement of Facts and Contentions. These stressors are:
  1. Excessive workload primarily between the beginning of 2018 and May 2019.
  2. Lack of adequate support to perform the workplace tasks primarily between the beginning of 2018 and May 2019.
  3. Lack of appropriate support for periods of leave primarily between the beginning of 2018 and May 2019.[233]

Stressor 1 – Was Mr O'Neil's workload primarily between the beginning of 2018 and May 2019 excessive?

  1. [239]
    The Respondent says that while Mr O'Neil gave evidence about 600 emails, reports that needed to be done after field work, some of the paperwork, electronic file work and so on, Mr O'Neil was asked about whether he had shown any hesitation or told his superiors that he could not do work because he was so busy or overwhelmed and his response was that his superiors 'knew'.[234]
  1. [240]
    The Respondent points to Mr Coop's evidence that when Mr O'Neil was not available, Mr Coop and Ms Allen monitored the email inbox and actioned some items. The Respondent says that Mr Coop's evidence was that he oversaw the functioning of the radio network in Mr O'Neil's absence and that the workload was light.[235]
  1. [241]
    With regard to Mr Brown's evidence, the Respondent says that Mr Brown was not best placed to evaluate Mr O'Neil's workload and that Mr O'Neil has not proven to the required threshold that his workload was excessive.
  1. [242]
    The Respondent says that while there was some controversy about Exhibit 6, which provided a record of the hours worked by Mr O'Neil, and it is possible that Mr O'Neil undertook some work that was not reflected in that record, the totality of the evidence would indicate that the actual hours worked by Mr O'Neil were not vastly different to those captured on the record which the Respondent says was disclosed and not objected to.[236]
  1. [243]
    With reference to Mr O'Neil's work patterns during the relevant period, the Respondent says that Mr O'Neil was 'hardly ever at work'. It is the case that when reviewing the evidence, it is clear that for the majority of the time in the relevant period, Mr O'Neil was either in the field, working shorter days, or on recreation or sick leave.
  1. [244]
    The Respondent says that while Mr O'Neil may have worked longer hours in the field than if he were in the office, he accrued time and was able to take time off.  The Respondent says that this could form the basis for an objective finding that the workload was not excessive.
  1. [245]
    The Respondent also points to the evidence of Ms Allen regarding the work that she did in supporting Mr O'Neil. When taken alongside the support Mr Coop provided, the Respondent says that Mr O'Neil's assertion that he had no assistance cannot be supported by the evidence.
  1. [246]
    The Respondent says that it was Mr O'Neil's perception of his work and his unpreparedness to do it in the way that was required of him that was the issue, not excessive workload and that any management action was not unreasonable.
  1. [247]
    The Appellant says that the evidence of Mr O'Brien was that Mr O'Neil had a huge workload and that Mr Brown gave evidence that he saw Mr O'Neil working in his room after he came back from the field.[237] I note that Mr O'Brien worked with Mr O'Neil for a period of between eight and ten weeks in 2013,[238] and so the events he recollected did not fall in the period of time Mr O'Neil claims his workload was excessive in this appeal.
  1. [248]
    The Appellant says that Mr O'Neil's evidence of the long days he was doing in the field accounts for an excessive workload.[239] The Appellant says that Exhibit 6 indicates that Mr O'Neil was in the field for 156 days and in the office for 73 days and that the time away from work was leave that Mr O'Neil was entitled to take.[240]
  1. [249]
    Having considered all of the evidence before me, I am unable to conclude that Mr O'Neil's workload was excessive. It is true that Mr O'Neil spent a lot of time in the field and that some of these days were long due to the remoteness of the locations. I accept that there were some occasions where Mr O'Neil undertook work at the start of the day before going onsite in the field or at the end of the day when he returned. However, Mr O'Neil's evidence appeared to be that the nature of the work in the field was that it involved long days and that it was his impression of his workload, not the length of work days in the field that caused his stress.
  1. [250]
    Exhibit 6 including the timesheet information indicates that there were occasions where Mr O'Neil logged his time spent undertaking tasks back at his accommodation and times where he did not. However, he also provides evidence that he had 'paperwork' to attend to upon his return from the field or that he would return from periods in the field and have to deal with many emails and other tasks. Mr O'Neil spoke about the hundreds of emails he was left to deal with, but there was no compelling evidence that such a large number of emails existed, or the extent of any action they required Mr O'Neil to take. I accept that the corporate inbox was being monitored and I find it unlikely that Mr O'Neil had to deal with the numbers of emails he described.
  1. [251]
    I find it difficult to reconcile Mr O'Neil's evidence of work being done after hours in the field address emails and other tasks with evidence that Mr O'Neil would return from the field to the office and be required to deal with large numbers of emails and other tasks that had come in during his time in the field.
