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Kelly v Workers' Compensation Regulator[2022] QIRC 366

Kelly v Workers' Compensation Regulator[2022] QIRC 366

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Kelly v Workers' Compensation Regulator [2022] QIRC 366

PARTIES:

Kelly, Lynette Grace

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2020/175

PROCEEDING:

Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:

26 September 2022

HEARING DATE:

27, 28, 29 & 30 September 2021

MEMBER:

Dwyer IC

HEARD AT:

Brisbane

ORDER:

  1. The appeal is allowed.
  1. The decision of the Respondent of 26 November 2020 is set aside.
  1. The Appellant's application for compensation under the Workers' Compensation and Rehabilitation Act 2003 (Qld) is accepted.
  1. The Respondent is to pay the Appellant's costs of and incidental to the appeal, to be agreed or, failing agreement, to be subject to a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – psychiatric or psychological injury – Appellant employed as administration officer – allegation that Appellant was bullied by her manager and suffered from anxiety and depression – whether Appellant's injury was excluded pursuant to s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 – whether Appellant's personal injury arose out of, or in the course of, reasonable management action taken in a reasonable way in connection with her employment – management action not reasonable – decision of workers' compensation Regulator set aside

LEGISLATION:

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

CASES:

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

Qantas Airways Limited v Q-Comp (2006) 181 QGIG 301

Kuenstner v Workers' Compensation Regulator [2016] QIRC 083

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

Allwood v Workers Compensation Regulator [2017] QIRC 88

Davis v Blackwood [2014] ICQ

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

Groos v WorkCover Queensland [2008] QIC 52; 165 QGIG 106

Kiesouw v Workers' Compensation Regulator [2017] QIRC 064

Nichols v Workers' Compensation Regulator [2017] QIRC 111

Tuesley v Workers' Compensation Regulator [2021] QIRC 071

APPEARANCES:

Mr M.B. White of Counsel, instructed by Mr P Boyce of Butler McDermott Lawyers for the Appellant

Mr S.P Sapsford of Counsel, instructed by Ms O Steele of the Workers' Compensation Regulator

Reasons for Decision

Background to Appeal

  1. [1]
    This is an appeal against a decision of the Workers' Compensation Regulator ('the Regulator') dated 26 November 2020 ('the decision'). The decision confirmed an earlier decision of WorkCover which rejected the Appellant, Ms Lynette Grace Kelly's application for compensation. Ms Kelly filed an appeal against the decision on 21 December 2020.
  1. [2]
    Ms Kelly commenced employment with Kokoda Spirit Pty Ltd ('Kokoda Spirit') on or about 1 July 2010. At the relevant time, she was employed as the office manager. Kokoda Spirit provides Australian-led treks and tours of the Kokoda Trail in Papua New Guinea.
  1. [3]
    Ms Kelly worked for Kokoda Spirit from approximately 1 July 2010 until her employment was terminated on 7 July 2020. She initially worked in a part time capacity as an administration assistant before transitioning into a full-time position as the office manager in 2013. Her role typically required both management and administrative functions, including payroll, organising trip bookings and coordinating staff.
  1. [4]
    Kokoda Spirit was owned and operated by Mr Wayne Wetherall. The business premises for Kokoda Spirit were situated within Mr Wetherall's personal residence.
  1. [5]
    Ms Kelly contends that she suffered a psychiatric injury in the form of adjustment disorder, depression, anxiety and insomnia, that was incurred (in summary) from long-standing abusive outbursts from Mr Wetherall, exposure to explicit pornographic messages and images authored by and featuring Mr Wetherall, and angry, aggressive and defensive behaviour by Mr Wetherall in March/April 2020 surrounding discussions about Ms Kelly's employment at the start of the pandemic.
  1. [6]
    On 15 April 2020, Dr Gavin Harrison, general practitioner, issued a workers' compensation medical certificate for Ms Kelly noting a diagnosis of 'Anxiety insomnia/Depression'. The date of injury was recorded as 6 April 2020. Further certificates were issued on 29 April 2020 and 28 May 2020 in relation to that injury.
  1. [7]
    Dr Harrison subsequently gave evidence that Ms Kelly's injury had manifested in a diagnosable form on 3 April 2020.[1]
  1. [8]
    On 24 June 2020, Ms Gail Baker, psychologist, reported that Ms Kelly 'has experienced features of extremely severe depression, stress and anxiety'. Ms Baker, as a matter of professional discretion, declined to make a formal diagnosis beyond these observations.
  1. [9]
    The Workers' Compensation Regulator ('the Regulator') contends that if Ms Kelly did suffer a personal injury in the course of her employment, then it was the result of reasonable management action.

The Act and the relevant legal principles

  1. [10]
    The appeal is by way of a hearing de novo[2] in which Ms Kelly bears the onus of proving on the balance of probabilities, that she has suffered an injury within the meaning of the Act.[3]
  1. [11]
    Section 32 of the Workers Compensation and Rehabilitation Act 2003 (Qld) ('the Act') relevantly provides as follows:

32Meaning of Injury

  1. (1)
    An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.

…

  1. (3)
    Injury includes the following—

(a)a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;

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

(i)a personal injury;

(ii)a disease;

…

  1. (5)
    Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances —
  1. (a)
    reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;

…

  1. [12]
    While a number of factors could contribute to a worker's psychiatric or psychological disorder, the worker's application for compensation will only be accepted if their employment was a significant contributing factor to their disorder.[4]
  1. [13]
    Section 32(5)(a) of the Act only operates to remove a psychological disorder from the statutory definition of 'injury' where reasonable management action is taken in a reasonable way.[5]

Management Action

  1. [14]
    In Allwood v Workers Compensation Regulator ('Allwood') Deputy President O'Connor (as he then was) observed that:[6]

The exclusory action in s 32(5) of the Act was, in my view, intended by Parliament to relate 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. Therefore the management action said to enliven s 32(5) of the Act must be something different to the everyday duties and incidental tasks of the Appellant's employment.

(Emphasis added)

Reasonable Management Action

  1. [15]
    It was observed in Davis v Blackwood that:[7]

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

(Emphasis added)

  1. [16]
    In State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator,[8] Deputy President Merrell summarised the relevant principles in respect of the application of s 32(5)(a) of the Act:[9]
  1. [25]
    The determination of whether the management action is reasonable and whether such action was taken in a reasonable way is evaluative as well as judgemental. Whether the management action is reasonable and whether such action was taken in a reasonable way will be an inquiry of fact to be determined objectively.
  1. [26]
    Reasonableness does not necessarily equate with 'industrial fairness' although considerations of 'fairness' will always be relevant. An imperfection in management action may not justify the characterisation of the management action as unreasonable. Management action need only be reasonable; it does not need to be perfect. Instances of imperfect but reasonable management action may, in the appropriate circumstances, be considered a blemish and management action does not need to be without blemish to be reasonable.
  1. [27]
    Reasonable, in the context of s 32(5) of the Act, means reasonable in all the circumstances of the case. It is the reality of the employer's conduct that must be considered and not the employee's perception of the employer's conduct.
  1. [28]
    However, the reasonableness of action by management has to be considered '… in connection with the worker's employment' which requires consideration of all disparate elements which contribute to the injury. In an appropriate case, that consideration may require a global view of the management action to determine if the action was reasonable. However, simply because a large number of stressors are nominated does not mean a consideration of the impact of the stressors on a global basis is justified.
  1. [29]
    Such a global view may be justified where there are repetitive blemishes joined by subject matter, time and personality in a discordant workplace housing.

(Emphasis added)

Matters not in dispute

  1. [17]
    The Regulator has effectively conceded,[10] for the purposes of section 32 of the Act that:
  1. (a)
    Ms Kelly was a 'worker' within the meaning of s 11 of the Act;
  1. (b)
    On the medical evidence available Ms Kelly sustained a personal injury of a psychiatric nature within the meaning of s 32(3)of the Act;
  1. (c)
    Ms Kelly's injury arose out of her employment, which was a significant contributing factor; and
  1. (d)
    Ms Kelly's injury arose out of, or in the course of, management action.[11]

Questions for determination in this appeal

  1. [18]
    Given the concessions of the Regulator set out above, the issues for my determination are:
  • whether any of the stressors are not characterised as 'management action'; and (in respect of any stressors determined to arise out of management action)
  • whether the injury arose out of, or in the course of, reasonable management action taken in a reasonable way.

Witnesses called to give evidence

  1. [19]
    There was evidence given by a total of nine witnesses in the proceedings over a period of four days. Written and oral closing submissions were delivered by the Appellant and the Regulator on 30 September 2021.
  1. [20]
    The Appellant called evidence from the following witnesses:
  • Ms Lynette Grace Kelly – the Appellant;
  • Dr Gavin Harrison – general practitioner;
  • Ms Gail Baker – psychologist;
  • Ms Julie Anne Mossop – administration assistant at Kokoda Spirit; and
  • Ms Serrin Paige Carter – administration assistant at Kokoda Spirit.
  1. [21]
    The Regulator called evidence from the following witnesses:
  • Mr Wayne Wetherall – owner and director of Kokoda Spirit
  • Ms Christine Wilson – previous employee of Kokoda Spirit (administrator)
  • Mr Parry McCutcheon – business consultant (IT for Kokoda Spirit)
  • Ms Carlie Brial - previous employee of Kokoda Spirit (marketing and events)

The stressors

  1. [22]
    Ms Kelly identified eight stressors that she contends are significantly causally connected to her psychiatric injury. Ms Kelly's stressors, as set out in her statement of facts and contentions and closing submissions are:
  1. On or around June 2014, there was an incident whereby Mr Wetherall was standing over the top Ms Kelly. He was yelling at her to the point he was spitting on her. She felt intimidated, had numbness, pins and needles in her arms and legs and lost the ability to verbalise anything;
  1. On 27 March 2020 Mr Wetherall refused to allow Ms Kelly access to paid leave without any reasonable basis which caused her to become very stressed;
  1. On 1 and 2 April 2020, Mr Wetherall was aggressive, defensive and angry in his interactions with Ms Kelly, causing her to become distressed;
  1. Ms Kelly's interactions with Mr Wetherall on 2 April 2020 caused her to become physically sick;
  1. Mr Weatherall was unpredictably rude and abrupt in his dealings with staff and clients and would frequently ignore, intimidate and harass people in his interactions. This caused Ms Kelly significant stress and anxiety;
  1. Mr Weatherall frequently had angry outbursts of aggressive behaviour and the uncertainty of Mr Wetherall's behaviour caused Ms Kelly enormous stress and anxiety;
  1. Ms Kelly had access to the Kokoda Spirit Facebook account which had inappropriate content which was accessible to her. Mr Wetherall was aware of this. Viewing the material caused Ms Kelly to become distressed; and
  1. Mr Wetherall made complaints that Ms Kelly stole money from the business by overpaying herself. Mr Wetherall also accused Ms Kelly of downloading private images of him to a USB and distributing the images to others. The complaints were not substantiated and have since been withdrawn. This caused Ms Kelly to be very anxious.
  1. [23]
    The Regulator inter alia submits in response to these stressors that:
  • the conduct of Mr Weatherall was not without blemish. However, it was reasonable management action taken in a reasonable way;
  • the events of June 2014 are removed some seven years in time from the onset of injury and is unlikely to be causative of Ms Kelly's injury; and
  • the email exchange in relation to the standdown of Ms Kelly and her entitlements was not unreasonable management action, or action carried out in an unreasonable way.
  1. [24]
    The Regulator further contended that Ms Kelly participated in harvesting and saving sexually explicit images and messages from Mr Weatherall's computer to her mobile phone. The Regulator argues Ms Kelly did not do so for the purpose of discussing this with her husband but rather, that she did so to use them as leverage against Mr Weatherall.
  1. [25]
    The Regulator submits this conclusion ought to be drawn in circumstances where neither Ms Kelly, Ms Mossop or Ms Carter raised the sexually explicit images or messages with Mr Weatherall, or Mr McCutcheon (who also regularly provided IT support for Kokoda Spirit) when they allegedly were exposed to them.

Consideration – elements of s 32 of the Act

  1. [26]
    Ms Kelly has the onus to prove that her claim is one for acceptance. To succeed Ms Kelly must show that she has sustained an 'injury' within the meaning of s 32(1) and that any such injury is not excluded by s 32(5) of the Act. Noting the somewhat equivocal concessions made by the Regulator it is prudent that I deal with some of the elements of s 32(1) in detail.

'Worker'

  1. [27]
    It is not in dispute that Ms Kelly is a worker.[12]

'Personal injury'

  1. [28]
    Dr Harrison issued a medical certificate in which he diagnosed Ms Kelly as suffering from 'Anxiety/Insomnia/Depression' on 3 April 2020.[13] He subsequently issued a worker's compensation medical certificate in which he attributed her condition to 'long standing' bullying and stress in the workplace.[14]
  1. [29]
    The Regulator has not challenged the diagnosis. I am therefore satisfied that Ms Kelly has suffered a personal injury.

'Arising out of or in the course of employment'

  1. [30]
    In respect of the causal relationship to employment Ms Kelly nominated eight individual stressors, each of which has a context within her employment. It was not contended by the Regulator that there were any stressors unrelated to Ms Kelly's employment.
  1. [31]
    Further, the Regulator called no medical expert evidence to contradict the opinion of Dr Harrison.  In those circumstances I am satisfied the personal injury arose out of or in the course of Ms Kelly's employment.