  1. [252]
    Any long days or extended periods in the field resulted in the accumulation of accrued time or time off in lieu. The evidence demonstrates that Mr O'Neil, as is his right, availed himself of such leave on a regular basis. There is no evidence that Mr O'Neil's requests to access accrued leave or recreational leave were not approved.[241] It also seems to me that Mr O'Neil had concluded that his workload in the office was manageable and that it was open to him to apply for and take accumulated leave. There was no evidence that Mr O'Neil found himself unable to access the leave or that requests for leave were not approved.
  1. [253]
    There was no evidence before the Commission that there were performance concerns held by management that Mr O'Neil was not getting the required work done or that there had been cause to speak to him about outstanding tasks or a failure to follow up on particular matters.
  1. [254]
    I am similarly unable to identify an excessive workload in the office on occasions Mr O'Neil returned from leave or the field. It appears that the corporate inbox was monitored in Mr O'Neil's absence and that everyday administrative tasks were attended to by Ms Allen. I accept that Mr Coop undertook some tasks that required attention. I also accept that there would have been work waiting for Mr O'Neil on his return, but I have not been provided with sufficient evidence that this was excessive or unreasonable.
  1. [255]
    There were some emails in evidence providing examples of work Mr O'Neil dealt with upon his return from leave in September 2018.[243] In one of these emails, Mr Moller- Nielson follows up on 'progress on the HF order'. Mr O'Neil's response to that email indicates that he has been on leave for 17 weeks and no one was relieving in his role. Mr O'Neil advises that there is a six-week delivery timeframe from ordering and estimated their arrival in about eight weeks. However, it appears that Mr O'Neil had been advised that the radios were required on 23 May 2018 and replied on that same day to say that they had been added to the order. If these emails provide evidence of work waiting for Mr O'Neil on his return from leave, it is work that was waiting because Mr O'Neil did not place the order before his leave commenced. It seems to me that had Ms Allen or another staff member been requested to place the order in Mr O'Neil's absence, that this would have occurred.
  1. [256]
    What the evidence does suggest is that Mr O'Neil had a perception that he could not get on top of his workload and that there was a lot of work waiting for him when he returned to the office. Mr O'Neil's evidence was that he would come into the office on some days following time in the field or on leave and work for a period of time and then decide that he could not get on top of the work so he would go home for a break.
  1. [257]
    It appears that Mr O'Neil had a great deal of autonomy regarding the management and maintenance of the network. It seems to me that the office-based workload required of Mr O'Neil was not unreasonable and Mr O'Neil understood that he could exercise discretion regarding the prioritising of tasks.
  1. [258]
    An example of Mr O'Neil demonstrating a capacity to readily rearrange his work to complete an office-based task he had been requested to undertake while still attending to site work as he saw fit was the request Mr Paine made of Mr O'Neil on 24 January 2019 to 'postpone the current program' and 'take all the time you need to document each site'. Mr O'Neil responded to that email and said that he didn't see any concerns with providing the bulk of the information by the next day because the information was available to be put into a more user-friendly format. Mr O'Neil proposed to prioritise that task for a full day the next day, six hours on the following Tuesday and to still fly to Townsville to undertake site work.[243]
  1. [259]
    That Mr O'Neil was in a position to decide that he would personally travel to undertake the installation of the new radios in the vehicles rather than organising a local contractor to do it, is evidence that the workload in the Toowoomba office was not such that Mr O'Neil thought it should be prioritised or was so urgent that it needed to take priority. The decision to travel and install the radios was made by Mr O'Neil even after there had been some intervention by management in response to his concerns about being away too much.
  1. [260]
    While Mr O'Neil gave evidence that it was important that TOIL or accrued time off balances did not get too high, it appears to me that it was open to Mr O'Neil to choose when he would take such time and that he had the autonomy to determine the best time at which to take such leave. I do not recall any evidence of Mr O'Neil complaining that his workload was such that he could not access TOIL or accrued time off.
  1. [261]
    It also appears to me that the work that Mr O'Neil complains was excessive was the work to be done in the office during the periods of time in between field trips. As I understand it, Mr O'Neil did not access sick leave or need to work shorter days while he was in the field.
  1. [262]
    While it is clear that Mr O'Neil had a perception that his workload was excessive, I am unable to find, on the evidence before me, that Mr O'Neil's workload was excessive at the relevant time.