'Employment is a significant contributing factor'

  1. [32]
    Dr Harrison gave evidence that Ms Kelly's injury was due to severe workplace stress, which manifested in anxiety, depression, and insomnia. Dr Harrison's opinion was that Ms Kelly's employment was the only significant contributing factor that caused the presenting mental health condition. He also referred Ms Kelly for psychological treatment.
  1. [33]
    The Regulator submitted that the evidence of Dr Harrison supports that the events of 2014 were more of a historical nature than a positive contributor to Ms Kelly's injury.[15]
  1. [34]
    The first of the stressors dates back to June 2014. Notwithstanding there is (almost) six years between this stressor and the diagnosis of Ms Kelly's injury, Dr Harrison opines that the nominated stressors were significant contributing factors to the onset of her condition in April 2020.[16] While the asserted causal relationship between her injury and an event in June 2014 runs contrary to instinct, Dr Harrison was uncontradicted on this point.
  1. [35]
    Further, while the incident in June 2014 is specifically identified as a stressor, I note that it is broadly consistent with the alleged aggressive and angry conduct by Mr Wetherall that forms the basis of stressors three, five and six which are said to have occurred throughout Ms Kelly's employment between 2014 and 2020. In this broader context, a significant causal relationship between the event in June 2014 and the decompensation of Ms Kelly in April 2020 is more plausible, in that it points to a pattern of problematic behaviour by Mr Wetherall extending across the employment.  
  1. [36]
    Stressors five and six identified by Ms Kelly are not particularised by reference to dates or specific incidents. They broadly assert volatile and aggressive behaviour by Mr Wetherall at various times during the period between June 2014 and April 2020.[17] There were numerous examples of the alleged conduct discussed during the testimony of Ms Kelly (and others) and contained in written statements tendered in evidence.[18]
  1. [37]
    Similarly, the stressor nominating the exposure to sexually graphic conversations and images involving Mr Wetherall is not referenced to any specific date but rather, is said to occur on various dates in that period.[19]
  1. [38]
    In addition to these stressors, Ms Kelly identifies stressors more proximate to her diagnosis on 3 April 2020.[20] The stressors centre on the interactions between Ms Kelly and Mr Wetherall from 27 March to 3 April 2020 during the period when Kokoda Spirit was first coming to grips with the impact of the global pandemic on tourism and their business operations.
  1. [39]
    These interactions ultimately lead to Ms Kelly ceasing work and gave rise to the final of the identified stressors, namely allegations of misconduct levelled by Mr Wetherall at Ms Kelly on 8 April 2020.[21]
  1. [40]
    These stressors collectively were regarded by Dr Harrison as significant contributing factors to the injury he diagnosed on 3 April 2020.
  1. [41]
    When asked directly by the commission about whether all of the nominated historical factors shared the same degree of significance, Dr Harrison said:[22]

I think they're all significant. The fact of the matter is that most mental health related conditions don't just start instantaneously…But not every single stress leads to distress, and not every single distress will lead to anxiety and mental health that goes on. So often these things are related to issues that continue over a long period of time. And finally, the pathophysiology of the mental health related condition takes over and …the person is then ill…So…I would suggest to you that there are contributory factors that continued to happen over a long period of time, and it was that event that was then that final insult that caused the presenting mental health condition or conditions.

  1. [42]
    Dr Harrison's opinion was not contradicted by the Regulator. Following questions from Counsel for the Regulator about the absence of attendances for treatment for mental health related conditions prior to April 2020, Dr Harrison responded to the commission's further questions by reiterating his opinion about the significant contribution of the series of events over a period of time and said:[23]

…so I would still put to you that (if) you stress the person long enough, you may distress them eventually, which then could lead to a mental illness.

  1. [43]
    In those circumstances it is open to conclude that each and all of those stressors as described (assuming they are factually established) were significant contributors to Ms Kelly's injury. 
  1. [44]
    For completeness I note that Ms Kelly also called evidence from Ms Gail Baker, psychologist. Ms Baker provided two reports in relation to her consultations with Ms Kelly.[24] Ms Baker broadly confirms a history that is consistent with the stated stressors, and consistent with the history provided to Dr Harrison which she refers to as workplace bullying. 
  1. [45]
    In her second report dated 24 June 2020, Ms Baker opines that the impact of the workplace bullying on Ms Kelly was that she experienced 'features of extremely severe depression, stress and anxiety' that also impacted her sleep and functioning. While Ms Baker was prepared to say that Ms Kelly was suffering from an injury, she deliberately did not make a diagnosis.[25] Further, she conceded that a person displaying features of a condition may not necessarily be suffering from the entire condition.[26]
  1. [46]
    A DSM-5 diagnosis is not required to meet the definition of injury.[27] Ms Baker expressly declined to make any diagnosis at all but still opined that Ms Kelly had suffered an injury.
  1. [47]
    While there may be some aspects of Ms Baker's evidence that could be useful in addressing aspects of the relevant considerations in this appeal, on the whole, I am not prepared to give significant weight to her opinion if there is an absence of diagnosis. However, I do not consider that a deliberate decision by Ms Baker to refrain from making a diagnosis equates with being unable to make a diagnosis.  
  1. [48]
    By contrast, I accept wholly the uncontradicted opinion of Dr Harrison which I consider to be clear and compelling.
  1. [49]
    As noted above Dr Harrison opined that all of the nominated stressors were significant however he added during his evidence that the events leading up to the consultation on 3 April 2020 were 'certainly the major contributory events'.[28]
  1. [50]
    In the absence of any contradiction of this conclusion from any other medical expert, it only remains to consider the factual basis of the nominated stressors and whether they are subject to the exclusory effect of s 32(5) of the Act.

Consideration - stressors  

  1. [51]
    In giving his evidence Dr Harrison was of the view that all the identified stressors were contributors to Ms Kelly's injury. However, at the very close of his evidence he indicated that the more recent events were more significant. Dr Harrison gave evidence to the effect that earlier stressors may not of themselves produce mental health conditions, but they can lay a foundation for the ultimate injury.
  1. [52]
    In the circumstances, while I accept that all the identified stressors are regarded by Dr Harrison as significant, I think there is merit, at least in an initial consideration, in grouping the stressors for individual consideration.  