Stressor 2: Was there a lack of adequate support to perform workplace tasks primarily between the start of 2018 and May 2019

  1. [263]
    I have considered the extensive evidence before the Commission regarding the technical and administrative support available to Mr O'Neil to perform his workplace tasks.
  1. [264]
    Mr O'Neil was provided with adequate support to perform his work tasks. Mr O'Neil had support for the technical and maintenance work that he undertook in the field. In circumstances where Mr O'Neil required it, he knew that he could organise additional support locally.
  1. [265]
    With regard to the office-based administrative tasks, the evidence was that Ms Allen was available to provide administrative support and that Mr Coop provided some assistance with tasks.
  1. [266]
    Following the meetings in December 2018 and January 2019 and the direction for Mr O'Neil to spend significantly more time in the office, I find that there would likely have been a reduction in the requirement for further support for Mr O'Neil to undertake his workplace tasks as he would have many more office hours available to attend to these tasks and there was a firm expectation that he would be outsourcing many of the field tasks he was previously undertaking.
  1. [267]
    As stated above, I have found that there is no evidence of excessive workload. I similarly find that there was no lack of adequate support to perform workplace tasks between the start of 2018 and May 2019.

Stressor 3: Was there a lack of appropriate support for periods of leave between 2018 and May 2019

  1. [268]
    Mr Coop's evidence was that he did not believe that there was sufficient workload to warrant the replacement of Mr O'Neil when he was on periods of planned leave. The administrative support available to Mr O'Neil remained in place while he was on periods of leave and Mr Coop was of the view that there were a range of matters that could wait for Mr O'Neil to complete upon his return from leave. It seems to me that if a large part of Mr O'Neil's work involved either 'follow up' or 'paperwork' arising from his field trips or the planning and organisation of field trips which he was planning to conduct himself, that it was reasonable for Mr Coop to have a view that Mr O'Neil was best placed to undertake that work.
  1. [269]
    One particular focus with relation to this stressor was that Mr O'Neil was not 'backfilled' when he was on a period of sick leave in 2018. The evidence demonstrated that this sick leave was initially for a short period but ended up being extended several times. At no point was it clear that the sick leave was going to be for several weeks' duration and in the circumstances, 'appropriate support' was most likely going to be a continuation of the arrangements for monitoring the inbox.
  1. [270]
    Mr O'Neil may have had a view that his role required backfilling, but once he made the suggestion, the decision was one for management and not Mr O'Neil. Any decision regarding backfilling or the provision of other support could be considered management action.
  1. [271]
    I am unable to establish that there was a lack of appropriate support for periods of leave between 2018 and May 2019. Further, I find the way the sick leave was undertaken through extensions of the initial short period of leave made it reasonable for management to determine to address the work required by Mr O'Neil's role in the way that it did.

Additional matter: Mr O'Neil was unhappy with this role description, role level and the JEMS process

  1. [272]
    The Respondent says that there is evidence of other matters, outside of those listed as stressors in the Statement of Facts and Contentions, which contributed to the injury. The Commission heard evidence about the issues Mr O'Neil raised in relation to his work role and the JEMS process. There was also evidence regarding Mr O'Neil's desire to undertake training and to have the opportunity to explore acting opportunities or promotional roles. I have concluded that Mr O'Neil was aggrieved and dissatisfied about his work role and the level of his role and that this dissatisfaction existed alongside the stressors listed by Mr O'Neil.
  1. [273]
    Mr O'Neil was very motivated to have this matter dealt with, to the extent that on one occasion, he sent an email to Mr Paine very late in the evening.[244] Mr O'Neil sought to follow up on this matter on a number of occasions and was clearly aggrieved about it.
  1. [274]
    With reference to Croning, the Respondent says that it has similarities with this matter. In that matter, where the worker's claim was ultimately dismissed, the Industrial Magistrate said:

I'm not satisfied that his employment was a significant contributing factor to that injury. It was his perception or desire to change its existing practices which are acceptable in the profession that have contributed to the condition from which he suffers.[245]

  1. [275]
    The Respondent says that Mr O'Neil had both autonomy in terms of his role and a demonstrative capacity to book time away in the field and that this was indicative of a reasonable workload. The Respondent says that the changes or the problems Mr O'Neil had at work related to his position and the fact that he had not been assessed as a manager level in the JEMS process.
  1. [276]
    The Appellant says that there is no evidence that Mr O'Neil had any other concerns than his workload and his lack of support and that there was no other medical evidence put about what might be causative or Mr O'Neil's condition.[246] With regard to that, I think it is important to note that the medical evidence before the Commission is based on a Mr O'Neil's self-reporting regarding his perception of workload and the actions taken by management to provide support for him while on leave or in the field.
  1. [277]
    The Appellant says that the evidence demonstrates that Mr O'Neil's issue was that raised by him at the meeting on 6 December 2018 when he complained about being away from home and did not want to be out in the field.[247] I don't agree. It is clear that Mr O'Neil was concerned about his role, the level of his role and his role description. These concerns appear to be quite separate from the issues of workload and support identified by Mr O'Neil as his stressors.
  1. [278]
    It seems to me that Mr O'Neil was dissatisfied with decisions being made regarding his role, including the JEMS process, the title and level of his role, decisions about the way his role was to be undertaken, access to training and acting opportunities and the issue of succession planning. There was also certainly a change to the way Mr O'Neil was required to do his work and a direction that he spend more time in the office rather than in the field. These issues which were not named by Mr O'Neil as stressors were certainly of significant importance during the period of time under consideration in this appeal.

The stressors named by Mr O'Neil have not been established and therefore could not have been the major significant contributing factor to his injury

  1. [279]
    The Respondent draws my attention to the comments of Knight IC in the matter of Weiss, where the Commissioner said:

Where an employee is unable to prove that the events which are claimed to have caused their injury occurred in the circumstances as described and as relied on by medical practitioners, a finding that employment is the major significant contributing factor is generally not available to the Commission.248

  1. [280]
    For the reasons given above, I do not accept that Mr O'Neil's workload was excessive or that he did not have adequate support to get his work done or that adequate support was not provided during periods of leave. The onus is on the Appellant to prove their case and I do not find that the evidence establishes that excessive workload or lack of support were the significant contributing factor to Mr O'Neil's injury.

In the event that workload and lack of upport were a significant contributing factor to the injury, did the injury arise out of management action?

  1. [281]
    If I am wrong in concluding that the stressors nominated by Mr O'Neil are not able to be made out on the evidence, and therefore could not be the significant contributing factor to the injury, I will consider whether Mr O'Neil's injury is withdrawn from the definition of injury pursuant to s 32(5)(a) and (b).
  1. [282]
    With regard to those stressors identified in his Statement of Facts and Contentions: excessive workload primarily between the beginning of 2018 and May 2019; lack of adequate support to perform the workplace tasks primarily between the beginning of 2018 and May 2019; and lack of appropriate support for periods of leave primarily between the beginning of 2018 and May 2019, the Respondent says that these stressors are all, or are all in the context of, management action for the purposes of section 32 of the WCR Act.
  1. [283]
    In Allwood v Workers' Compensation Regulator,[249] O'Connor VP (then DP) described 'management action' in the following terms:

The concept of management action in the context of a worker's employment, and for the purposes of the Act, is not so broad that it encompasses anything and everything that a manager does or says in the particular workplace, rather the expression 'management action' relates to those actions undertaken when managing the worker's employment…

…

…The exclusory action in s 32(5) of the Act was, in my view, intended by the Parliament to related to specific management action directed to the appellant's employment itself, as opposed to action forming part of the everyday duties or tasks that the worker performed in their employment…[250]

  1. [284]
    I find that decisions and actions regarding Mr O'Neil's role, duties, workload and support provided to him to undertake his work duties during the relevant period and during times of leave during the relevant period were 'management actions' for the purposes of section 32(5). Decisions about the level of Mr O'Neil's role and the JEMS process which he was dissatisfied with were also management actions.

Was the management action reasonable?

  1. [285]
    Martin J considered the task of determining the reasonableness of management action in Davis v Blackwood:[251]

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

  1. [286]
    In the matter of Lawton v Simon Blackwood (Workers' Compensation Regulator),[252] O'Connor VP considered reasonable management action as compared to the employee's perception of it:

[67] In Workcover Queensland v Kehl[253] his Honour President Hall said that 'reasonable' should be treated as meaning 'reasonable in all the circumstances of the case'.[254] It is thus the reality of the employer's conduct and not the employee's perception of it which must be taken into account.[255]

  1. [287]
    O'Connor VP went on to say:

[68] 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'. Management action does not need to be without blemish to be reasonable.