Angry outbursts of aggressive behaviour – stressors 1, 5 and 6

  1. [53]
    In broad terms Ms Kelly described a working environment that was (at times) negatively impacted by the volatile nature of Mr Wetherall's mood. The incident she described as having occurred in June 2014 appears to be consistent with her broader descriptions of Mr Wetherall's propensity to aggressive outbursts.
  1. [54]
    Ms Kelly's account of Mr Wetherall's volatility is supported by the evidence of Ms Mossop and Ms Carter. Mr Wetherall broadly denies he engaged in aggressive outbursts as alleged or at all.
  1. [55]
    There was extensive evidence lead from these witnesses dealing with various incidents or situations arising in the workplace at various times. I do not intend to descend into the minutia of those allegations in these reasons. It is sufficient to note that while Mr Wetherall denied the allegations of Ms Kelly in respect of most (if not all) of his alleged conduct, Ms Kelly lead eyewitness evidence from Ms Mossop[29] and Ms Carter[30] largely corroborating her experiences. Indeed, even Ms Wilson (who gave evidence for the Regulator) acknowledged Mr Wetherall could become (what she described as) 'frustrated'.[31]
  1. [56]
    Having regard to the consistent nature of the evidence given by Ms Kelly, Ms Mossop and Ms Carter, I prefer the evidence of Ms Kelly with respect to her assertions about Mr Wetherall's volatile nature and the atmosphere it likely would have created in the workplace for Ms Kelly.
  1. [57]
    Further, having had the opportunity to observe Mr Wetherall as he gave his evidence, I consider there was at all times a thinly veiled aggression permeating his demeanour. He was at times quite arrogant and aggressive in challenging questions put to him in cross examination in a way that went beyond mere defensiveness in my observation. His tone of voice and body language when under cross examination demonstrated clear hints of the volatility and propensity for anger that was described by Ms Kelly.
  1. [58]
    The Regulator sought to contradict the accounts given by Ms Kelly and Ms Mossop by producing documents which, it was submitted, demonstrated communications between the parties that proved the workplace relationship of Ms Kelly and Ms Mossop with Mr Wetherall was civil and respectful.[32] I do not accept that submission.
  1. [59]
    Employment relationships, especially in small workplaces can be very close and personal. Where there is abuse in a workplace relationship, it can often share many of the characteristics of abuse within a domestic relationship. It often occurs where there is a power imbalance. As her employer, Mr Wetherall was in a position of power over Ms Kelly in that he controlled Ms Kelly's livelihood. As with an abusive domestic relationship, an employee experiencing prolonged bullying or abuse from a supervisor or employer may also enjoy prolonged periods of civility. I have no doubt that Ms Kelly was not constantly abused by Mr Wetherall and that he might act professionally more often than not. However, that does not change the fact that Mr Wetherall was also prone to aggressive outbursts which caused distress to Ms Kelly.
  1. [60]
    The fact that Ms Kelly and Ms Mossop have each (on occasion) engaged in written professional and polite exchanges with Mr Wetherall regarding e.g., contract negotiations or other matters is not at all inconsistent with the assertion that they were also subject to his abusive conduct. Further, Ms Mossop's acknowledgments of her contributions to her argument with Mr Wetherall do not diminish the asserted effect of that argument on Ms Kelly who had to witness it.
  1. [61]
    The Regulator's submission that the innocuous exchanges contradict the assertion that Ms Kelly was distressed by Mr Wetherall's conduct ignores the diverse, complicated and often contrary nature of prolonged abuse in a relationship, including employment relationships. 
  1. [62]
    With respect to each of the stressors one, five and six alleging abuse or angry outbursts I prefer the evidence of Ms Kelly.
  1. [63]
    Ms Kelly argues that the abusive conduct by Mr Wetherall falls outside of the contemplation of 'management action' for the purposes of consideration under s 32(5) of the Act. Given the extreme nature of some the conduct I consider that there is merit to that submission. While the abuse identified occurred in the course of employment much of it was not 'directed to' Ms Kelly's employment in the manner contemplated in Allwood.[33]
  1. [64]
    However, it matters little how the conduct is characterised because I alternatively conclude that if it was 'management action' it was neither reasonable nor undertaken in a reasonable way.

Inappropriate content on company Facebook account – stressor 7

  1. [65]
    The content of the messages and the descriptions of the images to which Ms Kelly was exposed (and the fact they involved Mr Wetherall) was never disputed by the Regulator. It is unnecessary for these reasons to describe them.[34] Suffice to say they included messages and images of a graphic sexual nature that were authored by (and featured) Mr Wetherall.
  1. [66]
    Dr Harrison has given evidence that all of the nominated stressors were significant contributors to Ms Kelly's injury. 
  1. [67]
    The Regulator sought to undermine the veracity of Ms Kelly's account of this stressor by suggesting throughout cross examination that Ms Kelly was not randomly exposed to the images but rather, that she or Ms Mossop had somehow improperly accessed the images.[35] In addition to this, the Regulator also sought to rely on an allegation that Ms Kelly had copied the images on a USB drive for nefarious purposes (presumably) as an indication that she was not upset by them.[36]
  1. [68]
    Ms Kelly described the circumstances of her exposure to the images and messages. She was authorised to operate a company Facebook page. The page was (possibly) spawned from Mr Wetherall's personal Facebook page.[37] Whatever the case, it then occurred that when Mr Wetherall sent messages or images on his personal Facebook Messenger account the 'conversation' and images contained in his messages would appear in boxes displayed on the corner of the company Facebook page when Ms Kelly accessed it.
  1. [69]
    This explanation is entirely plausible having regard to the common experience of interconnected devices or online accounts that share data or content. Whether the theory of how it occurred is entirely technically accurate, the point is that Ms Kelly says she was involuntarily exposed to these messages and images in this fashion. Regardless of the technical explanation, I accept Ms Kelly's evidence. 
  1. [70]
    During cross examination there were allegations that Ms Kelly and/or Ms Mossop had improperly accessed Mr Wetherall's computer.[38] Given that the company IT provider was due to give evidence, the Commission was left anticipating that there might be some proof of these suggestions of improper access to Mr Wetherall's computer. There was not. 
  1. [71]
    The IT provider (Mr McCutcheon) gave evidence that was broadly consistent with the manner in which Ms Kelly said she had been exposed to the messages.[39]
  1. [72]
    There was ultimately no evidence to substantiate the allegation that Ms Kelly or Ms Mossop had improperly accessed Mr Wetherall's computer. In the circumstances I accept Ms Kelly's account that she was involuntarily exposed to messages and images containing graphic sexual content during the course of her employment.   
  1. [73]
    It was not disputed by Ms Kelly or Ms Mossop that they had retained images of some of these sexually graphic conversations.[40] Ms Kelly was challenged about her motives for copying and keeping the images she saw. Her explanation was that she was concerned that some of the conduct might be illegal, though she was never certain. She indicated she had been wanting to show the material to her husband and possibly a solicitor to get advice.
  1. [74]
    As I noted above, the nature of the graphic sexual conversation does not need to be reproduced in these reasons. Suffice to say I consider it was not unreasonable to conclude that Ms Kelly might have genuinely held concerns for one party to the conversation given the nature of the sexual acts being discussed by Mr Wetherall, and the expressions of reluctance to participate from the other party to the conversation.
  1. [75]
    There was extensive evidence lead by the Regulator from Ms Wilson and Ms Carlie Brial about Ms Kelly's collection and retention of this data. Both of these witnesses professed to knowledge of 'the USB' with the images on it, and both asserted that Ms Kelly had it in her possession. Neither of these witnesses ever saw the USB rather, they simply asserted knowledge of it because (they say) it was discussed by Ms Kelly. Ms Wilson alleged that Ms Kelly told her she was going to use the data if Mr Wetherall tried to 'fuck her over'.
  1. [76]
    The evidence of Ms Wilson and Ms Brial was replete with vagaries and contradictions. For example, each gave contradictory evidence as to how Ms Brial became aware of the  existence of the stored images.[41] Neither could pinpoint when they were mutually aware of the USB. Ms Wilson said that Ms Brial knew 'well before she did'.[42] Ms Brial said Ms Wilson told her in January, then changed that to February, then to March.[43]
  1. [77]
    Further, there was a highly implausible account given by Ms Wilson and Ms Brial as to why they felt it was appropriate to tell Mr Wetherall of the existence of the USB (that neither of them had ever seen). Ms Wilson's assertion that Ms Brial 'coerced' her in to telling Mr Wetherall was equally implausible.[44] Both alluded to having bona fide intentions about informing Mr Wetherall, but the utility of sharing the information at the precise time when jobs were on the line at Kokoda Spirit would seem mostly weighted to confer an advantage to Ms Wilson or Ms Brial. 
  1. [78]
    Ms Wilson was a particularly implausible witness who generally gave vague evidence. She was noticeably defensive and uncomfortable when her evidence was challenged or when she was pressed for clearer details. And if there had been any doubt about Ms Wilson's animosity for Ms Kelly, it evaporated when Ms Wilson verbally abused Ms Kelly as she left the witness stand.
  1. [79]
    I was left thoroughly unconvinced of the reliability of anything Ms Wilson and Ms Brial said in evidence.
  1. [80]
    While I accept that Ms Kelly retained certain photographic images, I reject entirely that there is (or ever was) any USB drive as was alleged. Ms Kelly denied the existence of a USB drive. The evidence reveals that Ms Kelly or Ms Mossop (or both) took photographs of the offending material using a mobile telephone.[45] I further reject any suggestion that Ms Kelly retained the data for any purpose other than what she stated.
  1. [81]
    There is no dispute that Ms Kelly was exposed (involuntarily) to messages and images of a graphic sexual nature involving Mr Wetherall. The fact that she copied and saved these images is not inconsistent with them causing her distress, especially given how she has explained this conduct. Dr Harrison opines that this stressor was a significant contributor to her injury. I have no evidence before me that would cause me to conclude otherwise.
  1. [82]
    Again, it is asserted by Ms Kelly that this stressor involved conduct that is not 'management action'. Again, I see merit in this submission. I am satisfied that Mr Wetherall never intended for Ms Kelly to be exposed to the images and messages. In those circumstances I am satisfied the exposure to Ms Kelly falls outside the type of 'management action' contemplated by s 32(5) and Allwood. However, there can be no doubt that the distress caused by the exposure arose in the course of Ms Kelly's employment and was a significant factor, and in that sense, it gives rise to an injury within the meaning of the Act.
  1. [83]
    Alternatively, even if the conduct could be characterised as management action, I consider it is unreasonable. The business operated by Mr Wetherall was small, with a small number of staff working in close quarters within Mr Wetherall's domestic residence. As the owner and operator of such a small business, Mr Wetherall ought to have ensured that such content was fully quarantined from the relatively confined IT system operating in his business.
  1. [84]
    Despite the obvious deficit in his technical knowledge Mr Wetherall ought to have contemplated the risk that such exposure might arise when using IT systems and accounts shared with his employees in such a close environment. Given the highly salacious nature of the messages and images it was, in my view, unreasonable that Mr Wetherall failed to exercise extreme caution in his production and proliferation of such material, such that accidental exposure was able to occur. While Mr Wetherall is free to pursue whatever sexual predilections that are lawfully available to him, it is not reasonable conduct on his part to allow even the faintest risk of exposure of those activities to his employees.  