  1. [288]
    The Appellant says that between December 2018 and May 2019, Mr O'Neil worked long hours and had a significant workload to deal with. The Appellant acknowledges that Mr O'Neil had time off in 2018 due to his high blood pressure but says that it was not reasonable for there to be no action taken by management to intervene and address his workload. The Appellant points to Mr Paine's evidence that he would have expected something to be done about the amount of travel Mr O'Neil was undertaking. However, I find that the actual travel and field work were not the dominant feature of Mr O'Neil's complaint about excessive workload. And in any case, following Mr O'Neil's complaint about travel raised at the meeting on December 2018, there was direction and advice provided to Mr O'Neil about reducing his time in the field. Mr O'Neil was specifically told to spend more time in the office. It was the administrative office-based aspect of his role upon his return from the field that appears to have been causing Mr O'Neil the greatest concern, not the travel itself or the nature of the work in the field.
  1. [289]
    The Respondent says that the evidence of Mr Coop was that he did not know that Mr O'Neil was suffering from a stress-related condition related to his workload. Mr Coop was of the view that Mr O'Neil's statements and behaviour at the 9 December 2018 meeting might have been related to his sleep issues. I have no reason to doubt Mr Coop's evidence in this regard, given Mr O'Neil's history of experiencing sleep problems. Mr Paine was also unaware of any stress-related condition relating to workload. The Respondent says that this is important as management was not aware that there were any work-related problems affecting Mr O'Neil's health and is relevant to any evaluation of management action or intervention.
  1. [290]
    Mr O'Neil appears to have been undertaking his role for a considerable length of time without raising any issues of significance regarding his workload. In those circumstances and given Mr O'Neil's length of experience and the nature of his role, I agree with the Respondent that allowing Mr O'Neil to manage his work in the way that he did was reasonable management action.
  1. [291]
    The Respondent further says that management intervened and directed Mr O'Neil to stop travelling on 6 March 2019 and that this was some months before Mr O'Neil reported the work-related stress to this doctor. I also note that the evidence demonstrates that Mr O'Neil was being counselled about taking a different approach to getting the field work done earlier than 6 March 2019. It appears to me from the evidence that even after Mr O'Neil had been explicitly told that management were not expecting or requiring him to travel, Mr O'Neil to continued to make arrangements to do so. The evidence demonstrated that management actions were put in place in response to Mr O'Neil's concerns about the amount of travel he was undertaking. There is nothing unreasonable about these management actions.
  1. [292]
    I also consider the decision to not provide backfill during Mr O'Neil's absence from work a management action. The Respondent said that it was not unreasonable for there to be no arrangement made to backfill Mr O'Neil in circumstances where Mr Coop had no notice that the absence from work was going to be for a longer period than first advised.[256] I agree.
  1. [293]
    The Appellant says that Mr O'Neil returned from his sick leave and not long after that was back out in the field and so did not have time to get on top of the paperwork. The Appellant says that Mr Coop was aware of that and did not put any measures in place to support Mr O'Neil in respect of the workload that was accumulating. As has been discussed elsewhere, I have been unable to establish that there was an unreasonably large amount of work accumulating. Mr O'Neil's evidence did not persuade me that he had an excessive workload. The strong impression I took from Mr O'Neil's evidence was that he did not enjoy the office-based work and administrative tasks that formed part of his role or that he had a preference for the practical work in the field.
  1. [294]
    The Appellant further says that it was not reasonable for Mr Coop and Mr Paine to suggest that Mr O'Neil should have been coordinating and outsourcing the work when Mr O'Neil's evidence was that he did not have the delegation to engage contractors. The evidence clearly demonstrated that Mr O'Neil had the capacity to seek approval to engage contractors. It was within his capacity to make a recommendation regarding outsourcing for the approval of a manager with the appropriate delegation. Mr O'Neil's evidence was not that he did not consider outsourcing because of his delegation, rather that he did not think it was practical, preferable or feasible to do so. It seems to me from Mr O'Neil's evidence that, for whatever reason, he was making active choices to undertake work that could be outsourced.
  1. [295]
    Mr O'Neil had a perception that his workload was excessive and that therefore he should have been afforded additional support to complete work tasks and steps should have been taken to provide backfill or additional support for his role while he was on a period of leave. For the reasons given above, I do not find that the evidence establishes any of Mr O'Neil's stressors. Mr O'Neil has not demonstrated that management action of him was unreasonable.
  1. [296]
    The evidence also demonstrates that Mr O'Neil was unhappy about matters such as his role level, role title, access to training and acting opportunities and a lack of succession planning. It is also clear that Mr O'Neil was suffering from a range of health issues such as high blood pressure and insomnia at times during the relevant period.
  1. [297]
    As has been discussed above, I have been unable to find that Mr O'Neil's workload was excessive. I am also unable to find on the evidence that management action taken once Mr O'Neil had raised concerns about the amount of travel he was required to do was unreasonable. Further, for the reasons given above, I find that decisions about support afforded to Mr O'Neil to undertake his work tasks was reasonable management action undertaken in a reasonable way. Likewise, I find that the approach to provision of support taken during Mr O'Neil's periods of leave was reasonable management action taken in a reasonable way.
  1. [298]
    While I accept that Mr O'Neil has a personal injury and reported to his doctor that it arose out of employment, I am not satisfied that any or all of Mr O'Neil's stressors were the significant contributing factor to his injury.
  1. [299]
    To the extent that any of those matters could be considered to have been the significant contributing factor to Mr O'Neil's injury, I am satisfied on the evidence that Mr O'Neil's injury arose out of or in the course of reasonable management action taken in a reasonable way. Therefore, s 32(5)(a) of the Act operates to remove the psychological disorder from the statutory definition of injury.
  1. [300]
    I make the following orders:
  1. The appeal is dismissed.
  1. Failing agreement between the parties, a decision on costs will be subject of a further application to the Commission.

Footnotes

[1] T1-6 l46 – T1-7 l31; Exhibit 1.

[2] T1-6 ll3- 11.

[3] Workers' Compensation and Rehabilitation Act 2003 (Qld) s 32(1).

[4]Ibid s 32(5)(a)- (b).

[5]Appellant's Statement of Facts and Contentions filed 14 July 2020.

[6]T1-22 ll11-16.

[7]T4-2 l41 – T4-3 l2.

[8]T4-3 ll5- 9.

[9]T4-3 ll28- 47.

[10]T3-14 l9- 12.

[11]T3-14 ll16- 20.

[12]T3-15 ll7- 19.

[13]T3-15 ll34-41.

[14]T3-16 ll14-24.

[15]T1- 11.

[16]T1-1 ll1- 17.

[17]T1-66 ll37- 44.

[18]Exhibit 6.

[19]T1-67 ll1- 8.

[20]T1-67 ll16- 21

[21]T3-17 ll24-40; Exhibit 17.

[22]T3-41 l13- 45.

[23]T1-12 ll9- 31

[24]T3-27 ll34- 46.

[25]T3-28 ll4- 14.

[26]T1-48 ll25- 35.

[27]T1-48 ll37-47.

[28]T1-14 ll5-24.

[29]T1-14 l46 – T1-15 l22.

[30]T2-29 ll39- 45.

[31]T2-29 l40 – T2-30 l32.

[32]T2-31 l19 – T2-32 l7.

[33]T3-31 ll34- 42.

[34]T3-32-T-33.

[35]T3-33 ll9-25.

[36]T3-33 ll32- 47.

[37]T3-34 l41 – T3-36 l28.

[38]T3-36 l39 – T3-37 l7; T3-44 l43- 45.

[39]T3-37 l15- 44.

[40]T1-22 ll38- 41.

[41]T1-21 ll35- 43.

[42]T1-22 ll1- 6.

[43]T1-53 ll14-47.

[44]T1-54 ll4-17.

[45]T1-54 ll19- 21.

[46]Exhibit 2.

[47]T1.52 ll12- 47.

[48]T1-54 l40-T1-55 l4.

[49]Exhibit 13.

[50]T1-5516-23.

[51]T1-55 l28-37.

[52]T1-55 l42- 46.

[53]T1.56 l18- 23.

[54]T3-6 ll19- 27.

[55]T3-6 l40 – T3-7 ll21.

[56]T3-7 l23- 28.

[57]T3-7 l36 – T3-8 l7.

[58]T3-11 l35- 46.

[59]T3-7 ll30-34.

[60]T3-8 l16 – T3-9 l9.

[61]T3-9 ll25- 36.

[62]T3-10 l46.

[63]T3-9 l38 – T3-10 l24

[64]T1.11 ll41- 47.

[65]T1-12 l39- T1-13 l3.

[66]T1-13 ll10- 12.

[67]T1-13 ll15-16.

[68]T1-49 ll7-18

[69]T1-50 ll1- 2.

[70]T1-51 ll16- 23.

[71]T1-51 ll25- 28.

[72]T2-24 ll26-40.

[73]Exhibit 14.

[74]Exhibit 26; Exhibit 27; Exhibit 28.

[75]T1-13 ll21- 33.

[76]T3-23 ll41- 47.

[77]T3-24 ll7- 14.

[78]T3-24 l16- 19.

[79]T3-24 ll21-24.

[80]T1-61 ll29-36.