Complaints about overpayment and distributing private images – stressor 8

  1. [85]
    The Regulator submitted (without objection from Ms Kelly) that the Commission was entitled to take matters up to 15 April 2020 into account.[46] This is notwithstanding that the evidence of Dr Harrison puts the date of injury as 3 April 2020.[47] Arguably, this stressor post-dates the date of injury identified by Dr Harrison and is excluded from consideration.[48]
  1. [86]
    While I am not entirely comfortable that this stressor should fall within my consideration, I am satisfied that the somewhat equivocal nature of Dr Harrison's evidence about date of injury and the consensus of the parties is basis enough to consider matters up to 15 April 2020.
  1. [87]
    On 8 April 2020 the discussions between Ms Kelly and Mr Wetherall took a serious turn. On that date Mr Wetherall emailed Ms Kelly setting out allegations of inter alia Ms Kelly unlawfully downloading data and images on USB drives (plural), discussing these with 'others', extortion, and over payment of wages and holiday pay.[49]
  1. [88]
    There is nothing inappropriate about an employer confronting an employee about those matters. But importantly, there will of course need to be objectively reasonable foundations for such allegations, and the allegations would need to be presented in a reasonable way.
  1. [89]
    Ms Wilson and Ms Brial were clearly mistaken as to the existence of a USB. But given that Ms Kelly had in fact retained images and messages of a personal and embarrassing nature, Ms Wilson and Ms Brial were not entirely mistaken about the matter. In those circumstances I consider that on the information available to him from Ms Wilson and Ms Brial, Mr Wetherall had a more than reasonable basis to make formal enquiries to Ms Kelly about her conduct in that regard.
  1. [90]
    I therefore consider that the action of making such enquiries was founded in reasonableness. But I further consider that the action actually taken, in the way it was taken, rendered the conduct of Mr Wetherall unreasonable.
  1. [91]
    I consider that the email sent by Mr Wetherall to Ms Kelly on 8 April 2020[50] went far beyond what was necessary to communicate his concerns to her. The overt references to having taken advice from a legal 'team' and the Queensland Police Service (QPS) consultation were entirely inappropriate and smacked of predetermination of the issues concerned. The use of such language was nothing short of intimidatory. The use of the term 'alleged' does nothing to dampen the effect of the references to lawyers and the QPS in my view.
  1. [92]
    I find that the content of the email that Mr Wetherall sent on 8 April 2020, in so far as it purports to deal with concerns about personal images and messages was a grossly unreasonable way to deal with the matter. 
  1. [93]
    Further, the basis for Mr Wetherall making the allegation of 'overpayment' of wages and holiday pay does not appear to be explained other than by Mr Wetherall asserting payment contrary to his understanding of Ms Kelly's agreed salary. Accidental overpayments are a common enough event in workplaces as are casual agreements to increase pay that are not documented and subsequently forgotten by an employer. I am not satisfied that Mr Wetherall had a reasonable basis to make an allegation of overpayment at the time he sent the email on 8 April 2020.
  1. [94]
    There could have been any number of explanations to explain Ms Kelly's salary and there was no evidence that Mr Wetherall had any basis to assume the overpayment that he says concerned him was payroll fraud or indeed anything other than an error on his part. It was unreasonable for Mr Wetherall to make such an allegation without more reliable evidence or a discussion with Ms Kelly that was not premised on an allegation of wrongdoing.
  1. [95]
    I consider the management action with respect to making an allegation of overpayment was unreasonable. I further or alternatively consider that the email of 8 April 2020 was a wholly unreasonable way in which to raise such an allegation. Invoking the spectre of legal and (worse) QPS involvement smacks of petty intimidation. 
  1. [96]
    It follows that I find that the conduct of Mr Wetherall in sending the email to Ms Kelly on 8 April 2020 making serious allegations was unreasonable or alternatively, it was reasonable to raise those matters, but it was done in an unreasonable way.
  1. [97]
    As an aside, I note that in addition to the email of 8 April 2020 Mr Wetherall also made a complaint to the QPS.[51] I consider it extraordinary that members of the QPS would obtain and execute a search warrant in circumstances where, at their highest, the only allegations Mr Wetherall could have levelled against Ms Kelly at that time were in respect of data improperly downloaded onto a USB drive and overpayment of wages. There was no evidence of extortion at all. In respect of all allegations there was a significant dearth of evidence to support them.
  1. [98]
    In circumstances where these poorly formulated allegations arose in the context of a declining employment relationship, the speed and extent of the QPS response is vastly disproportionate to what might typically occur in the context of a civil employment dispute, even where there is a suggestion of possible theft.
  1. [99]
    One can only speculate as to what prompted such a rapid and extensive response from the QPS. There was no evidence presented to the commission but it would have been of interest to consider the precise nature of the complaint made by Mr Wetherall to the QPS, whether his complaint overstated or embellished the allegations, and the broader communications or relationships between him and members of the QPS who conducted the raid.
  1. [100]
    In all of the circumstances the complaints of distributing images and overpayment were unreasonable management action or reasonable but taken in an unreasonable way.