[81]Exhibit 16.

[82]T1-63 ll12- 15.

[83]T1-631l 6- 25.

[84]T1-63 l45 – T1-64 l3.

[85]T1-24 ll21- 27.

[86]T1-24 ll29- 30.

[87]T1-24 ll39- 44.

[88]T1-24 l45-T1-25 l3.

[89]T1-25 ll33- 47.

[90]T1-26 ll1-2.

[91]T1-25 ll16-20.

[92]T1-26 ll4- 8.

[93]T1-26 ll10- 33.

[94]T1-26 ll35- 41.

[95]T1-27 ll1- 7.

[96]T1-27 ll9- 16.

[97]T1-27 ll20- 35.

[98]T1-29 ll22- 26.

[99]T1-29 ll28-30.

[100]T1-29 ll31-34.

[101]T1-30 ll45- 46.

[102]T1-29 ll33- 34.

[103]T1.30 ll4- 17.

[104]T1-30 ll19- 24.

[105]T1-64 l 20 – T1-65 l18.

[106]T1-65 ll15- 18.

[107]T1-65 ll20- 26.

[108]T1-65 ll 28-39.

[109]T1-66 ll 6-12.

[110]T1-66 ll 23- 28.

[111]T1-30 ll31- 37.

[112]T1-30 ll34- 43.

[113]T1-31 ll1- 19.

[114]T1-32 ll12-14.

[115]T1-32 ll1-10.

[116]T1-32 ll25- 28.

[117]T1-32 ll30- 46.

[118]T1-63 ll 27- 32.

[119]T1-71 ll4- 8.

[120]T1-33 ll1-41; ll20- 46.

[121]T1-71 ll10- 11.

[122]T3-18 ll15-18.

[123]T3-18 ll20-26.

[124]T3-18 ll28- 30.

[125]T3-18 ll31- 35.

[126]T3-18 ll40-43; Exhibit 35.

[127]T1-34 ll1- 2.

[128]T1-72 ll9- 27.

[129]T3-20 ll1- 6.

[130]T1-37 ll25- 34.

[131]T1-37 ll36-46.

[132]T1-38 ll1-3.

[133]T1-38 ll1- 20.

[134]Exhibit 9.

[135]T2-4 ll24- 45.

[136]T2.5 ll1- 5.

[137]T2-5 ll12- 33.

[138]T3-23 ll9- 16.

[139]T3-23 ll22-25.

[140]T3-23 ll27-32.

[141]T2-6 ll1- 36.

[142]T2-6 l40 – T2-7 l8; Exhibit 23.

[143]Exhibit 11.

[144]T1-41 ll29- 47.

[145]T1-42 ll1-3.

[146]T1-55 ll1-20.

[147]T1-44 ll21- 22.

[148]T1-45 ll5- 12.

[149]T1-46 ll21- 34.

[150]T1-47 ll1- 42.

[151]T1-47 l44 - T1-48 l3.

[152]T1-48 ll9-23.

[153]T1-67 ll30-47.

[154]T1-68 ll30-T1-69 l2.

[155]T3-28 ll16- 30.

[156]T3-28 l32 – T3-29 l5.

[157]Exhibit 17.

[158]T3-29 l40 – T3-30 l4.

[159]T3-30 l19 – T3-31 l6.

[160]T3-31 ll18- 22.

[161]T2-10 ll35-39.

[162]T2-14 ll28-44.

[163]T1-72 ll29- 42.

[164]Exhibit 8.

[165]T1-35 ll43- 46.

[166]T1-36 ll6- 21.

[167]T3-20 l40 – T3-21 l9.

[168]Exhibit 36.

[169]T3-21 l45 – T3-22 l2.

[170]T4-5 ll39-47.

[171]Exhibit 36.

[172]T4-6 l11- 13.

[173]T1-75 l32-T1-76 l5.

[174]T1-76 ll8- 16.

[175]T1-76 ll8-16.

[176]Exhibit 19.

[177]T1-77 ll1- 40.

[178]T1-78 ll17- 43.

[179]T1-79ll9- 36.

[180]T1-73 ll4- 9.

[181]T3-20 ll11- 14.

[182]T1-73 ll11-15.

[183]T3-22 ll21-28.

[184]T1-73 ll17- 27.

[185]Exhibit 18.

[186]Exhibit 21.

[187]T1-82 l1- T1-83 l 2; Exhibit 22

[188]T4-6 ll35- 41.

[189]T4-6 l43-T4-7 l3.

[190]T4-7 ll5- 11.