Events from 27 March to 3 April 2020 – stressors 2, 3 & 4

  1. [101]
    In early 2020 the world was engulfed in the COVID-19 pandemic ('the pandemic'). The impact of the pandemic was widespread. One particular feature of the early response to the pandemic was a cessation of recreational travel and the closure of workplaces. Certain industries were impacted more severely than others. Amongst those most hard hit in the early days of the pandemic was the travel industry. When considering the events in this workplace between 27 March and 3 April 2020, especially the reasonableness of Mr Wetherall's actions, it is important to view them through the prism of great uncertainty that engulfed everyone, employers and employees alike.
  1. [102]
    It is common ground that a meeting took place at the workplace on 26 March 2020. It is contended by Mr Wetherall that, by this stage, there were clear indications that Ms Kelly was to be stood down. Ms Kelly rejects this and says, on the contrary, that her status was far from clear. While I note Ms Wilson has attempted to bolster the evidence of Mr Wetherall, for all of the reasons set out above, I do not accept her evidence as reliable.
  1. [103]
    On 1 April 2020, Ms Kelly worked for approximately five hours. Ms Kelly's evidence was that Mr Weatherall was angry throughout the day.[52]
  1. [104]
    On 2 April, Ms Kelly had a phone call with Mr Wetherall which lasted for approximately 45 minutes. Ms Kelly gave evidence that Mr Wetherall was angry because she had left without saying goodbye and did not make eye contact with him on 1 April 2020.[53]
  1. [105]
    Following the phone call Ms Kelly's evidence was that she felt broken, nauseous, and distressed. Ms Kelly gave evidence that she did not sleep that night and was unable to eat.[54]
  1. [106]
    Ms Kelly gave evidence that she subsequently made an appointment to see Dr Harrison the next day on 3 April 2020. At the appointment, she found it difficult to verbalise the events. Dr Harrison prescribed Ms Kelly with medication to assist with sleeping, as well as a standard medical certificate certifying her as unfit for work from 3 April 2020 until 14 April 2020.[55]
  1. [107]
    With respect to stressors three and four I accept the evidence of Ms Kelly regarding Mr Wetherall's demeanour on 1 and 2 April 2020. For all of the reasons that are set out above with respect to my observations of Mr Wetherall, I accept Ms Kelly's account that Mr Wetherall was aggressive, defensive and angry in his dealings with her on 1 and 2 April 2020.
  1. [108]
    With respect to stressor two, the question of access to paid leave is intertwined with a number of events unique to the early days of the pandemic. I consider that the stress around access to leave was part of the broader unfolding catastrophe.
  1. [109]
    There was significant uncertainty for Mr Wetherall, his business and for Ms Kelly between 27 March and 3 April 2020. In particular, Ms Kelly was confused and anxious about whether she would be paid, whether she could take leave, whether she could secure reduced hours or whether she would be stood down. Ms Kelly made suggestions and requests to access various accrued leave or to work reduced hours but Mr Wetherall was noncommittal.
  1. [110]
    Understandably, Mr Wetherall was dealing with significant uncertainty about his obligations as an employer along with even greater uncertainty about the viability of his business.
  1. [111]
    Compounding this uncertainty was Mr Wetherall purporting to stand Ms Kelly down (for two days) but then also directing her to attend work on 1 April 2020 for approximately four to five hours.[56]
  1. [112]
    Ms Kelly contends that the rejection of her request to access leave entitlements on or about 27 March 2020 caused her stress. She further contends that her interactions with Mr Wetherall on 1 and 2 April 2020 were also stress inducing due to his aggressive, defensive and angry demeanour. Much of the tension appears to arise from a lack of clarity about Ms Kelly's status i.e., whether she was stood down.[57]
  1. [113]
    While there are no contemporaneous records e.g., in the form of meeting minutes that confirm the discussions at the meetings on 26 or 27 March 2020, there are a series of emails between Mr Wetherall and Ms Kelly written in the days following the alleged stand down on 27 March 2020.[58] In the emails Ms Kelly and Mr Wetherall express their contrasting understanding of the situation pursuant to those earlier discussions. I consider those emails to be illuminating of the true state of what was communicated by Mr Wetherall about Ms Kelly's employment.
  1. [114]
    The starting point for consideration of the collective emails that make up Exhibit 6 is the email dated 3 April 2020 from Ms Kelly to Mr Wetherall. This email was accompanied by a medical certificate and Ms Kelly indicates that she wishes to access her sick leave entitlements.
  1. [115]
    One does not require any imagination to appreciate how the emergence of Ms Kelly's illness and sick leave would have impacted on Mr Wetherall who, at that time, was dealing with the prospect of his business being obliterated by the pandemic. An obvious indication of the impact of Ms Kelly announcing her illness was that: where there had previously been no written communications regarding her employment status, there came a flurry of emails which attempted to clarify the matter after she tendered her certificate. 
  1. [116]
    Following the email attaching the medical certificate a series of SMS messages are sent from Mr Wetherall to Ms Kelly on 3 April 2020 in which Mr Wetherall seeks to converse with Ms Kelly to inter alia 'clear the air'. He also seeks the return of the office iPad so another employee can work from home while Ms Kelly is 'off work'.[59]
  1. [117]
    The use of the term 'clear the air' is, in my view, an unmistakeable indication from Mr Wetherall that, at the very least, there was an existing disagreement or tension between them at that time. Noting my observations about Mr Wetherall's demeanour above, I consider this indication from Mr Wetherall is, in all probability, consistent with Ms Kelly's assertions that he had been 'defensive, aggressive and angry' in the preceding days.
  1. [118]
    Ms Kelly responds via SMS on 6 April 2020 (at 7:52am) in polite but curt terms. While there is nothing improper about the language Ms Kelly uses, it is clearly of a brief and formal style and reiterates (somewhat ominously) the ongoing status of her illness.   
  1. [119]
    Thereafter at 9:27am on 6 April 2020 Mr Wetherall sends an email to Ms Kelly which, in my view, has all the hallmarks of a self-serving attempt to reconstruct events since 27 March 2020 and to impose his own narrative on Ms Kelly. His email is aggressive, defensive and, in my view, is an attempt to supress her queries about payment of leave or reduced hours.
  1. [120]
    Mr Wetherall says in the email:

As you know, you and other employees were stood down from your employment on 27 March 2020…

  1. [121]
    Further, in that email, Mr Wetherall seeks to evoke the imprimatur of 'legal advice' (not once but twice) which, on my reading of the email in that particular context, was a thinly veiled attempt to intimidate Ms Kelly into silence. It certainly serves to confirm the aggressive character of Mr Wetherall that Ms Kelly has complained of. If the email had had a reasonable purpose, the use of this language makes the execution of that purpose unreasonable. 
  1. [122]
    At 2:19pm on 6 April 2020 Ms Kelly replies. Relevantly, she confirms her understanding of her employment status from 27 March 2020 and firmly asserts that she was not aware she had been stood down and did not consider herself as having been notified.
  1. [123]
    Ms Kelly then expands on this by asserting to Mr Wetherall that:

You instructed me on the 27th of March to not come into work on Monday or Tuesday until you could "sort things" out. At this time I was also instructed to come in on Wednesday the 1st April to do, in your words, the "shit jobs, that you didn't want to do"…

The events that took place above don't align with a "stand down"….

  1. [124]
    Mr Wetherall replies to Ms Kelly the following day on 7 April 2020 in which he challenges Ms Kelly's assertions and relevantly says:

I disagree that you were not aware that you were stood down…on 27 March 2020. Conversations around standing the team down …had been taking place…since Wednesday 25 March…

On Friday 27 March I met with you again… It was then agreed between you and myself…you would be stood down from that day and I would provide any work that I could…

Lyn, I firmly stand by my position that you were stood down on Friday 27 March and whilst you worked a few hours on Wednesday 1 April, this was work that I had available...and I just relaxed the stand down to allow you to work those hours and then it went back into place…

  1. [125]
    These emails are very helpful in giving insight into the setting for the injury in that, they reveal the significant disparity of understanding between Mr Wetherall and Ms Kelly regarding her employment status. But they also reveal the defensiveness of Mr Wetherall alleged by Ms Kelly.  It is this misunderstanding that underpins the tension between Mr Wetherall and Ms Kelly in those critical days between 27 March and 3 April 2020.
  1. [126]
    Having regard to what is subsequently said in the emails I do not consider that Mr Wetherall clearly communicated to Ms Kelly that she had been stood down on 27 March 2020 or at all. I have no doubt (as his email of 7 April suggests) that stand downs were discussed but that is not the same as them being directed or confirmed. I accept that Ms Kelly was instructed not to attend work on the Monday and Tuesday but also that she was directed to attend on 1 April 2020.
  1. [127]
    On the question of whether the stand down was communicated to Ms Kelly on or about 27 March 2020 I prefer the evidence of Ms Kelly.
  1. [128]
    Ms Kelly would have been acutely conscious of the tenuous nature of her employment given the looming crisis produced by the pandemic. Her attempts to secure leave or reduced hours are clear (and quite typical) reactions of employees in her situation at that time, who were seeking clarity and commitment from their employers. For this reason, I consider that she would have been paying especially close attention to communication from Mr Wetherall about her employment.
  1. [129]
    Mr Wetherall on the other hand was no doubt focused on a broader range of issues. While I accept he would have been equally confused and anxious about the crisis and the impact on his business, these factors in all likelihood contributed to the communication breakdown.
  1. [130]
    Further, even if Mr Wetherall had been clear about communicating the stand down, his request to have Ms Kelly attend on 1 April 2020 was entirely inconsistent with the notion of a stand down, especially in the absence of a clear agreement about working hours. It is not difficult to see how Ms Kelly was confused and anxious.
  1. [131]
    No criticism could be made of Mr Wetherall if it were simply a case of innocent confusion about Ms Kelly's rights or even simple errors in managing staff in the peculiar circumstances produced by the early days of the pandemic. If it were simply that, I could not conclude that miscommunication or even a denial of workplace rights (albeit temporary) was unreasonable management action given the unique and challenging setting in which these things occurred. But there is another dimension to Mr Wetherall's conduct which, in my view renders his actions unreasonable.
  1. [132]
    While the emails that are Exhibit 6 are not evidence of the events that transpired from 27 March to 3 April 2020, they certainly provide a reliable degree of insight into the mindset of Mr Wetherall at the time. Not only do they reveal the aggression and defensiveness particularised by Ms Kelly in her list of stressors, but they reveal that Mr Wetherall was in all likelihood driven exclusively by self-interest without any hint of the responsibility he had to Ms Kelly as her employer.
  1. [133]
    In particular, Mr Wetherall's own view (as confirmed in his email of 7 April) that he could stand Ms Kelly down but then 'relax the stand down' when he needed her (while all the while refusing to commit to giving her paid leave or reduced hours) gives insight into conduct that goes beyond the mere innocent bungling by a small business operator in unusual times. It was, in my view, quite selfish and callous conduct that I consider was unreasonable management action in all of the circumstances.
  1. [134]
    To be clear, I consider the actions of Mr Wetherall go beyond mere blemishes. Further, this is not merely a case of industrial unfairness. On the contrary, many employees were subject to stand downs at or about this time and many without pay. It might have been reasonable during times of such unique uncertainty for Mr Wetherall to refuse access to paid leave if the refusal was couched in appropriately clear and consistent terms. But Mr Wetherall's actions in that period were inconsistent and unnecessarily unclear and, having regard to the emails subsequently exchanged on 6 and 7 April 2020, driven exclusively by his personal interests.
  1. [135]
    While one might forgive an employer who struggles and stumbles with managing such an uncharted situation, and while this is not an exercise in considering what could have been done better, Mr Wetherall's failure to adequately or consistently communicate with Ms Kelly about her employment status (including access to leave) was unreasonable. The fact that Mr Wetherall felt he could stand Ms Kelly down from her employment without pay but then 'relax' the alleged stand down at his discretion speaks volumes about his treatment of Ms Kelly at the relevant time and his unreasonable management of the situation.
  1. [136]
    In all of the circumstances I accept Ms Kelly's account of the conduct of Mr Wetherall between 27 March and 3 April 2020. I consider the actions of Mr Wetherall in that period to be unreasonable or alternatively, to the extent they might be regarded as reasonable, they were taken in an unreasonable way.

Conclusion

  1. [137]
    Having regard to all of the stressors identified by Ms Kelly I am satisfied that she has established a factual basis (to the requisite standard) to support her assertions. I am further satisfied that to the extent that any or all of those stressors are properly characterised as 'management action' that such action was unreasonable, or it was taken in an unreasonable way.
  1. [138]
    It follows that I find that Ms Kelly's claim is one for acceptance.

Order

  1. [139]
    I make the following orders:
  1. The appeal is allowed.
  1. The decision of the Respondent of 26 November 2020 is set aside.
  1. The Appellant's application for compensation under the Workers' Compensation and Rehabilitation Act 2003 (Qld) is accepted.
  1. The Respondent is to pay the Appellant's costs of and incidental to the appeal, to be agreed or, failing agreement, to be subject to a further application to the Commission.