[191]T4-7 ll21- 35.

[192]T4-7 ll37-39.

[193]T3-26 ll1-15.

[194]Exhibit 37.

[195]T3-24 ll28- 38.

[196]Exhibit 25.

[197]T2-9 ll1- 10.

[198]T4-8 ll29- 37.

[199]T4-9 ll1- 4.

[200]T4-9 ll6- 19.

[201]T4-11 l35- 39.

[202]T2-7 ll32-45; Exhibit 24

[203]See Employee Performance and Development Agreement for 2019/2020 or look to paragraph 15(i)(iii) of the Respondent's Statement of Facts and Contentions.

[204]T2-9 ll21- 32.

[205]T2-9 ll30- 38.

[206]T2-9 l45 – T2-10 l8.

[207]T1-42 ll5-10.

[208]T1-42 ll16-24.

[209]T1-43 ll26-34.

[210]T1-44 ll25-27.

[211]T1-44 l44-T1-45 l2.

[212]Applicant's Statement of Facts and Contentions filed 14 July 2020.

[213]T-60 ll37-39.

[214]T1-60 l46 – T1-61 l11.

[215]T3-16 ll32-42.

[216]T3-16 l44- T3-17 l2.

[217]Exhibit 30; Exhibit 31.

[218]Exhibit 31 p 17.

[219]T2-35 l41 – T2-36 l12.

[220]T2-36 ll39-41.

[221]Exhibit 31, page 3.

[222]T2-42 ll15-26.

[223]T2-41 ll37-44.

[224]T2.42 ll28-32.

[225]Exhibit 33.

[226]Exhibit 32.

[227]T2-43 ll13-20.

[228]T2-43 ll25-28.

[229]T2-43 ll30-34.

[230]T2-43 l43-T2-44 l2.

[231]T2-44 ll4-9.

[232]Respondent's closing submissions at T4-9 ll8-15.

[233]Appellant's Statement of Facts and Contentions filed 14 July 2020, Annexure D.

[234]T4-22 ll19-26.

[235]T4-22 ll28-35

[236]T4-23 ll4-13.

[237]T4-26 ll42-46.

[238]T2-25 ll28-31.

[239]T4.27 ll4-8.

[240]T4-27 ll10-16.

[241]Exhibit 10, 20.

[242]Ibid 7.

[243]Exhibit 9.

[244]Exhibit 25.

[245]Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 10.

[246]T4-25 ll38-41.

[247]T4-26 ll4-9.

[248]Weiss v Workers' Compensation Regulator [2020] QIRC 111, [68].

[249][2017] QIRC 088.

[250]Ibid [60], [68].

[251][2014] ICQ 009.

[252][2015] QIRC 99

[253]Workcover Queensland v Kehl (2002) 170 QGIG 93.

[254]Ibid 93-94.

[255]Prizeman v Q-COMP (2005) 180 QGIG 481.

[256]T4-20 ll1-6.

Close

Editorial Notes

  • Published Case Name:

    O'Neil v Workers' Compensation Regulator

  • Shortened Case Name:

    O'Neil v Workers' Compensation Regulator

  • MNC:

    [2022] QIRC 310

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    09 Aug 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
4 citations
Jump To
Cite 1 - [2017] QIRC 88
Cite 2 - [2017] QIRC 88
Cite 3 - [2017] QIRC 88
Cite 4 - [2017] QIRC 88
Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 10
2 citations
Jump To
Cite 1 - (1997) 156 QGIG 10
Cite 2 - (1997) 156 QGIG 10
Davis v Blackwood [2014] ICQ 9
2 citations
Jump To
Cite 1 - [2014] ICQ 9
Cite 2 - [2014] ICQ 9
Lawton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 99
2 citations
Jump To
Cite 1 - [2015] QIRC 99
Cite 2 - [2015] QIRC 99
Prizeman v Q-Comp (2005) 180 QGIG 481
2 citations
Jump To
Cite 1 - (2005) 180 QGIG 481
Cite 2 - (2005) 180 QGIG 481
Weiss v Workers' Compensation Regulator [2020] QIRC 111
2 citations
Jump To
Cite 1 - [2020] QIRC 111
Cite 2 - [2020] QIRC 111
WorkCover Queensland v Kehl (2002) 170 QGIG 93
3 citations
Jump To
Cite 1 - (2002) 170 QGIG 93
Cite 2 - (2002) 170 QGIG 93
Cite 3 - (2002) 170 QGIG 93

Cases Citing

Case NameFull CitationFrequency
State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2025] QIRC 1662 citations
1

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