Footnotes

[1] T 2-15, ll 17-22.

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

[3] Qantas Airways Limited v Q-Comp (2006) 181 QGIG 301.

[4] Kuenstner v Workers' Compensation Regulator [2016] QIRC 083, [10].

[5] State of Queensland v Q-COMP [2010] ICQ 6, [21].

[6] Allwood v Workers Compensation Regulator [2017] QIRC 88 at [68].

[7] Davis v Blackwood [2014] ICQ 9, 47.

[8] [2020] QIRC 097.

[9] Citations omitted.

[10] See paragraph 6 of the written submissions tendered at hearing on behalf of the Regulator.

[11] Ms Kelly contends that only stressors 2, 3 and 4 arise out of management action.

[12] See s 11 of the Act. See also paragraph 6(i) of the Regulator’s submissions dated 30 September 2021.

[13] Exhibit 11.

[14] Exhibit 12.

[15] Closing submissions of the Regulator, paragraph 31.

[16] T 2-15, ll 33-42.

[17] Stressors 5 and 6 as identified in the Appellant’s outline of closing argument dated 30 September 2021.

[18] Exhibit 4A and Exhibit 9.

[19] Stressor 7 as identified in the Appellant’s outline of closing argument dated 30 September 2021.

[20] Stressors 2,3 and 4 as identified in the Appellant’s outline of closing argument dated 30 September 2021.

[21] Stressor 8 as identified in the Appellant’s outline of closing argument dated 30 September 2021.

[22] T 2-15, ll 30-45.

[23] T 2-17, ll 22-23.

[24] Exhibits 23 and 24.

[25] T 2-67, l 43 – T 2-68, l 9.

[26] T 2-67, ll 37-41.

[27] Groos v WorkCover Queensland [2008] QIC 52; 165 QGIG 106.

[28] T 2-17, ll 25-35.

[29] T 2-19, l 39 – T 1-20, l 7; T 2-21, ll 1-24.

[30] T 2-44, l 35 – T 2-45 l 5; T 2-47 ll 18-45.

[31] T 4-32, ll 14-36; T 4-33, l 20; T 4-34, ll 29-45; T 4-36, l 20.

[32] See Exhibits 8, 15, and 18.

[33] [2017] QIRC 88.

[34] There was extensive cross examination about these messages and images which was, in my view, entirely unnecessary and, I suspect, merely ventilated to publicly embarrass Mr Wetheral. It served no forensic purpose and did nothing to advance Ms Kelly’s appeal.

[35] T 1-73, l 6 – T 1-74 l 9.

[36] T 4-27, ll 43-47; T 4-61 ll 1-10 – Curiously this allegation was not put to Ms Kelly.

[37] T 1-47, ll 8-13.

[38] T 1-73, l 6 – T 1-74 l 9 ; T 2-40, l 18- T 2-41, l 19.

[39] T 4-4, l 12-20 – T 4-8, l 20-40.

[40] Exhibits 7, 16 and 19.

[41] T 4-45 ll 10-15; T 4-51 ll 40-47.

[42] T 4-45 ll 15-20.

[43] T 4-52 ll 40-45.

[44] T 4-45; T 4-53.

[45]  Exhibits 7, 16 and 19.

[46] T 4-79 ll 25-40.

[47] T 2-15 ll 5-20.

[48] Kiesouw v Workers' Compensation Regulator [2017] QIRC 064 at [14]; Nichols v Workers' Compensation Regulator [2017] QIRC 111 at [10]; Tuesley v Workers' Compensation Regulator [2021] QIRC 071.

[49] Exhibit 6.

[50] Exhibit 6.

[51] Ms Kelly gave evidence about a distressing police raid on her home where QPS officers executed a search warrant related to these matters.

[52] T 1-38, ll 16-47.

[53] T 1-40, ll 23-37.

[54] T 1-41, ll 6-21.

[55] T 1-41 ll 21-46. T1-24, ll 1-7.

[56] T 1-38, l 1 – T 1-39, l 16.

[57] T 1-35, ll 22-45; T 1-36, ll 44-47; T 1-37, ll 9-13.

[58] Exhibit 6.

[59] Exhibit 5.

Close

Editorial Notes

  • Published Case Name:

    Kelly v Workers' Compensation Regulator

  • Shortened Case Name:

    Kelly v Workers' Compensation Regulator

  • MNC:

    [2022] QIRC 366

  • Court:

    QIRC

  • Judge(s):

    Member Dwyer IC

  • Date:

    26 Sep 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
3 citations
Jump To
Cite 1 - [2017] QIRC 88
Cite 2 - [2017] QIRC 88
Cite 3 - [2017] QIRC 88
Church v Simon Blackwood (Workers' Compensation Regulator) (2015) 252 IR 461
2 citations
Jump To
Cite 1 - (2015) 252 IR 461
Cite 2 - (2015) 252 IR 461
Church v Workers' Compensation Regulator [2015] ICQ 31
3 citations
Jump To
Cite 1 - [2015] ICQ 31
Cite 2 - [2015] ICQ 31
Cite 3 - [2015] ICQ 31
Davis v Blackwood [2014] ICQ 9
1 citation
Jump To
Cite 1 - [2014] ICQ 9
Groos v WorkCover Queensland [2008] QIC 52
2 citations
Jump To
Cite 1 - [2008] QIC 52
Cite 2 - [2008] QIC 52
Groos v WorkCover Queensland [2008] 165 QGIG 106
2 citations
Jump To
Cite 1 - [2008] 165 QGIG 106
Cite 2 - [2008] 165 QGIG 106
Kiesouw v Workers' Compensation Regulator [2017] QIRC 64
2 citations
Jump To
Cite 1 - [2017] QIRC 64
Cite 2 - [2017] QIRC 64
Kuenstner v Workers' Compensation Regulator [2016] QIRC 83
2 citations
Jump To
Cite 1 - [2016] QIRC 83
Cite 2 - [2016] QIRC 83
Nichols v Workers' Compensation Regulator [2017] QIRC 111
2 citations
Jump To
Cite 1 - [2017] QIRC 111
Cite 2 - [2017] QIRC 111
Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301
2 citations
Jump To
Cite 1 - (2006) 181 QGIG 301
Cite 2 - (2006) 181 QGIG 301
State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2020] QIRC 97
2 citations
Jump To
Cite 1 - [2020] QIRC 97
Cite 2 - [2020] QIRC 97
State of Queensland v Q-COMP [2010] ICQ 6
2 citations
Jump To
Cite 1 - [2010] ICQ 6
Cite 2 - [2010] ICQ 6
Tuesley v Workers' Compensation Regulator [2021] QIRC 71
2 citations
Jump To
Cite 1 - [2021] QIRC 71
Cite 2 - [2021] QIRC 71

Cases Citing

Case NameFull CitationFrequency
Lee v Workers' Compensation Regulator [2025] QIRC 1992 citations
1

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